JUDGMENT Woodroffe, J. - This is a suit by one of the two daughters of flurry Das Dutt, deceased. The latter died on the 13th October 1875 leaving a widow Sreemutty Surnomoney Dassee who died on the 11th August 1901 and two daughters the Plaintiff and Sreematty Premmoney Dassee. The Plaintiff has adopted a son the Defendant Jugal Kissore Sen. 2. In some of the written statements it is denied that he was validly adopted in fact and law but at the trial this point was not pressed. Sreematty Premmoney Dassee has four sons living, the Defendants Had has Prosad Mullick, Kasi Prosad Mullick, Peary Lall Mullick and Behari Lall Mullick. The last two were not born at the date of the death of Hurry Das Dutt who left a Will dated the day of his death. 3. The suit seeks several reliefs:--(1) Construction of the Will of Hurry Das Dutt and a declaration of the rights of the parties there under to the residue of his estate (cls. B and C of the prayer of the plaint). (2) An enquiry to ascertain what the estate consisted of at the death of testator and of his widow including an enquiry as to the additions and accretions thereto (cls. D & E). (3) For partition of the estate so ascertained between the parties declared entitled thereto (cls. I & J). 4. These are the main reliefs that are asked for. Then it is prayed that a Receiver may be appointed to realize and recover such portions of the estate of the testator as have been improperly dealt with and disposed of by his widow by such suit or suits as may be necessary. These are properties which are referred to in the twelfth paragraph of the plaint. Then the plaint asks that if necessary the estate may be administered by the Court. 5. A preliminary objection was taken by some of the Defendants that the suit was defective for want of a party representing the estate of Hurry Das Dutt which is now in the custody of the Administrator-General of Bengal. It was said that as a general administration is asked for a general Administrator is required who must be a party to the suit. It was said that as a general administration is asked for a general Administrator is required who must be a party to the suit. If is true that as I have already stated one of the prayers of the plaint asked for administration but that however is only if such relief be deemed by the Court to be necessary. 6. The testator died about thirty years ago and I see no necessity for the administration of the estate which must in the ordinary course of things have been by now fully administered. As regards the other prayers for relief it does not appear to me that an Administrator is a necessary party nor can I see what useful object would be served in adjourning the suit, that authority may be given to a person to represent the estate when all the parties who can by any possibility have an interest therein are already before me. I stated that I would deal with the matters in dispute so far as regards the rights and interests of the parties actually before me and I therefore overruled the objection which would only have force if administration which was only asked for if necessary were so necessary which is not the case here. 7. It is agreed that the only issue is as to the true construction of the Will. That Will is in one respect an unusual one, in that it contains in the eighth paragraph peculiar provisions with reference to the method of adopting a son to (he testator. 8. The clause dealing with these provisions runs as follows :-- Whereas having no son born to me of my body I am desirous of adopting one in my lifetime but in case 1 depart this life before carrying such my desire into effect I hereby authorize and empower my wife and executrix Sreematty Suruomoney Dassee and my executors and trustees to whom I give full permission and liberty to adopt after my decease a son and in case of his death during his minority or on attaining his full age and without leaving male issue to adopt as second son and in case of his death during minority or on attaining such age and without leaving male issue to adopt a third son and no more. In any of the above cases of adoption should the adopted son die leaving a son or sons the power of adoption shall cease or remain in abeyance during the life or livestime of such son or sons of such adopted son but shall revive on the death of such son or sons during minority. 9. This clause has been the subject of litigation terminating in the decision of the Privy Council which has held that the provisions as to the mode of adoption are invalid (see 27 I.A. 128). 10. 9. This clause has been the subject of litigation terminating in the decision of the Privy Council which has held that the provisions as to the mode of adoption are invalid (see 27 I.A. 128). 10. The ninth paragraph of the Will which is the one before me for construction runs as follows :-- I direct my executors and executrix and trustees to pay out of the income and interest of my estate and effects monthly all necessary household expenses as well as for the worship of our family idol Sree Sree Radha Gobind Jee and to pay my wife monthly during her natural life for her sole and separate use the sum of Rupees two hundred and also the sum of Rupees fifty monthly to such adopted son who shall live and attain his full age of eighteen years after his so attaining such age of eighteen years during the lifetime of my said wife provided he remains under her control and bears a good character and if my said executrix and executors and trustees think fit and are satisfied with his conduct and behaviour, and for the purposes of such monthly expenditure my executrix, executors and trustees shall set apart and retain out of the interest and income of my estate a sum sufficient to meet such expenditure for six months and invest the rest and residue of such income and interest in Government Securities in their joint names but in no case shall such adopted son have or exercise any control dominion over my estate and effects until the death of my wife after which event I direct my said executors and trustees to make over the whole of my estate effects both real and personal or immoveable or moveable whatsoever and wheresoever's and of what nature or quality so-ever to such adopted Bon who shall survive my wife if he shall have attained his age of eighteen years during the lifetime of my wife or on his so attaining such age after her decease to whom and his heirs I give devise and bequeath all the same. But in case none of such adopted sons survive my said wife or in case of either surviving my said wife and dying under the said age without leaving a son or sons I desire and direct my executors after the death of my said wife or the death of such son after her but under such age of eighteen years without leaving a son or sons to make over and divide the whole of my estate both real and personal unto and between my daughters in equal shares to whom and their respective sons I give devise and bequeath the same but should either of my said daughters die without leaving any male issue surviving but leaving my other daughter her surviving then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter or in case of the death of either daughter leaving sons the share of such daughter is to be paid to such her son or sons share and share alike. 11. The testator's widow who was also his executrix held and managed his estate until her death on the 14th August 1904. On the 9th August 1876 an adoption was made of a son to the testator. This son died on the 29th January 1881. On the 9th February of the same year a second son was adopted. This son on the 14th August 1894 instituted a suit for possession of the property which is reported in ILR 4 Cal. 589. 12. The decision of Jenkins, J., in that suit on the 9th March 1897 was reversed on appeal on the 5th April 1898, see Amrito Lal v. Surnomoyee ILR 25 Cal. 662 (1898). 13. The decision on appeal was upheld by the Privy Council on the 2nd of May 1900, see Amrito Lal Dutt v. Surnomoyee L.R. 27 IndAp 128 : s.c. ILR 27 Cal. 1003 (1900). 14. The Judicial Committee held that the provisions of the Will relating to the mode of adoption and the adoption of the Plaintiff in that suit were invalid. 15. The question now is who is entitled and to what interest in the estate of the testator having regard to the fact that there has been a failure of an adopted son. The contentious before me have been of a two-fold character. 16. 15. The question now is who is entitled and to what interest in the estate of the testator having regard to the fact that there has been a failure of an adopted son. The contentious before me have been of a two-fold character. 16. Some of the Defendants submit that by reason of the failure of the testator's scheme as to adoption the rest of the Will as to the disposal of the residue fails and that there is an intestacy and that either the Plaintiff or the Defendant Sreematty Premmoney both take any interest as Hindu daughters or that Premmoney Dassee takes to the exclusion of the Plaintiff because she is a daughter with natural sons and the Plaintiff has only an adopted sou. The Plaintiff and the other Defendants, on the other hand, contend that there is no intestacy and that the estate goes under the Will to the Plaintiff and to the Defendant Sreematty Premmoney Dassee in equal shares. 17. The Plaintiff submits that a moiety of the estate goes to each of them absolutely. Some of the Defendants contend that they each take a life interest only. 18. A number of cases have been cited to me to which I do not think it is necessary to refer for in so far as the actual terms of the Will are concerned this case must be decided on the proper construction to be placed on the words of the particular Will before me. 19. As regards the principles laid down in these cases the dispute is really in the main as to their applicability to the facts of this case. 20. The three points to be determined are:--(1) Is there any intestacy as to the residue. (2) If so to whom does the estate go, whether to both the daughters of the testator or to Premmoney alone by reason of her having natural sons. (3) If there be no intestacy who takes under the Will. (4) And for what interest. 21. The three points to be determined are:--(1) Is there any intestacy as to the residue. (2) If so to whom does the estate go, whether to both the daughters of the testator or to Premmoney alone by reason of her having natural sons. (3) If there be no intestacy who takes under the Will. (4) And for what interest. 21. As regards the first point the main contentions urged by one set of the Defendants are as follows :-- It is said that the ninth clause contains no present bequest to the adopted son and that there is no disposition of the estate until an adopted son attains majority and survives the testator's wife, that if there is a present bequest it is to a person not recognised by law in that a person called into being in the manner described by the testator is not an adopted son; that there being no present bequest or such bequest being bad ab initio the gift over to the Plaintiff and her sister fails. 22. Secondly because there is no prior estate to support it. 23. Nextly because the events upon which the testator's daughters were to take have not happened; the prior interest which the Will purports to give failing it is said not by reason of any fact happening after the death of the testator but by reason of the bequest being invalid in law. 24. In my opinion, however, these and some other arguments which have been addressed to me to establish the contention that there has been an intestacy, fail. 25. Referring again to the ninth clause we find that after provision for household expenses and worship the testator's widow's interest is declared to be a sum of Rs. 200 a month only. 26. It then gives Rs. 50 a month to the adopted son when he comes of age and if he is well conducted, the balance is to be accumulated. 27. It is expressly stated that the son is to have no control or dominion over the estate until the death of the testator's widow when it is to be made over to the surviving adopted son who has attained majority "to whom and his heirs I give devise and bequeath the same." 28. The meaning of this clause I think is that there is by the last-mentioned words a present gift to the adopted son. The meaning of this clause I think is that there is by the last-mentioned words a present gift to the adopted son. 29. The earlier portion of the clause makes provisions for restraints on the interest so given to the adopted son when the testator desired should be kept under control of his widow and executors. We therefore find a direction that during the testator's widow's lifetime and until her death the adopted son was to have no dominion or control over the estate : a needless prohibition unless we assume that an interest had previous to such event been given to him which would but for such provision entitle him to control the estate. 30. Then follows a provision that possession is not to be given over until after the same event. In short there is a present gift accompanied by directions to accumulate and restraints on enjoyment and possession both of which (were the question up for decision) would probably be held to be invalid beyond the date of the majority of the adopted son to whom the bequest was made. I think therefore that there is a present bequest to the adopted son. 31. As regards the second objection that if so the bequest is invalid, I think it does not sufficiently distinguish between the bequest itself, namely, bequest to the adopted son and the directions of the testator with reference to the manner of his adoption. The latter has been held to be invalid but there is nothing invalid in the bequest itself unless as has been argued it can be said (which I think not) that the gift itself was tainted because its object though bearing a description known to Hindu Law was in fact a person unknown to it in that he was sought to be created through means unrecognised by that law. 32. For the reasons I have mentioned 1 cannot accept this contention. Nextly it is argued that the gift over to the daughter fails. In so far as that argument is based on the supposition that no present estate is given I have already dealt with it. 33. Then it is said the events have not happened upon which it is stated in the Will that the gift to the testator's daughter was to take effect. The answer to this objections appear to be this. 33. Then it is said the events have not happened upon which it is stated in the Will that the gift to the testator's daughter was to take effect. The answer to this objections appear to be this. There is nothing in the Will to judicate that the testator intended that his daughter should benefit by it only in the two cases mentioned, viz., that of the adopted son dying before his widow before attaining majority or surviving her but dying a minor without male issue. On the contrary the testator's intention was I think to benefit the adopted son and should the provisions in this respect in any manner fail then those who were of his own blood, viz., his daughters. If he intended that his daughters should benefit by his Will it no adopted son survived a fortiori must that intention have existed in the ease where there was no adopted son at all. The contention that the failure is one of law and not of fact I have already dealt with. 34. Holding therefore as I do that there is a gift to the adopted son with a valid gift over to the testator's daughters and that there is no intestacy it is unnecessary to discuss the second question whether the Defendant Premmoney Dassee has a preferential claim over the Plaintiff by reason of the former having natural children and the latter an adopted child--a contention for which no direct authority has been cited but which is sought to be supported by inferences drawn from the Hindu texts dealing with the qualification of daughters with sons or likely to have sons to inherit, it being argued that a daughter with a power to adopt which has been subsequently exercised cannot come under either of these descriptions. The third question is whether assuming that there is, as I hold, no intestacy to whom does the estate go. There is no dispute but that it devolves on the Plaintiff and Premmoney in equal shares. 35. The last point to be decided is as to the nature of the interest they take whether an absolute one or for life only. As to this there is no doubt the Will associates the daughters' sons with the gift to the daughters. There is no dispute but that it devolves on the Plaintiff and Premmoney in equal shares. 35. The last point to be decided is as to the nature of the interest they take whether an absolute one or for life only. As to this there is no doubt the Will associates the daughters' sons with the gift to the daughters. It, is admitted however that they do not take together but it is contended that the reference to sons of the daughters show that the daughters took a life interest and the sons living at the testator's death a vested remainder. 36. This however in my opinion is not so The words "and their respective sons" I think are there used as words of limitation and not of purchase. Further the clause ends with a gift over of the share of the daughter dying without male issue to her surviving sister a provision which would have no meaning if each daughter had merely a life interest which would determines in her death whether she had or had not male issue. 37. The testator in my opinion has made an absolute gift of a moiety of the estate to each of his two daughters the Plaintiff and the Defendant Premmoney. Apparently also he meant to make that gifts defeasible in the event of a daughter dying without male issue. As to whether the clause of defeasance is valid or not I express no opinion, it being unnecessary to do so unless and until the events take place upon which it is declared that it shall take effect. 38. I should here add that the Plaintiff claims the property on another ground besides that of a vested remainder expectant on the determination of the adopted son's estate, viz., on the ground that there was an absolute devise to the daughter liable to be divested in the event of there being an adopted son who fulfilled the conditions of surviving the testator's widow and attaining majority. 39. I do not, however, see sufficient warrant in the Will itself, for reading it in this fashion. The result is that I declare that the Plaintiff and the Defendant Premmoney are each entitled to a moiety of the estate of the testator absolutely. I direct an enquiry in terms of cls. D and E of the prayer of the plaint and partition in terms of cls. The result is that I declare that the Plaintiff and the Defendant Premmoney are each entitled to a moiety of the estate of the testator absolutely. I direct an enquiry in terms of cls. D and E of the prayer of the plaint and partition in terms of cls. I and J. 40. The Defendants other than the Defendant Jugal Kissore Sen, the son of the Plaintiff, and who has supported her case, will pay the Plaintiff's costs of suit up to decree and subsequent costs are reserved. Mr. Chandhuri 41. Submits costs should come out of the estate. Woodroffe, J. 42. At the most I would allow one set of costs to the Defendants appearing in the same interest. Mr. Jackson 43. That we have no objection to. Woodroffe, J. 44. Costs of the Plaintiff and of the Defendants up to decree will come out of the estate, there being one set of costs only allowed for the Defendants other that the Defendant Jugal Kissore Sen. Mr. Jackson 45. Asks for a Receiver to recover possession of the property. Woodroffe, J. I cannot make any order for the present. That matter may be dealt with after the enquiries. It will then be a question whether there should be a Receiver appointed or whether administration will have to be taken out to recover the properties from Sreematty Surnomoney's representatives.