JUDGMENT Harington, J. - The Plaintiff is the adopted son of Jogendra Nath Mullick, who died without issue on April 12th, 1888, leaving a Will by which he authorized his widow to adopt a son to him. Jogendra Nath Mullick was himself an adopted son; he directed his widow to adopt from his own natural family. In pursuance of that power the widow duly adopted the Plaintiff in the year 1900. 2. The present suit is brought for the purpose of obtaining a declaration of the Plaintiff's rights under the Will of Jogendra Nath Mullick, and for determining the question whether, under the provisions of that Will, the property not otherwise disposed of vests in Soobul Chand Chundra and Ruttonmoney or whether the Plaintiff takes any interest in it. 3. The material clauses of the Will are as follows :--" 6th--Again should I die without leaving any male issue I authorise and empower my wife Sreemutty Giribala Dassee with the consent and approval of the executors and trustees of this my Will for the time being to adopt a son to me and in the event of the death of such son under age and unmarried or without leaving male issue then I empower my said wife to adopt a second son and if my such second son also die without attaining age and unmarried or without leaving male issue then I empower my said wife to adopt a third son and I declare that the son to be so adopted who shall have male issue shall inherit my estate and my estate shall then vest in him and his heirs for an estate of inheritance but and until he have male issue he shall only be entitled to a life interest in my estate. 9th--Until my wife shall adopt a son and during so long as my wife shall not adopt a son, after my death and during her life-time I will and direct that my trustees and executors shall stand and be possessed of my estate in trust for the persons or person who will become entitled thereto under the provisions hereinafter contained. 9th--Until my wife shall adopt a son and during so long as my wife shall not adopt a son, after my death and during her life-time I will and direct that my trustees and executors shall stand and be possessed of my estate in trust for the persons or person who will become entitled thereto under the provisions hereinafter contained. 10th--Subject to the provisions of this my Will I further will that in the event of my said wife dying without having adopted any son or in the event of any competent Court holding upon the construction of this my Will that the disposition of my estate as above-mentioned is invalid then I give devise and bequeath my estate or such portion thereof of which it shall be declared that I have died intestate unto Netai Chand Chundra, the third son of Babu Soobul Chand Chandra, of No. 13, Bechu Chatterji's Street, and Ruttonmoney Chundra, the second son of Babu Debendra Nath Chundra, of No. 13, Bechu Chatterji's Street, and their heirs for ever, but this devise and bequest is made on the expressed condition that the said Netai Chand Chundra and Ruttonmoney Chundra and their family shall live in my family dwelling house and that they and their heirs shall take and adopt the name of 'Mullick'. 4. The effect of these clauses is as follows :--(1) The widow may adopt a son, who will take a life interest in the property until he begets a son when his interest will become absolute. In the event of his dying without male issue the widow may adopt a second, and in the event of his dying without male issue a third son. 2. Until the adoption the estate is to be held in trust for Netai and Ruttonmoney. 3. If the widow dies without adopting or if the dispositions of the Will are held to be invalid then such portion of the estate as to which there is an intestacy to go to Netai and Ruttonmoney. 5. Netai is dead; his interest under the Will is vested in Soobul Chand Chundra. 4. 3. If the widow dies without adopting or if the dispositions of the Will are held to be invalid then such portion of the estate as to which there is an intestacy to go to Netai and Ruttonmoney. 5. Netai is dead; his interest under the Will is vested in Soobul Chand Chundra. 4. For the Plaintiff it is contended that the interest given to Netai and Ruttonmoney under the Will is limited and does not extend beyond the time when the widow adopts a son, that on the adoption the gift to the Plaintiff takes effect and he is entitled to his life interest. Further, it is argued that the Will only gives Netai and Ruttonmoney an absolute estate in the event of either (a) the death of widow without having adopted a son or (b) the disposition in the Will being held void. 5. On behalf of Soobul and Ruttonmoney it is contended that cl. 9 gives an absolute estate to Netai and Ruttonmoney liable to be divested on adoption: that Hindu law does not permit an estate once vested absolutely to be divested on the happening of an uncertain event and that the gift to Ruttonmoney and Netai being good and the condition divesting other estate bad, the gift to them stands and the condition must be rejected as void. 6. Alternatively it is argued that if the dispositions in cl. 9 are void, Netai and Ruttonmoney take the estate purporting to be disposed of in cl. 9 under the express provision of cl. 10. 7. The first question to be considered is,-- Does cl. 9 give Netai and Ruttonmoney an absolute estate in any of the testator's property or not--I think it does not. It only purports to deal with the estate during the life-time of the widow. Supposing the Will stopped and the end of cl. 9 then substituting the names Netai and Ruttonmoney for the words "persons hereinafter entitled," it could not be contended that Netai and Ruttonmoney took an absolute estate because the trust created in that clause on their behalf is (i) until the widow shall adopt, (ii) during so long as she shall not adopt, (iii) during her life. 9 then substituting the names Netai and Ruttonmoney for the words "persons hereinafter entitled," it could not be contended that Netai and Ruttonmoney took an absolute estate because the trust created in that clause on their behalf is (i) until the widow shall adopt, (ii) during so long as she shall not adopt, (iii) during her life. The interest given under that clause therefore is in the first instance limited up to the time when the adoption takes place, and if there be no adoption then it is limited to the duration of the widow's life, So far, therefore, as cl. 9 is concerned the interest given under it does not become absolute even on the failure of the widow to adopt because whether there be an adoption or not the interest terminates with the widow's life. 8. This view renders it unnecessary to discuss the question, on which the case of Bhoobun Moyee v. Ram Kishore 10 M.I.A. 279 : S.C. 3 Suth. P.C. 15 (1865), Akhoy Chunder v. Kalapahar Haji 12 I.A. 198 (1885), and a large number of other cases were cited, whether when an estate has once vested absolutely in a person other than the widow it can be divested by the exercise by the widow of the power of adoption but I must observe that all the cases cited on this point were cases in which the estate it was sought to divest, had become vested in the holder as heir by the operation of law : no case was cited to show that the same rule would apply in the case of a stranger to the inheritance claiming as devisee under the same Will which gave the widow the power to adopt. This construction of cl. 9 renders it unnecessary to discuss the question left open by the Privy Council in the case of Ram Lal Mukherjee v. Secretary of State 8 I. A. 46 : s. c. I. L. R. 7 Cal. 304 (1881), viz., whether under Hindu law an estate could be divested, not upon the close of a life in being but on some uncertain event happening at some uncertain time during a life in being. 9. The next question is--Is the gift to the adopted son sustainable under Hindu law? 10. 304 (1881), viz., whether under Hindu law an estate could be divested, not upon the close of a life in being but on some uncertain event happening at some uncertain time during a life in being. 9. The next question is--Is the gift to the adopted son sustainable under Hindu law? 10. To enable the gift to stand it must be made in favour of some person who is capable of taking at the death of the testator : the Plaintiff was not actually in existence at the testator's death but as the adopted son to the testator his title relates back to the testator's death and in the eye of the law his capacity for inheriting is the same as if he had been born in the testator's life-time. [Babu Anaji v. Ratnoji ILR 21 Bom. 319 (1897)]. 11. The question whether a Hindu could create a life-estate was discussed and decided in the affirmative in the Tagore case, there is therefore nothing repugnant to Hindu law in the provision in cl. 6 by which the testator gives a life-estate to his adopted son. The effect, therefore, is to give the Plaintiff an interest for life which on a contingency, i.e., that of his having male issue may become an absolute interest. If the estate for life is sustainable under Hindu law it is unnecessary to discuss in whom the estate vests subject to that life interest. I do not agree with the argument that if the life interest determined during the life-time of the widow the interest in the property would be in abeyance pending a second adoption. The interest subject to the life interest vested in the plaintiff is either undisposed of by the Will in which case it vests in the person who but for the Will would be lawfully entitled thereto, or it is disposed of by the Will in which case it vests in the donee. In neither case can it be said to be abeyance. It is unnecessary to discuss what may happen on the the plaintiffs death, or what will be the devolution of the property in events which have not occurred and may never occur. Holding as I do that the Defendants Soobul and Ruttonmoney have no interest under cl. In neither case can it be said to be abeyance. It is unnecessary to discuss what may happen on the the plaintiffs death, or what will be the devolution of the property in events which have not occurred and may never occur. Holding as I do that the Defendants Soobul and Ruttonmoney have no interest under cl. 9 after the date of the adoption, and that the gift of the estate for life to the Plaintiff is good; it follows that the Plaintiff is entitled to judgment. 12. An argument was also put forward on behalf of the Defendant to the effect that under sec. 111 and sec. 118 of the Hindu Wills Act the gift on a contingency cannot take effect unless the contingency happens before the property bequeathed is distributable. I do not think this argument affects the present case as the property could not be distributed until either the death of the widow without having adopted or at the ceasing of the first adopted son's life-estate. As the period for distribution has not yet arrived no argument based on sec. 111 and sec. 118 of the Hindu Wills Act can affect the facts of the present case. 13. In my opinion in the event which have happened the Plaintiff is entitled to a declaration that he is now entitled under cl. 6 of the Will to a life interest in so much of the property of the testator as is not otherwise specifically disposed of the Will, and that during the life of the Plaintiff the Defendants Soobul and Ruttonmoney have no interest in the said estate. 14. The Plaintiff has succeeded in establishing his right to the property which is claimed by Soobul and Ruttonmoney. They have failed in the action and must accordingly pay the costs of the suit including those of the executor's. The costs which Soobul will get under this order will be strictly limited to those which he has incurred solely as executor.