JUDGMENT Walsh and Ryves, JJ.
1. The property in dispute belonged to one Nihalo, who died on the 29th of December, 1914. The plaintiffs respondents were distant collaterals of Nihalo, who was a separated Hindu, and they claimed all the property left by Nihalo, as his heirs. Their claim was resisted in the mutation proceedings by the appellant on the ground that he was entitled to Nihalo's property. Mutation was granted in his favour, hence this suit. The plaintiffs claimed all the property left by Nihalo. The defendant asserted that on the 15th of December, 1891, Nihalo had executed a deed of gift of the bulk of his property in his favour and had put him in proprietary possession of it, and that subsequently on the 13th of January, 1912, he executed a registered will by which he left the remainder of his property to him. The defendant also stated that as a matter of fact he was the adopted son of Nihalo, and in proof produced a tabniatnamah or deed of adoption, executed on the 19th of January, 1913. The fact and legality of this adoption was denied. At the trial the defendant's pleader stated that he did not wish to give evidence on the issue of adoption, as he was prepared to stand or fall on the remaining issues. The court of first instance held, that the deed of gift was genuine and that it had been acted upon, and that under it the defendant had acquired full proprietary title and possession of the properties comprised in it. The plaintiffs' plea with regard to the will was that it was "farzi," that is to say, mere "waste paper." In argument before us it was pleaded that inasmuch as throughout the will the defendant was described as Nihalo's adopted son, on failure of proof of the adoption, the will must fail because, it was argued, that the whole motive of making it was the fact of the defendant being believed to be the adopted son of Nihalo. The court of first instance overruled this plea and held that it was the intention of Nihalo under this will to pass the remainder of his property to the defendant. On appeal the lower appellate court found that the plaintiff's suit as regards all the property except that covered by the will was rightly dismissed. With regard to the will that court held that Nihalo made the will in the defendant's favour, only qua adopted son, and as the plea of adoption had been abandoned, it held, purporting to follow two decisions of the Privy Council, Lali v. Murlidhar (1906) I.L.R., 28 All., 488 and Fanindra Deb Raikat v. Rajeswar Das (1885) I.L.R., 11 Calc., 463, that it was necessary to find what was the intention of the testator in making.the gift under the will. In both these cases in the Privy Council it was held, that under the circumstances of those cases the fact that the donee was an adopted son was a condition precedent to his receiving the gift. In both cases it was found that if the alleged adoption was not valid the gift must fail. The question in every such case is whether the donee's right to succeed depended on whether he had been sufficiently indicated, or whether he actually and legally was the "adopted son," and whether the gift was made to him personally or only because he was believed to be the adopted son. In Fanindra Deb Raikat v. Rajeswar Das (1885) I.L.R., 11 Calc., 463, their Lordships of the Privy Council admitted that, "the distinction between what is description only and what is the reason or motive for a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language (of the document) and the surrounding circumstances." Now in this case the facts are these:Nihalo had no children of his own. The defendant who was his nephew (or more accurately "wife's brother's son") lived with him apparently since his boyhood. Nihalo brought him up and got him married and, as has been mentioned above, on the 15th of December, 1891, made a gift in his favour of the bulk of his zamindari property. Since that time the nephew had been helping Nihalo in his business and living jointly with him. Then we come to the will executed twenty-one years afterwards, in which he bequeathed to him the rest of his property. At that time Nihalo's wife was dead, and he had no near relative. As said before he was a separated Hindu. It is contended that he did not mean to leave this property to the defendant merely because he was his nephew and because had lived with him for all these years and had been the recipient of his bounty, but because he had adopted him and for no other reason. It seems to us that it would be pressing the principle laid down in the Privy Council rulings very far to hold that simply because in this will the donee is described as an adopted son it must be taken that the testator meant that unless in fact and law he was an adopted son he never meant him to get any benefit under the will. Under these circumstances we think that the court of first instance was right. We allow the appeal, set aside the decree of the lower appellate court and restore that of the court of first instance with costs.