This is an Appeal on behalf of the Plaintiff in a suit for a declaratory decree. One Shib Chandra Ghose, the maternal uncle of the Plaintiff, died on the 2nd October, 1893, and left behind him two widows, Anandamoyee and Chitrarekha. The junior widow Chitrarekha died on the 19th July, 1902. The senior widow Anandamoyee on the 2nd May, 1903 took in adoption the first Defendant, Ramapati Pal, the infant son of her own brother, Hari Krishna Pal. Deeds of gift and acceptance were executed on that date and the requisite ceremonies performed. On the 8th April, 1909, the Plaintiff who would be entitled to succeed to the estate of his maternal uncle, after the death of his aunt and in the absence of an adopted son, commenced the present action for declaration that the adoption had in fact never taken place, and that, if it had taken place, it was invalid in law. The suit was defended by the infant, represented by his adoptive mother who herself was also joined as a Defendant. The Subordinate Judge found on the evidence that the adoption did take place and that the necessary ceremonies were performed. This finding has not been assailed in this Court. The Subordinate Judge further found that the adoption had been validly made pursuant to authority conferred by Shib Chandra Ghose upon his widows. The Plaintiff has appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed substantially on four grounds, viz.:—first, that Shib Chandra Ghose did not by his Will of the 14th January, 1893 confer any authority upon his widows to take a son in adoption, that as the adoption purported to have been made pursuant to an alleged testamentary authority reliance cannot be placed upon authority of any other description, and that, in any view, the evidence as to oral permission is wholly unreliable; secondly, that as authority was given to the two widows jointly to adopt a son, it is not valid in law; thirdly, that as the authority was intended to be exercised by the two widows jointly, it could not be exercised by the survivor of the two after the death of the other; and, fourthly, that as the adoption was restricted to the near relations of Shib Chandra Ghose the widow was not competent to take her own nephew in adoption.

In support of the first ground, reliance has been placed upon the following passage from the Will of Shib Chandra Ghose: “Permission will be granted to my two wives to adopt a boy to arrange to offer water and funeral oblations to me; the adopted boy will have to be taken from my near representatives, but my wives will adopt whomsoever they would select”. It has been argued with reference to this clause that the Will does not confer any authority upon the wives of the testator to adopt and that he intended to confer such authority by a separate deed. On behalf of the Respondent, this view has been controverted and it has been suggested that the vernacular word is Haila and not Haibe, in other words, that the passage reads ‘Permission is granted’ and not 4 ‘permission will be granted’. In the Court below, the original Will was not produced but only the probate with a copy of the Will annexed thereto. In this copy, the word in question is somewhat illegible and may be read in either of the two ways suggested by the contesting parties. At their request, we sent for the original Will, and it transpires that in the original itself the word is not quite legibly written but our inclination is to hold that the word is Haibeh and not Haila. This, however, does not in our opinion, make any difference, because we think it is plain, upon a construction of the entire clause, that the testator intended to confer upon his wives an authority to adopt thereby and not by a seperate instrument. If would be unreasonable to hold that he provided in the Will for the details of the adoption and yet left over the very foundation for a separate document which as a matter of fact he never executed. We take it, therefore, as the parties concerned took it at the time of the adoption, that the testator gave to his wives authority to adopt by his Will. The first ground urged by the Appellant consequently fails.

In support of the second ground, it has been contended that an authority to the two wives of the testator to take a son jointly in adoption is invalid in law. Reference has been made to the decision of Jenkins, J., in Amritolal v. Surnomoye(1), the decree wherein was reversed by the Court of Appeal in Amritolal v. Surnomoye(2), on a different point, and the reversal affirmed by the Judicial Committee in Amritolal v. Surnomoye(3), and it has been argued with much force that a boy could not be taken in adoption simultaneously by the two widows. We are of opinion, however, that the language of the Will does not necessitate the inference that the testator intended his widows to do that which is contrary to law and is unknown among Hindus. To use the language of Sir Richard Couch in Akhoy Chandra Bagchi v. Kalapahar Haji(4), in construing a document of this description, the Court would consider that the person giving the authority intended his widows to do that which the law allowed, and not to do something which was, if not absolutely illegal, very unusual and not practised among Hindus. To the same effect is the decision in Ranjit Lal Karmakar…Defendant, v. Bijoy Krishna Karmakar…Plaintiff, .(5). It appears to us that upon a fair and reasonable interpretation of the Will before us we may hold that the testator did not contemplate simultaneous adoption of the same child by his widows; he rather intended the adoption of a son in accordance with law: i.e, by the senior widow, and upon her failure or refusal, by the junior widow. Ramji v. Ghamah(6), Padajirav v. Ramrav(7), Mandakini v. Adinath(8). From this point of view, there was a valid authority conferred by the testator upon his wives, and the validity of the adoption cannot be successfully challenged on the second ground urged by the Appellant.

In support of the third ground, it has been contended that as the authority to adopt was given to the widows jointly, it must be strictly followed by them, as ruled by the Judicial Committee in Pudam Singh v. Ooday Singh(9), Surendro Keshub v. Doorga Soondari(10), Mutasuddi Lal v. Kundan Lal(11), Kanne Palli v. Pacha(12) and Dharam Kunwar v. Balwant Singh(13). It has been argued on this footing that where the authority to adopt is given to the widows jointly, it must be exercised by them jointly and cannot be exercised by either after the death of the other, because a bare power given to two or more by name cannot be executed by the survivor, on the theory that if a man says he will trust two, the law will not say he shall trust one [Montifiore v. Brown(14)]. This contention, however, it has not been disputed, is opposed to the decision in Venkata v. Rangaya, where it was ruled that if an authority to adopt is given to the widows jointly, it must be exercised by them or by such of them as are living at the date of adoption, so that if there is only one widow alive at the date of the adoption, the power may be validly exercised by her alone. The reasoning on which this latter decision is founded is undoubtedly open to criticism and the theory that when an authority to adopt is conferred upon two widows, the power is annexed to an office, does not commend itself to us. The question, however, is by no means free from difficulty, and there is considerable divergence of judicial opinion on the subject. (Sugden on Powers, 1861, pp. 126–128). But it is not necessary for our present purpose to pronounce a final opinion on this matter or to examine the decisions by which the rule against survivorship has been frittered away on the theory that the power was coupled with an interest or was annexed to an office. As we have held that the power in this case was conferred upon the widows severally, no question of survivorship clearly arises.

In support of the fourth ground it has been argued that the adoption of the Defendant is invalid, because the widows were authorised to take in adoption a boy from amongst the near representatives of their husband. It may be assumed that an authority to adopt must be strictly pursued in a matter like this, and that if the authority is to adopt a pan icular boy, the widow cannot adopt any other boy, even if the boy specified is not obtainable [Amirthayyan v. Khetttamayyan(16)], though there is weighty authority in support of the contrary view [Veera Perumal v. Narayan(17), Lakshibai v. Rajaji(18), Surja Narayan v. Venkata Ramana] But the question still remains, whether there is such a restriction upon the exercise of the authority to adopt by the widow. It is obvious that the expression “from amongst my near representatives” is, if strictly construed, meaningless, and if the testator intended to restrict the class of boys within which the choice by his widows was to be limited, he failed to effectuate that intention. It has been argued, however, that whoever might have been chosen, was intended to be selected by the widows concurrently and that the death of one of them did not remove the fetter upon the exercise of authority by the other but rather rendered the exercise of such authority wholly impossible. We are not much impressed by this argument. The expression “my wives will adopt whomsoever they would select” must be read with the previous part of the clause, which, as we have already held, must be construed distributively as conferring an authority on the widows severally. The concluding words of the clause must consequently be construed in the same sense, and thus interpreted, they authorise the widow making the adoption to select a bey at her choice. We may add, as pointed out by the learned Judges of the Madras High Court in Surja Narayan v. Venkata Ramana, that when the general intention of a Hindu to be represented by an adopted son is clear, there seems no reason why effect should not be given to such intention, if it is possible to do so without contravening the law; at any rate, the Court will not be astute to defeat the intention of the testator. It is an elementary rule that powers are to be construed in accordance with the intention of the donor or grantor; that intention is to be gathered from the instrument itself, although a reference may sometimes be made to the circumstances under which it was given, Smith v. Earl of Jersey(20), Bute v. Stuart(21), and all powers are to be liberally construed in equity in furtherance of the purpose for which they were created, Roberts v. Dixall(22), Long v. Long(23). In the case before us, we are of opinion that the testator authorised each of his widows by his Will to take a son in adoption, that upon the death of one of them, it was competent to the other to exercise the power, and that the power has been validly exercised by the adoption of the Defendant.

The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.

Appeal dismissed.