Decided on May 02,1900



Hobhouse, J - (1.) This is a suit instituted before the High Court of Judicature in Calcutta in its original jurisdiction for administration of the estate of Hurridas Dutt, who died on the 30 October 1875, having executed a will on the same day. He had no son, but left a widow Surnomoye Dasi and two daughters who were all defendants below and now are respondents. The plaintiff in the suit, now appellant, claims to be the son of the testator adopted by virtue of a power contained in his will; and the cardinal question in the suit is whether or no he bears that character.
(2.) The material passages in the will, which was written in English, are as follows: I appoint my wife Srimati Surnomoyi Dasi the executrix, and my father Babu Madhusudan Dutt of Mullick's Street, aforesaid, and my uncle Babu Dwarka Nath Dutt of Thuntoneah in Calcutta aforesaid, the executors and trustees of this my will. Para. 8. Whereas having no son born to me of my body I am desirous of adopting one in my life-time, but in case I depart this life before carrying such my desire into effect, hereby authorise and empower my wife and executrix Srimati Surnomoyi Dasi, and my executors and trustees, to whom I give full permission and liberty, to adopt after my decease a son, and in case of his death during his minority or on attaining his full age and without leaving male issue, to adopt a second son, and in case of his death during minority or on attaining such age and without leaving male issue, to adopt a third son, and no more. In any of the above cases of adoption, should the adopted son die leaving a son or sons, the power of adoption shall case or remain in abeyance during the life or life-time of such son or sons of such adopted son, but shall revive on the death of such son or sons during minority. Para. 13. I authorise and empower my said executrix and executors and trustees and the survivor of them and the trustee for the time being of this my will, to appoint any other person or persons to succeed them or him in the execution of the trusts of this my will. Para. 15. In case of any accident arising to cause my wife to depart her natural life before adoption of a male child my surviving executors are empowered to act with my full consent and direction to adopt a mala issue. Dated this 30 October 1875.
(3.) By the ninth clause the testator provided an income for his wife and adopted son during the life of his wife and directed accumulation of the surplus income. The adopted son is to take the property if he survives the widow and attains the age of 18, otherwise it is given over to the daughters.;

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