Pratt, J.:— This appeal arises in ??? suit for the recovery of property with mesne profits. The facts are admitted and the case depends upon the construction of the Will of Sarbeshwar Mustafi, dated the 3rd November, 1863.

He died on the 13th November, 1863 leaving a widow Taramani, a brother Radhajiban and a deceased brother's son Lakshmi Das. At the time of Sarbesh-war's death Lakshmi had three sons Guru Das, Purna and Umesh, who are the Defendants in this suit. Subsequently, i.e, in November 1865, Lakshmi married a second wife by whom he had three sons, Sarat, Hem, and Manmotha, the last of whom died in December 1887, Lakshmi Das died in May 1887 and Taramani in January 1892. The Plaintiffs are Sarat, Hem and their mother as heiress of Manmotha, while the three sons of Lakshmi by his first wife are the Defendants.

It appears that Taramani executed a deed of gift of the property in favour of Guru, Purna, and Umesh, and it is admitted that the deed is void at her death. The Will first bequeaths Sarbeshwar's entire estate to his widow for as long as she shall live (jabat jiban). Then she is given power to adopt one after another any son of Lakshmi Das, but no other person. Then comes the passage “after the death of my widow, my brother's son Lakshmi Das Mustafi and his sons, grandsons and so forth (adi) being in possession of my immoveable ??? moveable properties shall ??? the Iswar Deb Seba and the ??? in honour of the deities for ??? to come.” Then follows a ??? regarding Taramani's stridhan ??? which this suit is not concerned, ??? next paragraph recites that there had been a gift of half the testator's property to Radhajiban on certain conditions; and this was confirmed unless Radhajiban disregarded the stipulations in which case the half share would go to Taramani and Lakshmi Das, or as it is worded “the entire 16 annas property shall remain in the possession of Lakshmi Das and in the possession of my wife.” Such a contingency has not arisen. Then follows certain legacies payable out of sums due under decrees of Court. Then comes a bequest of the balance of the decretal money, viz., Rs. 9,675 which was to be invested in Government paper. The material portion reads thus. “The rest of the original paper shall remain in my wife's possession during her lifetime, and after her demise shall remain in possession of Lakshmi Das Mustafi.”

The contention of the Plaintiffs is that under the terms of the Will Lakshmi obtained a vested estate of inheritance subject to Taramani's life estate, and liable to be divested like Taramani's by an adoption, which however never took place. If that be the correct construction, the inheritance would be shared equally by all of Lakshmi's six sons and therefore the Plaintiffs are entitled to recover half the property from the Defendants, who have taken possession of the whole on behalf of the Defendants, who are Appellants before us, it is contended that Taramani acquired a Hindu widow's estate and that so long as she was alive no one could have a vested interest in the succession; and that on Taramani's death none of the class escribed as “Lakshmi's sons, grandsons and the rest” could inherit who were not alive at the time of the testator's death. I need not stop to enquire whether in such a case the disposition would fail as to all of the persons constituting the class because some of the sons are incapable of taking. That is the well settled rule in England and was recently applied to the Will of a Hindu widow by Stanley, J., in the case of Rajamoyee Dan v. Troylukho Mohini Dassi(1). I am saved from the necessity of considering whether that rule is always applicable in this country because I fully agree with the Subordinate Judge that the ultimate estate which the testator intended to confer was an absolute one upon Lakshmi Das and that the words “O putra poutradi” are equivalent to “putra poutradi krame.” That this is so is also made manifest from the contest where twice over Lakshmi Das is associated with Taramani in the inheritance without any reference to sons or grandsons. I further think that the intention was to give Taramani an ordinary life estate and not that of a Hindu widow. The language employed to express such an intention seems to me quite clear and unequivocal and I do not think a contrary intention can be inferred from the mere fact that power was given to the widow to adopt a son and so divest herself of the estate. This is not a case in which it is contended that the testator gave his widow an absolute estate, and which raises the question whether the intention to give more than the ordinary widow's estate can be deduced. The considerations which apply to that class of case are inapplicable here.

It is evident that the testator intended that Lakshmi Das should be an object of his bounty. Yet if he gave Taramani a Hindu widow's estate, she would fully represent the estate and in that case Lakshmi Das being only a contingent remainderman, the testator's intention would be liable to be defeated by a partial intestacy. A construction which might lead to such a result is always to be avoided where the terms of the Will are open to a different construction. Life estates to widows are not unknown in this country. Such an estate was clearly intended and explicitly conferred in the present case.

There is no objection regarding the decree for wasilat, and this appeal is accordingly dismissed with costs except as regards the Appellant Purna Chandra Mustafi who has compromised with the Respondents.

Geidt, J.:— The subject-matter of dispute is the’ estate of Sarbeshwar, which is in the possession of the Defendants, the three sons of Lakshmi Das by his first wife. The Plaintiffs are the two surviving sons of Lakshmi Das by his second wife together with their mother as heiress of a third son, deceased.

The Plaintiffs claim to be entitled to a moiety of the estate, while the Defendants claim the whole estate, and both these claims are rested on the terms of Sarbeshwar's Will.

Mr. Justice Pratt has recap ??? the facts and the terms of the ??? it is unnecessary for me to repeat ??? The learned Subordinate Judge ??? tried the case has found that under ??? terms of the Will Lakshmi Das took ??? vested estate of inheritance, subject ??? Taramani's life estate, and liable to be divested by an adoption, which however never took place.

At the hearing of this appeal against that finding Dr. Asutosh Mukerjee in the first place contested with much force the view that the estate conferred on Taramani was an estate for life. He contended that there is in the Will no gift in express terms to the widow, and that what the testator contemplated was that Taramani should have not a life estate, but a widow's estate, and he reinforced this contention by reference to the power of adoption conferred on her. He therefore argued that the testator's entire estate was taken by the widow, and that there was no remainder which could vest during her life in the subsequent legatees. In support of this view he quoted a passage from Mayne's Hindu Law, 6th Edition, p. 795, where it is pointed out that it is incorrect to speak of a widow's estate as being one for life. “The Hindu law,” says Mayne, “knows nothing of estates for life, or in tail or in fee. It measures estates not by duration but by use.” Again at p. 818 the same authority lays down. “The nature of a woman's estate must, as already stated, be described by the restrictions which are placed upon it, and not by terms of duration. It is not in any sense an estate held in trust for reversioners; within the limits imposed ??? her, the female holder has the ??? absolute power of enjoyment. She accountable to no one, and fully presents the estate, and so long as she ??? alive, no one has any vested interest ??? the succession.” The conclusion to which Dr. Mukerjee invited us to come on the above authority was that as no one had a vested interest in the estate till Taramani's death, no one could take who was not alive at that date. On this view Lakshmi Das would be excluded, and the Plaintiffs could not take as his heirs.

The first observation that I have to make on this line of reasoning is that if the estate conferred on Taramani was a widow's estate, there could be no gift in succession to her, for as Mr. Mayne points out in a sentence following the passage above quoted from p. 795 of his work “the distinctive feature of the (widow's) estate is that at her death, it reverts to the heirs of the last male owner.” Now the heirs of the last male owner are not the descendants of Lakshmi Das but Eadhajiban, Sarbeshwar's brother. If the argument addressed to us by the Appellant's pleader is sound, it would follow that neither the Plaintiffs nor the Defendants are entitled to Sarbeshwar's property, a presentation of the case that has hitherto not been made by either party. We pointed out this result to Dr. Mukerjee in the course of the argument, and his reply was that even if the correctness of the deduction be admitted, it is a sufficient answer to the Plaintiffs' claim. Though the Defendants may not be entitled to Sarbeshwar's property, the Plaintiffs have to prove a valid title before they can recover.

I am, however, unable to adopt the premises on which this argument is founded. The widow's estate of which Mr. Mayne treats is an estate created by law and not by Will. The very fact that Sarbeshwar made a disposition of his property on the determination of the widow's estate clearly indicates that the estate which Sarbeshwar contemplated should be taken by his wife was not a widow's estate as known to the Hindu Law. The words “my widow being in possession of my properties during her natural life (jabat jiban, i.e, as long as she lives) shall perform & c.,” do in my opinion confer on the widow a life estate however close to a Hindu widow's estate in many respects the testator may have contemplated that this life estate should approximate.

It was next contended on behalf of the Appellants that the Plaintiffs are precluded from taking under the Will by reason of the fact that the bequest to the subsequent legatees was contingent on the failure to exercise the power of adoption conferred on the widow, and that the legacy did not vest till the adoption became impossible, that is, till the date of Taramani's death. At that date Lakshmi Das was not alive, and it was therefore argued that neither Lakshmi Das nor his heirs as such could take on the widow's death. It is true that the gift to “Lakshmi Das, his sons, grandsons, etc.,” finds place in the Will after the authority to adopt. But there is no expression in the Will which makes the gift dependent on the failure to exercise the power. On the contrary the mode in which the gift is conferred indicates, that the testator contemplated that the authority would not be exercised. “After the death of my widow, my brother's son, etc., being in possession of my properties shall perform.” I agree with the learned Subordinate Judge in thinking that the true construction of this provision is that the gift should vest at once in the subsequent legatees but be liable to be divested in case a son should be adopted.

The last question with which I have to deal is whether by the use of the words, “my brother's son Lakshmi Das Mustafi and his sons, grandsons, etc.,” an estate of inheritance was conferred on Lakshmi Das, or whether these words are to be taken distributively as conferring a joint estate on Lakshmi Das and his descendants. This issue, if framed in the technical but concise language of English law, would be put thus, are the words sons, grandsons, etc., words of limitation or of purchase. If these words are interpreted, as the Subordinate Judge has interpreted them, in the former sense, the Plaintiffs are entitled to succeed. If the words are interpreted in the latter sense, then only those of Lakshmi Das and his descendants who were alive at the date of the testator's death are entitled to take, and the Defendants will rightfully repel the Plaintiffs, who were persons born, or represent a person born, after the death of the testator.

The form of words now generally used when an estate of inheritance is conferred by Will is putra poutradi krame, ‘that is, sons, grandsons in succession.” The form used in the present Will is “O putra poutradi,” that is, “and sons, grandsons, etc.” The Subordinate Judge has held that this deviation from the usual form imports no different ??? meaning. In considering this ??? must remember that the Will under ??? was executed nearly forty years ago. Though the power of making ??? has long been recognised among Hindus there can be no doubt that it was not so freely exercised in former times as at present. When Wills were few and far between, each testator in making a gift to a man and his heirs would use any expression that seemed to represent his meaning. As the habit of making Wills became more general and as their contents became more widely known through the grant of probate or administration, these different expressions would tend to crystallize into a common form, and we cannot be surprised that even so late as forty years ago this common form was not in general use. The Subordinate Judge has observed that if the gift was to the sons and grandsons as well as to Lakshmi Das, the word “and” would probably have been inserted between ‘sons’ and ‘grandsons’ and the words etc., would have been omitted. There is to my mind much force in this comment, and I think there can be no doubt that the words actually used are words of inheritance, and that an absolute estate was conferred on Lakshmi Das. I am confirmed in this view by the provisions in the subsequent paragraphs, in which further dispositions of property are made in favour of the widow and Lakshmi Das without any mention of his sons and grandsons.

For the reasons above stated I agree that the appeal fails and must be dismissed with costs.

S.C.S

Appeal dismissed.