Macleod, C.J:— One Vithaldas and ??? Bhagwandas were members of a ??? joint family. Bhagwandas died ??? leaving a widow Ichhubai and a daughter Bhikhibai. Vithaldas died in 1875, the sole surviving co-parcener.
2. On 3rd May 1875, he made a will. He left all his property, moveable and immovable, to his daughter-in-law Ichhubai for life. But he said:
“if she likes, she may take upon her lap an adopted son. In case a boy is adopted her adopted son will become the owner of the whole of my property.”
3. At the and of the clause are the words:
“in case Bhikhibai happens to have a son she (Ichhubai) should not take a boy in adoption.”
4. Clause 3 is as follows:
“If Ichhubai happens to the without having taken a boy in adoption, then all that property mentioned in Cl. 1 shall after her death become of the ownership of Bhikhibai, the daughter of my deceased son Bhagwan by his first wife and the wife of Tribhowan Varjiwan and of the sons that may be born, to her; no other kinsman whosoever shall have any claim, right or interest.”
5. Ichhubai adopted a son in 1896, but at that time Bhikhibai had a son, the plaintiff in the case, born on 14th October 1891. After attaining his majority the plaintiff filed this suit against the adopted son, defendant 1, and various other defendants alleged to be in possession of the property of Vithaldas, praying that he should be put in possession of the plaint properties. The defendants denied the right of the plaintiff to inherit the property and urged that his claim was time-barred. The defendants Other than defendant 1 relied upon alienations in their favour either by defendant 1 or by Ichhubai. The learned Sub-ordinate Judge found that the plaintiff was not entitled to inherit the property of Vithaldas as an heir under Hindu law, that he was not entitled to claim the property of Vithaldas as a donee under the will, and that the property of Vithaldas did not devolve to Bhikhibai under his will.
6. Accordingly he dismissed the suit with costs. From that decision the plaintiff has appealed to this Court. In the first place it is clear that whatever powers of adoption Ichhubai had under Hindu law, Vithaldas had no power to control them by his will. He could however leave his property to Ichhubai's adopted son as a persona designata, provided the adopted son was born in his lifetime. The words at the end of Cl. 1 of the will ‘in case Bhikhibai happens to have a son she should not take a son in adoption’ impose a condition that the adopted son must be adopted before Bhikhibai had a son, in order to enable him to take under the will. It was just as if Ichhubai had a power to appoint, the power being defeated by the birth of a son to Bhikhibai. The above words do appear to have been written at the end of Cl. 1 as an afterthought, but we agree with the trial Court that it would not be safe to conclude that they were inserted after the will was executed.
7. Beading Cl. 3 it would seem that the testator first intended that Bhikhibai should take no interest if Ichhubai adopted a son. Then it may have occurred to him that he wanted his estate to go to Bhikhibai and her sons if she had any and that therefore the birth of a son to Bhikhibai should put an end to the right of Ichhubai to appoint a person who should take the estate, so the last sentience was added to Cl. 1.
8. As defendant 1 was adopted after Bhikhibai had a son, it is clear that he cannot take as a persona designata under the will.
9. Bhikhibai died in 1897 a few weeks before Ichhubai, and the right of the plaintiff to secceed to the estate after the death of Ichhubai depends on the question whether the remainder given to Bhikhibai by the will was vested or contingent.
10. It has been urged that the testator intended that Bhikhibai should have a vested remainder, liable to be divested if Ichhubai adopted a son before Bhikhibai had a son. But whatever the testator may have intended and although we must endeavour to give effect as far as possible to the testator's intentions, we are bound to construe the will according to well established rules, and give the written words their plain grammatical meaning. The testator evidently had in his mind various contingencies, and unfortunately he did not obtain expert advice, so that the written words should express his intentions regarding the devolution of the estate, according as those contingencies might or might not happen. Moreover, his difficulties were increased by the fact, as I think that he changed his mind after he had written Cl. 3.
11. To enable a remainder to be vested there must be a direct gift. Without the words added to Cl. 1 it is clear that Bhikhibai only took a remainder contingent on Ichhubai dying without taking a son in adoption. But it has been urged that on account of the added words in Cl. 1, we must read Cl. 3 as if it ran:
“it Ichhubai happens to the without having taken a boy in adoption who can take the estate under the condition mentioned in Cl. 1.”
12. In any event those words would not create a vested remainder, but a remainder contingent on a son being born to Bhikhibai before Ichhubai adopted, or Ichhubai dying without having adopted. The only possible chance the plaintiff has of succeeding would be if his mother's contingent interest on his birth became a vested one. But it is impossible to read Cl. 3 in that way starting with the fact that on the death of the testator there was no direct gift of the remainder to Bhikhibai, but a gift contingent on the happening of an uncertain event, viz., the dying of Icchubai without having taken a boy in adoption, I cannot say, in face of the fact that Ichhubai did adopt that the contingency mentioned in cl. 3 has occurred. The result must be that on the death of Ichhubai, as defendant 1 could not take, there was an intestacy.
13. The plaintiff urges that defendant 1 is excluded from the inheritance because his adoption was contrary to the terms of the will.
14. But that would only affect his rights to take under the will as persona designata, and would in no way affect his right to be considered as the grandson of Vithaldas under the adoption, which his mother undoubtedly had a right to make as a Hindu widow. But even to defendant 1 could not succeed, we are told, and it does not seem to be disputed that there are nearer heirs to Vithaldas than the plaintiff, who could only succeed as a bandhu. In my opinion therefore the decree of the lower Court must be confirmed and the appeal dismissed with costs.
Heaton, J.:— I agree.
G.P/R.K
15. Appeal dismissed.