Chainani, J. - (1.)The dispute in this appeal relates to certain properties which originally belonged to Gokalbhai Bapuji Patel. He had no issue. On 8th October 1895, he made a will with regard to these properties. They are referred to as lots Nos. 1 to 6 in the will. He stated in the will that his wife should take possession of all his properties after his death and should meet the expenses of his funeral ceremonies from lots Nos. 4 and 5. He further directed that his wife should maintain herself from the income of the remaining properties and that after her death, these properties should go to his two sisters, Jijiben and Raibaben. One of these properties, lot No. 6, had been mortgaged with possession, and in regard to that property he stated that it should be redeemed by his two sisters. At the end of the will, he stated that if his wife gave birth to a son or daughter after his death, he or she was to be the owner of all his properties. Gokalbhai died on 26th January 1897, leaving behind a widow Bai Raliat and two sisters, Jijiben and Raibaben. Jijiben died a few days after him on 14th February 1897, leaving behind a son, Shankar Lal-das. Raibaben died in 1904 leaving behind two sons Fakirbhai and Bhailal. Bhailal had three sons, Mahaji Chaturbhai and Hathibhai. On 12th March 1909, Shankar Laldas sold properties lots Nos. 1 and 2 and half of house, lot No. 5, to plaintiffs 2 and 3's father, subject to the rights of Bai Raliat to enjoy their income during her life time. On 15th January 1912, Raibaben's heirs Fakirbhai and Bhailal's three sons, sold properties, lot No. 3 and half of house, lot No. 5 to the father of plaintiff 1 and father-in-law of plaintiff. 4. The purchasers did not obtain possession of the properties, as under the will, the sisters of Gokalbhai were not entitled to their possession until after the death of the widow, Bai Raliat. In May 1946 Bai Raliat adopted defendant 2 son of defendant 3. On 26th August 1946, the plaintiffs filed the present suit for a declaration that defendant 2 was not the adopted son of Gokalbhai Bapuji and that he was not entitled to the properties (lots Nos. 1, 2, 3 and 5) which had been alienated to the fathers of plaintiffs 1, 2 and 3. Bai Raliat, who was defendant l, died during the pendency of the suit. The plaintiffs then amended the plaint and prayed for possession of the properties also. Defendants 2 and 3 to whom I will refer in the remaining part of the judgment as defendants, raised various contentions. The principal contentions with which we are now concerned, were that the two sisters of Gokalbhai did not acquire any interest in the properties on the death of Gokalbhai, that whatever rights they obtained under the will were to accrue to them after the death of Bai Raliat, that the adoption of defendant 2 put an end to these rights and that as the adoption took effect from the death of Gokalbhai, the alienations made by the heirs of Jijiben and Raibaben were not binding on defendant 2. The learned Civil Judge held that the adoption of defendant 2 had been proved. He did not accept the defendant's other contentions and passed a decree directing the defendant to handover possession of the properties to the plaintiffs. The defendants have come in appeal.
(2.)Mr. Patel, who has appeared for the appellants defendants, has raised two points in this appeal. He has urged that the bequests made by Gokalbhai to his two sisters by his will were contingent, as they were subject to the condition of Bai Raliat dying without any issue, that the legacies did not vest in the sisters on the death of Gokalbhai, but that their rights arose for the first time after Bai Raliat's death, that as in the meantime defendant 2 had been adopted, the adoption extinguished whatever rights they had acquired under the will and that the dispositions made in their favour cannot consequently take effect. He has further urged that as the rights of an adopted son are the same as those of a natural born son, and as an adopted son is presumed to have been in existence at the time of his adoptive father's death, the dispositions made by the will are in any case not binding on the adopted son, defendant 2, as the properties were ancestral.
(3.)In support of his arguments on the first point, Mr. Patel has referred us to Natvarlal v. Banchhod, 22 Bom. L. R. 71 : (A. I. R. (7) 1920 Bom. 295), Shivappa v. Virbhadrappa 45 Bom. L. R. 844 : AIR (30) 1943 Bom. 423 and the unreported decision of Gajendragadkar J. in Patel Motibhai Amthabhai v. Patel Rambhai, Mahijbhai, S. A, No. 1136 of 1943, D/- 2-2-1946. The terms of the wills in these cases were different from those of the will, which we have to consider. In Natvarlal v. Banchhod, 22 Bom. L. R. 71: (AIR (7) 1920 Bom. 295), the testator by his will left all the properties to his son's widow for her life, but permitted her to adopt a son. The boy, if adopted, was to be owner of the properties. The will provided that if the son's widow died without taking a boy in adoption, his grand daughter and her sons were to be owners of the properties. It was held that inasmuch as there was, on the death of the testator, no direct gift of the remainder to the grand-daughter, but a gift contingent on the happening of an uncertain event, viz. the dying of son's widow without having taken a boy in adoption, the contingency could not be regarded as having occurred in view of the fact that the son's widow had in fact made an adoption. In Shivappa v. Virbhadrappa 45 Bom, L. R. 844 : AIR (30) 1943 Bom. 423, the will directed that the two widows should take possession of the properties after the testator's death and enjoy them during their lifetime and that after their deaths, Gurappa or his heirs should take possession of the properties and enjoy them. It was also stated in the will that no one had any right of interference in regard to immovable properties during the lifetime of the widows. On an interpretation of the terms of the will, Lokur J. came to the conclusion that the testator did not purport to expressly give his properties to Gurappa individually, that the testator contemplated the possibility that Gurappa might not survive the widows and had, therefore, said that the properties should be taken possession of by Gurappa or his heirs, that the testator was not anxious to make a bequest in favour of Gurappa but only to see that his lawful heirs succeeded one after another, and that consequently, the properties did not vest in Gurappa on the testator's death. In the third case, the will ran as follows :
"After my death, my wile Ganga is the heir to my property and if Ganga has a child in future, the child is the heir to the property and if I have no successor behind me, then my property should be taken possession of by the following persons and they should according to the majority use it for medical or educational purposes."
After the testator's death the widow adopted a son and a question arose whether the bequest in favour of the charity could take effect. Gajendragadkar J, held that the terms of the will showed that the gift in favour of charity was not to take effect if there was any person who could legitimately claim to be the testator's successor, that the adopted boy was the successor of the deceased, as under the Hindu law, a son adopted is in all material particulars equal to a son born and that consequently the adopted son was entitled to the testator's properties. All these three cases were therefore decided on their own facts. Moreover, as observed by Kay L. J, in In re Stone Baker v. Stone (1895) 2 ch. 196 at p. 201 : (64 L. J. Ch. 637) "one will ought not to be construed by another, where the language of the two is not identical." The question must be decided by reference to the intention of the testator, which is to be gathered from the language used by the testator in the testamentary instrument. The document must be read as a whole and all parts of it must be considered with reference to each other so as to form, if possible, one consistent whole. See Rameshwar Baksh Singh v. Balraj Kuar 37 Bom. L. R. 862: (AIR (22) 1935 P.C. 187).