Sir Madhavan Nair.-This is an appeal from a judgment and decree of the High Court at Calcutta in its appellate jurisdiction dated 5th April, 1946, which affirmed a judgment and decree of that Court in its original jurisdiction dated 28th March, 1945.

The appeal arises out of a suit by way of originating summons instituted by the appellant for the construction of the will of his father the late Rai Bihari Lal Mitra.

The facts are not in dispute. The testator was a wealthy Hindu governed by the Dayabhaga School of Hindu Law. He died on 7th February, 1933, leaving him surviving his widow Sreemutty Nayani Mitra, his only son the appellant Aniruddha Mitra, and the wife of the appellant, Sreemutty Nivanani Mitra.

At the time of the testator’s death the appellant and his wife had no children. On 4th July, 1934, the appellant took the 2nd respondent Arabinda Mitra in adoption as his son. He was born on 19th October, 1932.

On 5th July, 1931, the testator executed his last will whereby he appointed the 1st respondent, the Administrator of Bengal, his sole executor with liberty to make over the property to the official trustee for carrying out the trusts.

On 24th August, 1936, the appellant was adjudicated an insolvent and his estate vested in the 3rd respondent. On 7th May, 1943, he was granted a conditional discharge.

The question for determination in the appeal is whether the residuary bequest in clause 9 of the will in favour of "the legitimate son or sons of the testator’s son Aniruddha Mitra, whether natural born or validly adopted" is as held by both Courts in India valid, or whether as contended by the appellant it is invalid by reason of the provisions of sections 113 and 114 of the Indian Succession Act, and the appellant is entitled to the property as on an intestacy.

The relevant provisions of the testator’s will are as follows:

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"5. I will and direct that after my death my wife Sreemutty Nayani Mitra, my son Aniruddha Mitra and his wife shall be entitled to reside for the respective terms of their natural lives in my family dwelling house and use the furniture therein, but they shall not be at liberty to remove or dispose of the said furniture on any way.

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7. I further will and direct that my executor or trustee shall pay the sum of Rupees Seven Hundred per month to my wife Sreemutty Nayani Mitra, the sum of Rupees Seven Hundred per month to my son Aniruddha Mitra and the sum of Rupees Seven Hundred per month to Sreemutty Nivanani Mitra the wife of my son Aniruddha Mitra for their maintenance respectively during the respective terms of their natural lives. In the event of the death of any one of the said three persons the monthly allowance so payable to the person so dying shall be paid to the survivors in equal shares for life. On the death of one of such two survivors, the last survivor of the said three persons shall be paid the said monthly allowances payable as aforesaid to the two that are dead in addition to his or her own monthly allowance of Rupees. Seven Hundred.

8. I further will and direct that my executor and trustee shall pay the sum of Rupees four thousand per month out of the income of my estate to the University of Calcutta for the advancement of female education among Hindu females of Bengal.

9. I further will and direct that the legitimate son or sons of my son Aniruddha Mitra whether natural born or validly adopted shall become entitled to all the rest and residue of my property. If there is only one son of my son such residue shall be made over to such son of my son on his completing the age of twenty-one years and if there are more sons of my son than one, then to such sons. of my son Aniruddha Mitra in equal shares on the youngest of the said sons completing the age of twenty-one years. Until the youngest of such son or sons of my son attains the age of twenty-one years the executor or trustee shall pay the sum of Rupees Seven Hundred per month to each of such son or sons of my son Ani