Judgement Appeal (No. 67 of 1937) from a decree of the High Court (May 20, 1935) reversing a decree of the First Additional Subordinate Judge of Dacca (June 17, 1932). Bhabendra Mohan Roy, who died on January 11, 1915, by cl. 3 of his will, dated January 10, 1915, directed (inter alia) that " Within ten years after my death my aforesaid wife, . . . "will take a son in adoption from amongst the sons of my three "full brothers or from amongst those of my step-brother "Srijut Rajendra Mohan Roy. If it be impossible to take in "adoption a son from amongst the sons of any one of them, then, "after the expiry of ten years and within the next two years, "she will take, at her own choice, a son in adoption from "amongst the sons of my agnatic relatives. ..." And cl. 7 of the will provided that ". . . . if perchance, no son be "taken in adoption, or if the son taken in adoption dies sonless "then the executors or any of them or, in the event of their "disagreement the Collector of Dacca will establish at my "own native village Rawail, the place of my residence, a "school or a charitable dispensary named after me and "will spend the whole amount of surplus of my estate for its "maintenance……” On August 13, 1926, that was; more than eleven years and seven months after the death of the testator, his widow, the respondent Srimati Purna Sashi Debi, purported to adopt one Bimalendu, an infant son of one of the appellants, who were the three surviving brothers of the testator. Bimalendu, however, died on November 24, 1926, shortly after the adoption ceremony. On January 20, 1928, the testators widow instituted the suit out of which this appeal arose against the appellants as executors, as well as in their personal right, and she also impleaded the other respondents as persons interested. She contended that the directions contained in cl. Bimalendu, however, died on November 24, 1926, shortly after the adoption ceremony. On January 20, 1928, the testators widow instituted the suit out of which this appeal arose against the appellants as executors, as well as in their personal right, and she also impleaded the other respondents as persons interested. She contended that the directions contained in cl. 7 of the will were bad and inoperative for uncertainty, and incapable of execution, and effected no disposition of the testators estate ; that on the correct construction of the will the estate first vested in her for a Hindu widows estate and afterwards, on his adoption, vested absolutely in the adopted son, and subsequently on his death re-vested in her as heiress of the adopted son. She claimed that the appellants, as executors, should put her in possession of the properties to which she was entitled on her husbands death, and that an account should be taken of the income of such properties. The facts and the terms of the will appear from the judgment of the Judicial Committee. The Additional Subordinate Judge held that the adoption, not having been made within the ten years specified in the will, was invalid ; that the gift over in favour of charity was valid ; and that the suit should be dismissed. On appeal the High Court (Mitter and Rau JJ.) were of opinion that by the adoption of a nephew within twelve years the wishes of the testators will were complied with, and that the adoption was therefore valid, and that on the death of the adopted son the estate had vested in the respondent as his heiress, and she was accordingly entitled forthwith to be put into possession of it and to administer it. 1939. June 9, 12, 13. J. M. Pringle for the appellants. The effect of the will is that the testators widow was given a power to adopt five sons in succession to her husband, and the appellants were appointed as executors to hold the estate for the benefit of the adopted son, with a gift over to charity. The first line of argument is that there has not been, and there cannot now be, a valid adoption in accordance with the power, and that accordingly the gift over takes effect. The first line of argument is that there has not been, and there cannot now be, a valid adoption in accordance with the power, and that accordingly the gift over takes effect. The first adoption from among the appellants sons had to be made within ten years, and if the power was not exercised within that time it simply died. If, however, the widow had once made an adoption within the specified period, then she could go on and take a second son in adoption even after the period had expired. There is nothing in the Indian Succession Act (XXXIX. of 1925) which would prevent the gift over from taking effect now ss. 124 and 131 of the Indian Succession Act, 1925. Where a power is given by will to a widow to adopt, it must be strictly construed Mutsaddi Lal v. Kundan Lal (( 1906) L. R. 33 I. A. 55, 57, 59.) ; Sitabai v. Bapu Anna Patil (( 1920) L. R. 47 I. A. 202, 206.) ; and Rajendra Prasad Bose v. Gopal Prasad Sen. (( 1930) L. R. 57 I. A. 296.) If a testator gives his widow power to adopt, and imposes no time limitation, the power remains with her for life ; but if a time limit is stipulated, then that is just as mandatory as where the limitation concerned is the object of the power. A presumption against the clear words of the will cannot be introduced Bhagwat Koer v. Dhanukhdhari Prashad Singh. (( 1919) L. R. 46 I. A. 259, 265.) There has been no valid adoption, and the gift over takes effect. Secondly, even if there has been a valid adoption, the High Courts decision that the widow comes in as heiress of the adopted son is wrong, because even on the footing of a valid adoption the gift over nevertheless takes effect by reason of the terms of cl. 7 of the will the event on the happening of which the gift over will take effect—the adopted son dying sonless—has happened. When by will a widow is vested with a power of making successive adoptions, and in particular when there is a gift over in default of an effective use of the power, there is a presumption against the vesting of the estate in any of the adopted sons while the power is still unexhausted. When by will a widow is vested with a power of making successive adoptions, and in particular when there is a gift over in default of an effective use of the power, there is a presumption against the vesting of the estate in any of the adopted sons while the power is still unexhausted. If on the death of an adopted son the estate passed to the adopted sons widow, the testators widow could make no more adoptions and the power would be infructuous. [Reference was made to Bhupendra Krishna Ghose v. Amarendra Nath Dey. (( 1915) L. R. 43 I. A. 12.)] It cannot be said of any adopted son until the exhaustion of the widows power that he is "that " son within cl. 2 of the will, and that he therefore takes as owner. If an adopted son has a son, the power of course comes to an end. By cl. 7 of the will, on the death of the adopted son sonless without attaining majority, any interest which might have vested in him became divested and therefore nothing could pass to his heirs-at-law. Lastly, it was wrong for the High Court to have given her administration of the estate she could not do so in any circumstances s. 216 of the Indian Succession Act. J. M. Parikh for the respondent widow. Though the estate vests in the executors, and they stand in the same position as trustees, one must see where the beneficial interest is. From the time of the testators death there must be somebody who can say " I am entitled to receive this income now" Up to the time the widow made the adoption she was entitled to receive the income of the estate, and also to have possession. From the date of the adoption the adopted son became the full owner under the will, until his death. After his death, he having the full estate as owner, the widow, as his heiress, took. She receives the income until she makes a second adoption, and then the adopted son gets it, and so on until her death. If the adoption is bad, the widow takes as heiress of her husband, and the gift over would fail because there is no valid prior estate created. There must be a prior gift to support a gift over. If the adoption is bad, the widow takes as heiress of her husband, and the gift over would fail because there is no valid prior estate created. There must be a prior gift to support a gift over. The gift over being invalid, the widow succeeds under Hindu law, and cannot be divested. [Reference was made to Tagore v. Tagore. (( 1872 I. A. Supplt. 47.)] J. M. Pringle replied. July 7. The judgment of their Lordships was delivered by Lord Romer. This is an appeal from a decree of the High Court of Judicature at Fort William in Bengal, dated May 20, 1935, reversing the judgment and decree of the First Additional Subordinate Judge of Dacca, dated June 17, 1932, whereby he had dismissed, with costs, a suit brought by the first respondent, Srimati Purna Sashi Debi (hereinafter called the respondent), against the appellants and others. The respondent is the widow of one Bhabendra Mohan Roy (hereinafter called the testator) who died on January 11, 1915, having made his will on the day preceding his death. He left a daughter surviving him, but no son. He also left him surviving his three brothers (who are the appellants) and a step-brother, one Rajendra Mohan Roy. Inasmuch as the questions to be determined upon this appeal are concerned with the proper construction and effect of the will, the material portions of it must be set out in full. They are as follows — "2. If no son be born to me of my loins or if such a son "dies after birth, my wife Srimati Purna Sashi Debi will be "permitted, for the purpose of performing the Sradh, funeral "rites and for offering water and funeral cakes to my ancestors, "to take five sons successively (one on the death of the other) "and that adopted son will be the owner of the estate, and "will be, on attaining majority, entitled to take the estate "from the hands of the Executors ; and I grant her permission "to take son in adoption as aforesaid. Before I gave her oral "permission to take son in adoption in that manner. "3. Before I gave her oral "permission to take son in adoption in that manner. "3. Within ten years after my death my aforesaid wife, in "accordance with the provision mentioned in paragraph 2, "will take a son in adoption from amongst the sons of my "three full brothers or from amongst those of my step-brother "Srijut Rajendra Mohan Roy. If it be impossible to take in "adoption a son from amongst the sons of any one of them, "then, after the expiry of ten years and within the next two "years, she will take, at her own choice, a son in adoption from "amongst the sons of my other agnatic relatives. In the "absence of that or if that is not possible, she will take a son "in adoption from one of my own Gotra or from a different "Gotra. She will take the first son in adoption within twelve "years as aforesaid. If the said son dies sonless, she will be "entitled to take a second son in adoption even after the said "period of twelve years. My aforesaid wife will be entitled "to adopt five sons in succession, one on the death of the "other, in the aforesaid manner. "4. My full brothers, mentioned in paragraph 1, are my "well-wishers and faithful objects of my love; and I have "been living with them in Ejmali and in the same mess. My "two elder brothers have been properly looking after and "managing the estate even during my life-time. Accordingly, I appoint my full brothers Srijut Bhupendra Mohan "Roy, Srijut Prithwindra Mohan Roy and Sriman Hiranya "Mohan Roy, Executors to the estate, after my death till "my son or my adopted son or, if they die during their "minority, till their sons attain majority. They will together, "or in the event of the death, inability or absence of the one "the others will manage and look after the estate. For the "welfare or for the necessity of the estate they will be able to "settle permanently, or in Putni or in Ijara the whole or any "portion of my immovable property. They shall not be "able to do any act detrimental to the estate, or to transfer "or encumber the same. For the "welfare or for the necessity of the estate they will be able to "settle permanently, or in Putni or in Ijara the whole or any "portion of my immovable property. They shall not be "able to do any act detrimental to the estate, or to transfer "or encumber the same. The Executors will perform the "religious rites and duties of my ancestors and other festivities, "according to their consideration and the custom of my "family, the expenses of which will be borne by the estate "left by me. They will maintain my mother, wife, daughter "and others mentioned in paragraph 5, and pay their monthly "allowance from the estate left by me. The Executors and "their representatives will be bound to act according to the "provisions of the Will of my deceased father Sudhendu "Mohan Roy. Nobody will be able at any time to demand "or take any accounts of income and expenditure from the "Executors. "5. My mother, Srijukta Harakamini Debi, of whom I was "born, will be entitled to maintenance out of my estate according to share, in accordance with my fathers Will, and a "sum not exceeding Rs. 2000 should be spent out of my "estate for her Sradh ceremony. My wife, Srimati Purna "Sashi Debi, will be under the care of my Executors and "under the care of my son or adopted son when he would "attain majority. She will be entitled to maintenance and "all expenses for religious rites, pilgrimage, etc., out of the "estate according to the circumstances of the estate and "directions of the Executors. If my aforesaid wife be not "on good terms with them, she will be entitled to a monthly "maintenance allowance at the rate of Rs. 20 during her "life and to a sum of Rs. 1000 at a time out of my estate for "the expenses of her pilgrimage, and she will further be "entitled to live in a proper house in my residential homestead. "My only daughter Srimati Binapani Debi is at present minor "and unmarried. All the expenses of her marriage will have "to be paid out of my estate in accordance with the custom "of my family, and my estate will bear the cost of her maintenance till her marriage. If she lives at her husbands house "after her marriage, she will receive Rs. All the expenses of her marriage will have "to be paid out of my estate in accordance with the custom "of my family, and my estate will bear the cost of her maintenance till her marriage. If she lives at her husbands house "after her marriage, she will receive Rs. 5 per month during "her life out of my estate, and if she lives at my own house "she will be entitled to maintenance out of my estate. If "she be not on good terms with my heirs or successors in " interest and if she wants to live in my own village, then my "heirs and successors-in-interest should be bound to give her "separate lands and houses according to the circumstances "of the estate, and she will be entitled to a monthly allowance "of Rs. 20 during her lifetime on account of her maintenance "out of my estate ; and she will be entitled to get proper "sum of money out of my estate on the said accounts. If "any other daughter is born to me, then she also will be "entitled to maintenance, monthly allowance, marriage "expenses, homestead and houses, etc., just like the aforesaid "Srimati Binapani. "6. My three brothers executors, will together or two of "them or one of them will take the probate of this Will and "will administer and manage the estate left by me till my son "or grandson attain majority, being vested with all the "responsibilities and power as mentioned in this Will and by "paying off all the debts. "7. If there be no son born of my loin, or if such a son die "sonless after birth, or if perchance, no son be taken in "adoption, or if the son taken in adoption die sonless, then "the Executors or any of them or, in the event of their disagreement the Collector of Dacca will establish at my own "native village Rawail, the place of my residence, a school "or a charitable dispensary named after me and will spend " the whole amount of surplus of my estate for its maintenance. "To the above effect, being in full possession of my senses "and in tranquil state of mind, I execute to-day this Will, "being in Calcutta at 19, Hara Chandra Mallick Lane. Finis. "Dated 26th Pous, 1321 B.S." As already stated, the testator died on January 11, 1915. "To the above effect, being in full possession of my senses "and in tranquil state of mind, I execute to-day this Will, "being in Calcutta at 19, Hara Chandra Mallick Lane. Finis. "Dated 26th Pous, 1321 B.S." As already stated, the testator died on January 11, 1915. Ten years then passed without the respondent taking any steps to adopt any one of the sons of the testators brothers or step-brother. This was in no way due to any difficulty in finding such a son. It seems to have been a deliberate omission on her part. The learned Subordinate Judge has examined the evidence about this in some detail, and has summed it up in these words — "So there is not only no evidence that the plaintiff even "made any genuine endeavour to take any of her husbands "brothers sons in adoption within 10 years and failed, but "there is evidence in the contrary direction that defendants "1 and 2 " [i.e., two of the appellants] "offered their sons for "adoption to the plaintiff but she did not adopt." On August 13, 1926, however, the respondent purported to adopt an infant son of one of the appellants. That the adoption took place in fact is not now in dispute. The only question about it is whether it was a valid adoption, seeing that it was not made within ten years of the testators death. On November 24, 1926, the adopted son died sonless. It was in these circumstances that the respondent instituted the present suit on January 20, 1928, claiming that the appellants, as executors of her husbands will, should put her in possession of the properties to which she was entitled at his death. She also claimed to have an account taken of the income of such properties. Her contention was that the adopted son had become by virtue of the express words in cl. 2 of the will "the owner of the estate,” and that upon his death she became entitled to the estate as his heiress. As to cl. 7 of the will, which contains a gift over in favour of charitable purposes in the event (amongst others) of the son taken in adoption dying sonless, she contended that the gift over was void on the ground that it was repugnant to the absolute gift to the adopted son contained in cl. 2. As to cl. 7 of the will, which contains a gift over in favour of charitable purposes in the event (amongst others) of the son taken in adoption dying sonless, she contended that the gift over was void on the ground that it was repugnant to the absolute gift to the adopted son contained in cl. 2. This was, of course, on the assumption that the adoption was valid. If that assumption proved to be ill-founded, she claimed to be entitled to the properties as heiress of her husband, alleging that the gift over in the event of no son being taken in adoption was void on the grounds of remoteness and uncertainty. The suit came on for hearing before the Additional Sub ordinate Judge at Dacca on June 17, 1932. He held that the adoption was invalid as not having been made within the ten years limited by the will. He thought in view of certain authorities, to which their Lordships will refer later, that the power to adopt given to the respondent was one that had to be strictly followed. He held further, that the gift over in cl. 7 in the event which had happened of no son having been taken in adoption was valid in every respect. The result, as already stated, was that the respondents suit was dismissed, with costs. The respondent then appealed to the High Court. The appeal was successful. It was held that the adoption was valid. Mitter J., in whose judgment Rau J. concurred, agreed with the Subordinate Judge that under the Bengal School of Hindu Law an authority to adopt given by a husband to his widow must be strictly followed. "No one,” he said, "would "quarrel with this proposition of law." But he thought that according to the true construction of the testators will the authority given to the widow to adopt a son of one of his four brothers could be exercised at any time within twelve years from the testators death. "No one,” he said, "would "quarrel with this proposition of law." But he thought that according to the true construction of the testators will the authority given to the widow to adopt a son of one of his four brothers could be exercised at any time within twelve years from the testators death. He said — "In our opinion, on a reasonable construction of the will, "even on a literal construction of it, the proper way to read it is "to hold that there was no prohibition with reference to the "taking in adoption of the nephews of her husband beyond "the period of 10 years and within 12 years of the testators "death, and by the adoption of the nephew within 12 years "the wishes of the testator were complied with." And a little later he said "We have to see on the authorities whether "there is an intention within the four corners of the will as "expressing that the nephews are to be excluded beyond the "period of 10 years. As we have already said, that seems to us "to be an unreasonable construction to put upon the will." The adoption having been in their opinion validly made, and the adopted son having died sonless, it necessarily followed that the respondent had power at any time thereafter to take four more sons in adoption successively. In order, therefore, to determine whether the gift over contained in cl. 7 of the will had taken effect by reason of the son taken in adoption having died sonless, it might be necessary to wait until the death of the respondent. What, then, was to happen in the meantime to the testators estate which had vested in the son whose adoption had been held to be good ? This question was answered by the High Court in the respondents favour. They held that the estate had vested in her as heiress of the adopted son, and that she was entitled forthwith to be put into possession of it, and to administer it. They considered that any other conclusion would be inconsistent with the Hindu law that the succession to an estate can never remain in abeyance. It is, in their Lordships opinion, established law that in such a case as the present the authority to adopt given by a husband to his widow must be strictly followed. They considered that any other conclusion would be inconsistent with the Hindu law that the succession to an estate can never remain in abeyance. It is, in their Lordships opinion, established law that in such a case as the present the authority to adopt given by a husband to his widow must be strictly followed. In Mutsaddi Lal v. Kundan Lal (( 1906) L. R. 33 I. A. 55.) the law upon the subject was stated by the Privy Council to be as follows (Ibid. 57.) " All the schools of Hindu "law recognise the right of the widow to adopt a son to her "husband ‘with the assent of her lord.’ It is equally well "established that this assent may be given either orally or "in writing ; that, when given, it must be strictly pursued ; "that she cannot be compelled to act upon it unless and until "she chooses to do so ; and that, in the absence of express "direction to the contrary, there is no limit to the time within "which she may exercise the power conferred upon her." Much to the same effect was said by Lord Buckmaster when delivering the judgment of the Privy Council in Sitabai v. Bapu Anna Patil (( 1920) L. R. 47 I. A. 202, 205.) "according to the Bombay School "of Law the duty of a Hindu widow to obey her husbands "command compels her to act upon any mandatory direction "that he may give by will as to the way in which her power "of adoption should be exercised." Their Lordships so far are in complete agreement with the High Court. But, with all respect to that Court, their Lordships are unable to agree that, in making the adoption of her husbands nephew more than eleven years after his death, the respondent was acting in strict conformity with the authority given to her by the will. It is true that the will does not in terms state that an adoption of one of the sons of her husbands brothers or step-brother after the expiration of ten years from his death should be void. That, however, is not the point. The question is not what the will says shall be void, but what is the power of adopting such a son that is given to the respondent. In their Lordships opinion, the answer to this question is plain. That, however, is not the point. The question is not what the will says shall be void, but what is the power of adopting such a son that is given to the respondent. In their Lordships opinion, the answer to this question is plain. It is the power set forth in the first paragraph of cl. 3 of the will, namely, a power to adopt within ten years after the testators death. Their Lordships are unable to find anything in the will, either preceding or succeeding this paragraph, that can be regarded as in any way enlarging this power. The power is expressly limited, and in accordance with the authorities and in accordance with the general principles applicable to powers, the express limitation must be strictly observed. For these reasons their Lordships agree with the decision of the Subordinate Judge that the adoption was invalid. They also agree with him that the gift over contained in cl. 7 of the will in the case of no son being taken in adoption was valid in the events which happened, and took effect upon the expiration of ten years from the death of the testator. Their Lordships express no opinion upon the question whether, if there had been a valid adoption, the gift over in the event of "the son taken in adoption " dying sonless would or would not have failed for remoteness. For the gift over in the event of no son being taken in adoption is clearly severable from the gift over in the other event just mentioned, and necessarily would take effect, if it took effect at all, at the latest upon the expiration of the period of twelve years from the death of the testator or the earlier death of his widow. In the events that happened it took effect upon the expiration of ten years from the testators death, inasmuch as it was not impossible for the respondent within that time to take in adoption one of the sons of his brothers or step-brother. It was, however, contended on behalf of the respondent that, even so, the gift over was invalid on the ground that between the death of the testator and the expiration of the ten years the succession to the estate would be in abeyance, and that this was contrary to Hindu law. It was, however, contended on behalf of the respondent that, even so, the gift over was invalid on the ground that between the death of the testator and the expiration of the ten years the succession to the estate would be in abeyance, and that this was contrary to Hindu law. Their Lordships do not desire in any way to question this principle of the Hindu law of succession, but it has no conceivable application to the present case. Upon the death of the testator any interest in his estate not effectually disposed of by his will would vest at once in the respondent as his heiress. There could not therefore be any abeyance of the succession. If the surplus income from his estate after making the provisions detailed in cls. 4 and 5 of the will has not been effectually disposed of, the right to receive such surplus income vested in the respondent. In truth it was not so disposed of. For the gift over of the residuary estate of the testator in favour of the charitable purposes mentioned in cl. 7 of the will was a contingent gift, and would not therefore carry the income accruing before the gift vested. In these circumstances the respondent is entitled to have an account taken of that income, and to be paid what shall be found due upon taking that account, and her suit ought not to have been dismissed altogether. It ought, however, to be stated in justice to the learned Subordinate Judge that this aspect of the matter does not appear to have been called to his attention. In their Lordships opinion, the right course to take in all the circumstances is to discharge the decree of the Subordinate Judge and also the decree of the High Court, except in so far as it directs payment of the Court fees out of the estate ; to direct that an account be taken of the surplus income of the testators estate accruing during the ten years immediately succeeding the death of the testator ; and to direct payment by the appellants to the respondent of what shall be found due on taking such account. Their Lordships will humbly advise His Majesty accordingly. Their Lordships will humbly advise His Majesty accordingly. Their Lordships think that this is a proper case for directing that the costs of the appellants and the respondent both in the Courts below and of this appeal should be raised and paid by the appellants out of the estate of the testator.