Judgement Appeal from a decree of the High Court (April 23, 1906) affirming a decree of Woodroffe J. (July 31, 1905). The questions decided relate to the legal construction of the will of Hurry Dass Dutt, deceased, who died on October 30, 1875. The will was dated on the day of his death and appointed his widow, father, and uncle his executors and trustees. Inter alia the will contained the folio wing provisions— M Whereas having no son born to me of my body I am desirous of adopting one in my lifetime but in case I depart this life before carrying such my desire into effect I hereby authorize and empower my wife and executrix Srimutty Surnomoni Dassi 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 a 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 lives time of such son or sons of such adopted son but shall revive on the death of such son or sons during minority. 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 lives time of such son or sons of such adopted son but shall revive on the death of such son or sons during minority. " 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 Sri Radha Gobindji 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 or 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 and effects both real and personal or immovable or movable whatsoever and whosesoever and of what nature or quality soever to such adopted son 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 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." The testator left a widow, two daughters, Ranimoni and Premmoni, and three sons of the latter. In pursuance of the will the widow on August 9, 1876, adopted Jyoti Prosad Mullick, who died on January 29, 1881. She then adopted Amrita Lall Dutt on February 9, 1881, after the death of Modhusudan Dutt the testators father and one of his three trustees. The validity of this adoption was the subject of litigation which terminated by the judgment reported in L. R. 27 Ind. Ap. 128, which decided that a joint power to adopt was conferred on the three executors by the will and was invalid in law, in consequence of which the son adopted in fact had no status in the family. On August 14, 1904, the testators widow died, and on December 19, 1904, Ranimoni, one of the two daughters, sued Srimutty Premmoni Dassi, his other daughter, her four sons (the two younger of whom were born after Hurry Dass Dutts death) and Jugul Kissory Sen, a son adopted to the plaintiff and her husband on November 2, 1900. The plaint contended that under the will in the events that had occurred the plaintiff and her sister were each entitled absolutely to a moiety in their fathers estate. The plaint contended that under the will in the events that had occurred the plaintiff and her sister were each entitled absolutely to a moiety in their fathers estate. The relief’s sought were the administration and partition of the estate, with various relief’s incidental thereto, but the principal relief claimed was a declaration of the rights of all the parties to the suit on the true construction of the said will. The appellants the two elder sons of Premmoni submitted that they were entitled absolutely to the residue of the estate of the testator, subject only to a life-interest therein of his two daughters. The defendant Premmoni, in her written statement, inter alia, alleged that there was an intestacy on the death of the testator as to the residue of his estate, and that in the events which had happened she, being a daughter with sons, was preferential heir to the plaintiff, who was a widow at the date when the succession opened out without a son having been born to her, and that she succeeded to the estate and acquired the estate of a Hindu daughter to the exclusion of the plaintiff and her adopted son. The written statement of her two younger sons, who did not appeal, was to the same purport and effect as her own. Woodroffe J. decided that there was no intestacy, that there was on the true construction of the will a gift to the adopted son of the testator with a valid gift over to the testators daughters. He also held that each of the daughters took an absolute estate in her half-share, and expressed no opinion as to the rights of the parties in the event of the death of one of the daughters leaving no natural son her surviving. A decree was accordingly made declaring that the plaintiff was entitled absolutely to a one-half share in her fathers estate, with inquiry as to the estate and partition. The High Court in appeal decided that under the will the daughters each took a one-half share in their fathers estate absolutely, and refused to decide what the rights of the parties would be in the event of one of the daughters dying without male issue. The High Court in appeal decided that under the will the daughters each took a one-half share in their fathers estate absolutely, and refused to decide what the rights of the parties would be in the event of one of the daughters dying without male issue. In the result the decree of the Court below was varied, the declaration of the plaintiffs rights was affirmed, and the inquiry as to the property and partition thereof was refused in the present suit. The material portion of the High Court (Maclean C.J., Sale, Harington, Mitra, and Mookerjee JJ.) judgment was as follows— " The desire of the testator for the perpetuation of his male line and inheritance by an adopted son having failed, the question has arisen as to the validity of the bequest to his daughters. The failure of the bequest to the adopted son is due to the fact that the testator did not live to himself adopt a son, and to the fact that the power given by the will is void under the Hindu law. There was none and there could be none to answer the description of an adopted son capable of taking under the will on the death of the testator. The failure was not due to the legal invalidity of the bequest. It was not void as contravening the rule of Hidu law that a gift must be to a sentient being capable of taking, as it is clear on the authorities that a gift may be made to a son to be adopted by the testators widow, a son who by a fiction of law is supposed for this purpose to be in being at the date of the testators death; nor was it void on the ground that the testator intended to create a line of heks unknown to Hindu law, as was unsuccessfully attempted by the testator in the Tagore Case (( 1872) L. R. Ind. Ap. Suppl.) and Kristoromoni v. Narendro Krishna Bahadur. (( 1888) I. L. R. 16 Calc. 383.) Nor was the bequest void under any of the rules laid down in ss. 100, 101, and 102 of the Indian Succession Act, sections which have been made applicable to Hindus by the Hindu Wills Act (XXI. of 1870). The will having been executed in 1875, the Hindu Wills Act applies to it. 383.) Nor was the bequest void under any of the rules laid down in ss. 100, 101, and 102 of the Indian Succession Act, sections which have been made applicable to Hindus by the Hindu Wills Act (XXI. of 1870). The will having been executed in 1875, the Hindu Wills Act applies to it. " Has then the failure of the bequest to an adopted son rendered the bequest to the daughters of the testator void ? We see no reason for an answer in the affirmative. The principle well established by Jones v. Westcomb ((1711) 1 Eq. Cas. Abr. 245.), Statham v. Bell ((1774) Cowp. 40.), Meadows v. Parry ((1812) 1 V. & B. 124.), Murray v. Jones ((1813) 2V. & B. 313.), Mackinnon v. Sewell, (1831) 5 Sim. 78. and Avelyn v. Ward ((1750) 1 Ves. Sen, 420.) has been codified in India in s. 116 of the Indian Succession Act, which says where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail the second bequest shall take effect upon the failure of the prior bequest, although the failure may not have occurred in the manner contemplated by the testator. The prior bequest in the present case has failed ab initio by reason of its object never coming into existence, and according to s. 116 the executory gift takes effect, notwithstanding that it was intended to take effect in defeasance of the prior gift. There is a necessary implication in favour of the daughters; as there cannot be the shadow of a doubt that the testator would have wished that his daughters should get his property on failure of adoption. Sect. 116 enables ns to give effect to this necessary implication of the will paying regard to the substantial effect of the contingency specified by the testator. In Okhoymoney Dasee v. Nilmoney Mullick (( 1887) I. L. R. 15 Calc. 282.), the learned judges applied the principle in Jones v. Westcomb (1 Eq. Cas. Abr. 245.) to the will of a Hindu executed in 1860, and on the failure of the prior gift, though not in the particular manner indicated in the will, the gift over was allowed to take effect. " Sect. 117 of the Indian Succession Act qualifies to some extent the rule in s. 116. Cas. Abr. 245.) to the will of a Hindu executed in 1860, and on the failure of the prior gift, though not in the particular manner indicated in the will, the gift over was allowed to take effect. " Sect. 117 of the Indian Succession Act qualifies to some extent the rule in s. 116. Where the will shews an intention that the second bequest shall take effect only m the event of the first bequest failing in a particular manner the second bequest shall not take effect unless the prior bequest fails in that particular manner. We do not think that, in the present case, the will shews any such intention—an intention that the gift over shall not have effect unless, as in the case of a gift on a condition, the very event on which the gift is made contingent be fulfilled with strict exactness. The bequest to the daughters in the will under construction is to take effect if the bequest to the adopted son fails. There are no words in the will which would make s. 117 applicable and prevent the operation of the general rule laid down in s. 116. The primary intention of the testator failing, the secondary intention—the intention to benefit his daughters—may and ought to be given effect to, and we do not think that s. 117 prevents this. In the absence of express words or necessary implication restricting the operation of the intention to benefit the daughters, we ought to put a construction on the will which will effectually fulfil that intention. " Sect. 111 of the Indian Succession Act and Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 Ind. Ap. 18,) and Monohur Mookerjee and Others v. Kasiswar Mookerjee and Others (( 1897) 3 C. W. N. 478.) have been relied on by the learned counsel for Premmoni in support of his argument that the bequest to the daughters being contingent on the adopted son dying without male issue during the lifetime of the testators widow—a specified uncertain event— the bequest cannot take effect. The contingency, however, happened before the period of distribution as contemplated by s. 111, for the reason of the failure of the prior bequest ab initio and its incompetency to take effect. Sect. 111 applies only when the prior bequest is capable of taking effect and is not ab initio void. The contingency, however, happened before the period of distribution as contemplated by s. 111, for the reason of the failure of the prior bequest ab initio and its incompetency to take effect. Sect. 111 applies only when the prior bequest is capable of taking effect and is not ab initio void. If a bequest has failed ab initio, as in the present case, the principle laid down in s. 116 applies. Assuming the period of distribution to be the death of the testator, the contingency happened before it. We are, therefore, of opinion, that the daughters Ranimoni and Premmoni have taken under the will of their father and have taken as tenants in common. " What then is the nature of the estate they have respectively taken ? Is it an estate for life, each being entitled to one-half, or is it an absolute estate in equal moieties, or an absolute estate, in equal moieties defeasible in the event of their dying without male issue ? The testator directed that, on the failure of the adopted son or his male issue during his widows lifetime, his estate, real and personal, should be divided and made over to his daughters in equal shares, and if no other words were added, the daughters would undoubtedly take the whole interest of the testator, an estate of inheritance. They were married daughters, and the rule which has been applied to a bequest in a will executed before September 1, 1870, of immovable property by a husband to his wife, when there are no express words creating an absolute estate, cannot apply to them. Though under the Hindu law a married daughter takes by inheritance a limited estate, she takes an absolute estate under a devise by will, unless her interest is curtailed by express words or by necessary implication. We may refer to s. 82 of the Succession Act and Ramasami v. Papayya (( 1893) I. L. R. 16 Madr. 466.). Lala Ram Jewan Lal v. Dal Koer (( 1897) I. L. R 24 Calc. 406.), Musst. Kollany Koer v. Luchnee Pershad (( 1875) 24 Suth. W. R. 395.), Bhoba Tarini Debya v. Peary hall Sanyal (( 1897) I. L. R. 24 Calc. 646.), and Atul Krishna Sircar v. Sanyasi Charan Sircar (( 1905) 9 C. W. N. 784.) in support of our view. 406.), Musst. Kollany Koer v. Luchnee Pershad (( 1875) 24 Suth. W. R. 395.), Bhoba Tarini Debya v. Peary hall Sanyal (( 1897) I. L. R. 24 Calc. 646.), and Atul Krishna Sircar v. Sanyasi Charan Sircar (( 1905) 9 C. W. N. 784.) in support of our view. " The words in the will to whom and their respective sons I give devise and bequeath the same do not indicate that the testator intended to create in favour of his daughters an estate for life with a remainder over to their sons. They cannot be construed as creating successive estates. Neither can the words be construed as creating joint estates in favour of the daughters and their respective sons. In fact Ranimoni had no son at the time of the testators death, and so far as she is concerned she could not take a joint estate with her son or sons. She must be held to have taken an absolute estate. The word ‘sons was, in our opinion, used as a word of limitation, and was intended to have the same effect as the words sons, grandsons, &c. The testator has used the word ‘sons and male issue without distinction. We, therefore, agree with the Court of First Instance that each daughter took an absolute interest in a moiety of the estate. It is premature to decide whether that gift is defeasible in the event of either daughter dying without male issue. Folio wing the practice adopted by the Judicial Committee in Lalit Mohun Singh Roy v. Chukkun Lal Roy (( 1897) L. R. 24 Ind. Ap. 76.), we leave the question open until, it is ascertained what the events are. "In the view we take, it is unnecessary for us to say what interest Ranimoni would have taken if the bequest to her and her sister had failed and there had been an intestacy. “ We, therefore, agree with Woodroffe J. as to his construction of the will of Hurry Dass Dutt and the declarations he has made as regards the rights of the plaintiff and the defendant Premmoni." The High Court, however, excluded from their decree any directions of inquiry as to the estate and its accumulations, and of partition. The representatives of Hurry Dass Dutt and of Surnomoni were not parties to the suit. The representatives of Hurry Dass Dutt and of Surnomoni were not parties to the suit. De Gruyther, for the appellants, contended that the judgments of the Courts below were wrong in construing the will as entitling each of the two daughters of the testator to an absolute interest in a moiety of his estate. The words "and their respective sons" could not be construed in a Hindu will as words of limitation. A Hindu must not be taken to intend that his daughters should take absolute estates instead of womens estates, unless he has said so clearly. A technical rule of English construction founded on English real property law cannot be imported into the consideration of a Hindu will so as to impute to a Hindu a desire that his property should devolve in a manner contrary to Hindu law and custom. A direction to that effect must be the necessary result and meaning of the words used see Mahomed Shumsool v. Shewukram. (L. R. 2 Ind. Ap. 7, 14) The true construction, it was submitted, was that the daughters should each take for life, and that subject to their life estate the appellants as the only survivors of the daughters sons took, in the events which have happened, an absolute estate in remainder. He referred to Hirabai v. Lakshmibai (( 1887) I. L. R.11 Bomb. 573,578.); Annaji Dattatraya v. Chandrabai (( 1892) I. L. R. 17 Bomb. 503.); Hari Lal Pranlal v. Bai Rewa. (( 1895) I.L. R. 21 Bomb. 376.) He also contended that the Courts ought to have declared the rights of all parties in the event of one of the said daughters dying without leaving a natural son her surviving; and referred on this point to Lalit Mohun Singh Roy v. Chukkun Lal Roy (L. R. 24 Ind. Ap. 76.) ; Surajmani v. Rabinath Ojha. (Ante, p. 17.) He also cited Dayabhaga, c. 4, ss. 2, 3 ; Stokes Hindu Law, 247, 253, 259; Maynes Hindu Law, 7th ed. p. 900, s. 673; and the Tagore Case. (( 1872) L. R. Suppl. Vol. 47.) Sir R. Finlay, K.C., and Kenworthy Brown, for the respondent Ranimoni Daesi, contended that on the true construction of the will each of the daughters took absolutely a moiety of the testators estate, and that the appellants were consequently excluded. p. 900, s. 673; and the Tagore Case. (( 1872) L. R. Suppl. Vol. 47.) Sir R. Finlay, K.C., and Kenworthy Brown, for the respondent Ranimoni Daesi, contended that on the true construction of the will each of the daughters took absolutely a moiety of the testators estate, and that the appellants were consequently excluded. They relied on the reasoning contained in the judgments of the Courts below. They referred to ss. 82,106, 111 and 177 of the Indian Succession Act, made applicable to Hindu wills by the Hindu Wills Act (XXL of 1870). The rule of construction provided by s. 82 was that a testamentary gift passed the whole interest of the testator unless the language of the will expressly restricted it, and in this will no intention to restrict the gift was expressed or to be collected from the terms of the will. By s. 111 the provision respecting survivorship in the will referred to the case of a daughters death during the testators lifetime. On the authorities an absolute estate was given to the daughters. Reference was made to Lala Ramjewan Lal v. Dal Koer (I. L. R. 24 Calc. 406, 410.) ; Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 Ind. Ap. 18, 25.); Manikyamala Bose v. Nanda Kumar Bose (( 1906) I. L. R. 33 Calc. 1306, 1314.); Bhoba Tarini Debi v. Peary hall Sanyal (I. L. R. 24 Calc. 646.) ; Atul Krishna Sircar v. Sanyasi Churn Sircar (( 1905) I. L. R. 32 Calc.1051, 1056.); Stokes Hindu Law Books, 241; Dayabhaga, c. 4, ss. 1 and 23; Annaji Dattatraya v. Chandrabai (( 1892) I. L. R. 17 Bomb. 503.); Lakshmibai v. Hirabai (( 1886) L. R. 11 Bomb. 69.) ; Hirabai v. Lakshmibai (( 1886) I.L.R. 11 Bomb.573,579.) ; Ramasami v. Papayya (( 1893) I. L. R. 16 Madr. 466.) ; Ramlal Mookerjee v. Secretary of State for India (( 1881) L. R. 8 Ind. Ap. 46, 61.); Bhoobun Mohun Debi v. Harrish Chunder Chowdhry (( 1878) L.R.5 lnd.Ap.l38,146.) ; Basanta Kumari Debi v. Kamikshya Kumari Debi (( 1905) L. R. 32 Ind. Ap. 181.); Norendra Nath Sircar v. Kamalbasini Dasi (L. R. 23 Ind. Ap. 18, 25.) ; and Agency Co. v. Short. (( 1888) 13 App. Cas. Ap. 46, 61.); Bhoobun Mohun Debi v. Harrish Chunder Chowdhry (( 1878) L.R.5 lnd.Ap.l38,146.) ; Basanta Kumari Debi v. Kamikshya Kumari Debi (( 1905) L. R. 32 Ind. Ap. 181.); Norendra Nath Sircar v. Kamalbasini Dasi (L. R. 23 Ind. Ap. 18, 25.) ; and Agency Co. v. Short. (( 1888) 13 App. Cas. 793.) De Gruyther replied, and as to the argument founded on s. 82 of the Indian Succession Act contended that the daughters interest was intended to be restricted according to the directions contained in the will, for only those daughters sons who were born before the testators death were to inherit his estate. If the gift of the daughters had been absolute, their sons born after his death would have been entitled equally with those born before. Sect. 111, it was contended, did not apply. He referred to Hunoomanpersand Panday v. Koonweree (( 1856) 6 Moo. Ind. Ap. 393.) and some of the cases cited by the respondent; also to Chotaylall v. Chunnolall (( 1878) L. R. 6 Ind. Ap. 15, 31.) The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. Hurry Dass Dutt, a Hindu inhabitant of Calcutta, died on October 30, 1875, leaving a will which was admitted to probate by the High Court on December 20, in the same year. The will was in the English language, and was probably drawn by an English solicitor, who is one of the attesting witnesses. The only question raised upon this appeal is as to the nature of the estate which, in the events which have happened, the testators daughters take under the terms of the will. The will was in the English language, and was probably drawn by an English solicitor, who is one of the attesting witnesses. The only question raised upon this appeal is as to the nature of the estate which, in the events which have happened, the testators daughters take under the terms of the will. The clause of the will relating to the daughters is as follows 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 the 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 the 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." Woodroffe J., by whom the case was heard in the first instance, held that the intention of the testator was "to benefit the adopted son, and should the provisions (of the will) in this respect in any manner fail, then those who were of his own blood, namely, his daughters;" that the words "and their respective sons " are used as words of limitation and not of purchase; and that upon the true construction of the will, the daughters were "each entitled to a moiety of the estate of the testator absolutely." He expressed no opinion, however, as to the right of the parties in the event of the death of one of the daughters leaving no natural son her surviving. Upon appeal to the High Court his judgment, upon these points, was confirmed. With great respect for the learned judges in the Courts below, their Lordships are unable to concur with their decision. Upon appeal to the High Court his judgment, upon these points, was confirmed. With great respect for the learned judges in the Courts below, their Lordships are unable to concur with their decision. This is the will of a Hindu, and as observed by this Committee in the case of Mahomed Shumsool v. Shewukram (L. R. 2 Ind. Ap. 7, at p. 14.), "in construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate." In spite of the assistance of his English solicitor, it appears to their Lordships that in this case the testator has clearly succeeded in shewing that his daughters, whom he incontestably intended to benefit, were not to have more than what is generally known to be a womans estate in his property. This is established by the gift to them " and their respective sons," and by the proviso that in the event of one of the daughters dying " without leaving any male issue surviving," then the share of the deceased daughter is to go to the surviving daughter and her sons, to the exclusion in both cases of female issue. Moreover, " in the 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." No language could more clearly shew that the intention of the testator was to exclude his daughters daughters from the succession, to which they would have been entitled under the ordinary Hindu law, if their mothers estate had been absolute; and the reason of this is obvious, as the sons of his daughters would be competent to offer funeral oblations to him, the strongest of all possible arguments to an orthodox Hindu. The learned counsel for the respondents strongly relied on s. 82 of the Indian Succession Act, 1865, which provides that " where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him." As already pointed out, it is abundantly clear that, under the terms of the will, only a restricted interest was intended to pass to a daughter dying without male issue. In the opinion of their Lordships, according to the true construction of the will, the intention of the testator was to create in favour of his daughters an estate for life with a remainder over to their sons, and the learned judges of the High Court ought to have held that, in the events that have happened, the daughters of the testator, Ranimoni Dassi and Premmoni Dassi, are entitled to the testators estate in equal shares for life and with benefit of survivorship between themselves. They will humbly advise His Majesty that this appeal ought to be allowed and the decree of the High Court varied in accordance with this judgment, and that in other respects the decree ought to be affirmed. Under the circumstances, the costs of the appeal, taxed as between solicitor and client, must be paid out of the estate.