1. The facts are not disputed on this appeal, and that being so, I do not propose to recapitulate thorn as they are accurately found and stated in the judgment of Mr. Justice Jenkins. The questions we have to decide are questions purely of law; they are stated in the judgment of the-Court below and it will be convenient to deal with them in the same order as in that judgment.
2. The first question and one in sense the paramount question is whether the power to adopt in the testator's will is a valid power. It is urged for the respondents, against the validity of the power, that although it is competent to a Hindu testator to empower his widow to adopt, it is a power which can only be given to the widow and to the widow alone, and that, inasmuch as in the present case the power is given to her conjointly with two other persons viz., the father and uncle of the testator, the power is invalid. If this contention be well founded, there is, at once, an end of the plaintiff's case, for if there were no valid power to adopt, the plaintiff is not the adopted son of the testator, and has consequently no interest in the testator's estate and cannot maintain the present suit. He is suing as the testator's adopted son, and in that capacity alone. The testator doubtless was anxious that, if he had no natural son, he should have an adopted son, and the reasons for this, not merely on temporal but specially on spiritual grounds, are thoroughly recognised and understood in the Hindu community. But the question is, has he taken such a course as the Hindu law allows for giving effect to his desire
3. It may, I think, be regarded as a well-established principle of the Bengal School of Hindu law that it is to the widow alone that the power of adoption a son can be delegated, by the husband, and that she has no capacity to adopt' save under the express permission of the husband given in his lifetime. Now, looking at Clause 8 of the will, which is admittedly the salient clause upon which, in a great measure, if not entirely, the case hinges, and reading the language of that clause according to the usual and ordinary meaning of the words used, there cannot, I think, as a matter of construction, be any reasonable doubt that the testator intended to give, and did give, the power of adoption, not to his widow alone, but to his widow conjointly with his father and uncle. If upon the true construction of the clause the power be given to the three, and not to the widow alone, it is not vary important to consider whether it was or was not given to them in their executorial capacity, though the language suggests that it was given to them in that capacity, and this view is fortified by a reference to Clause 14 of the will, which indicates that, in the event of the wife's death, before the adoption of a male child, the surviving executors were to have the power, It is conceded by the appellant's counsel that the power under Clause 14 is invalid. That clause shows that the testator intended the surviving executors should have the power, and throws a light upon what was in the testator's mind, as regards Clause 8, viz., that the power was given to his executrix, executors and trustees. If it he conceded that the power given to the two executors under Clause 14 is bad, it is somewhat difficult to see how the power under Clause 8 given to the three executors and trustees, even though the wife be one, is not equally bad, unless one can reasonably place upon that clause the construction placed upon it in the Court below. But even if, in Clause 8, the wife, father find uncle had not been alluded to as executrix, executors and trustees, the testator has associated with the wife in this power two other persons, which, under Hindu law, he cannot do as the power can only be delegated to the wife.
4. It is urged, however, for the appellant that Clause 8 may be read as a power given to the wife alone, and that the association of the father and uncle in the power was not to give them the power of adoption, but merely a power of supervision in order to ensure a discreet exercise of the power by the wife. In other words, we were virtually invited to read the power as if it were one given to the widow alone to be exercised with the consent of the father and uncle. I do not see my way to adopt this construction of the language of the will. There is nothing, so far as I can see, in the language used, to warrant us in placing such a construction upon it; were we to do so, I think we should be going dangerously near to making a new will for the testator, rather than construing the will he has made. We must look at what the testator has actually said; not what he might have said had the effect of what he has said been drawn to his attention.
5. The learned Judge in the Court below says lie must decline to put on the language of the will a construction that would render its provisions useless. I am entirely in accord with the learned Judge, if by that expression he means that, if the language of the will warrant it, the Court should place such a construction upon it as will give effect to the testator's intentions, rather than render the provisions of the will useless. But we must be guided by what the testator has said; we must gather his intention from the whole will, and then say whether or not effect; can be given to that intention consistently with law. Here the question appears to me to be---What did the testator intend, gathering, that intention from the language he has used? If he intended to give the power to the three, then, according to Hindu law, such a power is bad; if he intended to give the power to the wife alone and only associated the father and uncle as a fetter on her choice of a son, then it would be good. But I fail to extract the latter intention from the language used. The recent case in the Privy Council of Surendro Kissen Roy v. Durga Sundary Dassi (1892) L. R. 19 I. R. 108 must not be overlooked in discussing this question of the validity of the power.
6. For these reasons I am of opinion that the power to adopt was not a valid one.
7. In the view I take, it becomes unnecessary to discuss whether the power was validly exercised, but one of the grounds upon which Mr. Justice JENKINS decided that it was well exercised has a bearing upon the question of the validity of the power, Mr. Justice Jenkins holds that the power was intended to be annexed to the executorial office, and treats the question as being whether the power of adoption contained in the will was not given to the executors in their official capacity, and he treats it as having been so given. But if the power of adoption were annexed to the executorial office, or if the power were given to the executors in their official capacity, the power is bad, for no such power can be validly given according to Hindu law. If, however, the true construction of Clause 8 be such as the learned Judge in the Court below holds it to be, viz., a power of adoption to the wife alone, with the consent of the other executors and trustees, it would seem almost to follow that the testator intended the selection of an adopted son to be made with the consent of the father and uncle, as the persona designates for this purpose in the will, and in whom a personal confidence was reposed by the testator. Clause 14 supports this view, whilst the ease of Beemchurn Sen v. Hera Lall Seal (1867) 2 Ind. Jur. N. S. 225 has a distinct bearing upon it. Had it been necessary for me to decide the point, I should have felt considerable difficulty in saying that the power had been well exercised, the father of the testator having died before the adoption took place.
8. Holding the above views, it becomes unnecessary to express any opinion upon the other points which have been raised, as the plaintiff cannot maintain the present suit, though it is not to be inferred from my silence on those points that I am in accord with Mr. Justice Trevelyan's views upon them.
9. This is one of those cases in which, having regard to the time which has elapsed since the adoption, one's natural inclination would be to uphold it if possible. Having regard to that lapse of time I asked the appellant's counsel whether any question of limitation, estoppel, laches or acquiescence could be raised in the appellant's favour, but ha very fairly replied that no such question could be successfully raised as against the infant respondents, who will take the property failing a valid adoption of the plaintiff. As, then, any such questions are eliminated, we may view the case as if the matter had been submitted for our consideration shortly after, and not many years after, the alleged adoption; in other words, the lapse of time does not in point of law assist the appellant. It may seem a hard case on the plaintiff who, however, is responsible for having initiated the litigation, to be now told that his adoption is invalid: but, on the other hand, it would be equally hard on the infant respondents, if they have to hand over their property to one who has not been validly adopted as the testator's son. It is, however, not open to us to enter upon any question of hardship one way or the other. I think the appeal fails and must be dismissed.
10. The cross-objections must be allowed, and the suit dismissed. I will deal with the costs after the other judgments have been delivered.
11. I agree with the learned Chief Justice. I do not think it necessary to express any opinion on the other questions raised in the case.
12. The two main questions in this case are (1) whether there is any valid gift of the accumulation of income; and (2) whether the plaintiff has been validly adopted under Hindu law.
13. I will deal with this second question first. The defendants are entitled to have it decided, as it goes to the root of the whole suit and is the subject of their cross-objection.
14. The first question which we have to determine is what the testator meant by his will. As put by their Lordships of the Privy Council in Tagore v. Tagore (1872) L. R. Sup. Vol. p. 79: 'The true mode of construing a will is to consider it as expressing in all parts whether consistent with law or not, the intention of the testator, and to determine upon a reading of the whole will, whether, assuming the limitations therein mentioned to take effect, an interest claimed under it was intended under the circumstances to be conferred. It is true that in giving (sic) Power of adoption, a testator is contemplating to a great extent his own welfare, but legal effect cannot be given to his intention, unless ho provides for the exercise of that power within tine limits of the law. We cannot alter or add to any portion of his directions, and if we attempt to depart from the strict letter of his injunctions, we run the danger of being charged with attempting to make a will for him rather than construing and giving effect to the will which he has actually made. Numerous instances occur to me where powers of adoption have been given with the real object of obtaining a spiritual benefit, but the Courts have declined to give effect to those powers. I need only instance by way of illustration the case of a double adoption, which came before the Privy Council lately in the Andul case. In my opinion we must endeavour to ascertain the intention of the testator as expressed by the words of his will just as carefully and upon the same principles when he is seeking his own spiritual benefit as when lie is conferring a bounty upon others. Having ascertained his intention from his will, and without reference to the law on the subject, it is then for us to apply the law and see if the power be valid. I know of no authority which lays down that powers of adoption are to be construed differently from other powers. It has been suggested to us that it must be assumed that the testator knew the law, and that the portion of the power which is in accordance with the law must be accepted and the rest rejected. It is impossible for us to deal with the will on this footing. Testators very often, though they know the law, try to evade it. The Law Reports abound with instances of this. The power, so far as is material for the present purpose, is given in the following words:
I hereby authorise and empower my wife and executrix S. M. Surnomoyee Dassee and my executors and trustees to whom I give full permission and liberty to adopt after my decease a son.' There can be no doubt that the only-person to whom a power of adoption can be validly given is the wife of the person giving the power. If the testator intended, as he says, that his executors and trustees should execute this power jointly with his widow, it would be impossible to carry out this power. The only way, as far as I can see, by which any effect can be given to this power is by supposing that the testator intended to give the power to the wife alone, hut required her to act with the consent of executors. This construction is, however, to my mind an impossible one, having regard to the other terms of the will.
15. In the first place paragraph 13 authorises the executrix, executor and trustees and the survivor of them to appoint any other person or persons to succeed them or him in the execution of the trusts of the will. The adoption was one of the trusts of the will, and this power shows that he contemplated the adoption being made by persons other than the widow. Leaving paragraph 13 entirely out of consideration I think that paragraph 14a is conclusive on this question. He there says: 'In case of any accident arising to cause my wife to depart her natural life before adoption of a male child my surviving executors are empowered to act with my full consent and direction to adopt a male issue.' This to my mind shows conclusively that the testator did contemplate that the adoption should be made by persons other than his wife, and therefore there is no reason forgiving a forced construction to the earlier paragraph, which gives the power.
16. Moreover, it is noticeable that whereas the testator gives to his executors powers to adopt on the death of the wife he does not give to the wife any power to adopt in case of the death of the executors. This shows that the testator imposed a greater confidence in his executors than in his wife. I feel it impossible, having regard to all the terms of the will, to hold that the power was anything but a joint power, and was therefore bad.
17. Even if the power be a good one, namely, that the widow could adopt with the consent of the executors and trustees, I am of opinion that the death of the father, who was one of the executors, prevented the exercise of the power.
18. Besides his wife the testator appointed his father and uncle as executors and trustees. I have no doubt that this personal relationship operated in the testator's mind when including them in the power of adoption.
19. Even if the power be construed as giving a power to the widow with the consent of the executors, I think the nature of this particular trust and the relationship of the executors show that, although the power is given to the executors, it is intended to apply only to these particular persons and does not devolve upon other holders of the office.
20. In the case of Bheemchurn Seal v. Hera Churn Seal (1867) 2 Ind. Jur. N. S. 225 Mutty Lai Seal was described as executor, yet Sir Barnes Peacock considered that a personal confidence was reposed in him.
21. An authority to adopt must be strictly pursued. Chowdhry Pudum Singh v. Koer Oodoy Singh (1867) 12 Moo I. A. 356 and if the confidence here imposed be a personal one, it follows that the death of one of the persons whose consent is necessary to the execution of the power must destroy the power.
22. We have been referred to a recent decision of this Court---Surendra Nandan v. Sailaja Kant Das Mahapatra (1891) I.L.R. 18 Cal. 385 in which Sir Barnes Peacock's decision seems to have been considered, but beyond expressing their concurrence with the judgment of the Court below, the learned Judges give no reasons for their decision, and, as a matter of fact, in that case the widow was only enjoined to obtain the advice and opinion of the manager. The consent was not a condition. Conditions, whether they be possible or impossible of fulfilment, must be considered, and unless they are strictly carried into effect, the power cannot be exercised---see Rangubai v. Bhagirthibai (1877) I.L.R. 2 Bom. 377. In my opinion the adoption was bad, and on that ground the suit ought to fail. I desire also to express my opinion as to the other question which has been argued, namely as to the right to the accumulations.
23. The determination of this question depends upon the terms of the ninth paragraph of the will.
24. It was contended by the learned Advocate-General that by the provisions contained in that paragraph the widow got an interest for life by implication, but this is scarcely consistent with the direction that she should be paid a fixed monthly sum and that the residue was to be invested. There is no doubt that there is no immediate gift of the residue of the income. It is to be accumulated during the lifetime of the widow. On that event happening it is to be determined who is to succeed. The question is whether a a Hindu testator can direct the accumulation of the income of his property for an indefinite or any time without providing for the beneficial interest. The circumstance that the property has been given to trustees is wholly immaterial. A Hindu testator cannot create by a trust an interest which is otherwise incapable of creating. One of the best known of the several important principles which were enunciated in the Tagore case was that a man cannot be allowed to do, by indirect means, what is forbidden to be done directly, and that a trust can only be sustained to the exte(sic) and for the purpose of giving effect to those beneficiary interests which the law recognizes.
25. As I understand the Hindu law, there must be a present beneficial interest created in property in order to render the gift, whether under a will or inter vivos, valid. In an unreported case Gopal Lai Seal v. F. J. Marsden decided on the 11th March 1887 I expressed my opinion on the subject in the following words:--'I do not think that a gift of this description is valid according to Hindu law. According to that law there must, as I understand it, be a present beneficiary in order to make a gift valid. There may be a gift in. future, but there must also be a gift in present. The law of gifts and of wills is the same, and in order that there may be a valid gift the donor must immediately divest himself of the property in favour of some existing beneficiary, and in the same way with regard to wills there cannot be a gift to a person to come into operation at a future date, unless there be a gift to a beneficiary in the interim.' This is, as I understand it, merely what was decided in the Tagore case. In the judgment of that case we find the following: Their Lordships for the reasons stated are of the opinion that a person capable of taking under a will must be such a person as could take a gift inter vivos, and therefore must, either in fact or in contemplation of law, be in existence at the death of the testator.'
26. I cannot see how a direction to accumulate can be valid unless there be a present gift to support the direction to accumulate. The fact that in cases where there is a minor beneficiary, accumulation can be allowed, and that it may be possible to accumulate income for the purpose of paying debts does not to my mind help us. In the former case accumulation is rendered necessary by the incapacity of the beneficiary and is allowed in order that he may obtain the greater benefit from the gift which is made to him. In the latter case, the direction to accumulate is in aid of the proper administration of the testator's estate, and is sometimes necessary for the due performance of his legal and moral obligation to pay his debts.
27. I have assumed that the accumulations follow the gift of the corpus. I am very doubtful whether under the terms of this will there is any gift of the income.
28. In my opinion there is no valid gift of the income during-the life-time of the widow.
29. There remains one matter in contest. It was contended that, even if there was no gift of the property, the widow took as heir of the first adopted son and by the second adoption did not divest herself of her mother's estate. There is no doubt that by adoption a woman divests herself of her widow's estate. I cannot see in principle why she cannot divest herself of her mother's estate in the same way as she can divest herself of her widow's estate. The act is hers, and the object of it is to create an heir to her husband. Why that second adopted son should have different rights in the estate 'than those enjoyed by the first adopted son I cannot see. In my opinion, by a second adoption, a widow divests herself of her mother's estate in the same way as she divests herself of her widow's estate on the first adoption.
30. I agree that the suit should be dismissed.
31. As regards the costs of the suit the order as to them in the Court below may stand. As regards the costs of the appeal and of the cross-objections, the parties to the suit who are sui juris not objecting, the costs of all parties of the appeal and cross-objections may, as between solicitor and client, be paid out of the estate.