Sankaran Nair, J.
1. The suit was brought by the plaintiffs as the reversioners of one Chenga Reddi, deceased, the admitted owner of the properties in suit, to set aside an adoption made by his adoptive mother Subbamma, the 1st defendant, to her deceased husband. The plaintiffs' case is that Subbamma was not authorized by her husband to make a second adoption. The District Judge of North Arcot dismissed the suit holding that she had been authorized. The plaintiffs appeal.
2. The authority is alleged to be given by a Will executed by the husband of the 1st defendant shortly before his death. The Will is in the following terms:
The Will dated the 8th Avani of Vishu (22nd August 1881) executed by one Mogili Reeddigari Cheuga Reddi of Thondanada village, Chandragiri Taluq, in favour of yourself Subbu, my wife, is as follows :We have no male issue, but have only got (1) one elder daughter Hubbamma and (2) one sucoud daughter Chinna Subbamma, the said elder daughter having two sons and the second daughter one son and one female (issue). She may still give birth to more children. As I am certain that the disease of dropsy which I am now suffering from would grow worse and my last days are at hand and as, according to my intention, there is no time to adopt Chenga Reddy, the second son of my said older daughter, you shall, after my demise, adopt the said boy and the particulars of direction you have to carry out in regard to the whole of my estate are as follow; (here properties are described). You shall put the above-mentioned properties in the possession of the said adopted son at the end of your life-time (during your last moments). You know for the maintenance of my atep-mother, Pedda Amma alias Chengamma, a karar (agreement) has been executed by her in October 1865 and she has been enjoying the lands, etc., which have been granted to her for maintenance for her whole life. She shall enjoy the said properties according to the terms of the said karar. As the oustandings due to me, amounts due to me under decrees, silver, gold and cash amount altogether to about Rs. 50,000 at present, you shall collect the said debtn, keep the said properties in your possession, have the said adopted son in your care and protection and after, at the time of your death, considering the then circumstances and agreeably to the estate making such gifts as may be proper in favour of your two daughters and the (other grandsons) sons of your daughters, deliver the whole of the remaining estate to the said adopted son. This is the Will got written out of my free will by Chamala Munusamy.
3. After her husband's death the 1st defendant adopted Chenga Reddi, the second son of her elder daughter, Subbamma. He died and she has since adopted the 2nd defendant in the suit, who is the son's son of the younger daughter, Chinna Subbamma.
4. Now it is argued before us that there is a direction in the Will to adopt only Chenga Reddi; that nowhere is any authority expressly given to make a second adoption on his death; nor is there anything in the Will itself to imply such an authority.
5. It is also argued that it was the testator's intention, as expressed in the Will, to make the adoption himself and it was only his physical inability to do so that put off the adoption and that if he had adopted Chenga Reddi himself, there would have been no Will and there would have been no authority given.
6. It is further contended that the provision in the Will, that the widow, the 1st defendant, should surrender possession of the properties to the 'said adopted son at the end of your life-time,' shows that the testator did not contemplate the necessity of another adoption or, in other words, the contingency of the death of the adopted son and, therefore, 110 implied authority for a second adoption is to be found in the document. These arguments are of great weight.
7. On the other hand, it is contended that according to the rule of construction laid the Judicial Committee of the Privy Council we are bound to uphold the adoption. It is argued that the testator having clearly expressed his desire that he should be represented by an adopled son and the widow having been authorised to adopt, effect must be given to his intention.
8. In the earliest case brought to our notice Veerarmall Pillay v. Narain Pillay 1 Strange's Notes of Cases 78 at p. 104 : 5 Ind. Dec. 41 the authority was contained in the following words of the husband's Will: 'If Ayya Pillai beget a son besides his present son you are to keep him to my lineage.' Sir Thomas Strange affirmed the validity of the adoption made by the widow of another boy, holding that she was not bound to wait indefinitely.
9. It is argued by Mr. Govindaraghava Aiyar that there was another provision in that Will on which stress was laid by Sir Thomas Strange to show a primary intention on the part of the testator to be represented by an adopted son, and that Sir Thomas Strange said, with reference to that provision that it indicated an intention that the adoption should not be confined to any particular person or family and, therefore, he drew the inference that it was only a case of preference which the testator expressed that a son of Ayya Pillai should be adopted if available. This may be conceded but at the same time on reading the judgment there is no doubt that Sir Thomas Strange was of opinion that if possible, effect should be given to the desire of the testator to be represented by a son. He said: 'Of the advantages which, in the religious belief of the Natives, depend upon this mode of substitution where a man has no son of his own, their books are full; and yet, important as they are, we may readily imagine that the provision for it is frequently reserved for the chamber of disease, and the hour of dissolution, when pain and alarm often deprive us of the distinct use of every faculty, and leave us no power but that of expressing a general sentiment, or announcing a vague wish. In such a state, will the law of the Hindu have best shown its wisdom in a matter upon which his happiness after death is supposed to depend, by requiring that, at the peril of his soul remaining in put, he shall specify a name which he cannot recollect, and declare a preference which it may be impossible for him at that moment to feel; or, by leaving it to the affectionate discretion of his surviving partner, consulting as it is her duty, to do, with his nearest friends and relations, to substitute for him the person whom he would in all probability have himself preferred had he proceeded to adopt in his life-time, or had it occurred to him before his death to express a preference.
10. The next authority that is relied upon by the respondents' Pleader is the judgment of Farran, C.J., in Lakslimibai v. Rajaji 22 BK.996. It was pointed out by the Chief Justice that it was common for a husband authorising an adoption to specify the child he wishes to be taken and should that child die or be refused by his parents, the authority would still be held to warrant the adoption of another child, unless there is something in the Will itself to show that the husband did not desire any other adoption to be made. The ground of decision was stated to be that if a person desires an adoption and when he specifies the object he simply indicates a preference.
11. According to this view, the question for decision is not whether a husband only gives permission to his wife to adopt, leaving it entirely to her discretion to decide whether an adoption should be made or not, but whether he gives an imperative direction to her to adopt which she, as an obedent wife, was bound to obey. It was argued by the appellant's Pleader that this decision is not an authority to be followed Madras because, in Bombay a widow is authorized to make an adoption without any authority from the husband and that the judgment must, therefore, be understood with reference to that rule of law. But it may be pointed out that this difference exists only when the husband is an undivided co-parcener and the reasoning of the Judge does not proceed on any such distinction. The case on which reliance is placed by the District Judge and by the Pleader for the respondents, is the judgment in Suryanarayana v. Venkataramana 26 M. 681 confirmed by their Lordships of the Judicial Committee of the Privy Council in Surynnarayana v. Venktataramana 8 Bom. L.R. 700 : 3 A.L.J. 702 : 33 I.A. 145. In that case the husband authorized his wife to adopt a son and died. The widow adopted a son in pursuance of that authority hut that son also died. The widow adopted a second time. It was held by the High Court that the husband's authority was not exhausted by the first adoption but held good, for the second adoption also. In that case the authority was in general terms requiring her to adopt so as to continue his line and to provide for his spiritual benefit.' In that respect it differs from the case before us. There was no direction to adopt any particluar boy. 15th in delivering their judgment the learned Judges of this Court said: 'We are of opinion that the husband's authority held good for the second adoption also. The object and purpose of the authority sivcn by the husband was to perpetuate his family as well as to secure his spiritual benefit, and it would be unreasonable to hold that an accident such as the early death of the boy first adopted should be allowed to frustrate the fulfilment of his object and to preclude the widow from making another adoption in the absence of any legal impediment to her doing so. When the geleral intention of a Hindu to be represented by an adopted son is clear, as in this case, there seems no reason why effect should not be given to such intention, if it is possible to do so without contravening the law'. And they refer to Ayya Pillia's case and the judgment in Lakshmibai v. Rajaji 22 B.P 996 already referred to. The learned Judges also relied upon Morley's Digest to show instances where a 'widow mikes a second adoption, on failure of the first by death, in fulfilment of a single injunction or authority of her husband, the object of such injunction being unattained unless the child live.'
12. The learned Judges go even further and refer to a decision in Ramasami Aiyan v. Venkata Ramaiyan 6 I.A. 196 : 5 C.L.R. 347 : 2 M.P 91 : 3 shome L.R.39 : 3 Ind. Jur. 472 : 4 Sar. P.C.J. 42 : 3 Suth. P.C.J. 663 as justifiying an adoption by a widow to carry out the husband's general intention, even where the husband did not directly give authority for the adoption. The judgment of their Lordships in Ramaasami Aiyan v. Venkata Ramaiyan 6 I.A. 196 : 5 C.L.R. 347 : 3 Shome L.R. 39 : 3 Ind. Jur. 472 : 4 Sar. P.C.J. 42 : 3 Suth. P.C.J. 663 does not, it appears to us, bear out the inference drawn by the learned Judges. There is no doubt, however, from this judgment that where the husband has clearly expressed his intention to be the perpetuation of the family and the securing of his spiritual benefit, the death of the boy first adopted should not stand in the way of the widow making another adoption if there is no legal impediment to her doing so. Of course any direction in the Will, express or implied, against a secopd adoption must be given effect to, and even if she is otherwise competent in law to make an adoption she cannot do it. This judgment was affirmed by their Lordships of the Privy Council. In their judgment they cite with approval the passage above extracted from the judgment of this Court. They refer with approval also to an expression of opinion by the Calcutta High Court that considering the religious efficacy that ensues from an adoption, a Court 'should rather do its utmost to support it unless such adoption is clearly in excess or in breach of the power to make it,' and in pointing out the limitations to the application of the rule, they refer to their own judgment in Collector of Madura v. Moottoo Ramalinga Sethupathy 12 M.I.A. 397 : 10 W.R. 17 : 1 B.L.R. (P.C.) 1 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389, that the authorities in favour of a widow's power to adopt with the assent of a kinsman proceed jn a great measure upon the assumption that his assent to this meritorious act is to be implied wherever he has not forbidden it, and they proceed to indicate the circumstances in which such a prohibition by the husband may be inferred. They also express dissent from the view of the Calcutta High Court, that where the widow is directed to adopt a son she cannot adopt a second son if the first adopted son dies. The decision of the Calcutta High Court was based, on the ground that as there was no permission to adopt one child after another the widow was not authorized to make a second adoption. There is little doubt that, in the opinion of their Lordships of the Privy Council, if the intention of the husband that he should be represented by an adopted son is clearly expressed in the Will, the adoption should be upheld unless there is anything in the Will to show that a second adoption should riot be made.
13. In the case before us, there is itery little doubt of the husband's general intention. He wanted to adopt a son himself and he could not carry oat his intention on account of his inability to do so. He expresses his regret in the Will that they had no male issue. He told his wife that she must adopt her daughter's second son. The general intention, therefore, is perfectly clear. It is true that lio did not contemplate the contingency of the adopted son's death. But it is not always that a testator likes to refer to such an inauspicious circumstance in a Will.
14. Is there anything, then, to imply an intention on the part of the husband against a second adoption? Having regard to the rules laid down by the Judicial Committee of the Privy Council in the passage in Collector of Madura v. Moottoo Ramalinga Sethupathy 12 M.I.A. 397 : 10 W.R. 17 : 1 B.L.R. (P.C.) 1 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 extracted by their Lordships in their judgment in Suryanarayana v. Venkataramana 29 M.P 382 : 10 C.W.N. 921 : 4 C.L.J. 171 : 16 M.L.J. 276 : 1 M.L.T. 260 : 8 Bom. L.R. 700 : 3 A.L.J. 702 : 33 I.A. 145 there is nothing in the disposition of his property or in the circumstances of the family to support that contention. The Will shows a clear intention that the bulk of his property should be taken by one of his descendants, and a desire to benefit also his other descendants. If the widow had no power to make a second adoption, this intention will be clearly frustrated. In the absence of any second adoption the property would not go to his own natural heirs, that is to say, his daughters and daughters sons, but it would go to the heirs of his first adopted son i.e., the plaintiffs. An intention, therefore, to divert the property from his natural heirs i.e., his daughters and their issue has to be imputed to the testator if we deny the widow any authority to make a second adoption. The probabilities are that if he had fully expressed his intentions he would have authorized the widow to makeanotherselection from his descendants.
15. Mr. Govindaraghava Aiyar relied upon the opinion of the Judicial Committee in Surendro Keshub Roy v. Doorga Soondery Dossee 19 C.P 513 : 19 I.A. 108 and Amrito Lal Dutt v. Surnomoye Dasi 27 C.P 996 : 27 I.A. 128 : 4 C.W.N. 549 to show that even where there is a direction by the husband to make an adoption the widow was held not entitled to carry out that intention. It is true that in the earlier case there was a direction to his two widows by the testator for each of them to adopt a son. But the adoption was held invalid on the ground that the Will authorized only the simultaneous adoption of two sons and no other course. It was impossible to carry out, therefore, the testator's wishes unless two sons were adopted and such adoption was held to be illegal. The question, therefore, did not turn upon the nature of the power given to a widow to adopt, but upon the illegality of the power itself. In the other case, Amrito Lal Dutt v. Surnomoye Dasi 27 C.P 996 : 27 I.A. 128 : 4 C.W.N. 549 a husband purported to authorize his widows, jointly with two other persons, to adopt a son to him. This authority was held to be illegal.
16. In these cases the widow could not make any adoption at all, the question whether she could mate a second adoption did not arise. Nor is the decision of their Lordships of the Privy Council in the Nidadavole case Venkata Narasimha v. Parthasarathy 23 Ind Cas. 166 : (1914) M.W.N. 299 : 12 A.L.J. 315 : 18 C.W.N. 554 : 26 M.L.J. 411 : 15 M.L.T. 285 : 16 Bom. L.R. 328 : 37 M.P 199 in point. In their judgment the Judicial Committee said: 'He (that is, the testator) does not direct that there shall be an adoption, as he would naturally have done had he wished in all events to secure that there should be a son, to perform the due religious rites. He makes it depend on the opinion of his widows whether and when an adoption should take place.' The principle herein laid down is certainly not in support of the appellant's contention.
17. For these reasons I am of opinion that the adoption is valid. But as my learned brother disagrees with me, the decree of the lower Court is confirmed and appeal dismissed with costs under Section 98, Civil Procedure Code.
18. Oldfield, J.--The question is whether the Will, Exhibit A, authorised the testator's widow to adopt a second time after the boy, whose adoption was specifically permitted by it, had been adopted by her and had died. I differ from my learned brother on a question of this kind with great diffidence.But I do not think that the answer should be in the affirmative.
19. It is unnecessary for me to follow him in the majority of his references to decisions. For I accept his conclusion that a Hindu testator, who authorises an adoption generally, must bo presumed to do so with the primary intention that his widow shall secure his posthumous representation by an adopted son and make successive adoptions, until that object is secured. Here, however, the question is of a conflict between that presumption and what are alleged to bo restrictions on the use of the widow's authority implied in the terms convoying it, especially in the specification of the boy to be adopted. Only two of the decisions deal directly with such a case. The others merely lay down the presumption already stated in cases in which the authority was expressed in general terms; they did not and had not to deal with restrictions on it and, therefore, afford very little guidance. The first of those two decisions, Veerapermall Pillay v. Narain Pillay 1 Strange Note Cas 78 : 5 Ind. Dec. 41 is no doubt based on the presumption and applied it, although the authority specified the boy to be adopted. It, however, really carries the argument very little further. For, firstly, the application of the presumption could in fact be supported by the language of one of the collateral dispositions of property in the Will. And secondly, the specification was of a boy unborn, though his mother was pregnant at the date of the Will; and, after the boy thus born to her had died some months before the testator and before his Will had effect, the latter did not change it, though the mother had no other issue. In the circumstances the Court might well decide, as it did, that the testator had expressed his desire for posthumous representation subject only to a restriction, which had to his knowledge become inoperative, and give effect to the presumption it had formulated. There was not at the date when the Will spoke or later any boy, specified by it, in existence; and the authority had to be treated as general or given no effect at all. The case, therefore, differed entirely from that before us, in which such a boy was available and the restriction on the authority could be and was oriven effect, when the latter had to be exercised.
20. The other case, in which an authority to adopt a specified boy was in question Lakshmibai v. Rajaji 22 B. 996 is important because, although it was decided in Bombay, it is referred to by this High Court and the Privy Council in Suryanarayana v. Venkataramana 29 M.P 382 : 10 C.W.N. 921 : 4 C.L.J. 171 : 16 M.L.J. 276 : 1 M.L.T. 260 : 8 Bom. L.R. 700 : 3 A.L.J. 702 : 33 I.A. 145 and Suryanarayana v. Venkataramana 26 M.P 681 as supporting the conclusion therein. But the authority in the latter case indicated no particular person for adoption by name or otherwise and placed no restriction whatever on the wife's discretion, the decision turning in both Courts on the general validity of the presumption already referred to which (in the absence of restriction on the authority) was sufficient to support the adoption. Lakshmibai v. Rajaji 22 B.P 996 was, no doubt, a case in which an adoption of a boy other than (he one specified was upheld, when the latter was not available. But, firstly, as in Veerapermall Pillay v. Narain Pillay 1 Strangs Note Case 78 : 5 Ind. Dec. 41, the authority, as restricted by the testator, turned out to be ineffectual through causes beyond the widow's control. And, next, the case must, in my opinion, be distinguished on a more general ground, that the la w under administration was different. For, though the judgment contains nothing explicit on the point, the first portion of it is statedly based on the law of the Bombay Presidency; and the facts that no co-parceners were parties and that the adoption was disputed by a widow indicated that the deceased testator was a divided co-parcener, since on the contrary assumption the widow would, whether or no the adoption was valid, have been entitled only to a maintenance and have had no interest in disputing it. If the decision is, as must be supposed, one regarding the widow of an undivided co-parcener, the question would be her general and subsisting right to adopt and of its revival, when the restriction placed on it by her husband turned out ineffective; and it would be decided on grounds inapplicable in Madras or in the present case, where the widow has no power to adopt inependently of her husband's authority and the question is whether, after a restricted authority has been acted on ineffectually, her possession of an unrestricted one can be presumed. In these circumstances the decision is not of assistance. And it is not necessary to treat it as imposed on Courts in this Presidency, as authoritative by either of the judgments above referred to. For those responsible for them cannot be supposed to have overlooked the indications that it related to a divided family or to have disregarded the distinctive character of the law under application. The references to it were made to support the liberal rule of construction, which the learned Judgps and their Lordships were applying to the authority before them and are, I would respectfully suggest, explicable as relating to the second ground of decision, on which also the Bombay judgment was based.
21. Two Calcutta cases, Surendro Keshub Roy v. Doorga Soondery Dossee 19 C.P 513 : 19 I.A. 168 and Amrito Lal Dutt v. Surnomoye Dasi 27 C.P 996 : 27 I.A. 128 : 4 C.W.N. 549, were relied on by appellants. The authorities in them were, however, invalid ab initio since they conferred no power exercisable by the widow under Hindu Law, and the decisions regarding them, therefore, afford no guidance.
22. In the result, the two casas dealing with authorities specifying a particular boy are distinguishable from that before us; and the remaining cases dealing with unrestricted authorities contain nothing directly relevant. There, however, occur in them some incidental references to the construction of restrictions on authorities and I refer to them before dealing with the provisions of the Will before us. Karlier in this judgment I stated the question in issue as being of the conflict between the general presumption as to a testator's intention and the explicit or implied restriction, which the Will is alleged to contain. But it would have been more accurate to use no language which could suggest that the two were to be considered together and the latter weighed against the former. For the proper course is, as I think, first to attempt to ascertain, with reference to the testator's own words and without reference to the general presumption, whether he meant to restrict the authority he was conferring; and to have recourse to that presumption only after such attempt has failed. It is true that in Veerapermall Pillay v. Narain Pillay 1 Strang Note Cas 78 : 5 Ind. Dec. (o.s.) 41, 'the collective effect of the Pandits' opinions' in favour of the general presumption is referred to as 'repelling the construction attempted to be put upon the Will by defendants,... had the intention of the testator ever so plainly required it' (page 98). But it was not necessary for the Court in that case to endorse those opinions to that extent. For immediately afterwards it pointed out only that where (as in the case before it) no such intention was expressed or was necessarily to be implied, none could be assumed and the general presumption as to the testator's object could be relied on. Again, whilst the High Court in Suryanarayana v. Venkataramana 26 M.P 681 said that 'when the general intention of a Hindu to be represented by a son was clear, there seemed to be no reason why effect should not be given to such intention, if it were possible to do so without contravening the law. Each case must be decided on its own merits without applying too strict a rule of construction with regard to powers of this description,' the Privy Council held consistently with the conclusion above stated that the main factor for consideration is the intention of the husband. Anyspecial instructions he may have given his widow must be strictly followed; where no such instructions have been given, but a general intention has been expressed to be represented by a son, effect should, if possible, be given to that intention.' And their Lordships have given the clearest expression to these views in a very recent case, Venkata Narasimha v. Parthasarathy 23 Ind Cas. 166 : (1914) M.W.N. 299 : 12 A.L.J. 315 : 18 C.W.N. 554 : 26 M.L.J. 411 : 15 M.L.T. 285 : 16 Bom. L.R. 328 : 37 M.P 199. In one passage in the judgment (page 223) they declined to treat the testator's motive as religious at all, because his language showed that it was secular. In another (page 222) they recognised that surrounding circumstances (including race and religious opinion) deserved consideration in arriving at a right construction of the Will and ascertaining the meaning of its language as used by that testator in that document.' But they held that 'So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions... If they leave any eventuality unprovided for, the estate must, in case that eventuality arises, be dealt with according to the law, which provides for succession of property in the absence of testamentary directions applying thereto. But the Court never adds to a Will anything which needs to be done by testamentary disposition.
23. The terms of the Will in this case must accordingly be construed strictly as they stand, and without any addition to them to provide for subsequent eventualities or expansion of them based on any presumed intention of the testator. I note, first, tne statement that he had no time to adopt Ohonga Beddi, as he intended to do; and here, as later, I can find no reason for assuming what he could easily have expressed, if he had wished, that his intention to adopt was not restricted to Chenga Reddi, but was general. There is, next, the direction to the widow to adopt Chenga Reddi, followed by no provision for the contingency of the latter's death or the refusal of his parents to give him. The result, as I read it, is that testator gave an authority to adopt, restricting its operation to Chenga Reddi, and I find myself unable to understand how a testator, who certainly did not trust his widow unreservedly in the action, which he authorised expressly, can be presumed to have authorised her to take further action by implication or to have meant to leave her to do so unfettered. And lastly, as regards the absence of any provision for future eventualities, the testator's attitude is made yet clearer by his reference to the devolution of his estate on the adopted son on his widow's death and the assumption, it involved, that the former would survive the latter. That assumption was, as already observed, also in the restriction of the authority. Its repetition difficult to disregard it involved widow's makes it the more The omission to provide for this eventuality in connection with the direction to adopt was merely tacit; but, as shown, authority would forbid the Court even in those circumstances to supply it by implication. The Courts' disability to do so is the clearer, when, as is the case hero, the testator has elected not to provide for this eventuality, though he has provided for its converse, and the inference must bo that he was either indifferent or content to leave his widow to adopt with the consent of the sapindas. It is not possible to supply the omission by any expedient, svhich would add to or modify the Will, as that proposed by respondent would do. My conclusion therefore, is that the Will authorises no second adoption after the failure of that of Chenga Reddi.
24. I would, therefore, reverse the lower Court's finding on issue 1. If this were the decision of the Court, it would be necessary to proceed to deal with issues 4 and 5. I do not do so, because in accordance with my learned brother's judgment the appeal must be dismissed with costs.