Amirthayyan and Another vs Ketharamayyan and Another

Muttusami Ayyar, J.—The question for decision in this second appeal is whether the construction put by the District Judge upon the will

(Exhibit I) is correct.

The testator, Panchapakesayyan, made his will on the 18th December 1884, and died on the 1st February 1885, leaving him surviving a widow

named Minakshi Ammal, the first defendant, and two divided brothers, the plaintiff''s. The plaintiff''s'' case was that Panchapakesayyan authorized

Minakshi Ammal only to adopt one of their sons and that the adoption of the second defendant, who was a mere sapinda, was invalid. On the

other hand, the contention for the defendants was that the authority was general and that the adoption was, therefore, open to no objection, The

Subordinate Judge considered that the testator conferred upon the first defendant an authority to adopt a child only from a particular class, but the

Judge held that there was no such restriction. It has been contended before us that the will has been misconstrued by the Judge

The terms in which the will was made are set out by the Subordinate Judge in paragraph 4 of his judgment, and only two passages in it are

material to our present purpose. The first is in these words:--""Although an eager desire to take a boy in adoption has now sprung in me, yet as I

could not now do it, hereafter you must adopt for me a boy you like from the children that may be born in the families of my brothers."" There can

be no doubt that this passage confers an authority to choose a child for adoption from a class or two particular families designated by the testator.

It shows further that it was his intention not to make an immediate adoption, but to postpone it until one of the class, viz., his brothers'' sons

became available for adoption.

The other material passage which occurs near the end of the will is in these terms:--"" The principal object of this will is that you should adopt for

me any suitable boy, (yaravadu oru takka Putranai) that as you are perfectly acquainted with what is conducive to my spiritual benefit, you shall

spend out of my properties for such benefit and that you should take upon yourself the responsibility of managing all my properties."" Does this

passage mean any boy whom she considers suitable, or any boy who was already indicated by the testator as suitable''? I have no doubt that the

latter is the correct construction, for the passage in question was intended to sum up and thereby explain the contents of the will and not to operate

as an independent direction. If the other construction were to prevail, there was no occasion for the testator designating a class and thereby limiting

his wife''s discretion. Nor was there any occasion for the testator forbearing to make an adoption at once and for directing his widow to wait until

one of his brothers'' children should thereafter be born. It is observed by the Judge that if by the words, any suitable boy, the testator meant some

boy who was suitable out of his brothers'' sons, he should have expressly said so and that the words "" any suitable boy,"" are as imperative as the

words, "" you should adopt a boy you like from the children that may be born in my brothers'' families."" But the passage in question states in a

general way the object with which the will was framed and the reasonable inference is that the testator intended not that any direction already given

by him should be struck out or cancelled, but that it should be read in the light thrown by the object he had in view. "" Any or some suitable or fitting

boy"" would, if read together with the direction contained in the earlier passage, only signify "" such boy as I consider suitable or have already

indicated as suitable."" The Judge''s view cannot be accepted, as it ignores the purpose with which the testator presumably inserted the second

passage and thereby imputes an intention to him practically to contradict himself. The decree of the District Judge is set aside and that of the

Subordinate Judge restored. The second respondent will pay the appellants'' costs both in this Court and in the lower Appellate Court.

Best, J.

The question for decision in this appeal is whether under the will (Exhibit I) the second respondent, the widow of one Panchapakesayyan, was

authorized to adopt the first respondent or whether the authority to adopt given to her under the will was limited to a boy belonging to the families

of her husband''s brothers, who are the appellants in this case.

The Court of First Instance, the Subordinate Judge of Tanjore, construed Exhibit I as giving only the limited power of adoption stated above,

and held the adoption of the first respondent to be void, whereas the District Judge, on appeal, has found that the power conferred on the second

respondent was not limited and that the adoption made by her of the first respondent is valid.

I am of opinion that the construction put on Exhibit I by the Court of First Instance is the correct one.

The primary rule of construing a document in the nature of a will is that the meaning of any clause in it is to be collected from the entire

instrument, and all its parts are to be construed with reference to each other. So construed, I am of opinion that the will in question limits the power

of adoption given to the second respondent to boys born in the testator''s brothers'' families. It is so expressly stated in the first part of the will. No

doubt at the end of the will, in summing up his instructions, the testator has said that the principal object of the will is that his widow should (inter

alia) adopt "" whoever may be fitting "" as a son for him. These are general words--but general words may be understood in a restricted sense where

it may be collected from the will that the testator meant to use them in a restricted sense; and it is only in cases where two clauses in a will are so

absolutely irreconcilable that they cannot possibly stand together, that the latter of the two can be allowed to prevail, the theory being that the

testator may have changed his mind. The rule is, however, never applied except on the failure of every attempt to give to the whole will such a

construction as will render every part of it effectual. The words "" any suitable boy "" in the latter part of the will must, therefore, be read with the

earlier clause which directs the adoption of a son "" out of the children that may hereafter be born in my brothers'' families."" There is no reason

whatever for supposing that the non-repetition of the words "" born in my brothers'' families "" in the latter part of the will indicated any change of

mind on the part of the testator. The only fair presumption is that he thought the repetition unnecessary, his intention to limit the selection to a boy

born in his brothers'' families having been sufficiently stated in the earlier part of the will. The further direction in the will that "" every act you intend

to do according to the above directions you must do in the presence of any of my brothers "" is also significant as showing that the testator remained

favourable to his brothers to the end of the will.

The direction to adopt behig thus found to be limited to a boy hereafter to be born in one of the brothers'' families, was the mere fact of no other

sons having been subsequently born in those families sufficient to warrant the adoption of any other boy? The Subordinate Judge has answered this

question in the negative and he seems to be supported by authority in this answer of his. But even assuming it to be otherwise, the passage from the

will already quoted requires that anything done under the will should be done in the presence of any of my brothers "" whereas the so-called

adoption of the first respondent was made in the absence of the brothers, without their consent in defiance of the first appellant''s objections, who

even offered to give his own second wife''s son in adoption if required.

I agree, therefore, in setting aside the decree of the lower Appellate Court and restoring that of the Court of First Instance and in directing the

second respondent to pay the appellants'' costs both in this Court and in the lower Appellate Court