Judgment

MITTER, J. :- 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 Lo