Authored By : Arthur Wilson, Richard Garth

Arthur Wilson, J.

1. The only question before us is, whether the contentionset up by the plaintiffs is a sound one. Before considering the question indetail, it may be convenient to point out very briefly certain prepositions oflaw about which there is no dispute.

2. Gifts are of three kinds--those which convey a presenttitle and interest, and a present right of enjoyment; these which are vestedthat is present in interest, but in which the enjoyment is deferred; and thosewhich are contingent, that is to say in which neither title nor right ofenjoyment is given at present, but both depend upon future uncertain events.All these kinds of gifts are admissible among Hindus, all are recognized by theSuccession Act the Hindu Wills Act, and the Transfer of Property Act.

3. All these kinds of gifts may among Hindus be givensubject to various restrictions, either inter vivos or by will, and speakinggenerally, the same law applies in either case. This is explained by the PrivyCouncil in the Tagore case.

4. It was argued indeed for the appellants that the PrivyCouncil, in a case which I shall have to consider, fully laid down that therewas or might be a difference between deeds and wills on the very point nowbefore us. The passage referred to is on p. 177 of Rai Bishen Chands case.

5. On the best consideration I have been able to give to thematter, I do not think this is what their Lordships intended. I think in thatpassage they were only dealing with an argument which had been addressed tothem, based upon the Succession Act. However, if I am wrong in this, and ifthere is a distinction between deeds and wills, that would only strengthen theconclusion to which I have come upon this case.

6. Whether a gift be given by act inter vivos or by will, noone can take under the gift who is not in existence, and thus capable of takingat the date from which the gift speaks, that is to say the date of the gift ifinter vivos, the death of the testator in the case of a will.

7. If the gift be intended to operate partly in favour ofliving persons, and partly in favour of persons yet unborn, it is impossiblethat the intention of the donor can take effect to its full extent. Theprinciple on which Courts should act in such cases has given rise to muchdifficulty: and this is the question to be considered in the present case.

8. There is no statutory provision affecting the presentcase. The only sections, I think, expressly mentioning gifts to a class, someof whom cannot take, are Section 102 of the Succession Act, which is embodiedin 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 PrivyCouncil has warned us, in the case just referred to, against drawing anyconclusion from the adoption of a rule by the Legislature in a particularinstance in favour of its general applicability. Moreover, it seems to besettled by the decision of this Court in Alangamonjori Dabee v. Sonamoni DabeeI.L.R. 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 inthe Hindu Wills Act, has any application to Hindu wills; and it would seem tofollow that Section 102 has none either. The saving clause in the Transfer ofProperty Act is at least as wide in its terms as that in the Hindu Wills Act.

9. Before considering the cases in this Court directlybearing upon the question, it may be well to mention two which were cited inargument, namely, Krishnaramani Dassi v. Ananda Krishna Bose 4 B.L.R. O.C. 231and Cally Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry I.L.R. Cal. 378.In each of these cases the gift in question was construed, and was found to bea gift wholly to persons alive and capable of taking, so that the presentdifficulty did not arise. Several cases, however, have arisen in this Courtbearing directly upon the question before us. The first is Bramamayi Dasi v.Jogesh Chunder Dutt 8 B.L.R. 400. In that case a testator directed his propertyto 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 necessaryto ascertain the devolution of the shares of two of the sons, Wooma Churn andShib Dass. As to the share of Wooma Churn the matter stood thus: The willdeclared that if any son died, leaving lawful male issue, such male issueshould succeed to the capital or principal of the share. There was a gift overwhich, 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 hisshare vested absolutely in his son; apparently Ainslie, J., concurred in thisview.

10. The fate of Shib Dass share depended upon a clausewhich said that "on the death of any son without leaving male issue hisshare should go to the survivors of my said sons, and my said two grandsons forlife, and their respective male issue absolutely after their death in the samemanner and proportions as hereinbefore described respecting their originalshares." The Court held that this gift was void, and Norman, C.J., saidthat on the death of Shib Dass, without issue, his share went to his heir. Heconstrued the gift as one "to the surviving and the living male issue ofthe deceased sons as a class, the surviving sons to take for their lives, theissue of the deceased sons absolutely." He pointed out that male issuemight include persons born after the testators death; he referred to theTagore case and said : "The gift therefore so far as it is a gift to theunborn male issue of the sons and grandsons of the testator must fail. Now itis a well settled rule in construing wills founded upon excellent reasons, andwhich has been adopted in the 102nd Section of the Indian Succession Act, thatwhere there is a gift to a class and some persons constituting such classcannot take in consequence of the remoteness of the gift or otherwise, thewhole must fail. Upon that principle I think we are bound to say that the giftover on the death of Shib Dass wholly fails." The learned Judge then showsthat 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 learnedJudge meant to lay down a universal rule; for the rule would then have appliedjust 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 inSoorjeemoneys case 6 Moor I.A. 526 : 9 Moor I.A. 823, for he cited it withoutdistinguishing it in this respect, yet the gift in that case seems to fallwithin the rule. And my difficulty in understanding the judgment is increasedby the ruling that on the termination of Shib Dass life estate his share wentto his mother. I cannot see how it should go to her and not to the heirs of hisfather.

12. Soudamineys case I.L.R. Cal. 262 related to the samewill as Bramamayis case. The plaintiff was the widow of Sreenath, who, in theformer case, was held by Norman, C.J., to have taken the share of his fatherWooma Churn absolutely, and she claimed that share as his heir. The defendantclaimed under the subsequent limitations over which they contended were valid,and operated to defeat the estate which would otherwise have passed to theplaintiff as Sreenaths heir. None of the parties to the suit questioned thevalidity of Sreenaths title. But Pontifex, J., raised the question whetherSreenath took anything at all under the gift. He adopted to the full extent therule as laid down by Norman, C.J., in the previous case adding expressly thatthe rule applies as well in the case of a class that may, as of a class thatmust, include incapacitated persons: he applied it to the gift to which in theearlier case it had not been applied, and held the gift bad which had then beenthought good.

13. In Kherodemoneys case I.L.R. Cal. 455, the testatorgave the residue of his estate "to the son lately born to my sistershusband Sreejoot Woodoy Mullick, and to the son or sons that may hereafter beborn to him."

14. The Chief Justice and Markby, J., followed the ruling inSoudamineys case, applied it to the case before them, and held the gift to bewholly void.

15. The result of these decisions was, that a gift, whethervested or contingent, to a class which included, or might include personsunborn at the date of the gift was wholly void.

16. Judges sitting on the Original Side of this Court havein several cases followed these rulings, as they were bound to do. But theyhave certainly in some instances done so reluctantly, as did the learned Judgewhose judgment is now under appeal. I have endeavoured to ascertain whether thelaw so laid down has been applied in the Mofussil; but 1 have not been able tohear of any case arising outside Calcutta, except Bramamayis case alreadyreferred to, in which the subject has been considered. It does not appear tohave come before any of the other High Courts in India; nor have the rulings inquestion received the sanction of the Privy Council. However, if nothing morehad occurred, I should probably have felt bound to follow them, however littleI might have agreed with them.

17. But the case seems to me materially altered by a recentdecision of the Privy Council in Rai Bishen Chand v. Mussamut Asmaida Koer L.R.11 IndAp 164 : I.L.R. All. 560.

18. That case was decided shortly before the judgment whichis now under appeal was delivered, but the decision was not received in thiscountry till afterwards.

19. In that case Mata Doyal, Woodoy Narain, and SatrujitNarain were grandfather, father, and son, and formed a joint Mitakshara family.Udey was a man of extravagant habits, and an arrangement was entered intoembodied in a deed by which the grandfather and the father conveyed certainproperty, declaring that the son "Satrujit himself and his own brotherswho may be born hereafter, are and will be the permanent and rightfulowners." Their Lordships held that the transfer was not void, but tookeffect as a valid transfer to Satrujit. The nature of the grant, the specialcircumstances taken into account in construing it, and the principle of thedecision, 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 thedeed, which contemplates benefits to after-born sons of Udey Narain as well asto Satrujit, can have any operation in his favour. This question, though raisedin the plaint, is not dealt with by either of the lower Courts. It dependsentirely on the view which may be taken of the meaning of the parties to thetransaction, for the rule of law on which the plaintiff relies, viz., thatgifts 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 certainsections of the Indian Succession Act of 1865 are invoked to give weight tothis contention, the Legislature having thought fit to apply those sections toHindu wills.

Independently, however, of the distinction which may betaken between wills, the operation of which is suspended during the testatorslife, and deeds which operate immediately especially such deeds as confer apresent interest upon a present person, the sections cited have no bearing onsuch a gift as that under consideration. Section 102 lays down the rule that abequest inoperative as to some of a class shall be wholly void, not in allcases, but only when the bequest offends against the rules contained inSections 1001 and 1012; and the gift under consideration does not fall withineither of these two Sections. It may be that illustration (b) to Section 102imports into India an English rule of construction which usually defeats theintention of the testator. But whatever force the illustration may have (and itseems out of place as attached to a section intended not to define the wordclass, but only to establish a special incident of gifts to classes), it isnot made applicable beyond the two cases contemplated by Sections 100 and 101.

Assuming that the deed is intended to express a gift to thebrothers of Satrujit which cannot take effect as such, what is the whole schemeof the parties We find them bent on saving the ancestral estate from theconsequences of the continued extravagance of one of its members. The plan theyadopt, probably the only plan open to them, except a complete partition, is atransfer by the head of the family, with the consent of his son, to the lowergeneration. The only member of that generation was the grandson Satrujit. Hetherefore is made to take by name and immediately, and the possession andownership are transferred to him. Is then the gift indisputably designed forhim wholly to fail, because the parties supposed that they could join with him possiblyafter-born sons, who, if any had happened to be born, could not legally claimunder a gift Is Udey Narain, whose interests were bought out for valuableconsideration, 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 mustfail, but that is no reason why the whole should fail.

The paramount intention was to get rid of Udey Narain bypassing the property to his sons.

That intention is much more readily effectuated by givingthe property to Satrujit, the only then son of Udey Narain, than by holdingthat the deed and all that followed upon it, the mutation of names, thepossession and management of Asmaida did not operate any change at all. Casesare not rare in which a Court of construction, finding that the whole plan of adonor of property cannot be carried into effect, will yet give effect to partof it rather than hold that it shall fail entirely. In the present case, thereis every reason for holding that if Satrujits possible brothers are not ableto 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. Ifthe deed stood alone, it is a question in each case whether a designatedperson, who is coupled with a class described in general terms, is merged intothat class or not. But the deed does not stand alone. It is followed by actionsof a kind which, even without a deed, may work a transfer of property in India.Satrujit is entered in the Collectors books as the sole possessor of theproperty, and his guardian takes possession, first in his name, and afterwardsas his successor. Their Lordships hold that the circumstance that the partieswished to do something beyond their legal power, and that they have usedunskilful language in the deed of gift, ought not to invalidate that importantpart of their plan, which is consistent with one construction of the deed, andis clearly proved from the transfer of the property in fact. But theirLordships conceive that it is not necessary to view this transaction as thoughit were to be determined by rules of construction drawn from English law andapplicable to English deeds of gift. The High Court viewed it in the light of apartition. It cannot be strictly a partition, for, according to Mitakshara(chap. I, Section 5, verse 3), there can be no partition directly betweengrandfather and grandson while the father is alive. But it is a familyarrangement, partaking so far of the nature of a partition that Udey Narainreceives a portion, and is thenceforth totally excluded, and quoad ultra, MataDoyal surrenders his interest to his grandson, who, on a complete partitionamong the whole family, would be entitled to one-fourth.

Now in such an arrangement it would be quite consistent withHindu ideas of ancestral property to express a desire that the whole generationinto which the property was transferred should benefit by it. Indeed, in thecase of a partition between father and sons, it is laid down in the books thatif a son born after the partition of ancestral estate does not, out of theresidue of his fathers estate, get a share equal to what his brothers hadobtained, 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 andSTajnyavalkya--authorities on which the Mitakshara is founded. Indeed, theprinciple of the joint family is not less closely but more closely insisted onby the Benares school than by the Bengal school of law. But their Lordships arenot now affirming the law on this point, nor are they deciding or prejudicingany question which may arise between Satrujits heirs on the one hand, and hisbrothers, if any should be born, on the other. They are only showing that thenotions present to the mind of the head of a joint Hindu family who is making afamily arrangement are something very different from the notions present to themind of an English testator when he makes a gift to a class.

20. There were circumstances in that case which are wantingin this. The parties to the transaction were members of a Mitakshara family, sothe property was already vested in each one of them as much as in any other. Itwas argued before us that what happened in that case should be regarded merelyas the withdrawal of one member from the family, or the surrender of hisinterest to his co-sharers. But that is not the ground of the decision, andthat is what we are bound to ascertain, and to follow it where it isapplicable.

21. Again, in that case there was consideration for thegrant, and that fact is undoubtedly dwelt upon by their Lordships. But I do notunderstand them as holding that the existence of consideration could givevalidity to any disposition of property not sanctioned by law. They seem to meto use the fact of the consideration passing as an important circumstancebearing upon the construction of the instrument, because it tended to show thata present gift was contemplated.

22. The true ground of decision in that case appears to meto be that in construing family settlements of this nature, Courts are toascertain the real meaning of the parties to the transaction; that when thatmeaning has been ascertained, if it appears that the whole plan cannot becarried out, but that a part of it can, effect is to be given to that part. Andthat, accordingly, if the plan be to give a present gift to persons capable oftaking, that gift is effectual, although it was also intended that otherpersons, incapable of taking, should afterwards come in and share in the gift.

23. I think we are bound to apply this method ofconstruction in the case before us.

24. There seems to me no great difficulty in ascertainingwhat the donor intended. I shall first try to state what that intention seemsto me to be, without the use of technical words, and in popular language--acourse which seems to me the safer course in dealing with the intention of aHindu gentleman. He intended, I think, that he should at once cease to havehimself any interest in the property given; that the two living grandsonsshould at once enter upon the possession and enjoyment of it, and acquire theright to dispose of it; that if brothers should afterwards be born, each ofsuch brothers should at his birth step into an equal share of the property, butwithout any retrospective effect; and that no act of the living grandsonsshould prejudice this right of their after-born brothers, and that during theminority of the living grandsons their mother should manage the property fortheir benefit without being liable to account to them. Expressing this in moretechnical language, I think he meant to give the two living grandsons a presenttitle to, and the present possession and enjoyment of, the property, but thattheir title was liable to be partially divested in favour of after-bornbrothers. This intention seems to me to be sufficiently expressed in theinstrument of gift, and in this case, as in that before the Privy Council, theconduct of the parties makes the intention clear.

25. The result is, that in my opinion there was a good giftto the two living grandsons, Ram Lal and Sham Lal, arid that the plaintiffsare not entitled to recover.

26. I have so far given my reasons for thinking that thiscase is governed by the case I have been considering. It is right, I think, toconsider further how far our decision is inconsistent with the earlier cases inthis Court.

27. If Kherodemoneys case was (as I think it was) a case ofa gift intended to vest on the death of the testator, then it seems to me thatit is overruled by the late Privy Council decision, unless there be somematerial difference between a gift present both in interest and enjoyment, anda gift vested in interest, but deferred in enjoyment; and I cannot myself seeany such distinction. Soudamineys case, however, related to a gift, contingentat the testators death, to a class of persons to be ascertained at a futuredate. It was a gift to such lawful male issue as might be living at the deathof any of the testators sons or grandsons who took life estates.

28. There is, undoubtedly, a difference between a presentgift to persons capable of taking, which is intended afterwards to open and letin others not capable of taking, and a future gift to a class, which may ormust 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, necessarilyoverruled Soudamineys case. But it does seem to me to overrule so much of thelaw which has been based upon that case, and to proceed upon principles ofinterpretation so inconsistent with those acted upon in that case, that we areat liberty, sitting in a Court of Appeal, to examine the decision, in order tosee how far it can be supported.

29. I refer not only to those parts of the judgment of thePrivy Council in which they state the grounds on which they are deciding, butalso to those in which they state what is to be avoided.

30. They say that it is not necessary to view thetransactions "as though it were to be determined by rules of constructiondrawn 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 whois making a family arrangement are something very different from the notionspresent to the mind of an English testator when he makes a gift to aclass."

31. It is no new doctrine that rules established in EnglishCourts for construing English documents are not as such applicable totransactions between natives of this country. Rules of construction are rulesdesigned to assist in ascertaining intention; and the applicability of many ofsuch rules depends upon the habits of thought and modes of expression prevalentamongst those to whose language they are applied. English rules of constructionhave grown up side by side with a very special law of property and a veryartificial system of conveyencing, and the success of those rules in givingeffect to the real intention of those whose language they are used tointerpret, depends not more upon their original fitness for that purpose thanupon the fact that English documents of a formal kind are ordinarily framedwith a knowledge of the very rules of construction which are afterwards appliedto them. It is a very serious thing to use such rules in interpreting theinstruments of Hindus, who view most transactions from a different point, thinkdifferently and speak differently from Englishmen, and who have never heard ofthe rules in question. Even in England no one thinks of construing a mercantilecontract by the same canons as a marriage settlement. There are in some pointsdifferent rules for interpreting deeds and wills--wills of realty and wills ofpersonality, conveyances on sales, and family arrangements.

32. As to India the Privy Council expressly laid down inHunooman Prosad Panday v. Mussamut Babooee Munraj Koonweree 6 Moor I.A. 411 :"Deeds and contracts of the people of India ought to be liberallyconstrued. The form of expression, the literal sense, is not to be so muchregarded as the real meaning of the parties which the transactiondiscloses."

33. In Sreemutty Babutty Dossee v. Sibchunder Mullick 6 MoorI.A. 1 the same tribunal refused to construe a gift to a widow "for hersole absolute use and benefit" as an English Court would construe it. InGokuldoss Gopaldoss v. Rambux Seochand L.R. 111. All. 126 they refused to applythe rule in Toulmin v. Steere 3 Mer. 210 to an Indian transaction. It is worthyof note that in the very case of Leake v. Robinson 2 Mer. 363 so much reliedon, one of the rules of construction acted upon is, that in a gift by wilt toone for life with remainder to his children, children must include childrenborn after, as well as those Born before, the death of the testator. InKrishnakumaris 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 inthat case each gave an annuity to one for life, "such payment to becontinued after his decease to his children and descendants per stirpes."

34. That was held to apply to children living at the deathof the testator. Then what was the ground of the rule laid down in Soudamineyscase and Kherodemoneys case. That rule, as I understand it, was adopted asbeing either in accordance with or analogous to the rules of English law. Ispeak of course with diffidence, but I must say that I think it is neither theone nor the other. The result of the English decisions may, I think, be shortlystated, so far as is material for this purpose. In dealing with a gift to aclass you enquire first, at what period the class is to, be ascertained--it mayin 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 thetestator, no question of remoteness can arise, and the general rule is that thegift 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 becomemembers of the class within the extended period are admitted; and subject toany question of remoteness those who are thus capable of taking, take. In eithercase, if any members of the class are incapable of taking because born afterthe date of ascertainment, they are simply excluded, and the rest take thewhole; and this is so even if the gift be to persons born and to beborn--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 thetestators lifetime they are simply excluded, and the rest take thewhole--Stewart v. Sheffield 13 East 526 Re Coleman L.R. 4 Ch. D. 167. If thegift to one is revoked by codicil, he is simply excluded, and the rest take thewhole--Shaw v. McMahon 4 Dr. & W. 431. If one is incapacitated from takingbecause he has attested the will, he is simply excluded, and the rest take thewhole--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 thespecial 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 jointtenancy comes in.

37. The Indian Succession Act in Section 983 declares thelaw applicable to wills governed by that Act in accordance substantially withthe view I have explained.

38. I am of course aware that there are cases in Englandrelating to real property in which somewhat different rules have been applied.But rules connected with the English law of real property could hardly withreason be applied to the wills and deeds of Hindus, and in Kherodemoneys casethe Court refused to apply them, and I think rightly. Nor are they embodied inthe Succession Act. There are other exceptional cases in England, but I do notthink it necessary to refer to them in detail; they are not adopted in theSuccession Act, and none of these special rules, whether relating to realproperty or not, would, if referred to, afford any support to the rule laiddown in Soudamineys case.

9. But in England there are rules of law guarding againstremoteness. A gift cannot be given which is to vest more than twenty-one yearsafter the close of a life or lives in being; and it is at this point and withreference to this law that the rule in Leake v. Robinson comes in. That rule isto the effect that when a gift is given to a class in such terms that theascertaining of the class and the vesting of the gift are or may be deferredbeyond the period allowed by law, the gift is wholly void, and cannot be madeeffectual for such members of the class as might be ascertainable earlier. SirWilliam Grant says at page 286: "It is the period of vesting, and not thedescription of the legatees" that produces the incapacity. Lord Selboenein Pearks v. Moseley L.R. 5 App. Cas. 714 states the rule thus: "The ruleis that the vice of remoteness affects the class as a whole, if it may affectan unascertained number of the members." That is the whole of the rule. Itis 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 viceof remoteness.

38. And so the Indian Succession Act, Section 1024, whichalone adopts such a rule as that in Leake v. Robinson 2 Mer. 363 in expressterms limits it to the cases of gifts to a class affected with remoteness bySection 101,+ or the case by analogous defect mentioned in Section 100.5Section 156 of the Transfer of Property Act is similar. The Privy Council inthe case to which I have so often referred have pointed this out with respectto the Succession Act.

39. In Soudamineys and Kherodemoneys case the primary rulethat gave rise to the difficulty was not against perpetuity. It was not oneaffecting the period of vesting.

40. Soorjeemoneys case 9 Moor I.A. 123 : 6 Moor I.A. 526,explained in the Tagore case, shows that there is no objection to a gift whichis to take effect after a prior life estate, provided it be. to a personcapable of taking. The difficulty was, that a person not born at the death of atestator cannot take a gift under his will. The rule laid down is that wherethere is a gift to a class, and some persons constituting such class cannottake in consequence of the remoteness of the gift or otherwise, the wholebequest must fail." This rule, so far as it refers to remoteness, is nodoubt the rule in Leake v. Robinson. But so far it did not apply to the oasesbefore the Court, and could probably hardly apply to any case among Hindus.

41. The words "or otherwise" made the rule applyto those cases, but they also made the rule not the rule of Leake v. Robinson Ihave shown that, in my judgment, the rule so extended is not in accordance withEnglish law. I do not think it can be derived by legitimate analogy from thatlaw, I think we should be following the true analogy of the law of England byholding in such cases that a gift to a class enures to the benefit of suchmembers of the class as are capable of taking at the time when the class is tobe ascertained, that is to say, those who fall within the definition of theclass, and were living at the death of the testator, or the date of the deed, asthe case may be.

42. But whether or not the ruling in Soudamineys case andKherodemoneys case is in accordance with English law, and whether or not it bederived by fair analogy from that law, it ought not I think to be applied tothe transactions of Hindus in India, unless it be a rule which assists theCourt in getting at the substance of the intention of the parties, and ingiving effect to that intention so far as the law allows; for that I conceiveto 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 seebow far they apply in this country. The reason for the rule in England is veryclearly stated in Leake v. Robinson by Sir William Grant in a passage oftencited 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 hisgeneral bequest to a class, and say that because the rule of law forbids hisintention from operating in favour of the whole class, I will make his bequestswhat he never intended them to be, viz., a series of particular legacies toparticular individuals, or (what he had as little in his contemplation)distinct bequests in each instance, to two different classes, namely, tograndchildren living at his death, and to grandchildren born after his death.

44. These words were used in England,--a country in whichthe nearest relatives are separate in property, in residence, and in all thedetails of life; one brother is no more affected by a gift to another brotherthan by a gift to a stranger, and there is all the difference in the worldbetween a gift to all the members of a class and a gift to some of them. Butwith Hindus the joint family state is the normal state; separate property isthe exception. Even where individual members of a family have separateproperty, they may and generally do continue to live together joint in food andworship, and joint as to their inherited property. Moreover, there are alsoordinarily in or attached to the family a number of dependent members, and evendependants not strictly members of the family. This is the state of thingswhich every Hindu settlor and testator contemplates as existing and desires toperpetuate.

45. To people living in such family communities, thelanguage of Sir William Grant seems to me by no means appropriate. It may make,and perhaps generally does make, comparatively little difference, whether thetitle to property is vested in a large or smaller number of the members of thefamily.

46. The difference would certainly not be such as to warrantthe use of the expression, "a new will," in the same sense as inEngland.

47. Jessel, M.R., in the case of Re Coleman L.R. 4 Ch. D. 167already cited, at p. 169, speaking of gifts to a class says: "The testatormay be considered to have a primary and a secondary intention. His primaryintention is that all the members of the class shall take, and his secondaryintention is, that if all cannot take, those who can, shall do so." Thisexpresses, I think, the same view as that stated by the Privy Council in thecase I have so much relied upon. They say at p. 178 : "The paramountintention 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 toSatrujit, 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 andmanagement of Asmaida, did not operate any change at all." I think thisapplies in all these cases of gifts to family groups; that the governingintention is to provide for the group, and that that intention is besteffectuated by vesting the property in those memberu of the group who arecapable of taking it.

48. Further, I am unable myself (of course I speak withdiffidence) to reconcile the rulings in Soudamineys case and Kherodemoneyscase with the previous decision of the Privy Council in Soorjeemoneys case.That case turned upon a will by which the testator gave his property to hisfive sons in equal shares. By a later clause, he provided that "shouldperadventure any among my said five sons die not having any son from his loins,nor any sons son, in that event neither his widow nor his daughter, nor hisdaughters son, nor any of them will get any share out of the shares that hehas obtained of the immovables and moveables of my said estate. In that eventof 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 asthat in Soudamineys and Kherodemoneys cases; at least I am myself unable tosee any difference, for the purpose of the rule in question, between a giftover after a life to such of my sons and sons son as shall then be living, anda gift over to the lawful male issue of the person dying as in Soudamineyscase.

50. Soorjeemoneys case came before the Supreme Court ondemurrer, and on appeal from the decision of that Court before the PrivyCouncil 6 Moor I.A. 526. It came again before this Court in the usual course,and was again appealed to the Privy Council 9 Moor I.A. 123.

51. On all these occasions the construction and effect ofthe gift over were fully considered; and in the result it was held to be a goodgift, and to operate in favour of the surviving sons of the testator. This casewas again considered and explained in the Tagore case, where it is pointed outthat the gift in Soorjeemoneys 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 Soorjeemoneys case it had beensupposed that any rule such as that of Soudamineys case and Kherodemoneyscase existed, it must have been at once evident that the gift then underconsideration 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 CourtsI think the inference is irresistible, that down to 1862 the Supreme Court, theHigh Court and the Privy Council knew nothing of the doctrine which has sincebeen accepted in this Court. I think the mode in which that case is dealt within the Tagore case tends to show that down to 1872 such a rule was not known tothe Privy Council. And as far as I can judge, Soorjeemoneys case could nothave been decided as it was, if the rule had been accepted. Soorjeemoneys casehad been followed without any expression of doubt or qualification in BhoobunMohini Debya v. Hurrish Chunder Chowdhry L.R. 5 IndAp 138, and in Ram LallMookerjee v. Secretary of State L.R. 8 IndAp 46.

53. The only attempt, I think, that has been made toreconcile the cases in this Court with Soorjeemoneys case is by Markby, J., inKherodemoneys case, And I must say, with all deference, that he does notappear to me to have succeeded in doing so.

54. Lastly, as I have already said, the principles ofconstruction adopted by the Privy Council in the recent case are inconsistentwith those acted upon in Soudamineys and Kherodemoneys cases.

55. For these reasons I should be prepared, if necessary, todissent wholly from the doctrine laid down in those cases, and to hold, as thegeneral rule, that where there is a gift to a class, some of whom are or may beincapacitated from taking, because not born at the date of gift or the death ofthe testator, as the case may be, and where there is no other objection to thegift, it should enure for the benefit of those members of the class who arecapable of taking.

56. I think the late decision of the Privy Council is adirect authority for so holding, where the intention is, as I think it was inthis case, to give a present gift to those of the class who are capable oftaking.

57. I would, therefore, reverse the decision of the learnedJudge and dismiss the suit with costs in both Courts.

Richard Garth, C.J.

58. I entirely agree in the conclusions at which my brotherWilson has arrived.

59. I think it very probable that the recent decision of thePrivy Council in Rai Bishen Chands case L.R. 111 A. 164 : I.L.R. All. 560 maybe the means of introducing a very material and salutary change of the law incases of this kind; but whether that is so or not, I think there can be nodoubt that the principle upon which that case was decided is directlyapplicable to the present.

1. [Section 100: Where a person not in in existence Bequestto a person not at the time of he testator s death subject to a prior bequestin existence at the testators contained in the will, the later bequest shallbe void, unless it death, subject to a prior comprises the whole of theremaining interest of the testator in bequest. the thing bequeathed.] 2.[Section 101: No bequest is valid whereby the vesting of the thing bequeathedmay be delayed beyond the lifetime of one or more persons living at the Ruleagainst perpetuity. testators decease, and the minority of some person whoshall be in existence at the expiration of that period, and to whom, if heattains full age, the thing bequeathed is to belong.] 3. [Section 98: Where abequest 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 bealive at the testators death. class. Exception.--If property is bequeathed toa class of persons described as standing in a particular degree of kindred to aspecified individual, but their possession of it is deferred until a time laterthan the death of the testator, by reason of a prior bequest or otherwise, theproperty shall at that time go to such of them as shall be then alive, and tothe representatives of any of them who have died since the death of thetestator.] 4. Bequest to a class, some [Section 102: If a bequest is made to aclass of persons, with of whom may come under regard to some of whom it isinoperative by reason of the rules in Sections 100 rules contained in the twolast preceding sections, or either of and 101. them, such bequest shall bewholly void. 5. [Section 101.--No bequest is valid whereby the vesting of thething bequeathed may be delayed beyond the lifetime of one or more personsliving at the Rule against perpetuity. testators decease, and the minority ofsome person who shall be in existence at the expiration of that period, and towhom, if he attains full age, the thing bequeathed is to belong.] 6.[Section100: Where a bequest is made to a person not in Bequest to a person notexistence at the testators death, subject to a prior in existence at the test-bequest contained in the will, the later bequest shall be void, testatorsdeath, subject to a unless it comprises the whole of the remaining interest ofthe prior bequest. testator in the thing bequeathed.] 7. [Section 15: If, on atransfer of property, an interest Transfer to class some of therein is createdfor the benefit of a class of persons with whom come under Sections 13 regardto some whom come under sections of whom such interest and 14. fails by reasonof any of the rules contained in seoticns thirteen and fourteen, such interestfails as regards the whole class.]

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Kanai Lal Sett and Ors. vs. Ram Lal Sett and Ors.(10.03.1886 - CALHC)