Richard Garth, C.J. and Wilson, J.
1. In this case it appears that Rajah Beejai Keshav Rai died on the 20th April 1879, childless, but leaving two widows, Noboo Durga and the defendant Durgamoni. By his will he gave each of his widows power to adopt a son. He further purported to give all his property to the goddess Unnopoornah, and declared that the two adopted sons should be the shebaits, adding various other provisions. The two Ranis accordingly, on the 20th May 1879, adopted each a son, Nobo Durga taking the plaintiff, and Durgamoni the infant defendant. Nobo Durga died on the 29th July 1884, Quarrels ensued; and on the 4th August 1884 the plaintiff filed his plaint in this suit, in which he claims half of the property of the deceased Rajah under the will.
2. It was held by the learned Judge who tried the case that the simultaneous adoptions could not be valid, and that therefore the plaintiff could take no title as the adopted son of the testator. And there can be no doubt that he was right in so holding.
3. But the learned Judge held that the gift took effect in favour of the plaintiff, as a gift to a persona designata. In this we cannot agree. There is no indication of an intention to give to the plaintiff or to any other particular person, but only to the persons, whoever they might be, who should He adopted by the Ranis.
4. The learned Judge in the Court below based his decision upon the authority of a case of Monemothonath Dey v. Onathnath Dey 2 Ind. Jur. N.S. 24 but that case appears to us to be very distinguishable froni the present. In that case one Promothonath Dey, having no male issue, adopted two sons, Monmothonath and Surathnath, at one and the same time, and he gave one of his sons so adopted to each of his two wives.
5. He afterwards made a will in favour of these two sons, whom he described in his will as his adopted, sons, and he provided that if either of them should die the adoptive mother of that son should be at liberty to adopt another son.
6. A suit being brought after the testator's death to determine the rights of the parties under this will, it was held that the simultaneous adoption of the two sons was invalid; and then the question arose, whether there was such a designatio of the two persons known and described as the testator's adopted sons in the will, as to enable them to take under the will, though the adoption was in fact invalid; and it was held that there was.
7. They had been always considered and known as the testator's adopted 30ns, and therefore their description in the will was a sufficient designatio personarum to make it clear that they were the persons whom the testator intended to benefit.
8. Then one of these sons, Surathnath, having died, his adoptive mother, by virtue of the power contained in the will, adopted another son, Onathnath; and that adoption being valid, it was held that his description also in the will as the adopted son of the testator was sufficient to make the devise in his case valid.
9. There were, therefore, in this case three instances in which the rule of designatio persona properly applied; in the case of the first two devisees, because they were both described, and generally known as the adopted sons of the testator, although their adoption was in fact invalid; and in the case of the last, Onathnath, because he was actually adopted in the way provided by the will.
10. But in the present case the facts were quite different. The testator had no doubt provided in his will that each of his wives should adopt a son; and he gave his property to the sons so to be adopted; but he did not provide, nor did heinow, who the adopted sons were to be; and, therefore, as the adoption which took place was invalid, the persons purporting to be adopted did not answer the description in the will of adopted sons, or in other words, there was not a sufficient designatio of their persons to enable them to take under the will.
11. The decision, therefore, in the Indian Jurist appears to us to be no authority in the present case.
12. Another contention was raised before us. It was said that the whole property was by the will made debutter, and that nothing was given to the sons but a bare trust, the shebaitship. We assume this to be so for the sake of argument. It was then said that the rules laid down in the Tagore case do not apply to the devolution of the bare trusteeship in the case of a religious endowment. And in this we are disposed to agree. It was said next that the two persons adopted became the sons of their adoptive mothers, though not of the testator; and that as such they came within the terms of the gifts of the shebaitship, But there is nothing in the will showing an intention to give anything to the persons to be adopted, except in the capacity of sons of the testator. The case falls within the authority of Fanindra Deb Raikat v. Rajeswar Das I.L.R. 11 C.M. 463.
13. But at the trial a further question was raised whether the defendant Durga Sundari had so acted, as to be estopped from denying the plaintiff's title, or to have made herself a trustee for him to the extent of the interest which he claims. Allegations were made in the plaint as originally framed, tending to support such a case; and the plaint was amended at the hearing so as to raise it specifically. The issue, however, has not been decided, nor we think has it been tried. And there is not sufficient evidence on the record to enable us to decide it. The course taken on behalf of the plaintiff at the hearing was neither very clear nor very consistent. But we think it sufficiently appears that the absence of the necessary evidence is probably the eon-sequence of an understanding, or misunderstanding, between the parties. Under these circumstances, as there is clearly no sufficient evidence upon the record to enable us to try the above issue, we think our proper course is to send the case back to the first Court under Section 5661 of the Civil Procedure Code, directing it to determine such issue; to take any additional evidence that may be adduced by either party for that purpose; and to return its finding upon such issue to this Court, together with the evidence taken.
14. The former hearing was occupied in trying an issue of fact upon which the plaintiff failed. We think he should pay the costs of that hearing. We also think he should pay costs of this appeal. He might have insisted on going into the whole of the evidence at once, and we can see no sufficient reason why he did not do so. All other costs should be dealt with by this Court when the case comes back.
1. [ Section 566: If the Court against whose decree the appeal is made has omitted to frame
or try any issue, or to determine any question of fact, which
When Appellate Court appears to the Appellate Court essential to the right decision of
may frame issues and refer the suit upon the merits, and the evidence upon the record is
them for trial to Court not sufficient to enable the Appellate Court to determine such
whose decree appealed issue or question, the Appellate Court may frame issues for trial,
against. and may refer the same for trial to the Court against whose
decree the appeal is made, and in such case shall direct such
Court to take the additional evidence required, and such Court shall proceed to try such
issues, and shall return to the Appellate Court itB finding thereon, together with the