Judgement Appeal from a judgment and decree of the High Court (November 23, 1913) affirming a judgment and decree of Fletcher J. (June 19, 1912). The appeal related to the will of Herumbo Nath Ghose, a Hindu inhabitant of Calcutta, governed by the Dayabhaga school. The testator appointed his wife as his sole executrix and, after giving her authority to adopt, provided in the terms set out in the head-note and in the judgment. The testator died on November 10, 1907, Law. Rep. 43 Ind. App. 12 ( 1915- 1916) Bhupendra Krishna Ghose V. Amarendra Nath Dey 113 without issue, leaving him surviving his wife, his mother, ; and the respondents, namely, the two sons of Srimati Benodini Dassi, the testators sister. On August 3, 1909, the widow adopted a son, who died an infant and unmarried on March 11, 1910. A few days after, namely, on March 16, 1910, the widow also died. On March 30, 1910, the testators mother instituted the present suit against the respondents. She claimed the estate as heiress of the adopted son and contended that the gift over in favour of the testators nephews (the respondents) was void and inoperative in law. The plaintiff died pending the hearing of the suit, which was revived in the name of the nearest reversionary heir of the adopted son. The suit was heard by Fletcher J., who on June 19, 1912, delivered judgment in favour of the defendants, the present respondents. The learned judge was of opinion that it was competent to a Hindu testator to regulate the course of devolution of his estate after his death provided that he kept within the limits laid down by the law ; that the creation of the interest given to the respondents was not in any way repugnant to Hindu law; and that it did not offend against the provisions of s. 111 of the Indian Succession Act, 1865, and was expressly authorized by s. 107 of that Act. The substituted plaintiff appealed, but having died pending the hearing, the present appellants, his legal representatives, were substituted in his place. The High Court in its appellate jurisdiction (Sir Lawrence Jenkins C.J. and Woodroffe J.), by a judgment delivered on November 28, 1913, dismissed the appeal. The substituted plaintiff appealed, but having died pending the hearing, the present appellants, his legal representatives, were substituted in his place. The High Court in its appellate jurisdiction (Sir Lawrence Jenkins C.J. and Woodroffe J.), by a judgment delivered on November 28, 1913, dismissed the appeal. The learned Chief Justice was of opinion that the bequest in favour of the respondents was valid ; that its effect was not to divest an estate which had already vested in the adopted son, but that the latter took a limited estate subject to a gift over to the respondents ; and that there was nothing in the law by which the parties were governed which made a bequest of a legacy or of an estate upon a future contingent event invalid. Woodroffe J. concurred. The proceedings in the appeal are reported at I. L. R. 41 Calc. 642. 1915. Oct. 19, 20. Sir R. Finlay, K.C., Upjohn, K.C., Sir W. Garth, and Dunne, for the appellants. There was no gift, either express or implied, to the widow or to the adopted son. The estate went to the adopted son by inheritance and not by devise and could not subsequently be divested. According to Hindu law the succession vests immediately upon the death of the last owner and cannot remain in abeyance ; a gift of a contingent executory devise not preceded by a prior gift is unknown to that law and invalid. The law as to devises by Hindu wills is based upon the Hindu law as to gifts, and a gift in futuro is invalid. [Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (( 1862) 9 Moo. Ind. Ap. 123, at p. 135.) ; Bhoobum Moyee Debia v. Ram Kishore Acharj (( 1864) 10 Moo. Ind. Ap. 279.) ; Beer Pertab Sahee v. Rajender Pertab Sahee (( 1867) 12 Moo. Ind. Ap. 1, at p. 37.) ; Tagore Case (( 1872) L. R. Sup. vol. Ind. Ap. 47, at pp. 66 and 67.) ; Kally Prosonno Ghose v. Gocool Chunder Mitter (( 1877) I. L. R. 2 Calc. 295.); Bai Motivahoo v. Bai Mamoobai (( 1897) L. R. 24 Ind. Ap. 93.) ; Gordhandas Soonderdas v. Bai Ramcoover (( 1901) I. L. R. 26 Bomb. 449.); Amrito Lall Dutt v. Surnomoni Dasi (( 1908) I. L. R. 25 Calc. 662, at pp. 295.); Bai Motivahoo v. Bai Mamoobai (( 1897) L. R. 24 Ind. Ap. 93.) ; Gordhandas Soonderdas v. Bai Ramcoover (( 1901) I. L. R. 26 Bomb. 449.); Amrito Lall Dutt v. Surnomoni Dasi (( 1908) I. L. R. 25 Calc. 662, at pp. 690, 691.); Indian Succession Act, 1865, s. 107 ; and Maynes Hindu Law, 8th ed., par. 376, p. 509, were referred to.] The devolution of the estate on the widow as executrix could not validate the executory devise, since she did not take under the will Bhoobum Moyee Debia v. Ram Kishore Acharj. (10 Moo. Ind. Ap. 279, at pp. 307, 308.) In any case the widows interest as executrix ceased when she made the adoption. Further, the bequest to the respondents is bad under the Indian Succession Act (X. of 1865), s. 111, which section is made applicable by s. 2 of the Hindu Wills Act (XXI. of 1870) to those Hindu wills to which that Act applies, which includes the present will. The bequest was intended to take effect upon the Law. Rep. 43 Ind. App. 12 ( 1915- 1916) Bhupendra Krishna Ghose V. Amarendra Nath Dey 114 happening of one of two uncertain events, namely, the death of the widow either (a) without having adopted, or (b) after the death of the adopted son, he not leaving male issue. Since no time is mentioned within which the event is to happen, the effect of the section is that the bequest does not take effect unless the event happens before the death of the testator Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 Ind. Ap. 18.); Manikyamala Bose v. Nanda Kumar Bose. (( 1906) I. L. R. 33 Calc. 1306.) A devise to the widow cannot be implied; even if it can, the estate became distributable when she adopted. De Gruyther, K.C., and Dube, for the respondents. Sect. 111 of the Indian Succession Act, 1865, gave statutory effect to the rule of construction laid down in Edwards v. Edwards (( 1852) 15 Beav. 357.), a rule subsequently modified in OMahoney v. Burdett. (( 1874) L. R. 7 H. L. 388.) The section is purely a rule of construction. It is clear from illustrations (/) and (g) that a testator can postpone the period of distribution. Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 Ind. Ap. 357.), a rule subsequently modified in OMahoney v. Burdett. (( 1874) L. R. 7 H. L. 388.) The section is purely a rule of construction. It is clear from illustrations (/) and (g) that a testator can postpone the period of distribution. Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 Ind. Ap. 18.) does not decide to the contrary. The devise there was directly within illustration (b). In all the cases in which s. Ill has been applied the language of the will has been ambiguous. The present will clearly makes the death of the widow the period of distribution. The material clause is in effect precisely the same as that in Radha Prosad Mullick v. Ranimoni Dassi. (( 1908) L. R. 35 Ind. Ap.118.) The argument apart from s. Ill also fails. The intention of the testator is clear that in the events stated the property should pass to the nephews. A gift to the adopted son is to be implied since there is a provision that in certain events his estate is divested. He therefore took under the disposition in the will and not by inheritance. If this is erroneous there is still a devise to the nephews on the death of the widow. The proposition that a gift inter vivos but in futuro is bad in Hindu law is not supported by the authorities cited and is contrary to the decision in Kali Das Mullick v. Kanhya Lal Pundit. (( 1884)L. R. 11 Ind. Ap. 218.) Moreover, the analogy between gifts and devises is limited ; an executory bequest is recognized in Hindu law Bai Motivahoo v. Bai Mamoobai. (L. R. 24 Ind. Ap. 93, at p. 104.) Further, there was no abeyance, for the effect of the will was that the estate vested in the widow as executrix during her life. [Chunilal Parvatishankar v. Bai Samrath (( 1914) I. L. R. 38 Bomb. 399.) was also referred to.] Sir R. Finlay, K.C., replied. Nov. 15. The judgment of their Lordships was delivered by MR. AMEER ALI. This is an appeal from a judgment and decree of the High Court of Calcutta pronounced in a suit which relates to the will of one Herumbo Nath Ghose, a Hindu inhabitant of the town of Calcutta, subject to the Dayabhaga school, who died on November 10, 1907. 15. The judgment of their Lordships was delivered by MR. AMEER ALI. This is an appeal from a judgment and decree of the High Court of Calcutta pronounced in a suit which relates to the will of one Herumbo Nath Ghose, a Hindu inhabitant of the town of Calcutta, subject to the Dayabhaga school, who died on November 10, 1907. The material portion of the will, which bears date June 26, 1898, is in the following terms " This is the last will and testament of me Herumbo Nath Ghose of No. 45 Pathuriaghata Street, Calcutta, son of Girindra Chunder Ghose, deceased zamindar. I revoke all prior testamentary writings and appoint my wife Srimati Poritoshini Dassi to be the sole executrix of this my will. I hereby authorize my said wife to adopt Dattaka putra. In case of death of an adopted son my said wife shall adopt one after another five sons in succession. If my said wife dies without adopting a son, or if such adopted son predeceases her without leaving any male issue, in such case my estate after the death of my said wife shall pass to the sons of my sister Srimati Benodini Dassi who may be living at the time of my death." On the testators death his widow Poritoshini Dassi applied for and obtained probate of the will. The estate of Herumbo accordingly vested in her as his legal representative and remained in her possession Law. Rep. 43 Ind. App. 12 ( 1915- 1916) Bhupendra Krishna Ghose V. Amarendra Nath Dey 115 until her death three years later. It is alleged that in August, 1909, she, in pursuance of the authority given to her by her deceased husband, adopted an infant of the name of Hem Chunder Dey. This child died on March 11, 1910, which was followed by the death of Poritoshini herself shortly after. The present suit was instituted on March 30, 1910, by Kissory Moni Dassi, the adoptive mother of Herumbo, against the two sons of Benodini Dassi, his sister, for a declaration that in the events that had happened the devise to them had failed, and that the testators estate had devolved on her. Kissory Moni died in September following, whereupon one Trailokya Nath Ghose, who alleged himself to be the next reversioner of the infant Hem, was substituted in her place. Kissory Moni died in September following, whereupon one Trailokya Nath Ghose, who alleged himself to be the next reversioner of the infant Hem, was substituted in her place. Trailokya has died since the trial, and the present appellants are his son and widow, who represent him as his executor and executrix respectively. The fact of the adoption by Poritoshini of the infant Hem was denied by the respondents, but the question has not been tried. Both the Courts in India have dealt with the case on the assumption that the adoption was duly made as alleged by the plaintiff, and on the construction of the will have held that, as the adopted son died without leaving male issue, on the death of the widow the bequest to the sons of Benodini took effect, and they accordingly dismissed the suit. The judgment of the High Court is challenged on two grounds. First, it is urged that on the adoption of the infant the estate vested in him as full owner by virtue of the Hindu law of inheritance, that he took it in his capacity of son and not as devisee under the will, and on his death the property devolved on his heirs. Consequently, it is contended, the executory devise in favour of the respondents failed completely. Secondly, it is contended that it fails also under the provisions of s. 111 of the Indian Succession Act (X. of 1865), which has been made applicable to Hindus by the Hindu Wills Act (XXI. of 1870). It is to be observed that the will in this case does not infringe the rules which lay down the limitations on the testamentary powers of a Hindu. The bequest is to persons who were in existence at the time of the testators death, and he does not create any estate unknown to Hindu law. of 1870). It is to be observed that the will in this case does not infringe the rules which lay down the limitations on the testamentary powers of a Hindu. The bequest is to persons who were in existence at the time of the testators death, and he does not create any estate unknown to Hindu law. Before proceeding to examine the will in order to discover the intentions of the testator, their Lordships desire to make one further observation, namely, that under the Dayabhaga the testator has not only the power of authorizing his widow to adopt a son to him, and in case of the death of such adopted son to make other adoptions in order to ensure the performance of those religious rites on which depend his salvation in after life, but he can attach to such authority a direction that her estate should not be interfered with or divested during her life, just as he can postpone the succession of his natural-born son by interposing a life estate. In the present case, had the testator given to the widow a power to adopt without constituting her his executrix, she would have taken merely a widows interest which would have become divested on her adopting a son. It is clear, however, from the language of the will that the testator was anxious that, there being no natural-born son, a son should be adopted who and whose male issue should duly perform those religious rites which are considered essential in the Hindu system for the salvation of the deceased. With this object he empowered her to make five successive adoptions and constituted her as his executrix to give effect to his wishes. If the first son so adopted died in her lifetime without leaving male issue, she had the power to adopt a second ; or a third, fourth, or fifth in case the second, third, or fourth also died without leaving male issue. Thus the power to adopt confided to the widow could not be exhausted so long as she was alive until the directions of the testator had been fully carried out. It is obvious that the estate could pass only to the son who survived her, or, in case of his death in her lifetime, to his male issue, if he left any. It is obvious that the estate could pass only to the son who survived her, or, in case of his death in her lifetime, to his male issue, if he left any. Otherwise the whole object with which the power was given to the widow for making the adoptions would be defeated. The estate was in the widow during her life ; the gift over is expressly declared to take effect after her decease in case of the failure of the adoptions without securing the object the testator had in view. Their Law. Rep. 43 Ind. App. 12 ( 1915- 1916) Bhupendra Krishna Ghose V. Amarendra Nath Dey 116 Lordships conceive that a mere statement of the purpose of the testator which is apparent on the face of the will and of the consequences resulting from the contention advanced on behalf of the appellants is sufficient to show its fallacy. The infant who was adopted by the widow died in her lifetime unmarried and without leaving any issue, and as she died a few days later she was unable to give further effect to the wishes of her deceased husband. On her death, therefore, the gift to the sons of Benodini, the testators sister named in the will, took effect, and the estate passed to them. But it has been strenuously contended that under the provisions of s. 111 of the Indian Succession Act, 1865, the bequest to them is void. That section runs as follows " Where a legacy is given if a specified uncertain event shall happen, and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect unless such event happens before the period when the fund bequeathed is payable or distributable." Sect. 111 embodies the rule enunciated in Edwards v. Edwards. (15 Beav. 357, at p. 361.) The rule of construction laid down in that case has been con siderably modified by later English decisions. The Indian Act, however, has given it statutory force. Even in India, as regards Hindus, its application is confined to special tracts such as the territories subject to the Lieutenant-Governor of Bengal and the Presidency towns of Bombay and Madras. Their Lordships think that it should be applied only to cases strictly coming within its scope. The Indian Act, however, has given it statutory force. Even in India, as regards Hindus, its application is confined to special tracts such as the territories subject to the Lieutenant-Governor of Bengal and the Presidency towns of Bombay and Madras. Their Lordships think that it should be applied only to cases strictly coming within its scope. In the present case the event on the occurrence of which the distribution was to take place is distinctly mentioned as being the death of the widow. That being so, the gift to the nephews is not affected by s. 111 and must take effect. Their Lordships are of opinion that the judgments of the Courts in India are correct and that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.