1. This is an appeal from the decision of the learned Subordinate Judge of Murshidabad, in til suit for possession, on declaration of the plaintiffs' title to the properties in suit. Plaintiffs 1 to 3 claimed to be the reversionary heirs of one Indu Bhusan Chowdhury, the adopted son of Sasi Bhusan Chowdhury. Plaintiff 4 claimed title to the properties in litigation as the purchaser of one-fourth share of the same from the first three plaintiffs. The history of the title on which the claim in suit was based may be briefly stated: One Sasi Bhusan Chowdhury died on 7th January 1908, without issue, but leaving two widows surviving him, Basanta Kumari Chowdhurani and Raseswari Chowdhurani. By a will dated 3rd August 1907, Sasi Bhusan Chowdhury appointed the widows as executrices. There was a provision made in the will for adoption of sons by the widows. The elder widow Basanta Kumar Chowdhurani adopted a son, Indu Bhusan Chowdhury, on 22nd July 1909, after probate of the will of Sasi Bhusan Chowdhury was obtained by the executrices under the will on 22nd July 1908.
2. The adopted son attained majority on 8th April 1923; and according to the terms of the will the properties left by Sasi Bhusan Chowdhury were made over to the adopted son. Thereafter the adopted son died unmarried on 20th February 1925. The junior widow Reseswari Chowdhurani then adopted Sasanka Bhusan Chowdhury, the defendant in the suit, on 26th April 1926. Basanta Kumari Chowdhurani, the elder widow who had adopted Indu Bhusan Chowdhury under the terms of the will of Sasi Bhusan Chowdhury, died on 27th December 1925. According to the plaintiffs, the adopted son Indu Bhusan Chowdhury having died while in possession of the estate of his father Sasi Bhusan Chowdhury in absolute right as his father's heir, and having died unmarried, the adoptive mother Basanta Kumari Chowdhurani inherited the estate of Sasi Bhusan Chowdhury, mentioned as the Dengapara Estate in the proceedings, as the only heir of Indu Bhusan Chowdhury. The aforesaid Basanta Kumari Chowdhurani having died, plaintiffs 1 to 3 were the reversionary heirs of Indu Bhusan Chowdhury as his nearest sapinda agnates, and were entitled to have their title to the properties in litigation a declared, as such heirs, on the footing that the adoption of the defendant Sasanka Bhusan Chowdhury by Raseswari Chowdhurani was invalid. It was asserted by the plaintiffs that Raseswari Chowdhurani could not validly adopt a son under the terms of the will of her husband Sasi Bhusan Chowdhury, as the authority to adopt so far as Raseswari Chowdhurani was concerned came to an end as soon as Basanta Kumari Chowdhuri, the senior widow of Sasi Bhusan Chowdhurani, inherited his estate, as heir of the deceased adopted son Indu Bhusan Chowdhury.
3. The claim in suit was resisted by the defendant Sasanka Mohan Chowdhury, the son adopted by Raseswari Chowdhurani; and the issue, as stated by the Judge in the trial Court, on which the parties fought the litigation was issue 3 raised for determination in the suit, on the pleadings of the parties concerned:
Is the adoption o the defendant by Raseswari Chowdhurani invalid in law and void? Had Raseswari Chowdhurani power to take the defendant in adoption? Did the authority to adopt if given by Raseswari Chowdhurani's husband become incapable of execution, and did such authority come to an end as soon as the Dengapara Estate became vested in or possessed by Indu Bhusan Chowdhury's mother Basanta Kumari Chowdhurani?
4. The issue thus raised for decision in the case was decided by the trial Court in favour of the plaintiffs in the suit. Hence this appeal. It must be noted that the other questions raised in the suit, to which several other issues related, were not argued before us in this appeal. The only question for consideration in the appeal is whether the Judge in the trial Court is right in his decision that the adoption of the defendant by Raseswari Chowdhurani is invalid.
5. The power of adoption was conferred by Sasi Bhusan Chowdhury on his two widows by his will; and the extent of that power has to be determined with reference to the contents of the will. In construing the will, the object should in all cases be to ascertain from its wording the expressed intention, and effect has to be given to the same. The intention has to be gathered from the words of the entire will, taking them in the ordinary meaning, not overlooking the prediliction of the class to which the testator belonged. As was observed by their Lordships of the Judicial Committee o the Privy Council in Venkata Narasimha Apparow v. Parthasarathy Apparow (1913) 37 Mad 199 surrounding circumstances have to be considered, and among such surrounding circumstances which the Court is bound to consider, none would be more important than race and religious opinions; and the Court is bound to regard as presumably (and in many cases certainly) present to the mind of the testator influences and aims arising therefrom.
6. The relevant portions of the will of Sasi Bhusan Chowdhury, bearing upon the question in controversy in the case before us are those contained in paras. 1 and 2, and those in the last part of para. 7:
1. I have no issue. I have two married wives living. The name of the first wife is Basanta Kumari Chowdhurani and that of the second wife is Raseswari Chowdhurani. After my death my aforesaid two wives shall be in possession in equal shares, widow's estate, till the attainment of majority by the adopted son, of the movable and immovable properties left by me and shall perform the Seva and Puja of the Goddesses Saraswati and Kali and also the Dewali and other festivals and ceremonies which are being performed from before. In no way shall they be competent to sell or alienate any property. On the adopted son attaining majority, the executrices shall hand over the charge of the entire estate to the adopted son, From that time, i.e. from the time the adopted son, after attaining majority takes the estates in his own hand, my aforesaid two wives shall get monthly allowance of Rs 200 each receiving Rs. 100, so long as they will live, and the adopted son shall bo bound to pay that, and that shall be a charge upon the estate. My aunt (father's sister) Khantomoni Dassya, shall receive a monthly allowance of Rs. 10 till her death from my estate. Finis.
2. I give my aforesaid two wives permission to adopt sons. According to my permission they both of them shall be entitled to adopt six sons in succession, each adopting three, i.e., to say, my first wife Basanta Kumari Chowdhurani, will adopt a son first; and after the death of that adopted son, my second wife, Raseswari Chowdhurani, will next adopt a son. In case of death of the said adopted son, my first wife will again adopt a son. In this way, both of them together shall be entitled to adopt six song successively. In case of death of one out of my two wives, the surviving wife shall be entitled to adopt the remaining number of sons successively. My two wives shall not be entitled to partition the properties, etc. of the estate, but if they do not pull on well they shall be entitled to make a division of the profits so long as the estate shall be under their charge. If the two wives do not pull on well with the adopted son from after the adoption and during the minority of the adopted son, then the adopted son shall receive a monthly allowance of Rs. 50 from the estate for his own personal expenses. The executrices shall pay the expenses of the education of the adopted son from the estate.
7. If my aforesaid two wives do not adopt any son within reasonable time or if they die before adopting any son then the income of all the properties of my estate shall be spent in the Seva and Puja, etc. of the aforesaid idols Radha Krishna Thakur and the executrices or the coadjutors or any of them who shall be living shall appoint a religious and proper person as shebait and that shebait shall appoint his successor and so on. This is my last will. By this will I cancel the will which I executed on 26th Pous 1312 B.S., dated 18th Sraban 1814 B.S.
7. Applying the rule of interpretation referred to above, to the aforesaid provisions contained in the will before us, there can be no doubt that the primary intention of the testator Sasi Bhusan Chowdhury was to perpetuate his line of succession by lineal descendants. That was the intention underlying the provision for the adoption of six sons, one after another, by the two widows. There was no idea in the testator, that the properties left by him were to pass over to the agnatic relations as the first three plaintiffs are; that is what is clearly expressed in the last part of para. 7 of the will, and that is what is in consonance with the ideas of a Hindu governed by the Dayabhaga Law prevalent in Bengal, with all his prediliction in the matter of inheritance, religion and otherwise. If the two wives did not adopt for any reason whatsoever, the income of all the properties of the estate were to be spent in the Seva and Puja of the family deities. There was no idea prevalent in the mind of the testator that the properties were to pass to any but the direct descendants. It is significant that the widows were merely to have the power of enjoyment over the properties left by their husband; and the direction contained in their husband's will was to hand over the same to the adopted son, as soon as he attained majority. The provision for six successive adoptions by the two widows indicated the keen desire on the part of the testator to perpetuate his line by sons adopted by his wives.
8. In the matter of adoption, the two wives were to be considered as one person, acting under the authority bestowed upon them by the husband, so far as adoption of sons was concerned. The importance of the aspect of the provisions of the will is that although a son duly adopted might attain majority, entitling him to get possession of the properties left by Sasi Bhusan Chowdhury, the power of adoption remained in the widows, in the event that happened, the adopted son dying unmarried. Regard being bad to the intention of the testator, there was no vesting of the estate in the senior widow as the heir of the son adopted by her; the power of adoption conferred on the two widows, taken together, remained in abeyance; and there was no bar to the exercise of that power by the junior widow, on the son adopted by the elder widow dying unmarried. The testator did not intend that his estate should pass to any of the widows absolutely, or vest in any of them, nor was there the intention that the authority to adopt was not to be exercised in the event that happened, namely the son adopted dying without leaving a male lineal descendant. The vesting of the estate in one of the two widows, and the passing of the same to the distant agnates on the death of one of the widows was not a thing intended or contemplated by Sasi Bhusan Chowdhury; what was contemplated was in the events that happened, that one of the two widows would exercise the power of adoption that was still in existence. That was what was done by the junior widow Raseswari Chowdhurani on 26th April 1925, after the son adopted by the elder widow Basanta Kumari Chowdhurani had died unmarried on 22nd February 1925; and it was in accordance with the intention of the testator Sasi Bhusan Chowdhury as expressed in his Will. It may be noticed in this connexion that the widow's death, and for the purpose of the case before us, the death of both the widows who have to be taken to be one, so far as the authority to adopt was concerned, is the limit of time within which, and the existence of male issue in the male line the condition, subject to which the power of adoption conferred by the will of Sasi Bhusan Chowdhury could be exercised.
9. As a general rule there is no limit of time for the exercise of the power of adoption by the widow in whom her husband's estate has vested; she may adopt at any time she pleases, when the estate is vested in her: see Mutsaddi Lal y. Kundan Lal (1906) 28 All 377. In the case before us, no vesting of the estate in any of the two widows was intended, and the estate could not under the clear terms of the Will, vest in one of the widows on the death of the son adopted by her. The position created by the adoption of Sasanka Bhusan Chowdhury by the junior widow Raseswari Chowdhurani in the case before us, was something similar to the position which came up for consideration of this Court in the year 1900, and which was dealt with by the eminent Judge Sir Gooroo Das Banerji, in his judgment in Rai Jatindra Nath v. Amrit Lal (1901) 5 CWN 20, where on a review of the authorities bearing on the question under consideration, it was stated that the weight of authority was in favour of the view that a Hindu widow adopting a son under the authority of her deceased husband upon the death of a son adopted or begotten, whose estate he inherited as mother, divests herself of that estate by the act of adoption in favour of the son last adopted; and it was held that the correct view would be to hold that when a Hindu widow adopts a, second son, upon the first son dying unmarried, the second adopted son takes the estate immediately on his adoption. The differentiating element in the case before us is that there were two widows with power of adoption given to them to be exercised alternately up to the number six; and the vesting of the estate even if such could be contemplated under the terms of the will, which as already indicated could not be. There could not be any vesting of the estate in one of the two co-widows, to the exclusion of the other, who had the authority to adopt in her, which remained in abeyance, during the lifetime of the son adopted by the elder widow.
10. The Judge in the trial Court, it would appear, paid little attention to the terms and the provisions of the will bearing directly upon the question in controversy between the parties to the suit. He has proceeded on a discussion of the law on the subject of vesting of the estate in the widow, on the death of the son adopted by her, and has on the authority of decisions referred to in his judgment, come to the conclusion that the power to adopt became incapable of execution of the vesting of the husband's estate on some one other than herself. The proposition as laid down by the trial Court cannot be accepted on the provisions of the will of Sasi Bhusan Chowdhury, to which detailed reference has been made above, and for reasons stated hereinbefore. In so far as the authority of decisions in this country and of their Lordships of the Judicial Committee of the Privy Council are concerned, referred to in the judgment of the Court below, no useful purpose can be served by entering into a discussion on them. Most of the decisions mentioned by the Judge in the Court below were considered by their Lordships of the Judicial Committee in Amarendra v. Sanatan, 1933 PC 155, in which the point was raised that a widow's power of adoption was extinguished on the death of the son first adopted, inasmuch as he had then attained full age and full legal capacity to continue his line, and that the subsequent adoption of a son could not divest the estate which had vested in the nearest collateral heir of the last male holder. On that decision, what must now be taken to be the settled law, appear to be this: A widow's authority to adopt is not extinguished by the mere fact that her first adopted son attained ceremonial competence before death; the power of adoption under the husband's authority is not exhausted at the death of the son first adopted by the widow. It is useful to refer to the main reasons assigned for the decision arrived at by their Lordships which were summarised in the following manner, after an exhaustive review of the case law on the subject:
The vesting of the property on the death of the last holder in some or other than the adopting widow, be it either another coparcener of the joint family, or an outsider claiming by reverter, or by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. The true principle must be found upon the religious side of the Hindu doctrine and to the efficacy of sonship.
11. As to this doctrine taken to be well-established, what was stated was this:
Their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a son-less man.... The Hindu law itself sets no limit to the exercise of the power during the life-time of the donee, and the validity of successive adoptions in continuance of the line is now well recognised. But there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of the other rights, to allow it to take effect, has long been recognised both by the Courts in India and by this Board.
12. This pronouncement recently made by the Judicial Committee, on a review of the previous case law on the subject under consideration, is in consonance with what was stated to be the law prevalent in Bengal by Gooroo Das Banerji, J., in Rai Jatindra Nath v. Amrit Lal (1901) 5 CWN 20 referred to in a previous part of the judgment. The law as now authoritatively laid down in 60 IA 242 (1) has, it may be noticed, been followed by their Lordships of the Judicial Committee in Vijaysingji Chhatrasingji v. Shivsangji Bhumsangji, 1935 PC 95. On the provision of the will of Sasi Bhusan Chowdhury bearing on the question arising for consideration in this appeal, and on the authority of decisions of their Lordships of the Judicial Committee, the judgment of the trial Court, in favour of the plaintiffs in the suit, cannot be upheld. It remains to be mentioned that a question relating to the application of the rule of res judicata against the defendant in the suit, was raised before us on behalf of the plaintiffs-respondents in this Court, in support of the decree passed by the trial Court in their favour. It was urged that the defendant-appellant could not be allowed to agitate the question of validity of his adoption, in view of an order passed by this Court on 10th August 1925, rejecting an application made by him for the substitution of his name in the place of Indu Bhusan Chowdhury, after the said Indu Bhusan Chowdhury died on 20th February 1925. It need only be stated in this connexion that the validity of the adoption of the defendant was not considered and decided by this Court, in the order for substitution to which reference has been made above. The plea of res judicata as raised in this appeal for the first, time during the course of argument, on which no issue in the suit was directed, appears to be wholly unsupportable. In the result, the appeal is allowed; the decision of the trial Court, and the decree passed by it, in favour of the plaintiffs respondents, are set aside. The suit instituted by the plaintiffs-respondents, out of which this appeal has arisen, is dismissed with costs throughout.