1. This suit is concerned with the construction of the will of Dwarkanath Dey, a Hindu, who was the owner of landed properties in Calcutta of considerable value, and who died on 10th May 1911. He was survived by his widow, Golapmani, and by two widowed daughters, Sm. Sailabala and Sm. Nanibala, and also by a married daughter, Sm. Prafullabala, who is defendant 1 in these proceedings. The name of Prafullabala's husband was Bejoy Krishna Dutt and he died on 28th July 1936. Bejoy Krishna and Prafullabala had no children of their own, but on 30th April 1931, Bejoy had adopted a son who is now called Narain Chandra Dubt, and is defendant 2 in this suit. He has not yet attained the age of majority. Golapmani, the testator's widow, survived until 16th November 1937. The plaintiffs in this suit are the sons of Makan lal Das, whose mother, Shama Dasi, was the testator's sister. Makhanlal Das died on 12bh August 1924. Both of the plaintiffs were born during the lifetime of the testator. The testator's will was executed on the day of his death, and probate of it was obtained in due course by the executors and executrix named therein. The residuary be-quest in the will is in the following terms:
I give, bequeath and devise all and whatsoever I possess or I may die possessed of or I may be entitled to either moveable property or immovable property to my said wife Sreemutty Golapmani Dasi to hold and enjoy the rents, issues and profits thereof during the time of her natural life and thereafter to my married daughter Sreemutty Prafullabala for her natural life and then to her heirs for ever; in the Case however my said daughter dies or becomes a widow without issue heirs my nephew (sister's son) Makhanlal Das and his heirs will succeed to my estate as absolute owner or owners thereof.
2. The will also made provision for the maintenance of the testator's widowed daughters. The present suit was filed on 22nd December 1937. The contention of the plaintiffs is that they are entitled to the testator's residuary estate because Prafullabala has become 'a widow without issue heirs' within the meaning of the testator's, will. Although Mr. S.C. Bose has argued to the contrary, I am of opinion that the conditions under which the gift over is to take effect, that is, the death or widowhood of Prafullabala without issue heirs, whatever that may mean, must be fulfilled in the lifetime of the first tenant for life, Golapmani Dasi and I cannot accept the suggestion that the period of distribution is the death of the second tenant for life, Prafullabala, for it is obvious that a person can only become a widower or widow during his or her lifetime, and therefore the condition is not one the fulfilment of which can be postponed to the death of the person concerned. If the condition of the gift over has been fulfilled, the fulfilment occurred when Prafullabala became a widow on the death of her husband, Bejoy Krishna, on 28th July 1936, that is, during the lifetime of Golapmani. The question therefore is whether, when Prafullabala became a widow, she did so, 'without issue heirs' within the meaning of the will.
3. It has been suggested that either the word 'issue' or the word 'heirs' is redundant in the sense that one of the words has been inserted through a slip in draughtsmanship. I do not think I can pay any heed to that suggestion, and I am bound to do my beat to construe the will as it stands and in the form in which it has been proved. According to the plaintiffs, 'issue heirs' means natural-born descendants and excludes descendants by adoption. According to the defendants the term 'issue heirs' is used to signify descendants whether adopted or natural-born, and is employed in contra distinction to heirs who are either ascendants or collaterals. In my opinion no assistance can be derived on this point from the provisions of the Succession Act. Section 99 (g) of that Act provides that the words 'issue' and 'descendants' apply to all lineal descendants whatever of the person whose 'issue' or 'descendants' are spoken of. The Section however is not applicable to wills executed by Hindus.
4. Section 5 of Schedule 3 to the Act, which deals with the wills of Hindus, and which reproduces Section 6 of the now repealed Hindu Wills Act, 1870, provides that in applying certain Sections to the wills and codicils of Hindus the words 'son,' 'sons,' 'child' and 'children' shall be deemed to include an adopted child; and the word 'grandchildren' shall be deemed to include the children, whether adopted or natural born, of a child whether adopted or natural-born. I do not think it is permissible in a matter of construction to rely on a statute to interpret a term with which the statute does not directly deal. There is however an authority which affords a certain amount of assistance. That is Beemchurn Sein v. Heeralall Seal, 2 Ind jur (N.S.) 225. The question at issue in that case was whether a widow had in fact been given authority to adopt, and the Court of first instance held that no such authority had been given. In dismissing an appeal against that decision, Sir Barnes Peacock observed:
For my own part I am inclined to adopt the construction which the learned Counsel, Mr. Tagore, put upon the words 'in case Kissoreemohun should die' 'leaving no issue.' I apprehend that the words 'leaving no issue' would not have been satisfied if Kissooreemohun had actually left an adopted son, one whom he had adopted himself; and that they would not have been satisfied, if Kissooreemohun had given power to his widow to adopt, and a son had accordingly been adopted by her.
5. It is true that these observations are obiter dicta. Nonetheless, I consider that they support the view which I should have taken independently of them, that prima facie 'issue' when used in a Hindu will includes descendants by adoption as well as descendants by blood. The question is whether there is anything in this will to show that the testator, when he used the term 'issue heirs' intended to denote descendants by blood to the exclusion of descendants by adoption. It appears to me that the only reason for limiting the expression in this way is that, if one holds that a son adopted by Prafullabala's husband is included, one would have expected the testator to have made some provision whereby a son adopted by Prafullabala after the death of her husband, in exercise of a possible authority to adopt, would also have been included.
6. I agree that it is impossible to construe the will in such a way that the adoption of a son by Prafullabala during her widowhood would prevent the gift over from taking effect. However it is often the case that a testator overlooks certain possibilities, and I do not think that the inconsistency, if it is an inconsistency, on his part in preserving Prafullabala's estate if a son were adopted by Bejoy Krishna during his lifetime, while giving it over if Prafullabala should adopt a son during her widowhood, is sufficient ground for saying that ho did not intend to use the term 'issue' in the sense which, I think, a Hindu would ordinarily be expected to use it, that is as including a son by adoption as well as children or other descendants by blood. In these circumstances, I consider that the condition under which the gift over to the father of the plaintiffs and his heirs was to take effect has never been fulfilled, and the suit must accordingly be dismissed. In view of the ambiguous phraseology of the will I think I am justified in directing that the costs of all parties be paid out of the estate.