Francis W. Maclean, K.C.I.E., C.J.
1. Hari Das Dutt, a Hindu, governed by the Bengal School of Hindu Law, died on the 30th October 1875, leaving him surviving his widow Surnomoni, two daughters, Rani Moni and Prem Moni and three grandsons by his daughter Prem Moni, namely, Radhu Prosad Mullick, Kashi Prosad Mullick and Joyti Prosad Mullick Rani Moni was childless, but her husband Kama Kanta Sen was then alive. Hari Das Dutt executed a will on the day of his death, and it is clear from it that, like most other Hindus, he was anxious for a son and as there was little likelihood of a son being born, he was desirous of adopting one, if he lived to do so. He appointed his wife Surno Moni, his father Madhu Sudan Dutt and his uncle Dwarka Nath Dutt, executrix and executors and trustees of his will, and he gave directions for the adoption of a son by them. On the 20th December 1875, Surno Moni and Dwarka Nath Dutt took out probate of the will from this Court.
2. The schema of his will was this:
On his own failure to adopt a son, his widow and executors and trustees would adopt three sons in succession in the event of any of the adopted sons dying without male issue during the lifetime of the widow. The son so adopted would inherit his property, but would not have possession of it, until he arrived at the age of eighteen years or until the death of the widow, whichever event would happen Last: the widow and the executors and trustees would have control and remain in possession, until the happening of the event, which would entitle the adopted son or his son to possession: the widow would receive for her life Rs. 200 a month for maintenance, and Rs. 10,000, if she was desirous of performing pilgrimage to any holy place; the sum of Rs. 50 only was payable for the use of the adopted son, until the death of the widow and in the meantime the rest of the income should accumulate and be invested in Government securities.
3. The will then provides: '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 divot 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 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 either daughter leaving sons, the share of such daughter is to be paid to such her son or sons' share and share alike.'
4. The questions we have now to deal with depend upon the true effect and construction of this clause.
5. Under the power given by her husband Surno Moni adopted on the 9th August 1876, Jyoti Prosad Mullick, one of the sons of Prem Moni, as a son, but Jyoti Prosad died on the 9th January 1831, unmarried. Thereafter on the 9th February I881, she adopted Amrita Lal Dutt. On the 1st August 1894, Amrita Lal Dutt instituted in this Court a suit against Surno Moni, her daughters and their sons for the construction of the will of Hari Das Dutt and for the administration of his estate.
6. The suit, though successful in the first Court, failed on appeal, and also on a further appeal to the Judicial Committee of the Privy Council, as the adoption by Sumo Moni was held to be invalid, the power of adoption conferred by the will on her and the executors and trustees having been declared invalid under Hindu Law and incapable of being exercised. Thus the invalidity of the power of adoption has caused a failure of the main scheme of the will.
7. The decision of the Judicial Committee in the suit of Amrita Lal Dutt was pronounced on the 2nd May 1900, and shortly after, i.e., on the 2nd November 1900, Rani Moni, who was until then childless, adopted with her husband Rama Kant Sen the defendant Jugal Kishore Sen as their sou, and there is no contest as to the validity of this adoption. By this adoption Rani Moni attained the status of a daughter with a son. The cases of Puddo Kumari Debi v. Jogat Kirhore Acharya (1879) I.L.R. 5 Calc. 615 and Uma Sankar Moitra v. Kali Kumal Mozumdar (1883) L.R. 10 I.A. 188 have finally settled the law that an adopted son holds precisely the same position as a son born as regards inheritance from the adopted mother's relations, and that the status of an adopted son, unless modified by express texts, is similar to that of a son born, as regards the performance of periodical obsequial ceremonies and inheritance. Rani Moni must now be recognised to be a daughter with a son and she stands in the same position under Hindu Law as her sister Prem Moni.
8. Rama Kant Sen, the husband of Rani Moni, died before the death of Surno Moni and she died on the 14th August 1904, leaving all the parties to the present suit her surviving. Rani Moni commenced the present litigation on the 19th December 1904, and she has asked for the construction of the will of her father, for the administration of his estate and for partition and other incidental reliefs.
9. Surno Moni left a will, which is dated the 31st January 1903, by which she purported to deal with portions of the property covered by the present suit, and the Administrator General of Bengal is in possession of these portions, having taken out probate of the said will, of which he was appointed executor. The Administrator Greneral is not a party to this suit.
10. 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 Hindu 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 testator's widow, a sou, who by a fiction of law is supposed for this purpose to be in being at the date of the testator's death, nor was it void on the ground that the testator intended to create a line of heirs unknown to Hindu Law, as was unsuccessfully attempted by the testators in Ganendra Mohun Tagore v. Jatindra Mohun Tagore (1872) 9 B.L.R. 377, Kristo Romoni v. Norendra Krhhna Bahadur (1888) I.L.R. 16 Calc. 383. Nor was the bequest void under any of the rules laid down in Sections 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 haying been executed in 1875, the Hindu Wills Act applies to it.
11. 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. Ab. 245, Statham v. Bell (1774) Cowp. 40, Meadows v. Parry (1812) 1 V.& B. 124, Murray v. Jones (1813) 2 V. & B. 313, Mackinnon v. Sewell (1831) 5 Sim. 78, Arelyn v. Ward (1749) 1 Ves. 420 has been codified in India in Section 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 Section 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. Section 116 enables us to give effect to this necessary implication of the will paying regard to the substantial effect of the contingency specified by the testator. In Akhoy Moni Dassee v. Nilmoni Mullick (1887) I.L.R. 15 Calc. 282 the learned Judges applied the principle in Jones v. Westcomb (1711)1 Eq. Cas. Ab. 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.
12. Section 117 of the Indian Succession Act qualifies to some extent the rule in Section 116. Where the will shows an intention that the second bequest shall take effect only in 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 shows 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 Section 117 applicable and prevent the operation of the general rule laid down in Section 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 Section 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.
13. Section 111 of the Indian Succession Act and Norendra Nath Sircar v. Kamnlbasini Vasi (1896) I.L.R. 23 Calc. 563 : S.C.L.R. 23 I.A. 18 and Monohar Motkerjie v. Kasiswar Mookerjee (1897) 3 C.W.N. 478 have been relied on by the learned Counsel for Prem Moni 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 testator's widow, a specified uncertain event, the bequest cannot take effect. The contingency, however, happened before the period of distribution as contemplated by Section 111, for the reason of the failure of the prior bequest ab initio and is incompetency to take effect. Section 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 Section 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 Rani Moni and Prem Moni have token under the will of their father and have taken as tenants in common.
14. 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 widow's 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 the 1st September 1870, of immoveable 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 Section 82 of the Succession Act and Ramasami v. Papayya (1893) I.L.R. 16 Mad. 466, Lola Ram Jiban Lal v. DalKoer (1897) I.L.R. 24 Calc. 406, Musmmat Kollany Koer v. Luchmee Pershad (1875) 24 W.R. 395, Bhoba Tarini Debyay. Peary Lull Sanynl (1397) I.L.R. 24 Calc. 646, Atul Krishna Sircar v. Sanyasi Charon Sircar (1905) I.L.R. 32 Calc. 1051 in support of our view.
15. 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 Rani Moni had no son at the time of the testator's 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
16. Following the practice adopted by the Judicial Committee in Lalit Mohun Singh Roy v. Chukkun Lal Roy (1897) L.R. 24 I.A. 76 we leave the question open, until it is ascertained what the events are.
17. In the view we take, it is unnecessary for us to say what interest Rani Moni would have taken, if the bequest to her and her sister had failed and there had been an intestacy.
18. We, therefore, agree with Woodroffe J. as to his construction of the will of Hari Das Dutt and the declarations he has made as regards the rights of the plaintiff and the defendant Prem Moni. We, however, do not see how enquiries I) and E of the prayer of the plaint can properly he directed in the absence of the representatives either of Hari Das Dutt or Sumo Moni. Those representatives are not parties to the suit, nor in the absence of such representatives can a decree be made for partition, as that must necessitate an enquiry of what, the estate consisted and consists. These directions must be excluded from the decree and the decree varied accordingly.
19. Then as to costs: The present litigation is due to the difficulties created by the will itself, and we therefore direct that the costs of all parties both in the lower Courts as well as in this Court be paid out of the estate of the testator, one set of costs only being allowed to defendants appearing in the same interest.
20. Liberty to any of the parties to apply as they may be advised, and as to a partition of the property, if and when the necessary parties are brought before the Court.
21. I agree.
22. I agree.
23. I agree
24. J. I agree.