Abdur Rahman, J.
1. The main question to decide in this appeal is one of construction of a will executed by one Veerappa Naidu, a Kamma of Nellore. What we have to ascertain is whether the testator's intention was to bequeath a share of his property to a designated person (persona designata) Sankariah, who happened to be his sister Venkatalakshmamma's son or whether Sankariah's marriage with the testator's daughter Ramamma, the second defendant, was a condition precedent without which the bequest was not to take effect. The will was executed on the 27th April, 1923, and the testator died two days later. Sankariah died before his marriage on the 22nd June, 1925, leaving his mother as his heir. He was about 13 years old then. Ramamma was subsequently married to Gopal Naidu, the third defendant in the suit. Venkatalakshmamma brought the suit out of which this appeal arises for recovery of the share bequeathed by her brother Veerappa Naidu to her son Sankariah under the will Ex. A.
2. The relevant portions of the will are as hereunder:
I am now ill in body and apprehend that I may not live. As I have no male issue and as I have a female issue by name Ramamma, I have brought to my house five years ago Peddineni Sankariah, son of my own uterine sister Venkatalakshmamma and I have been keeping him in my house and giving him education with a view that a marriage may be celebrated by giving my daughter to him and that these two might become entitled to and enjoy the movable and immovable properties specified therein. I have kept him as the huqdar for the office of the Village Munsif in Vasilli held by me and kept him as illatom....Out of the remaining movable and immovable properties owned by me, my daughter Ramamma and my illatom son-in-law, Sankariah, shall, after my lifetime, enjoy with absolute right two shares out of the four shares. I have arranged the said Sankariah shall have a right to the post of Village Munsif of Vasilli Village which belongs to me. My wife, my own mother and father shall retain in their possession the other two shares, bring and keep in our house my wife's brother Gola Narasiah, give my uterine younger sister Venkamma (another sister) in marriage to him and the said Gola Narasiah shall, after the lifetime of my father and mother, have a right to one share, The other one share shall, after the lifetime of my wife Lakshmamma, pass to my daughter and son-in-law. She shall be in enjoyment of them till then.
3. The question to decide is, as we have stated in the beginning, whether Veerappa intended to bequeath two shares mentioned in the portion marked A-l to his daughter Ramamma or to his sister's son Sankariah irrespective of the fact whether they were married to each other or not. In the portion of the will marked A-2, another share was bequeathed by Veerappa to his daughter and to his son-in-law on the happening of a contingency, that is, of his wife's death. It would be noticed that in the latter portion of the will (A-2) Sankariah has not been mentioned by name while his name was specifically mentioned in the portion marked A-l. There is no doubt however that the reference in both places in the will is to the same person. No exception can also be taken to the argument that if the property devolved on Sankariah at the time of the testator's death, Sankariah and Ramamma would not take the two shares as joint tenants, there being no right of survivorship as between them, but merely as tenants in common and that their shares would be in the absence of any direction to the contrary equal. The answer to the questions whether the bequest to Sankariah was to take effect on his marriage with Ramamma or whether it was contingent on his marrying Veerappa's daughter would depend on the fact whether Sankariah was described as an illatom son-in-law for purposes of identification merely or whether the existence of relationship of an illatom son-in-law was regarded by Veerappa to be a condition precedent without which the bequest could not be held to be operative. If the testator's intention is found to be that Sankariah should take the bequest only in his character as illatom son-in-law, the bequest must be held to fail as the presumed condition on which Veerappa wanted Sankariah to take the bequest will not be found to exist. To ascertain that intention we must now examine the relevant portions of the will which we have already quoted in extenso.
4. The first portion of the will is, in our opinion, extremely significant and leaves no doubt that the 'two' (Sankariah and Ramamma) were intended by the testator to be 'entitled to and enjoy the movable and immovable properties specified herein' after his daughter's marriage was 'celebrated* with Sankariah. This would clearly show that the testator was only trying to provide for this couple in the event of their being married to each other and if by any chance the marriage was not celebrated or became impossible of performance, the legacy was not intended to take effect. Our reading of the will leads us to the conclusion that : the testator did not visualise the possibility of these two not being married and did not provide for the contingency that arose on account of Sankariah's death before his marriage. If the actual words of bequest in the will, which have been marked by us as A-l are read with what was stated in the beginning of the will, it would appear that Veerappa was making a bequest not to his sister's son Sankariah as such, but to his illatom son-in-law Sankariah along with his daughter. That is why he referred to the enjoyment of two shares by both of them with absolute rights after his lifetime. In other words, the will was providing for the person who was to marry his daughter and not for Sankariah in any other capacity. The bequest was not made to Sankariah who might become his illatom son-in-law later but to his illatom son-in-law that Sankariah was expected to be. This means that the illatom son-in-law was not a mere description of Sankariah but that the property was meant to be given to the prospective son-in-law in his capacity as a son-in-law and not to Sankariah in his individual capacity.
5. It is true that Sankariah was mentioned at one place in the will as an illatom son-in-law; but he would have been so if he would have married Ramamma and not before. The object of putting it in that manner was another way of describing the certainty which the testator felt about the marriage as if it had already taken place and Sankariah had already become his son-in-law. The contention raised before us by learned Counsel for the respondent that Sankariah was an illatom son-in-law even before his marriage with Ramamma has no force. It is true that illatom adoption is of secular nature and has no religious significance but it must not be overlooked that it is brought about with the object of securing the adoptee's assistance in the management of the property, usually agricultural, belonging to the father whose daughter he (the adoptee) either marries or intends so to do and cannot be considered to be complete unless the marriage has actually taken place. The time that the would-be son-in-law spends in his future father-in-law's house may be regarded as a period of probation and it is only when nothing untoward happens in the meantime or nothing is discovered which may lead him (i.e., the prospective father-in-law) to consider the boy as an unsuitable husband that the marriage takes place. Before marriage, he can be asked to go away and there is no obligation so far as we know, customary or moral, on the adoptive father to do anything for the boy whom he intended to adopt in that form. What would happen if either the boy or the girl happens to die and the marriage becomes impossible? It cannot be reasonably suggested that the status of the son who was intended to be adopted in that form could be in the event of the girl's death regarded to have undergone any change before the marriage.
6. A great deal of stress was laid by learned Counsel for the respondent on the fact that according to custom the boy could be married even subsequent to his adoptive father's death and that he would be called even before marriage, in common parlance, an illatom son-in-law. But we cannot see how these assertions, even if correct, could really help his case. If a boy brought by the father to his house during his lifetime and kept therein with the object of marrying his daughter did not happen to marry her during her father's lifetime, but married her after his death, he would still be a son-in-law of the deceased since the deceased had brought and kept him in his house with the object of giving his daughter in marriage. If the boy continued to live in that house after marriage and carried on the management of his father-in-law's property which was the real object of the adoption, the boy must be taken to have done all that he was expected to do and there could be no difference in his status on account of the fact that the marriage was not performed before his wife's father's death.
7. Nor is the fact that a boy is called an illatom son-in-law before his marriage of any importance. He is really an illatom son-in-law designate before the marriage and if he is called as such before he is married to the girl with whom his marriage is intended to be performed, we take it that this is a courtesy title alone and is given in anticipation of the marriage, which is more or less regarded to be a certainty.
8. We have tried to show that in this particular case on a proper construction of the will the bequest to Sankariah and to Ramamma must be held to have been made on the condition that they were married. They could not have enjoyed the property jointly before their marriage and it was this joint enjoyment which was, as we read the will, intended to be expressed by the ,testator in more than one place. If the marriage could not be performed for any reason whatsoever, the provisions of the will could not be held to apply and there would be an intestacy so far as the shares that were intended to be given to these two were concerned. If Ramamma gets any share or property of her father subsequently, she would not do so under the will but on account of the provisions of Hindu Law.
9. Learned Counsel for the respondent placed reliance on certain English and Indian decisions but they are not, in our opinion, applicable to this case. The first case on which reliance was placed was a decision of their Lordships of the Privy Council in Ramakrishna Rao Bahadur v. The Court of Wards 9 M.L.J. Sup. 1 : 26 I.A. 83 : I.L.R.(1899)Mad. 383, commonly called the First Pithapore case. The bequest in that case was made to a person whom the testator was alleged to have falsely described as his aurasa or natural born son. This description was not considered by their Lordships to involve any condition that the legatee should be the testator's natural son in fact and the bequest having been found to be in favour of a designated person was not regarded to be invalid even when the legatee was assumed not to be the testator's son. After considering the various clauses in the will their Lordships arrived at the following conclusion:
Their Lordships are of opinion that there is a gift by the will to the second respondent and that the false description which must at present be assumed does not vitiate it.
10. The next decision which was cited on behalf of the respondent was that of Subbarayar v. Subbammal In the will which came up for construction before their Lordships of the Privy Council in this case it was admitted by the testator in the beginning of the will that he had been keeping a minor as an adopted son and protecting him for the last three years. Later on in the will the boy was referred to as an adopted son; but the bequest was not, as would be seen from the words in the will, conditional on his adoption. The relevant passage in the will read as follows:
Whereas I, having no issue, have been keeping Venkataramanayyar, a minor aged about ten, son of Venkatadasappayya...who is my brother-in-law, as adopted son and protecting him for the last three years, whereas 1 am now seriously ill, whereas my mother Venkalakshmi Ammal is in her dotage, and whereas my adopted son the said Venkataramanayya is a minor and consequently incapable of managing the said properties and of protecting us, my wife Subbammal shall, until the said minor becomes a major, administer the said properties as guardian of the said minor....Afterwards the said minor on his attaining majority shall take charge of the said properties. . . . and after the said Subbammal's life time he shall perform her funerals etc., and possess and enjoy with all rights the said properties etc, from generation to generation so long as the sun and moon last....
11. In view of the words in the will it was assumed by their Lordships in coming to a decision, that the boy was not adopted. But construing the will, their Lord ships expressed their opinion in the following words:
It appears to their Lordships that the gift to the minor is not conditional on adoption. The testator no doubt refers to the minor as his adopted son, but he explains what is meant by that expression by stating that he had been keeping the minor 'as adopted son' that is with a view to his adoption.
12. This case renders no assistance to the respondent. It was relied upon because in that case the minor, although not an adopted son, was described in one place as such. But that was explained by their Lordships from what was contained in the will itself. It would be noticed that the bequest was in favour of the minor and not in favour of the adopted son. Moreover, there was nothing in the will from which it could be inferred that the bequest was contingent on the adoption.
13. The next case brought to our notice was that of Suryadevara Venkatakrishnayya v. Vasi Reddi Udamma (1927) 28 L.W. 869, where in construing a will which was to the following effect:
that to the said properties and to my assets, liabilities, my daughter Subbamma and my sister's son shall be the 'karthas' (heirs entitled) and they shall be discharging the debts from out of the income of the lands and be supporting my mother and wife,
14. a Division Bench of this Court consisting of Sir Murray Coutts Trotter, C. J., and Mr. Justice Ramesam held that the gift to Subbayya was not conditional upon his marrying the girl Subbamma. We must remember that incoming to this decision, the testator's words that the gift was being made to his sister's son Subbayya could not have been possibly ignored. There was no suggestion in the clause actually containing the bequest that Subbayya would marry his daughter Subbamma. There was apparently nothing in that will similar to what we find in this will as to the reason why the bequest was being made by the testator to his daughter and to his son-in-law. Our attention was however invited to certain observations by Mr. Justice Ramesam in that judgment, where the learned Judge came to the decision that the word 'illatom son-in-law' in that will was meant to convey 'intended son-in-law'. We do not understand Mr. Justice Ramesam to have said that in every case an illatom son-in-law should be taken to cover an intended son-in-law. We can only take it to mean that in construing that will this was his opinion. There was a direction in that will that the testator's sister's son Subbayya should be kept as illatom son-in-law and that his daughter Subbamma should be given in marriage to him. In referring to those words the learned Judge observed:
By saying that he should be kept as illatom son-in-law what he apparently meant was that he should be kept in the house with a view to marrying his daughter when the proper time arrived.
15. Then follows the sentence:
Illatom son-in-law means intended son-in-law.
16. It follows that the learned Judges in that case were of opinion that the bequest was not being made to Subbayya on the condition of his marrying the testator's daughter Subbamma but irrespective of that consideration. If that be so, the decision can be well understood; but has no relation to the facts of the present case. Learned Counsel for respondent placed reliance on Schloss v. Stiebel (1833) 58 E.R. 495, as well. This was done, as a bequest of 3,000 was made to Adelaide Schloss who was described as the testator's wife in one part of the will while in the beginning of the will the testator had refered to her as 'Miss Adelaide Schloss, my niece which I may marry in a few days.' It was held in that case that the legacy was not given to Miss Adelaide Schloss on the condition of the testator marrying her although the will was made under the impression that the intended marriage would take effect and the testator had described the plaintiff with reference to his intention of marrying her.
17. This case is distinguishable from the present one as we have found on the construction of the will that Sankariah's marriage with Ramamma was regarded by the testator to be a condition precedent before the bequest could take effect.
18. In view of this construction of the will it is unnecessary to refer to the cases that were cited by the learned Counsel for the respondent in any detail. Fanindra Deb Raiket v. Rajeswar Das I.L.R. (1885) 11 Cal. 463 : L.R. 12 IndAp 72 , Karamsi Madhowji v. Karsandas Natha I.L.R. (1896) 20 Bom. 718, and on appeal to the Privy Council in Karamsi Madhowji v. Karsandas Nathu I.L.R. (1898) 23 Bom. 271, Lali v. Murlidhar I.L.R. (1906) 28 All. 488 : L.R. 33 IndAp 97 .
19. A consideration of all these cases leads us to the conclusion that in construing a bequest made by a testator we have to ascertain his intention. If the testator intended to have conveyed a benefit on a particular individual as a persona designata, the bequest would take effect although the description of the person may be, or may turn out to be, wrong. If, on the other hand, the testator's intention is found to be that the bequest is conditional on an adoption or on some other relationship on account of which he is making the gift, the gift as such must fail if the adoption or relationship is not found to exist or does not come into existence.
20. Having regard to this test and bearing the words of Veerappa's will in mind, we have no hesitation in holding that he did not intend to confer any benefit on Sankariah if Sankariah did not marry his daughter. In fact, our own conclusion is, as we have stated elsewhere in this judgment, that Veerappa did not anticipate that contingency at all at the time when he was writing his will. On this point, therefore, we must disagree with the decision of the lower Court.
21. Some attempt was made in the beginning of his arguments by learned Counsel for the appellant to show that Veerappa-had left no will and that in any case the copy of the will produced in the lower Court was not a true copy of that will and was not admissible in evidence without the proof of the loss of the original. But after hearing him we were of opinion that there was no force in this contention. Since, however, he is succeeding in regard to the construction of the will, it is unnecessary for us to give our reasons for that finding in any detail. Suffice it to say that, in our opinion, those contentions had no force.
22. The result of our finding is that this appeal must be accepted and the plaintiff's suit dismissed. But since it was attempted to be defended both in the lower Court and in this Court on incorrect grounds, we would leave the parties to bear their own costs throughout.