JUDGMENT
1. The short point for determination in this second appeal is whether the lower Appellate Court was right in reversing the judgment of the District Munsif on the ground that the Will of one Srirangam Tirumalai Aiyangar, the deceased husband, of the plaintiff respondent was invalid in law and inoperative to divest the widow of her right to succeed to her husband’s estate on the ground of intestacy. It may be pointed out in limine that a great deal of the argument before us was directed to the question whether on a proper construction of the Will itself and the directions and dispositions therein contained what were the rights, if any, of the plaintiff.
2. Our attention was somehow failed to be drawn by oversight to the fact that the cause of action set out in the plaint was merely for possession of the estate on the ground that the Will was not genuine and valid, and that, therefore, she was entitled to succeed to the estate practically on the basis of an intestacy and that no reliefs were claimed by the plaintiff even in the alternative on a proper construction of the Will itself and the various clauses therein. To put briefly, the plaintiff’s claim was against the Will and not under the Will. Though after hearing the arguments in the case we were disposed to adjudicate about the rights of the plaintiff under the Will, as obviously it would be to the convenience of all parties so to do, still when we found that the cause of action on which the plaintiff has brought the action was not under the Will, it became very doubtful whether any decision by us on any such basis would even be regarded as useful, not to say binding.
3. We, therefore, directed the case to be posted again for being spoken to, and when we drew the attention of the learned practitioners on both sides to this aspect, both of them agreed to the view that no adjudication of the plaintiff’s claim as under the Will was called for.
4. We might also note that the learned Vakil for the plaintiff-respondent did not even invite us to give any adjudication after allowing the plaintiff to make the necessary amendment in the plaint.
5. In this state of things no questions arise regarding the rights, if any of the plaintiff under the Will and we have only to see whether the lower Appellate Court was right in holding that the Will was invalid though genuine. As both the lower Courts have found the Will to be genuine and no arguments have been adduced before us to the contrary, we must proceed on the footing of the Will being genuine.
6. The ground on which the lower Appellate Court has held the Will to be invalid may be briefly stated thus. Though executors are appointed under the Will and directed to take possession of the estate it is really for the purpose of holding the estate, managing it and delivering it over to a son to be adopted to the deceased testator according to the Will on such adopted son attaining his majority.
7. If it is now clear that no such adoption could possibly be made, then it follows that the purpose for which the property is to be held by the executors as trustees fails entirely and, therefore, there being no valid disposition of the property by the testator, it is real case of intestacy. There is nothing wrong in the logic of such an argument, provided the premises are not open to question The learned Subordinate Judge in the Court below has come to the conclusion that it is now clear that no valid adoption could possibly be made to the testator for two reasons; firstly, because there is no power given by the testator under the Will to the widow to make an adoption, and secondly, power to adopt is given to the executors, and under the Hindu Law it is only a widow that can adopt to her husband and the executors have no power to make any adoption to the deceased.
8. It is these conclusions based on the constructions of the document that have been attacked before us by Mr. T.M. Krishna-swami Aiyar learned Vakil for the appellants. We cannot help regarding this construction of the document by the learned Subordinate Judge in the Court below as hopelessly wrong. The clauses in the Will referring to the adoption have been translated thus. In accordance therewith I have hereby authorised the said executors to have the said Srinivasan son of Govindasam Aiyangar adopted after my lifetime and to have my funeral rights performed by him. In case the said Govinda Aiyangar raises any objection to give his son in adoption in the said manner the executors are authorised to seek for a proper son elsewhere and to get him adopted. Though the original of the Will is in the Tamil language and we have perused the same carefully, we must express our satisfaction that the translation into English of this document by the Court is thoroughly accurate and quite satisfactory. Taking the English translation, it is impossible to hold that the power to adopt is given to the executors. They are not asked to adopt but to have the said Srinivasan adopted and if that boy should not be available, the executors are directed to get some other boy adopted. The Tamil expressions are “(Eduthu vithu nadathivikka (Thakundha Pillaiji sweckaramaha ajouthu ukkarum). Why or how in the face of such language, the Subordinate Judge came to hold that the power to adopt was given by the testator to the executors it is difficult to understand. The difficulty is enhanced and not decreased when we take into consideration that the Subordinate Judge has himself referred to a passage from a decision of their Lordships of the Judicial Committee which runs as follows.
That no one can adopt a son to a dead man except his widow is such a rudimentary principle of Hindu Law and one so constantly occurring in ordinary life, that it is difficult to suppose any educated man to be ignorant of it. In the present case, however, it is not even necessary to have recourse to any such consideration. The language is perfectly clear. It is the casual form of the verb that is used and the executors are directed not to take in adoption but cause an adoption to be made. The lower Court was clearly wrong in holding that the power to adopt was given by the testator to the executors. Nextly as regards the ground that no power to adopt has given, to the widow, it seems to us that the very sentence quoted by the Subordinate Judge from the judgment of their Lordships of the Judicial Committee is sufficient to indicate what is necessarily implied in a direction to the executors to cause an adoption to be made. How can the executors cause an adoption to be made except by the widow? It seems to us that the contrary is really unarguable and we may add that the learned Vakils for the respondent have practically intimated to us that they themselves regarded the position as unarguable having regard to the language employed.
9. In these circumstances it follows that the decision of the lower Appellate Court with regard to the invalidity of the Will is wrong.
10. If, then, under the Will an adoption could legally be made at any time, it is impossible at present to say whether an adoption would or would not come to be made and so long as the widow lives, there is the possibility of the adoption being effected, and even though the widow may now have resolved not to adopt, it is possible that she might change her mind and take in adoption.
11. The only points argued by the respondents related to her rights, if any under the Will and as already stated no adjudication can be made with regard thereto in this action.
12. In the result the appeal is allowed and the judgment and the decree of the lower Appellate Court are reversed and set aside and the judgment and decree of the District Munsif are restored. The respondent will pay the appellants their costs also in this and the lower Appellate Court.
