1. The facts which have given rise to this suit are as follows: One Durga Das Sirkar, deceased, left a Will, and his surviving widow, Gunamani Dasi, the present appellant, as executrix named in the Will, took out Probate. Durga Das had married twice: his first wife bore him two daughters, one of whom was named Annapurna Dasi : and Ms second wife bore him six more daughters, and eventually bore a son, but before the son was born a boy named Rajendra was taken in adoption by the testator. It is agreed that the adoption was made after the death of the first wife, and after the second marriage.
2. The fourteenth Clause of the Will made provision for the eight daughters in these terms: each of the above daughters shall get Rs. 5 per mensem, i.e., 60 Rs. per annum out of the estate left by me :' and the direction continued ukta Kanyaganer madhye kaharo mrityu haile, ukta mrita kanyar warishgan ukta mashik paneh taka paibe.'
3. Annapurna's husband died and she died later leaving no issue The plaintiffs are her husband's younger brothers they brought a suit for the annuity bequeathed by the Will, and that suit was compromised on April 17th, 1913, the suit being dismissed. They have now brought the present suit to recover the annuity in respect of a later period and they have been successful in the Courts below.
4. For Gunamani two contentions are put forward. The first is based on the terms of the Will and the provision of Section 111 of the Succession Act. It is argued that as Annapurna survived the testator, the legacy to her heirs did not take effect, and reference is made to the first illustration given under Section 111. The force of this argument, it appears to me, depends upon the meaning of the participial clause, ukta kanyaganer madhya kahiro mrityu haile.' If it must mean should the possible contingency happen, namely, the death of one of my daughters during my lifetime,' then I think the argument would be sound; but the words may equally mean, 'when the certain event happens, namely, the death of one of my daughters at a future date.' And this seems the meaning which the father of a married daughter must have had in his mind, for his natural hope would be that she should be the mother of children, and he would wish to make a gift to his possible grand-children whether they lost their mother before or after his death. Adopting the view of the meaning of the words used by the testator, 1 hold that the first contention fails. A further reason for overruling it is that it was not put forward in either of the Courts below.
5. The second argument is that the adopted son is the heir and not the deceased husband's brothers. The learned Subordinate Judge on appeal thought that this question was settled by the decision of this Court reported as Debi Prasanna Rai v Harendra Nath Ghosh 6 Ind. Cas 531 : 37 C. 863 : 15 C.W.N. 383 : 12 C.L.J. 385. That decision was in a case between Annapurna's sister's sons and her husband's brothers. The nephews applied for Probate of a Will said to have been executed by Annapurna, and named as her other near relations, her husband's brothers, her step-mother's son, and her step-mother's adopted son. The Judge Held that the husband's brothers had no locus standi to object to the grant of Probate during the lifetime of the step-brothers and as the latter did not press their objection, he granted Probate of the Will. The husband's brothers then appealed to this Court, and it was held that the step brother was not entitled to preference over the younger brother of the husband, with the result that the lower Court was directed to call upon the nephews to prove the Will in solemn form in presence of the husbands' brothers. That decision obviously did not determine the present question, for the question now is whether Durga Das Sirkar's adopted son is to be regarded as Annapurna's whole brother or only as her step-brother. It may be that it was assumed on all hands in that case that the adopted son could not stand in a nearer degree than the natural son of the second wife to the daughter by the first wife, but the subject was not discussed; and so far as we can ascertain, the question has never formed the subject of any judicial decision or even received the consideration of a commentator.
6. The facts on which we have to reach a conclusion are scanty: we only know that Annapurna was the daughter of Durga Das by his first wife, and that Rajendra was adopted by Durga Das after his marriage with Gunamani, the second wife. Possibly further information would show that a special relationship was created between the boy and Gunamani, but I doubt whether such in-formation would be of much value. I think the answer to the problem is to be found in the reflection that Rajendra can only be regarded as Annapurna's full brother by a fiction upon a fiction, It is only by a fiction that he is the son of Durga Das another fiction is required to hold that he became by adoption also the full brother of a daughter born to Durga Dass by a wife who had died before the adoption. This answer may be stated in another form as follows: if the adoption had bean made during the lifetime of Annapurna's mother, then her mother might have become the boy's adoptive mother, and the relation of sister and brother might have been (treated, bat when Annapurna's mother was dead, it was physically impossible that there should be born to her father a son, who could be looked upon as her full brother.
7. Another argument which seems to have considerable force is that there is no apparent reason why the son born to Durga Das by Gnnamani should stand in a different relation to the children of the first marriage from the relation occupied by the son adopted in Gunamani's lifetime.
8. These reasons may be rather unconvincing but for the appellant no cogent reasons are advanced.
9. I think the appeal should be dismissed with costs.
Shamsul Huda, J.
10. I agree with my learned brother in dismissing this appeal. The first argument regarding the applicability of Section 111 of the Succession Act is based on a forced interpretation of the Will opposed to the natural meaning of the words used, and I feel no hesitation in rejecting it.
11. As regards the second point it is conceded by the learned Vakil for the appellant that if Rajendra was adopted by Durga Das in conjunction with Gunamani, he would stand in the position of a half brother to Annapurna and would be postponed to the plaintiffs, who are younger brothers of Annapurna's husband.
12. This is also the view of law taken by their Lordships of the Judicial Committee in the case of Annapurni Nachiar v. Forbes 23 M. 1 : 26 I.A. 246 : 3 C.W.N. 730 : 9 M.L.J. 209 : 1 Bom L.R. 611 7 Sar. P.C.J. 591 in which they approved of the decision in Kasheeshuree Debia v. Greesh Chandra Lihiri (1864) : W.R.(Sup. Vol.) 71 and held that where of two wives one only joined in the adoption, the adopted son became the fall son of the wife so joining and the step son of the other. Again in the case of Gmgxliar Bogla v. Hira Lil Bogla 34 Ind. Cas. 10 : 20 C.W.N. 489 : 23 C.L.J. 372 : 43 C. 944 Mr. Judicial Mookerjee explained away Mian's text that if among all the wives of one husband one has a son 'Manu declares them all to be the mothers of male children through that son' and held that the son adopted by the husband co-jointly with one of his wives is only the stepson of other wives. The Claim of a husband's brother to succeed in preference to a woman's step-brother in respect of her separate property is recognised in text backs of Hindu Law and has also received judicial confirmation. The law on this point is fully discussed in the decision of Mookerjee and Oarnduff, JJ., in Debi Prasanna Rai v Harendra Nath Ghosh 6 Ind. Cas 531 : 37 C. 863 : 15 C.W.N. 383 : 12 C.L.J. 385.
13. It has, however, been argued that if Rajendra was adopted by Durga Das only, he be-name by the fact of such adoption the son of all his wives, dead or alive, and in this way Rdjendra became the full brother of Anna-puma. It is not necessary in this case to consider the effect of an adoption by a husband alone without the occurrence of any of his wives. I feel no doubt that in this case the adoption was both by Durga Das and Gunamani. At the time of the adoption Annapurna's mother was dead but Gunamani was alive and it is only natural to suppose that she did take part in the adoption. This inference is strengthened by the fact that in the Court below the case proceeded on that assumption, that Gunamani in paragraph 3 of her written statement Claimed Rajendra to be her adopted son and that no specific issue was raised on the question whether the adoption was by Durga Das and Gunamani or only by Durga Das. It is too late now for the appellant to raise an issue of fact for the first time in second appeal.