JUDGMENT
Wilson, J.
1. The only question before us is, whether the contention set up by the plaintiffs is a sound one. Before considering the question in detail, it may be convenient to point out very briefly certain prepositions of law about which there is no dispute.
2. Gifts are of three kinds–those which convey a present title and interest, and a present right of enjoyment; these which are vested? that is present in interest, but in which the enjoyment is deferred; and those which are contingent, that is to say in which neither title nor right of enjoyment is given at present, but both depend upon future uncertain events. All these kinds of gifts are admissible among Hindus, all are recognized by the Succession Act the Hindu Wills Act, and the Transfer of Property Act.
3. All these kinds of gifts may among Hindus be given subject to various restrictions, either inter vivos or by will, and speaking generally, the same law applies in either case. This is explained by the Privy Council in the Tagore case.
4. It was argued indeed for the appellants that the Privy Council, in a case which I shall have to consider, fully laid down that there was or might be a difference between deeds and wills on the very point now before us. The passage referred to is on p. 177 of Rai Bishen Chand’s case.
5. On the best consideration I have been able to give to the matter, I do not think this is what their Lordships intended. I think in that passage they were only dealing with an argument which had been addressed to them, based upon the Succession Act. However, if I am wrong in this, and if there is a distinction between deeds and wills, that would only strengthen the conclusion to which I have come upon this case.
6. Whether a gift be given by act inter vivos or by will, no one can take under the gift who is not in existence, and thus capable of taking at the date from which the gift speaks, that is to say the date of the gift if inter vivos, the death of the testator in the case of a will.
7. If the gift be intended to operate partly in favour of living persons, and partly in favour of persons yet unborn, it is impossible that the intention of the donor can take effect to its full extent. The principle on which Courts should act in such cases has given rise to much difficulty: and this is the question to be considered in the present case.
8. There is no statutory provision affecting the present case. The only sections, I think, expressly mentioning gifts to a class, some of whom cannot take, are Section 102 of the Succession Act, which is embodied in the Hindu Wills Act, and Section 15 of the Transfer of Property Act. Obviously neither of the enactments applies to the present deed; and the Privy Council has warned us, in the case just referred to, against drawing any conclusion from the adoption of a rule by the Legislature in a particular instance in favour of its general applicability. Moreover, it seems to be settled by the decision of this Court in Alangamonjori Dabee v. Sonamoni Dabee I.L.R. 8 Cal. 637 that, by reason of the saving clause in the Hindu Wills Act, neither Section 100 nor Section 101 of the Succession Act, though embodied in the Hindu Wills Act, has any application to Hindu wills; and it would seem to follow that Section 102 has none either. The saving clause in the Transfer of Property Act is at least as wide in its terms as that in the Hindu Wills Act.
9. Before considering the cases in this Court directly bearing upon the question, it may be well to mention two which were cited in argument, namely, Krishnaramani Dassi v. Ananda Krishna Bose 4 B.L.R. O.C. 231 and Cally Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry I.L.R. 8 Cal. 378. In each of these cases the gift in question was construed, and was found to be a gift wholly to persons alive and capable of taking, so that the present difficulty did not arise. Several cases, however, have arisen in this Court bearing directly upon the question before us. The first is Bramamayi Dasi v. Jogesh Chunder Dutt 8 B.L.R. 400. In that ease a testator directed his property to be divided into five shares, of which each of his four sons should take one, and his two grandsons the other for life, with a gift over. It became necessary to ascertain the devolution of the shares of two of the sons, Wooma Churn and Shib Dass. As to the share of Wooma Churn the matter stood thus: The will declared that if any son died, leaving lawful male issue, such male issue should succeed to the capital or principal of the share. There was a gift over which, for reasons not bearing upon this case, was decided to be void. Norman, C.J., held that under the words I have cited, on the death of Wooma Churn his share vested absolutely in his son; apparently Ainslie, J., concurred in this view.
10. The fate of Shib Dass’ share depended upon a clause which said that “on the death of any son without leaving male issue his share should go to the survivors of my said sons, and my said two grandsons for life, and their respective male issue absolutely after their death in the same manner and proportions as hereinbefore described respecting their original shares.” The Court held that this gift was void, and Norman, C.J., said that on the death of Shib Dass, without issue, his share went to his heir. He construed the gift as one “to the surviving and the living male issue of the deceased sons as a class, the surviving sons to take for their lives, the issue of the deceased sons absolutely.” He pointed out that male issue might include persons born after the testator’s death; he referred to the Tagore case and said : “The gift therefore so far as it is a gift to the unborn male issue of the sons and grandsons of the testator must fail. Now it is a well settled rule in construing wills founded upon excellent reasons, and which has been adopted in the 102nd Section of the Indian Succession Act, that where there is a gift to a class and some persons constituting such class cannot take in consequence of the remoteness of the gift or otherwise, the whole must fail. Upon that principle I think we are bound to say that the gift over on the death of Shib Dass wholly fails.” The learned Judge then shows that there were other sufficient reasons why that part of the claim must fail.
11. This case is one that I find very difficult to follow. The rule just cited is laid down broadly; yet I cannot think that the learned Judge meant to lay down a universal rule; for the rule would then have applied just as much to the gift which he held good as to the one he held bad. Moreover, the learned Judge had before him the Privy Council decision in Soorjeemoney’s case 6 Moore’s I.A. 526 : 9 Moore’s I.A. 823, for he cited it without distinguishing it in this respect, yet the gift in that case seems to fall within the rule. And my difficulty in understanding the judgment is increased by the ruling that on the termination of Shib Dass life estate his share went to his mother. I cannot see how it should go to her and not to the heirs of his father.
12. Soudaminey’s case I.L.R. 2 Cal. 262 related to the same will as Bramamayi’s case. The plaintiff was the widow of Sreenath, who, in the former case, was held by Norman, C.J., to have taken the share of his father Wooma Churn absolutely, and she claimed that share as his heir. The defendant claimed under the subsequent limitations over which they contended were valid, and operated to defeat the estate which would otherwise have passed to the plaintiff as Sreenath’s heir. None of the parties to the suit questioned the validity of Sreenath’s title. But Pontifex, J., raised the question whether Sreenath took anything at all under the gift. He adopted to the full extent the rule as laid down by Norman, C.J., in the previous case adding expressly that the rule applies as well in the case of a class that may, as of a class that must, include incapacitated persons: he applied it to the gift to which in the earlier case it had not been applied, and held the gift bad which had then been thought good.
13. In Kherodemoney’s case I.L.R. 4 Cal. 455, the testator gave the residue of his estate “to the son lately born to my sister’s husband Sreejoot Woodoy Mullick, and to the son or sons that may hereafter be born to him.”
14. The Chief Justice and Markby, J., followed the ruling in Soudaminey’s case, applied it to the case before them, and held the gift to be wholly void.
15. The result of these decisions was, that a gift, whether vested or contingent, to a class which included, or might include persons unborn at the date of the gift was wholly void.
16. Judges sitting on the Original Side of this Court have in several cases followed these rulings, as they were bound to do. But they have certainly in some instances done so reluctantly, as did the learned Judge whose judgment is now under appeal. I have endeavoured to ascertain whether the law so laid down has been applied in the Mofussil; but 1 have not been able to hear of any case arising outside Calcutta, except Bramamayi’s case already referred to, in which the subject has been considered. It does not appear to have come before any of the other High Courts in India; nor have the rulings in question received the sanction of the Privy Council. However, if nothing more had occurred, I should probably have felt bound to follow them, however little I might have agreed with them.
17. But the case seems to me materially altered by a recent decision of the Privy Council in Rai Bishen Chand v. Mussamut Asmaida Koer L.R. 11 I.A. 164 : I.L.R. 6 All. 560.
18. That case was decided shortly before the judgment which is now under appeal was delivered, but the decision was not received in this country till afterwards.
19. In that case Mata Doyal, Woodoy Narain, and Satrujit Narain were grandfather, father, and son, and formed a joint Mitakshara family. Udey was a man of extravagant habits, and an arrangement was entered into embodied in a deed by which the grandfather and the father conveyed certain property, declaring that the son “Satrujit himself and his own brothers who may be born hereafter, are and will be the permanent and rightful owners.” Their Lordships held that the transfer was not void, but took effect as a valid transfer to Satrujit. The nature of the grant, the special circumstances taken into account in construing it, and the principle of the decision, appear from the judgment, which, so far as this point is concerned, is at pages 176 to 179:
There remains a question of some difficulty whether the deed, which contemplates benefits to after-born sons of Udey Narain as well as to Satrujit, can have any operation in his favour. This question, though raised in the plaint, is not dealt with by either of the lower Courts. It depends entirely on the view which may be taken of the meaning of the parties to the transaction, for the rule of law on which the plaintiff relies, viz., that gifts cannot be made to persons unborn at the time, is well settled.
It is said then that the gift is made to a class, and that, inasmuch as some of the class are unable to take, none can take, and certain sections of the Indian Succession Act of 1865 are invoked to give weight to this contention, the Legislature having thought fit to apply those sections to Hindu wills.
Independently, however, of the distinction which may be taken between wills, the operation of which is suspended during the testator’s life, and deeds which operate immediately especially such deeds as confer a present interest upon a present person, the sections cited have no bearing on such a gift as that under consideration. Section 102 lays down the rule that a bequest inoperative as to some of a class shall be wholly void, not in all cases, but only when the bequest offends against the rules contained in Sections 1001 and 1012; and the gift under consideration does not fall within either of these two Sections. It may be that illustration (b) to Section 102 imports into India an English rule of construction which usually defeats the intention of the testator. But whatever force the illustration may have (and it seems out of place as attached to a section intended not to define the word ‘class,’ but only to establish a special incident of gifts to classes), it is not made applicable beyond the two cases contemplated by Sections 100 and 101.
Assuming that the deed is intended to express a gift to the brothers of Satrujit which cannot take effect as such, what is the whole scheme of the parties? We find them bent on saving the ancestral estate from the consequences of the continued extravagance of one of its members. The plan they adopt, probably the only plan open to them, except a complete partition, is a transfer by the head of the family, with the consent of his son, to the lower generation. The only member of that generation was the grandson Satrujit. He therefore is made to take by name and immediately, and the possession and ownership are transferred to him. Is then the gift indisputably designed for him wholly to fail, because the parties supposed that they could join with him possibly after-born sons, who, if any had happened to be born, could not legally claim under a gift? Is Udey Narain, whose interests were bought out for valuable consideration, to re-enter upon his son, in whose favour they were bought out?. No doubt that, on the present assumption, some portion of the intention must fail, but that is no reason why the whole should fail.
The paramount intention was to get rid of Udey Narain by passing the property to his sons.
That intention is much more readily effectuated by giving the property to Satrujit, the only then son of Udey Narain, than by holding that the deed and all that followed upon it, the mutation of names, the possession and management of Asmaida did not operate any change at all. Cases are not rare in which a Court of construction, finding that the whole plan of a donor of property cannot be carried into effect, will yet give effect to part of it rather than hold that it shall fail entirely. In the present case, there is every reason for holding that if Satrujit’s possible brothers are not able to take by virtue of the gift, he shall take the whole. He is there present, and able to receive the gift. He is an individual designated in the deed. If the deed stood alone, it is a question in each case whether a designated person, who is coupled with a class described in general terms, is merged into that class or not. But the deed does not stand alone. It is followed by actions of a kind which, even without a deed, may work a transfer of property in India. Satrujit is entered in the Collector’s books as the sole possessor of the property, and his guardian takes possession, first in his name, and afterwards as his successor. Their Lordships hold that the circumstance that the parties wished to do something beyond their legal power, and that they have used unskilful language in the deed of gift, ought not to invalidate that important part of their plan, which is consistent with one construction of the deed, and is clearly proved from the transfer of the property in fact. But their Lordships conceive that it is not necessary to view this transaction as though it were to be determined by rules of construction drawn from English law and applicable to English deeds of gift. The High Court viewed it in the light of a partition. It cannot be strictly a partition, for, according to Mitakshara (chap. I, Section 5, verse 3), there can be no partition directly between grandfather and grandson while the father is alive. But it is a family arrangement, partaking so far of the nature of a partition that Udey Narain receives a portion, and is thenceforth totally excluded, and quoad ultra, Mata Doyal surrenders his interest to his grandson, who, on a complete partition among the whole family, would be entitled to one-fourth.
Now in such an arrangement it would be quite consistent with Hindu ideas of ancestral property to express a desire that the whole generation into which the property was transferred should benefit by it. Indeed, in the case of a partition between father and sons, it is laid down in the books that if a son born after the partition of ancestral estate does not, out of the residue of his father’s estate, get a share equal to what his brothers had obtained, the other brothers must contribute to a share out of their portions. This rule is to be found in the Dayabhaga, cap. VII, Sections 10,11, and 12, which is a Bengal authority, but it refers to Vishnu and STajnyavalkya–authorities on which the Mitakshara is founded. Indeed, the principle of the joint family is not less closely but more closely insisted on by the Benares school than by the Bengal school of law. But their Lordships are not now affirming the law on this point, nor are they deciding or prejudicing any question which may arise between Satrujit’s heirs on the one hand, and his brothers, if any should be born, on the other. They are only showing that the notions present to the mind of the head of a joint Hindu family who is making a family arrangement are something very different from the notions present to the mind of an English testator when he makes a gift to a class.
20. There were circumstances in that case which are wanting in this. The parties to the transaction were members of a Mitakshara family, so the property was already vested in each one of them as much as in any other. It was argued before us that what happened in that case should be regarded merely as the withdrawal of one member from the family, or the surrender of his interest to his co-sharers. But that is not the ground of the decision, and that is what we are bound to ascertain, and to follow it where it is applicable.
21. Again, in that case there was consideration for the grant, and that fact is undoubtedly dwelt upon by their Lordships. But I do not understand them as holding that the existence of consideration could give validity to any disposition of property not sanctioned by law. They seem to me to use the fact of the consideration passing as an important circumstance bearing upon the construction of the instrument, because it tended to show that a present gift was contemplated.
22. The true ground of decision in that case appears to me to be that in construing family settlements of this nature, Courts are to ascertain the real meaning of the parties to the transaction; that when that meaning has been ascertained, if it appears that the whole plan cannot be carried out, but that a part of it can, effect is to be given to that part. And that, accordingly, if the plan be to give a present gift to persons capable of taking, that gift is effectual, although it was also intended that other persons, incapable of taking, should afterwards come in and share in the gift.
23. I think we are bound to apply this method of construction in the case before us.
24. There seems to me no great difficulty in ascertaining what the donor intended. I shall first try to state what that intention seems to me to be, without the use of technical words, and in popular language–a course which seems to me the safer course in dealing with the intention of a Hindu gentleman. He intended, I think, that he should at once cease to have himself any interest in the property given; that the two living grandsons should at once enter upon the possession and enjoyment of it, and acquire the right to dispose of it; that if brothers should afterwards be born, each of such brothers should at his birth step into an equal share of the property, but without any retrospective effect; and that no act of the living grandsons should prejudice this right of their after-born brothers, and that during the minority of the living grandsons their mother should manage the property for their benefit without being liable to account to them. Expressing’ this in more technical language, I think he meant to give the two living grandsons a present title to, and the present possession and enjoyment of, the property, but that their title was liable to be partially divested in favour of after-born brothers. This intention seems to me to be sufficiently expressed in the instrument of gift, and in this case, as in that before the Privy Council, the conduct of the parties makes the intention clear.
25. The result is, that in my opinion there was a good gift to the two living grandsons, Earn Lai and Sham Lai, arid that the plaintiff’s are not entitled to recover.
26. I have so far given my reasons for thinking that this case is governed by the case I have been considering. It is right, I think, to consider further how far our decision is inconsistent with the earlier cases in this Court.
27. If Kherodemoney’s case was (as I think it was) a case of a gift intended to vest on the death of the testator, then it seems to me that it is overruled by the late Privy Council decision, unless there be some material difference between a gift present both in interest and enjoyment, and a gift vested in interest, but deferred in enjoyment; and I cannot myself see any such distinction. Soudaminey’s case, however, related to a gift, contingent at the testators death, to a class of persons to be ascertained at a future date. It was a gift to such lawful male issue as might be living at the death of any of the testator’s sons or grandsons who took life estates.
28. There is, undoubtedly, a difference between a present gift to persons capable of taking, which is intended afterwards to open and let in others not capable of taking, and a future gift to a class, which may or must include both classes, all of whom are intended to take at the same time. The late decision of the Privy Council has not, therefore, I think, necessarily overruled Soudaminey’s case. But it does seem to me to overrule so much of the law which has been based upon that case, and to proceed upon principles of interpretation so inconsistent with those acted upon in that case, that we are at liberty, sitting in a Court of Appeal, to examine the decision, in order to see how far it can be supported.
29. I refer not only to those parts of the judgment of the Privy Council in which they state the grounds on which they are deciding, but also to those in which they state what is to be avoided.
30. They say that it is not necessary to view the transactions “as though it were to be determined by rules of construction drawn from English law and applicable to English deeds of gift” and that “the notions present to the mind of the head of a joint Hindu family who is making a family arrangement are something very different from the notions present to the mind of an English testator when he makes a gift to a class.”
31. It is no new doctrine that rules established in English Courts for construing English documents are not as such applicable to transactions between natives of this country. Rules of construction are rules designed to assist in ascertaining intention; and the applicability of many of such rules depends upon the habits of thought and modes of expression prevalent amongst those to whose language they are applied. English rules of construction have grown up side by side with a very special law of property and a very artificial system of conveyencing, and the success of those rules in giving effect to the real intention of those whose language they are used to interpret, depends not more upon their original fitness for that purpose than upon the fact that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus, who view most transactions from a different point, think differently and speak differently from Englishmen, and who have never heard of the rules in question. Even in England no one thinks of construing a mercantile contract by the same canons as a marriage settlement. There are in some points different rules for interpreting deeds and wills–wills of realty and wills of personality, conveyances on sales, and family arrangements.
32. As to India the Privy Council expressly laid down in Hunooman Prosad Panday v. Mussamut Babooee Munraj Koonweree 6 Moore’s I.A. 411 : “Deeds and contracts of the people of India ought to be liberally construed. The form of expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the transaction discloses.”
33. In Sreemutty Babutty Dossee v. Sibchunder Mullick 6 Moore’s I.A. 1 the same tribunal refused to construe a gift to a widow “for her sole absolute use and benefit” as an English Court would construe it. In Gokuldoss Gopaldoss v. Rambux Seochand L.R. 111. A. 126 they refused to apply the rule in Toulmin v. Steere 3 Mer. 210 to an Indian transaction. It is worthy of note that in the very case of Leake v. Robinson 2 Mer. 363 so much relied on, one of the rules of construction acted upon is, that in a gift by wilt to one for life with remainder to his children, children must include children born after, as well as those Born before, the death of the testator. In Krishnakumari’s case 4 B.L.R. 231, at p. 279, Peacock, C.J., and Macpherson, J., followed a very different course. The 3rd and 4th clauses of the will in that case each gave an annuity to one for life, “such payment to be continued after his decease to his children and descendants per stirpes.”
34. That was held to apply to children living at the death of the testator. Then what was the ground of the rule laid down in Soudaminey’s case and Kherodemoney’s case. That rule, as I understand it, was adopted as being either in accordance with or analogous to the rules of English law. I speak of course with diffidence, but I must say that I think it is neither the one nor the other. The result of the English decisions may, I think, be shortly stated, so far as is material for this purpose. In dealing with a gift to a class you enquire first, at what period the class is to, be ascertained–it may in the case of a will be on the death of the testator or at a later period.
35. If the class is to be ascertained on the death of the testator, no question of remoteness can arise, and the general rule is that the gift takes effect in favour of such of the class as are then capable of taking. If the ascertainment of the class is deferred to a later date, those who become members of the class within the extended period are admitted; and subject to any question of remoteness those who are thus capable of taking, take. In either case, if any members of the class are incapable of taking because born after the date of ascertainment, they are simply excluded, and the rest take the whole; and this is so even if the gift be to persons born and to be born–Sprackling v. Ranier 1 Dick. 344 Ayton v. Ayton. 1 Cox. 327 Whitbread v. Lord St. John 10 Ves. 152 Mann v. Thompson Kay 638. If any die in the testator’s lifetime they are simply excluded, and the rest take the whole–Stewart v. Sheffield 13 East 526 Re Coleman L.R. 4 Ch. D. 167. If the gift to one is revoked by codicil, he is simply excluded, and the rest take the whole–Shaw v. McMahon 4 Dr. & W. 431. If one is incapacitated from taking because he has attested the will, he is simply excluded, and the rest take the whole–Young v. Davies 2 Dr. & S. 167 Fell v. Biddolph L.R. 10 C.P. 701.
36. In many of the cases the decision was based upon the special doctrines of English law applicable to joint tenancy. But Fell v. Biddolph and In re Coleman show that the rule is the same where no joint tenancy comes in.
37. The Indian Succession Act in Section 983 declares the law applicable to wills governed by that Act in accordance substantially with the view I have explained.
38. I am of course aware that there are cases in England relating to real property in which somewhat different rules have been applied. But rules connected with the English law of real property could hardly with reason be applied to the wills and deeds of Hindus, and in Kherodemoney’s case the Court refused to apply them, and I think rightly. Nor are they embodied in the Succession Act. There are other exceptional cases in England, but I do not think it necessary to refer to them in detail; they are not adopted in the Succession Act, and none of these special rules, whether relating to real property or not, would, if referred to, afford any support to the rule laid down in Soudaminey’s case.
9. But in England there are rules of law guarding against remoteness. A gift cannot be given which is to vest more than twenty-one years after the close of a life or lives in being; and it is at this point and with reference to this law that the rule in Leake v. Robinson comes in. That rule is to the effect that when a gift is given to a class in such terms that the ascertaining of the class and the vesting of the gift are or may be deferred beyond the period allowed by law, the gift is wholly void, and cannot be made effectual for such members of the class as might be ascertainable earlier. Sir William Grant says at page 286: “It is the period of vesting, and not the description of the legatees” that produces the incapacity. Lord Selboene in Pearks v. Moseley L.R. 5 App. Cas. 714 states the rule thus: “The rule is that the vice of remoteness affects the class as a whole, if it may affect an unascertained number of the members.” That is the whole of the rule. It is a rider upon the law of remoteness, and has never, so far as I can learn, been applied to any case except that of a gift to a class tainted with the vice of remoteness.
38. And so the Indian Succession Act, Section 1024, which alone adopts such a rule as that in Leake v. Robinson 2 Mer. 363 in express terms limits it to the cases of gifts to a class affected with remoteness by Section 101,+ or the case by analogous defect mentioned in Section 100.5 Section 156 of the Transfer of Property Act is similar. The Privy Council in the case to which I have so often referred have pointed this out with respect to the Succession Act.
39. In Soudaminey’s and Kherodemoney’s case the primary rule that gave rise to the difficulty was not against perpetuity. It was not one affecting the period of vesting.
40. Soorjeemoney’s case 9 Moore’s I.A. 123 : 6 Moore’s I.A. 526, explained in the Tagore case, shows that there is no objection to a gift which is to take effect after a prior life estate, provided it be. to a person capable of taking. The difficulty was, that a person not born at the death of a testator cannot take a gift under his will. The rule laid down is that where there is a gift to a class, and some persons constituting such class cannot take in consequence of the remoteness of the gift or otherwise, the whole bequest must fail.” This rule, so far as it refers to remoteness, is no doubt the rule in Leake v. Robinson. But so far it did not apply to the oases before the Court, and could probably hardly apply to any case among Hindus.
41. The words “or otherwise” made the rule apply to those cases, but they also made the rule not the rule of Leake v. Robinson I have shown that, in my judgment, the rule so extended is not in accordance with English law. I do not think it can be derived by legitimate analogy from that law, I think we should be following the true analogy of the law of England by holding in such cases that a gift to a class enures to the benefit of such members of the class as are capable of taking at the time when the class is to be ascertained, that is to say, those who fall within the definition of the class, and were living at the death of the testator, or the date of the deed, as the case may be.
42. But whether or not the ruling in Soudaminey’s case and Kherodemoney’s case is in accordance with English law, and whether or not it be derived by fair analogy from that law, it ought not I think to be applied to the transactions of Hindus in India, unless it be a rule which assists the Court in getting at the substance of the intention of the parties, and in giving effect to that intention so far as the law allows; for that I conceive to be our paramount duty in such matters.
43. In order to see whether this is so in the present case, we must look at the reasons upon which the English rule was grounded, and see bow far they apply in this country. The reason for the rule in England is very clearly stated in Leake v. Robinson by Sir William Grant in a passage often cited and adopted by Selborne, L.C., in Pearks v. Moseley L.R. 5 App. Cas. 714: “I must make a new will for the testator, if I split into portions his general bequest to a class, and say that because the rule of law forbids his intention from operating in favour of the whole class, I will make his bequests what he never intended them to be, viz., a series of particular legacies to particular individuals, or (what he had as little in his contemplation) distinct bequests in each instance, to two different classes, namely, to grandchildren living at his death, and to grandchildren born after his death.
44. These words were used in England,–a country in which the nearest relatives are separate in property, in residence, and in all the details of life; one brother is no more affected by a gift to another brother than by a gift to a stranger, and there is all the difference in the world between a gift to all the members of a class and a gift to some of them. But with Hindus the joint family state is the normal state; separate property is the exception. Even where individual members of a family have separate property, they may and generally do continue to live together joint in food and worship, and joint as to their inherited property. Moreover, there are also ordinarily in or attached to the family a number of dependent members, and even dependants not strictly members of the family. This is the state of things which every Hindu settlor and testator contemplates as existing and desires to perpetuate.
45. To people living in such family communities, the language of Sir William Grant seems to me by no means appropriate. It may make, and perhaps generally does make, comparatively little difference, whether the title to property is vested in a large or smaller number of the members of the family.
46. The difference would certainly not be such as to warrant the use of the expression, “a new will,” in the same sense as in England.
47. Jessel, M.R., in the case of Re Coleman L.R. 4 Ch. D. 167 already cited, at p. 169, speaking of gifts to a class says: “The testator may be considered to have a primary and a secondary intention. His primary intention is that all the members of the class shall take, and his secondary intention is, that if all cannot take, those who can, shall do so.” This expresses, I think, the same view as that stated by the Privy Council in the case I have so much relied upon. They say at p. 178 : “The paramount intention was to get rid of Udey Narain by passing the property to his sons. That intention is much more readily effectuated by giving the property to Satrujit, the only then son of Udey Narain, than by holding that the deed and #all that followed upon it, the mutation of names, the possession and management of Asmaida, did not operate any change at all.” I think this applies in all these cases of gifts to family groups; that the governing intention is to provide for the group, and that that intention is best effectuated by vesting the property in those memberu of the group who are capable of taking it.
48. Further, I am unable myself (of course I speak with diffidence) to reconcile the rulings in Soudaminey’s case and Kherodemoney’s case with the previous decision of the Privy Council in Soorjeemoney’s case. That case turned upon a will by which the testator gave his property to his five sons in equal shares. By a later clause, he provided that “should peradventure any among my said five sons die not having any son from his loins, nor any son’s son, in that event neither his widow nor his daughter, nor his daughter’s son, nor any of them will get any share out of the shares that he has obtained of the immoveables and moveables of my said estate. In that event of the said property such of my sons and my sons’ sons as shall then be alive, they will receive that wealth according to their respective shares.”
49. That is apparently a gift open to the same objection as that in Soudaminey’s and Kherodemoney’s cases; at least I am myself unable to see any difference, for the purpose of the rule in question, between a gift over after a life to such of my sons and sons’ son as shall then be living, and a gift over to the lawful male issue of the person dying as in Soudaminey’s case.
50. Soorjeemoney’s case came before the Supreme Court on demurrer, and on appeal from the decision of that Court before the Privy Council 6 Moore’s I.A. 526. It came again before this Court in the usual course, and was again appealed to the Privy Council 9 Moore’s I.A. 123.
51. On all these occasions the construction and effect of the gift over were fully considered; and in the result it was held to be a good gift, and to operate in favour of the surviving sons of the testator. This case was again considered and explained in the Tagore case, where it is pointed out that the gift in Soorjeemoney’s case was held valid as a gift to those sons, and therefore no question as to a gift to unborn persons arose.
52. Now if at the time of Soorjeemoney’s case it had been supposed that any rule such as that of Soudaminey’s case and Kherodemoney’s case existed, it must have been at once evident that the gift then under consideration either did fall, or at least might be thought to fall, within it. How is it, then, that no rule of the kind is ever referred to by any of the Courts? I think the inference is irresistible, that down to 1862 the Supreme Court, the High Court and the Privy Council knew nothing of the doctrine which has since been accepted in this Court. I think the mode in which that case is dealt with in the Tagore case tends to show that down to 1872 such a rule was not known to the Privy Council. And as far as I can judge, Soorjeemoney’s case could not have been decided as it was, if the rule had been accepted. Soorjeemoney’s case had been followed without any expression of doubt or qualification in Bhoobun Mohini Debya v. Hurrish Chunder Chowdhry L.R. 5 I.A. 138, and in Ram Lall Mookerjee v. Secretary of State L.R. 8 I.A. 46.
53. The only attempt, I think, that has been made to reconcile the cases in this Court with Soorjeemoney’s case is by Markby, J., in Kherodemoney’s case, And I must say, with all deference, that he does not appear to me to have succeeded in doing so.
54. Lastly, as I have already said, the principles of construction adopted by the Privy Council in the recent case are inconsistent with those acted upon in Soudaminey’s and Kherodemoney’s cases.
55. For these reasons I should be prepared, if necessary, to dissent wholly from the doctrine laid down in those cases, and to hold, as the general rule, that where there is a gift to a class, some of whom are or may be incapacitated from taking, because not born at the date of gift or the death of the testator, as the case may be, and where there is no other objection to the gift, it should enure for the benefit of those members of the class who are capable of taking.
56. I think the late decision of the Privy Council is a direct authority for so holding, where the intention is, as I think it was in this case, to give a present gift to those of the class who are capable of taking.
57. I would, therefore, reverse the decision of the learned Judge and dismiss the suit with costs in both Courts.
Garth, C.J.
58. I entirely agree in the conclusions at which my brother Wilson has arrived.
59. I think it very probable that the recent decision of the Privy Council in Rai Bishen Chand’s case L.R. 111 A. 164 : I.L.R. 6 All. 560 may be the means of introducing a very material and salutary change of the law in cases of this kind; but whether that is so or not, I think there can be no doubt that the principle upon which that case was decided is directly applicable to the present.
1. [Section 100: Where a person not in in existence
Bequest to a person not at the time of he testator s death subject to a prior bequest
in existence at the testator's contained in the will, the later bequest shall be void, unless it
death, subject to a prior comprises the whole of the remaining interest of the testator in
bequest. the thing bequeathed.]
2. [Section 101: No bequest is valid whereby the vesting of the thing bequeathed may be
delayed beyond the lifetime of one or more persons living at the
Rule against perpetuity. testator's decease, and the minority of some person who shall be
in existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong.]
3. [Section 98: Where a bequest is made simply to a described
Survivorship in case of class of persons, the thing becLueathed shall go only to such as
bequest to a described shall be alive at the testator's death.
class.
Exception.--If property is bequeathed to a class of persons described as standing in a
particular degree of kindred to a specified individual, but their possession of it is deferred
until a time later than the death of the testator, by reason of a prior bequest or otherwise,
the property shall at that time go to such of them as shall be then alive, and to the
representatives of any of them who have died since the death of the testator.]
4. Bequest to a class, some [Section 102: If a bequest is made to a class of persons, with
of whom may come under regard to some of whom it is inoperative by reason of the
the rules in Sections 100 rules contained in the two last preceding sections, or either of
and 101. them, such bequest shall he wholly void.
5. [Section 101.--No bequest is valid whereby the vesting of the thing bequeathed may be
delayed beyond the lifetime of one or more persons living at the
Rule against perpetuity. testator's decease, and the minority of some person who shall
be in existence at the expiration of that period, and to whom,
if he attains full age, the thing bequeathed is to belong.]
6.[Section 100: Where a bequest is made to a person not in
Bequest to a person not existence at the testator's death, subject o a prior
in existence at the test- bequest contained in the will, the later bequest shall be void,
tor's death, subject to a unless it comprises the whole of the remaining interest of the
prior bequest. testator in the thing bequeathed.]
7. [Section 15: If, on a transfer of property, an interest
Transfer to class some of therein is created for the benefit of a class of persons with
whom come under Sections 13 regard to some whom come under sections of whom such interest
and 14. fails by reason of any of the rules contained in seoticns
thirteen and fourteen, such interest fails as regards the whole
class.]
