Mitter, J. - (1.) One Rudrappa Murigeppa Gugwad died leaving a will dated February 2, 1919. It is claimed by the appellant that he also left a codicil dated August 10, 1919. After reciting in Clause 1 of the will that he had brought up Lochanappa Gugwad, son of Irappa Sidlingappa Gugwad, and that though he had wished to take the said Lochanappa in adoption but had not been able to do so up till then and even if the adoption ceremony did not take place in the future, Lochanappa alone would be the owner of his properties he proceeded to state in Clause 2 of his will that: "Even though I have hereby transferred the ownership of my immovable and movable properties to Lochanappa Irappa Gugwad, Lochanappa should act under the supervision of the trustees, namely, Lingappa Senganshanappa Tyapi and Gurulingappa Gangappa Gugwad. If both the trustees find that my property will fall out of use on account of Lochanappa's taking to bad ways, both the trustees should take possession of the property and safeguard it by appointing my extremely faithful clerks Veerabhadrappa Mallappa Suligavi and Basappa Nurangappa Tuppad. If Lochanappa gets a male issue the property should be in the possession of both the trustees till that son attains majority". In Clause 3 he laid down that: "In case Lochanappa Irappa dies without leaving male issue, I fully authorise the said trustees to transfer the ownership of the movable and immovable property of my family to the son of Gurupadappa Gangappa Gugwad, resident of Bijapur, and to deliver the entire property into his possession". The original will was deposited with the Collector. After having executed the will the testator appeared to have proceeded to Benaras and from there addressed a letter to Lochanappa Irappa Gugwad on 10th August 1919. By that he directed some money to be advanced to Gurubasappa Basappa Gugwad to start him on a business and commended the welfare of the said Gurubasappa to the care of Lochanappa adding: "The main thing is that you should pay full attention to him, I have mentioned in the will that in case male children are not born to you, you should take in adoption in your own name any of the sons of Gurupadappa Gangappa Gugwad of Bijapur and that if you die without taking in adoption, they alone will be the owner of the movable and immovable properties. But two sons are born to him. As early as possible, that is to say, when one boy becomes five years old or after my death you should execute this work of adoption and you should mention that the property should go to him after your death". The last statement appears to be incorrect inasmuch as the testator had not by his will directed Lochanappa to make such an adoption.
(2.) Probate of the will was duly taken and Lochanappa entered into possession of all the properties left by the testator. According to the judgment of the High Court appealed from, the letter was not a formal document as a codicil should be, nor was it referred to in the probate proceedings. In the year 1935, Gangappa Gurupadappa Gugwad, the appellant herein, filed a suit in the Court of the First Class Subordinate Judge at Bijapur against Lochanappa and the said two trustees for a declaration that Lochanappa had only a life interest in respect of the properties described in the schedule to the plaint as per the will and codicil executed by the testator, that certain improvident transactions put through by Lochanappa in contravention of the directions given in the will were not binding on the plaintiff or the properties left by the deceased and that the said Lochanappa having acted contrary to the directions given in the will and codicil and having mismanaged the said properties an injunction should be issued against the trustees directing them to give Lochanappa only maintenance in terms of the will.
(3.) The Subordinate Judge who heard the suit framed several issues of which the important ones were as follows:- (1) Whether the plaintiff is entitled to sue (2) Whether Lochanappa defendant No. 1 got only a limited interest in the estate of the testator, Rudrappa Gugwad, under the will (3) Whether acts of rnismanagement by Lochanappa contrary to the directions of the will had been proved (4) Whether an injunction could be validly given to the trustees to take over the management from Lochanappa and give him only maintenance Before the Subordinate Judge evidence both oral and documentary were let in. He construed the will to arrive at the finding that Lochanappa had been made the malik or owner of the properties covered by the will and that it was the will of the testator which recited that the estate given to Lochanappa was to be heritable. With regard to the further directions given in the will, he came to the conclusion that "Lochanappa having been made an owner under the will further expression of such intention cannot be properly allowed to control or qualify that ownership". As regards the direction in the letter styled a codicil advising Lochanappa to take one of the sons of Gurupadappa Gangappa Gugwad in adoption, he held that: "In fact, there is no such direction in the original will. Even assuming that it is so, only means that Gurupadappa's sons are to be the owners in case Lochanappa dies without male issue and without adopting one of the sons of Gurupadappa; Lochanappa is still alive and it is yet to be seen whether he adopts plaintiff or not or whether a son will be born to him or not. Plaintiff has at the most a contingent right and no vested interest, and therefore it is a question whether he is entitled to a simple declaration." The suit out of which this appeal arises was filed by Gangappa Gugwad after the death of Lochanappa in 1957 against- the widow of Lochanappa, one Chanabasappa Gurubasappa Gugwad who was undisputedly taken in adoption by Lochanappa as his son-in the year 1951 and Gurulingappa Gungappa Gugwad, the surviving trustee under the will of Rudrappa pleading inter alia that "Rudrappa did not confer an absolute estate on Lochanappa in respect of his property, that the bequest made in his favour conferred upon him only a restricted life estate and that even assuming Lochanappa was an absolute owner he was entitled to it only during his lifetime and after his demise it was to revert to the plaintiff by virtue of the will and codicil". The plaintiff appellant went on to add that it was incumbent on Lochanappa to adopt him alone and none else and any adoption in contravention of the direction in the will of Rudrappa Murigappa Gugwad was invalid and even assuming that the said direction was not mandatory, defendant No. 2 could not acquire the status of a son begotten by Lochanappa so as to claim any interest in the property of the deceased testator. The suit was contested by the widow and the adopted son, defendant No. 2 who pleaded the bar of res judicata on the strength of the judgment in the suit of 1935. The Subordinate Judge held against the defendant on that issue. He also found that the appellant was the rightful heir to the properties of the deceased testator under the will and codicil of Rudrappa after the death of Lochanappa.;