1. What has to be determined in this case is the true construction of a document, dated 8th, March 1892, purporting on the face of it to be the Will of one Vaikunta Nadan. Many cases have been cited to us as, embodying the principles which should guide, the Court in construing such documents as the present, and I think the result of these may shortly be summarized as follows: We are to give effect to the intention of the testator as expressed in his words. We are to acquaint ourselves with the circumstances in which he was placed; we are to have regard to the habits of life and thought of the people to which he belonged and to the system of law under which he lived. But when all that is done, our task still remains to construe his language; and we cannot give effect to a supposed intention, however cogently suggested by extrinsic evidence, unless there are words to be found in the document which, on a natural construction, convey it either expressly or by necessary implication. Looking at this document, it is clear that there are no express words of testamentary gift to be found; words of gift, indeed, there are but they refer only to a gift of a joint estate with the testator, to be enjoyed during his life-time. Then it is said that the whole tenor of the document obviously contemplates that the plaintiff should deal with the properties as owner, after the decease of the testator. That is quite true; but is it solely referable to an estate created by a testamentary disposition? It obviously is not, because the testator shows, by the recitals in the document, that he believed himself to have adopted the plaintiff, though in fact he had not. The plaintiff could deal with the properties as effectively in his supposed capacity of adopted son, as in that of legatee; and it would only be possible to infer an unexpressed disposition from language which was solely referable to such a disposition. The last desperate suggestion of the appellant's Counsel, that the opening words of the document 'Will in favour of Vaikunta Nadan' are to be taken as operative words of disposition of the testator's whole estate, to my mind puts a burden on the words that they are wholly incapable of bearing. It is said that the result of our construction is to defeat the testator's intention that the plaintiff should own his property after his death. If by that is meant the testator's intention as contained in this document, I do not agree; in my opinion he never intended the plaintiff to take his property as legatee under this document, or as a legatee at all. No doubt he had a general intention that the plaintiff should own his property, but he endeavoured to carry that out not by this document, but by what has proved to be an abortive adoption. The defeat of his general intention is due not to any construction laid down by this Court, but to his own failure to satisfy the legal requirements of a valid adoption.
2. As, in my view, this document contains no testamentary disposition at all, it is unnecessary to discuss the further question raised by the respondents, whether such disposition, if it existed, was subject to a condition precedent that a valid adoption should, in fact, have taken place. The appeal fails and is dismissed with costs.
Srinivasa Aiyangar, J.
3. This appeal arises out of a suit for the recovery of possession of certain properties, which belonged to one Vaikunta Nadan, from his heirs and their alienees. The plaintiff claims title as devisee under an instrument called a Will alleged to have been executed by Vaikunta Nadan on the 8th of March 1892, shortly before his death. The suit has been dismissed on the ground that the document of the 8th of March 1892 contained no dispositions of property, that if it did, they were not testamentary in character but took effect immediately on the execution of the instrument as a gift, and finally if here was a devise to the plaintiff the same was to him in his character as adopted son of Vaikunta Nadan. It is admitted that the plaintiff was not adopted by Vaikunta Nadan. No evidence has been taken in the case and except the matter of the construction of the document called the Will, no other question has been tried. The document is called a Will in several places and is addressed to the boy adopted by me whose name I have this day changed into Vaikunta Nadan from Tirugnanapal.' There is, however, no question of identity and plaintiff is the Tirugananapal mentioned here. Vaikunta next refers to the position of his family (that they were nattamais and were held in veneration by his caste people) and states that he makes the Will according to the request of his castemen after consultation with his mother and wife for the purpose of perpetuating his family, for obtaining spiritual benefit by having a male child according to the Hindu Sastras and the enjoyment of his property. The next clause is important as that, if any, contains the devise of his properties to the plaintiff.
4. It begins by saying 'from this day forward you are to live with me as my child' and concludes with 'all the properties in Schedule 4 and included in my patta you are yourself to enjoy living with me.' There are no other words of gift or devise in any other portion of the document but in the later portions of the Will, the executant assumes that he would be in possession and enjoyment of the properties after his death. In the clause immediately following that above set out, he directs his son to live with his mother and to conduct himself according to her wishes. There are also directions as to the performance of the marriage of his daughter and other ceremonies in the family including the funerals of his wives, and as to the payment of his debts.
5. The first thing to be noticed is the absence of any reference to the plaintiff by name in any portion of the Will, except the very first sentence wherein he calls him his adopted son whose name he has changed from Tirugnanapal to Vaikunta Nadan. The purpose is stated to be the affiliation of a son to represent the family; this is also suggested by the change of the name of the plaintiff to Vaikunta Nadan which, as pointed out by Mr. Rangachariar, seems to be, the name assumed by the head of the family apparently to indicate his position as a guru or spiritual head. The words that 'you are yourself to enjoy living with me' seem to imply a pre-existing right in the plaintiff which, obviously the executant thought, the plaintiff possessed by virtue of the affiliation mentioned in the previous portion of the document. I think Vaikunta by that clause merely declared the legal consequences of the adoption, and did not give the properties to a person who would otherwise have no title to them. The subsequent portion of the Will is not only consistent with this implication, but the absence of any disposition therein goes also to show that the executant was not making a Will for the purpose of disposing of his property but executed the document to evidence an adoption which he thought he had made and to give directions to his adopted son who, by virtue of the adoption, had become the owner of the property along with him during his life-time, and would become the sole owner after his death.
6. I do not think it useful to discuss the cases cited on one side or the other but the language of this instrument seems to be similar to the language used in Brij Lal v. Suraj Bikram Singh 16 C.W.N. 745.
7. Mr. Ananthakrishna Aiyar, the learned Pleader for the appellant, contended that he did not rely on the above words as words of devise, but that we have to imply a gift from the fact that the document is address- ed to the plaintiff and from the assumption throughout the document that the plaintiff was to be the owner of Vaikunta's properties. I quite agree that the testator throughout the document assumes that the plaintiff, I should say, his adopted son, would be the owner of the properties; but that to my mind leads to the conclusion that the testator did not intend to give these properties to the plaintiff by the Will, but that he assumed that the plaintiff, as his adopted son, would be entitled to his properties without any gift from him. I do not attach much importance to the fact that the document is executed in favour of the plaintiff. If the plaintiff had been a stranger and if he had not been assumed to be an adopted son. I should have come to the conclusion without hesitation that the words 'shall enjoy' are quite sufficient to give the property to the plaintiff.
8. Assuming, however, that there was a gift or devise in favour of the plaintiff, the next question is, whether that gift was testamentary or whether the gift took effect immediately on the execution of the document. In the latter case, the document being unregistered, the gift must fail. It is quite clear that Vaikunta Nadan intended that the plaintiff should be in enjoyment of his properties during his life-time. He expressly says so. If by the words 'shall enjoy' he meant to give the properties to the plaintiff and if those words operated to convey title to the plaintiff, the instrument is obviously a deed of gift, and there being no further devise in favour of the plaintiff of any interest in the properties after the death of Vaikunta Nadan (in fact there could not be any such devise if Vaikunta Nadan had given his properties during his life-time to the plaintiff), the plaintiff's suit fails. That is why his learned Pleader, who, when he opened his case, relied upon those words as words of gift, when confronted with this difficulty, strenuously contended that those were not words of gift. But he cannot escape the position that the plaintiff was to have the enjoyment of the properties during the life-time of Vaikunta Nadan. If there was any implication of gift apart from these words, there was an implication of only one gift by virtue of which the plaintiff was entitled to enjoy the properties during the life of Vaikunta Nadan, and continue to enjoy them after his death; that implied gift would be equally fatal to the plaintiff's case. It is impossible without making a new Will for the testator to find two separate gifts, one a gift pur auter vie during the life-time of Vaikunta and an independent gift of the same properties by way of testamentary disposition after his life-time.
9. Another point which was decided against the plaintiff by the learned Sub-Judge was that the devise, if any, in this case was to the plaintiff in his character of adopted son and not as persona designata. Mr. Rangachariar, the learned Pleader for the respondent, contended that Vaikunta Nadan was under the mistaken impression that a mere declaration by him that he had adopted the plaintiff and a change of name would be enough to constitute the plaintiff an adopted son and it was under this mistaken impression that he drafted and executed the instrument in question and except for that misapprehension, he would not have given the properties to the plaintiff. He points out that the document shows the anxiety of the deceased to be represented by a son more especially as the family was held in reverence by the members of the community; that, for the purpose of getting the boy recognized by the community as his son and head of the family, he consulted his castemen); that, in fact, affiliation of a son was the dominant idea in them ind of Vaikunta Nadan and not a disposition of his property. He relied on Fanindra Deb Raikat v. Rajeswar Das 12 I.A. 72; 4 Sar.P.C.J. 610 and Karamsi Madhowji v. Karsundas Natha 23 B.k 271. Mr. Ananthakrishna Aiyar, the learned Pleader for the appellant, contended on the contrary that there is nothing to show that Vaikunta Nadan was under any misapprehension as to the essentials necessary for a valid adoption, that his intention was to give his property to the plaintiff who was his foster-son; and if he was not under any misapprehension as to the status of the plaintiff (which, however, was a matter for proof by evidence in the case), there could be no question of devise to the plaintiff in his capacity as adopted, son, as that would involve the testator making an elaborate Will knowing all the time that that Will was perfectly useless. He also relied on Nidhoomoni Debya v. Soroda Pershad Mookerjee 3 I.A. 253, Bireswar Mukerji v. Ardha Chunder Roy 19 I.A. 101 and Venkatachariar v. Sadagopachariar (1910) M.W.N. 785. In view of the conclusion which I have already arrived at on the construction of this document, it is unnecessary to express any opinion on the question, a determination of which would require evidence of the surrounding circumstances including any misapprehension on the part of the testator as to the position of the plaintiff.
10. The appeal, therefore, fails and must be dismissed with costs.