Authored By : Francis Maclean, Macpherson, Trevelyan,Francis Maclean

Francis Maclean, C.J.

1. The facts are not disputed on this appeal, and that beingso, I do not propose to recapitulate thorn as they are accurately found andstated in the judgment of Mr. Justice Jenkins. The questions we have to decideare questions purely of law; they are stated in the judgment of the-Court belowand it will be convenient to deal with them in the same order as in thatjudgment.

2. The first question and one in sense the paramountquestion is whether the power to adopt in the testators will is a valid power.It is urged for the respondents, against the validity of the power, thatalthough it is competent to a Hindu testator to empower his widow to adopt, itis a power which can only be given to the widow and to the widow alone, andthat, inasmuch as in the present case the power is given to her conjointly withtwo other persons viz., the father and uncle of the testator, the power isinvalid. If this contention be well founded, there is, at once, an end of theplaintiffs case, for if there were no valid power to adopt, the plaintiff isnot the adopted son of the testator, and has consequently no interest in thetestators estate and cannot maintain the present suit. He is suing as thetestators adopted son, and in that capacity alone. The testator doubtless wasanxious that, if he had no natural son, he should have an adopted son, and thereasons for this, not merely on temporal but specially on spiritual grounds,are thoroughly recognised and understood in the Hindu community. But thequestion is, has he taken such a course as the Hindu law allows for givingeffect to his desire

3. It may, I think, be regarded as a well-establishedprinciple of the Bengal School of Hindu law that it is to the widow alone thatthe power of adoption a son can be delegated, by the husband, and that she hasno capacity to adopt" save under the express permission of the husbandgiven in his lifetime. Now, looking at Clause 8 of the will, which isadmittedly 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 usualand ordinary meaning of the words used, there cannot, I think, as a matter ofconstruction, be any reasonable doubt that the testator intended to give, anddid give, the power of adoption, not to his widow alone, but to his widowconjointly with his father and uncle. If upon the true construction of theclause the power be given to the three, and not to the widow alone, it is notvary important to consider whether it was or was not given to them in theirexecutorial capacity, though the language suggests that it was given to them inthat capacity, and this view is fortified by a reference to Clause 14 of thewill, which indicates that, in the event of the wifes death, before theadoption of a male child, the surviving executors were to have the power, It isconceded by the appellants counsel that the power under Clause 14 is invalid.That clause shows that the testator intended the surviving executors shouldhave the power, and throws a light upon what was in the testators mind, asregards Clause 8, viz., that the power was given to his executrix, executorsand trustees. If it he conceded that the power given to the two executors underClause 14 is bad, it is somewhat difficult to see how the power under Clause 8given to the three executors and trustees, even though the wife be one, is notequally bad, unless one can reasonably place upon that clause the constructionplaced upon it in the Court below. But even if, in Clause 8, the wife, fatherfind uncle had not been alluded to as executrix, executors and trustees, thetestator 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 maybe read as a power given to the wife alone, and that the association of thefather and uncle in the power was not to give them the power of adoption, butmerely a power of supervision in order to ensure a discreet exercise of thepower by the wife. In other words, we were virtually invited to read the poweras if it were one given to the widow alone to be exercised with the consent ofthe father and uncle. I do not see my way to adopt this construction of thelanguage of the will. There is nothing, so far as I can see, in the languageused, to warrant us in placing such a construction upon it; were we to do so, Ithink we should be going dangerously near to making a new will for thetestator, rather than construing the will he has made. We must look at what thetestator has actually said; not what he might have said had the effect of whathe has said been drawn to his attention.

5. The learned Judge in the Court below says lie mustdecline to put on the language of the will a construction that would render itsprovisions useless. I am entirely in accord with the learned Judge, if by thatexpression he means that, if the language of the will warrant it, the Courtshould place such a construction upon it as will give effect to the testatorsintentions, rather than render the provisions of the will useless. But we mustbe guided by what the testator has said; we must gather his intention from thewhole will, and then say whether or not effect; can be given to that intentionconsistently with law. Here the question appears to me to be---What did thetestator intend, gathering, that intention from the language he has used If heintended to give the power to the three, then, according to Hindu law, such apower is bad; if he intended to give the power to the wife alone and onlyassociated the father and uncle as a fetter on her choice of a son, then itwould be good. But I fail to extract the latter intention from the languageused. The recent case in the Privy Council of Surendro Kissen Roy v. DurgaSundary Dassi (1892) L. R. 19 I. R. 108 must not be overlooked in discussingthis question of the validity of the power.

6. For these reasons I am of opinion that the power to adoptwas not a valid one.

7. In the view I take, it becomes unnecessary to discusswhether 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 thequestion of the validity of the power, Mr. Justice Jenkins holds that the powerwas intended to be annexed to the executorial office, and treats the questionas being whether the power of adoption contained in the will was not given tothe executors in their official capacity, and he treats it as having been sogiven. But if the power of adoption were annexed to the executorial office, orif the power were given to the executors in their official capacity, the poweris 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 theCourt below holds it to be, viz., a power of adoption to the wife alone, withthe consent of the other executors and trustees, it would seem almost to followthat the testator intended the selection of an adopted son to be made with theconsent of the father and uncle, as the persona designates for this purpose inthe will, and in whom a personal confidence was reposed by the testator. Clause14 supports this view, whilst the case of Beemchurn Sen v. Hera Lall Seal(1867) 2 Ind. Jur. N. S. 225 has a distinct bearing upon it. Had it beennecessary for me to decide the point, I should have felt considerabledifficulty in saying that the power had been well exercised, the father of thetestator having died before the adoption took place.

8. Holding the above views, it becomes unnecessary toexpress any opinion upon the other points which have been raised, as theplaintiff cannot maintain the present suit, though it is not to be inferredfrom my silence on those points that I am in accord with Mr. JusticeTrevelyans views upon them.

9. This is one of those cases in which, having regard to thetime which has elapsed since the adoption, ones natural inclination would beto uphold it if possible. Having regard to that lapse of time I asked theappellants counsel whether any question of limitation, estoppel, laches oracquiescence could be raised in the appellants favour, but he very fairlyreplied that no such question could be successfully raised as against theinfant respondents, who will take the property failing a valid adoption of theplaintiff. As, then, any such questions are eliminated, we may view the case asif the matter had been submitted for our consideration shortly after, and notmany years after, the alleged adoption; in other words, the lapse of time doesnot in point of law assist the appellant. It may seem a hard case on theplaintiff who, however, is responsible for having initiated the litigation, tobe now told that his adoption is invalid: but, on the other hand, it would beequally hard on the infant respondents, if they have to hand over theirproperty to one who has not been validly adopted as the testators son. It is,however, not open to us to enter upon any question of hardship one way or theother. I think the appeal fails and must be dismissed.

10. The cross-objections must be allowed, and the suitdismissed. I will deal with the costs after the other judgments have beendelivered.

Macpherson, J.

11. I agree with the learned Chief Justice. I do not thinkit necessary to express any opinion on the other questions raised in the case.

Trevelyan, J.

12. The two main questions in this case are (1) whetherthere is any valid gift of the accumulation of income; and (2) whether theplaintiff has been validly adopted under Hindu law.

13. I will deal with this second question first. Thedefendants are entitled to have it decided, as it goes to the root of the wholesuit and is the subject of their cross-objection.

14. The first question which we have to determine is whatthe testator meant by his will. As put by their Lordships of the Privy Councilin Tagore v. Tagore (1872) L. R. Sup 79: "The true mode of construing awill is to consider it as expressing in all parts whether consistent with lawor not, the intention of the testator, and to determine upon a reading of thewhole will, whether, assuming the limitations therein mentioned to take effect,an interest claimed under it was intended under the circumstances to beconferred. It is true that in giving (sic) Power of adoption, a testator iscontemplating to a great extent his own welfare, but legal effect cannot begiven to his intention, unless he provides for the exercise of that powerwithin tine limits of the law. We cannot alter or add to any portion of hisdirections, and if we attempt to depart from the strict letter of hisinjunctions, we run the danger of being charged with attempting to make a willfor him rather than construing and giving effect to the will which he hasactually made. Numerous instances occur to me where powers of adoption havebeen given with the real object of obtaining a spiritual benefit, but theCourts have declined to give effect to those powers. I need only instance byway of illustration the case of a double adoption, which came before the PrivyCouncil lately in the Andul case. In my opinion we must endeavour to ascertainthe intention of the testator as expressed by the words of his will just ascarefully and upon the same principles when he is seeking his own spiritualbenefit as when lie is conferring a bounty upon others. Having ascertained hisintention from his will, and without reference to the law on the subject, it isthen for us to apply the law and see if the power be valid. I know of noauthority which lays down that powers of adoption are to be construeddifferently from other powers. It has been suggested to us that it must beassumed that the testator knew the law, and that the portion of the power whichis in accordance with the law must be accepted and the rest rejected. It isimpossible 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 withinstances of this. The power, so far as is material for the present purpose, isgiven 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 permissionand liberty to adopt after my decease a son." There can be no doubt thatthe only-person to whom a power of adoption can be validly given is the wife ofthe person giving the power. If the testator intended, as he says, that hisexecutors and trustees should execute this power jointly with his widow, it wouldbe impossible to carry out this power. The only way, as far as I can see, bywhich any effect can be given to this power is by supposing that the testatorintended to give the power to the wife alone, hut required her to act with theconsent of executors. This construction is, however, to my mind an impossibleone, having regard to the other terms of the will.

15. In the first place paragraph 13 authorises theexecutrix, executor and trustees and the survivor of them to appoint any otherperson or persons to succeed them or him in the execution of the trusts of thewill. The adoption was one of the trusts of the will, and this power shows thathe contemplated the adoption being made by persons other than the widow.Leaving paragraph 13 entirely out of consideration I think that paragraph 14ais conclusive on this question. He there says: "In case of any accidentarising to cause my wife to depart her natural life before adoption of a malechild my surviving executors are empowered to act with my full consent anddirection to adopt a male issue." This to my mind shows conclusively thatthe testator did contemplate that the adoption should be made by persons otherthan his wife, and therefore there is no reason forgiving a forced constructionto the earlier paragraph, which gives the power.

16. Moreover, it is noticeable that whereas the testatorgives to his executors powers to adopt on the death of the wife he does notgive to the wife any power to adopt in case of the death of the executors. Thisshows that the testator imposed a greater confidence in his executors than inhis wife. I feel it impossible, having regard to all the terms of the will, tohold 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 widowcould adopt with the consent of the executors and trustees, I am of opinionthat the death of the father, who was one of the executors, prevented theexercise of the power.

18. Besides his wife the testator appointed his father anduncle as executors and trustees. I have no doubt that this personalrelationship operated in the testators mind when including them in the powerof adoption.

19. Even if the power be construed as giving a power to thewidow with the consent of the executors, I think the nature of this particulartrust and the relationship of the executors show that, although the power isgiven to the executors, it is intended to apply only to these particularpersons 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 Lal Seal was described as executor, yet Sir BarnesPeacock considered that a personal confidence was reposed in him.

21. An authority to adopt must be strictly pursued. ChowdhryPudum Singh v. Koer Oodoy Singh (1867) 12 Moo I. A. 356 and if the confidencehere imposed be a personal one, it follows that the death of one of the personswhose consent is necessary to the execution of the power must destroy the power.

22. We have been referred to a recent decision of thisCourt---Surendra Nandan v. Sailaja Kant Das Mahapatra (1891) I.L.R. 18 Cal. 385in which Sir Barnes Peacocks decision seems to have been considered, butbeyond expressing their concurrence with the judgment of the Court below, thelearned Judges give no reasons for their decision, and, as a matter of fact, inthat case the widow was only enjoined to obtain the advice and opinion of themanager. The consent was not a condition. Conditions, whether they be possibleor impossible of fulfilment, must be considered, and unless they are strictlycarried into effect, the power cannot be exercised---see Rangubai v.Bhagirthibai : (1877) I.L.R. 2 Bom. 377. In my opinion theadoption was bad, and on that ground the suit ought to fail. I desire also toexpress my opinion as to the other question which has been argued, namely as tothe right to the accumulations.

23. The determination of this question depends upon theterms of the ninth paragraph of the will.

24. It was contended by the learned Advocate-General that bythe provisions contained in that paragraph the widow got an interest for lifeby implication, but this is scarcely consistent with the direction that sheshould 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 eventhappening it is to be determined who is to succeed. The question is whether a aHindu testator can direct the accumulation of the income of his property for anindefinite or any time without providing for the beneficial interest. Thecircumstance that the property has been given to trustees is wholly immaterial.A Hindu testator cannot create by a trust an interest which is otherwiseincapable of creating. One of the best known of the several importantprinciples which were enunciated in the Tagore case was that a man cannot beallowed to do, by indirect means, what is forbidden to be done directly, andthat a trust can only be sustained to the exte(sic) and for the purpose ofgiving effect to those beneficiary interests which the law recognizes.

25. As I understand the Hindu law, there must be a present beneficialinterest created in property in order to render the gift, whether under a willor inter vivos, valid. In an unreported case Gopal Lal Seal v. F. J. Marsdendecided on the 11th March 1887 I expressed my opinion on the subject in thefollowing words:--"I do not think that a gift of this description is validaccording 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 willsis the same, and in order that there may be a valid gift the donor mustimmediately divest himself of the property in favour of some existingbeneficiary, and in the same way with regard to wills there cannot be a gift toa person to come into operation at a future date, unless there be a gift to abeneficiary in the interim." This is, as I understand it, merely what wasdecided 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 capableof 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 existenceat the death of the testator."

26. I cannot see how a direction to accumulate can be validunless there be a present gift to support the direction to accumulate. The factthat 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 payingdebts does not to my mind help us. In the former case accumulation is renderednecessary by the incapacity of the beneficiary and is allowed in order that hemay obtain the greater benefit from the gift which is made to him. In thelatter case, the direction to accumulate is in aid of the proper administrationof the testators estate, and is sometimes necessary for the due performance ofhis legal and moral obligation to pay his debts.

27. I have assumed that the accumulations follow the gift ofthe corpus. I am very doubtful whether under the terms of this will there isany gift of the income.

28. In my opinion there is no valid gift of the incomeduring-the life-time of the widow.

29. There remains one matter in contest. It was contendedthat, even if there was no gift of the property, the widow took as heir of thefirst adopted son and by the second adoption did not divest herself of hermothers estate. There is no doubt that by adoption a woman divests herself ofher widows estate. I cannot see in principle why she cannot divest herself ofher mothers estate in the same way as she can divest herself of her widowsestate. The act is hers, and the object of it is to create an heir to herhusband. 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 mothers estate in thesame way as she divests herself of her widows estate on the first adoption.

30. I agree that the suit should be dismissed.

Francis Maclean, C.J.

31. As regards the costs of the suit the order as to them inthe Court below may stand. As regards the costs of the appeal and of thecross-objections, the parties to the suit who are sui juris not objecting, thecosts of all parties of the appeal and cross-objections may, as betweensolicitor and client, be paid out of the estate.

.

Amrito Lall Dutt vs.Surnomoni Dasi and Ors. (05.04.1898 -CALHC)