1. Ram Lall Sinha was a Hindu inhabitant of the District of Murshidabad in Bengal, but it does not appear by what school of law he was governed,--the Mitakshara or the Dayabhaga. He died on the 3rd March 1868, having, on the day previous, executed a Will, the construction of the first clause of which it now in controversy. He left him surviving his mother Fudan Kumari Burmanya, his wife Bhagabati Burmanya, his sisters Ramdhone and Brojo Sundari, who were widows and sonless, and Annapurna and Golap Sundari, Monmohan Sinha, the husband of his sister Annapurna, and Gopal Chandra Sinha, the husband of his sister Golap Sundari, and three nephews Jagabandhu Sinha, Nil Kanta Sinha and Shama Charan Sinha, the two former being the sons of his sister Golap Sundari, and Shama Charan being the son of his sister Annapurna. They were all dependent members of his family, he referred to them in his Will and he made provision for all of them. After his death, and within a few months, Golap Sundari gave birth to a son who was named Madhusudan. In the year 1872, Nil Kanta was given in adoption to Chhya Kumari alias Subarna Kumari Burmanya, Fudan Kumari''s step-mother. Fudan Kumari died in the year 1887. Nil Kanta died in the year 1894, and the present Plaintiff Kali Charan is his only son; Jagabandhu and Madhusudan died in the year 1901. The former left a widow Basanta Kumari who is the 3rd Defendant in this case.
2. In October 1901, Bhagabati Burmanya executed in favour of Shama Charan Sinha a deed of relinquishment by which she surrendered her life estate, and by virtue of this deed Shama Charan, who is Defendant No. 2, is in possession of the estate left by Ram Lal. Bhagabati Burmanya is the first Defendant in the suit.
3. The suit under appeal was commenced on the 31st May 1902, and it was prayed that a decree might be passed declaring that Nil Kanta had a vested remainder in a third share of the estate left by Ram Lal Sinha and that the deed of relinquishment executed by Bhagabati Burmanya could not affect such share after her death.
4. The material portion of Ram Lal''s Will, so far as it is in controversy, has been thus translated :--
"My mother Fudan Kumari Burmanya and my wife Bhagabati Burmanya shall as long as they live hold possession of all my properties moveable and immoveable and enjoy and possess the same on payment of Collectorate Revenue and zamindari rent and maintaining in tact and continuing the services of the established duties and the ancestral rites according to the practice heretofore obtaining and shall pay off my debts and realize my dues. They shall not be competent to transfer the immoveable property to anyone. On the death of my mother and wife the sons of my sisters Golap Sundari Burmanya and Annapurna Burmanya, that is to say, their sons who are now in existence, as also those who may be hereafter born, shall, in equal shares, hold the said properties in possession and enjoyment by right of inheritance, and shall maintain in tact and continue the service of the established deities and ancestral rites according to the practice heretofore obtaining. In the event of anyone amongst the sons of my sisters being a minor at the time of the death of my mother and my wife (i.e. of the survivor) his mother or his brother shall during his minority hold possession (of his property) as his guardian." Exception was taken during argument to the words "by right of inheritance," and it was stated that they did not correctly represent the Bengali words uttar-adhikari sutre used in the Will. The literal translation should be "as aftertakers." The expression uttar-adhikari (aftertaker), is applied indiscriminately to cases of intestate as well as testamentary succession, though cases of intestate succession being more frequent the word is fast assuming a technical meaning i.e., "an heir," and it may be that the testator used the expression in the same sense, viz., that the nephews would take with the same incidents of proprietorship as heirs would.
5. The first portion of the first clause of the Will created an estate for life jointly in favour of the mother and widow of the testator, and then of the survivor of them, and there can be little doubt that the bequests for life were followed in the second portion of the clause by a bequest of the remainder in favour of the sister''s sons of the testator living at the date of the Will and those who would come into existence thereafter. And the real question that seems to have been raised between the parties in the lower Court and which was decided against the first two Defendants was, whether the bequest to the nephews as a class, some of whom were not in existence at the date of the testator''s death, and could not therefore under the Hindu law as expounded in Tagore v. Tagore 9 B.L.R. 377 (1872) be recipients of any portion of the remainder, was void as regards even those who were living and could be the subjects of the testator''s bounty.
6. A further point has, however, been raised in this Court, viz., that there was no bequest in favour of the nephews and that the second portion of the first clause only declared the right of inheritance of the nephews after the death of the mother and the widow, as they would be heirs under the Hindu law in case of intestate succession. Such a construction of the clause was not suggested in the lower Court, and the attention of the parties was not drawn to the necessity which such a construction would involve, of adducing evidence as to the school of law by which the testator was governed, and as to the existence at the date of the Will, or the possible existence at the time the succession might open out, of an agnate who might exclude the nephews. The names of the parties indicate that the family must have in recent times migrated into Bengal from Provinces where the Mitakshara system prevails. It seems to us, however, to be clear that the testator did not intend to declare simply a right of heritance as has been contended for. The mother was no heiress according to the Hindu law, there being the widow, and he gave them a joint life estate. He did not intend to give to his wife a Hindu widow''s estate as she would be entitled to according to the law of inheritance, for that would exclude the mother and might deprive his nephews, whom and whose parents he evidently wished to benefit, of a vested remainder, and leave them the chance of a contingent reversion. It must be presumed that the testator knew the law and that under it the heirs of such of them as would predecease his widow or mother, whoever died last, would not be entitled to any share in the inheritance, and it is clear from the entire scheme of the Will that he could not have intended either that any other person should intervene between his mother and widow and his nephews. His nephews take under the Will, after the life estates, a vested interest, i.e., the remainder of his estate burdened with the charge of performing certain duties. It was a devise, and the idea of laying down the rule of succession according to the Hindu law was altogether foreign to the mind of the testator.
7. Coming now to the real question raised in the case, if the executant of the; Will in controversy were an Englishman or a person governed by the Indian Succession Act of 1865, the bequest to the nephews as a class would not infringe the rule against remoteness. The gift in the present case was intended to take effect after the close of two lives in being, and the ascertainment of the class was not to he deferred thereafter. There is in it no vice of remoteness. The case of Leake v. Robinson 2 Mer. 863 (1817), Jee v. Audley 1 Cox. 324 (1787), Smith v. Smith L.R. 5 Ch. Ap. 342(1870.), Dunganon v. Smith 12 Cl. & F. 546 at p. 574 (1845) and (sic) v. Mosely 5 App. Cas. 714 (1880), do not lay down any rule which would render this gift void Secs. 100, 101 and 102 of the Indian Succession Act, even if they could be applied in this case, could not also make the bequest void.
8. The rule as to invalidity of a bequest by a Hindu to a person who is unborn at the date of the death of the testator rests on the peculiar doctrine of Hindu law expressed by the phrase "relinquishment in favour of the donee who is a sentient being." With certain well-known exceptions pointed out in the Tagore case 9 B.L.R. 377 (1872), no gift by a Hindu can be valid unless it is made to a person or persons in existence. The rule has been often repeated and it renders the bequest to such of the nephews of Ram Lal as would be born after his death inoperative.
9. There is no rule of Hindu law (so far as we are aware and our attention has not been drawn to any text of sages or approved commentaries) to the effect that a gift inter vivos or a bequest to a class of persons some of whom are incapable of taking by reason of the rule that the gift is valid only if it is made to a sentient being capable of taking, is void also as regards those who are sentient and capable of taking Where then is the rule contended for on behalf of the Appellant to be found? The analogy to English law, even if we were bound to accept it, does not hold good, as it is based on peculiar rules inapplicable to Hindus.
10. But even in England the rule in Leake v. Robinson 2 Mer. 363 (1817) has been followed not without expression of reluctance. In Leake v. Robinson 2 Mer. 363 (1817) itself Sir William Grant said:--"Perhaps it might have been as well if the Courts had originally held an executory devise transgressing the allowed limits to be void only for the excess where that excess could be clearly ascertained." In Re Moseley''s Trusts L.R. 11 Ch. Div. 555 (1879), the Lords Justices similarly expressed their non-concurrence with the reason of the rule though they were bound to follow it; and Pearks v. Mosely 5 App. Cas. 714(1880) which was an appeal from the decision of the Lords Justices in Re Moseley''s Trusts L.R. 11 Ch. Div. 555 (1879) Lord Selborne, Lord Penzance, and Lord Blackburn sufficiently indicated their inclination against the rule, which, however, was settled in England by long series of cases and could not be disturbed except by legislation.
11. In India, however, we stand on a different footing. There is no series of cases, no current of decision, which we are likely to disturb by adopting a different rule. There is a clear conflict of authorities in the Indian Courts. Bramamayi Dasi v. Jages Chandra 8 B.L.R. 400 (1871), Soudaminey Dossee v. Jogesh Chunder ILR 2 Cal. 262(1877), Kherodemoney v. Doorgamoney ILR 4 Cal. 455 (1878), Jairam Narronji v. Kuverbai ILR 9 Bom. 491(1885), and Rojomoyee v. Troylukho Mohini 6 C.W.N. 268: s.c. ILR 29 Cal. 260 (1901), follow the rule of English law; while in Manjamma v. Padmannabhayya ILR 12 Mad, 393 (1889), Mangal Das v. Tribhuvandas ILR 15 Bom. 652 (1891), Tribhuvandas v. Gangadas ILR 18 Bom. 7 (1893), Krishnarao v. Bena Bai ILR 20 Bom. 571 (1895), Khimji v. Morarji ILR 22 Bom. 533 (1897), Bhoba Tarini v. Peary Loll 1 C.W.N. 578: s.c. ILR 24 Cal. 646 (1897), and Gordhandas v. Rai Ramcoover ILR 26 Bom, 449 (1901), a different view has been entertained.
12. The proposition that a gift must fall in its entirety, because effect cannot be given to a part of it, and that some person or persons whom the donor never intended to benefit should receive the entire property covered by the gift, to the exclusion of all the intended donees, is repugnant to Hindu notions. It obviously defeats the intention of the testator. Courts have therefore struggled to carry out the intention of a testator as far as possible, and, as observed by the Judicial Committee in Rai Bishen Chand v. Asmaida Koer L.R. 11 I. A. 164 : s.c. ILR 6 All. 560(1884),--"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," Hurdey Narain, v. Rooder Perkash L.R. 11 IndAp 26 (1883), Ram Lal Sett v. Kanai Lal Sett I.LR. 12 Cal. 663 (1886), and Srinivasa v. Dand(sic)yudapani ILR 12 Mad. 411 (1889)., are instances, which may be noted besides Rai Bishen Chand v. Asmaida Koer (20). These latter are cases of gifts inter vivos, but the Hindu law of Wills is a recent development of the Hindu law of gifts inter vivos Tagore v, Tagore 9 B.L.R. 377 1872) and the doctrine of the invalidity of bequests to the unborn has been taken bodily from the law of gifts. The Indian Legislature has also assimilated the law of transfer by act of pasties as contained in secs. 13, 14 and. 15 of the Transfer of Property Act to the law of Wills as we find it in secs. 100, 101 and 102 of the Indian Succession Act.
13. The rule laid down in Leake v. Robinson 2 Mar. 363 (1817) was applied in this Court in Bramamayi v. Jages Chandra 8 B.L.R. 400 (1871), Soudi (sic) miney Dossee v. Jogesh Chunder ILR 2 Cal. 262 (1877), and Khirodemoney v. Doorgamoney I.LR. 4 Cal. 455(1878), but the tide turned as soon as the decision of the Judicial Committee in Rai Bishen v. Asmaida Koer L.R 11 IndAp 164 : s.c. I.L.R., which was pronounced in March 1884, was known in India. In Rai Kishori v. Debendra Nath L.R. 15 I. A. 37 : s.c. ILR 15 Cal. 409 at p 415(1887), Tottenham and Field, JJ., observed referring to the case of Rai Bishen Chand (20), "the case was no doubt a case not of a Will, but of a deed inter vivos and intended to have immediate operation; and as regards the applicability of the principle to Hindu Wills, their Lordships decided nothing, definitely. They did, however, refer, to illus. (b) to see. 102 of the Succession Act (X of 1865), as importing into India an English rule of construction which usually defeats the intention of the testator; and it would appear that the adoption of the English rule of construction did not recommend itself to their Lordships on that occasion as a sound principle applicable to the Wills of Hindu. If we had to decide whether this principle ought to be adopted in this country we should perhaps think it necessary to refer the question to a Full Bench, having regard to the recent observations of the Privy Council in the case just referred to, and because we ourselves, entertain some doubt as to whether this principle ought to be followed in construing the Wills of Hindus, "Rai Kishori v. Debendra Nath L.R. 15 I. A. 37 : s.c. ILR 15 Cal. 409 at p 415(1887). In Ram Lal Sett v. Kanai Lal Sett ILR 12 Cal. 668 (1886), which, as already stated was also a case about a gift inter vivos Wilson, J., pronounced a decided opinion as to the inapplicability of the rule Leake v. Robinson 2 Mer. 363 (1817), to the Wills of Hindus; and his view was adopted in this Court in Bhoba Tarini v. Peary Lall Sanyal 1 C.W.N. 578 : s.c. ILR 24 Cal. 646 (1897). In Rojomoyee v. Troylukho Mohini 6 C.W.N. 268 : s.c. ILR 29 Cal. 260(1901), however, Stanley, J., adopted the rule in Leake v. Robinson 2 Mer. 363 (1817), but it does not appear that his attention was drawn to Ram Lal Sett v. Kanai Lal Sett ILR 12 Cal. 663(1888), and Bhoba Tarini v. Peary Lall Sanyal 1 C.W.N. 578 : s.c. ILR 24 Cal. 646 (1897). The High Courts at Madras and Bombay have, as we have seen, adopted the view expressed by Wilson, J.
14. In re Coleman and Jarrom L.R. 4 Ch. Div. 165 (1876) has been cited before us. Sir George Jessel was there dealing with a case to which the rule guarding against the vice of remoteness did not apply; and it is now referred to as being a case of the same class as Leake v. Robinson 2 Mer. 363 (1817). But some of his observations are pertinent to the case before us. He says : "No doubt, the general rule of construction is, that in a gift to a class, where the class consists of children and descendants, those members of the class take who are capable of taking at the death of the testator. Now, first of all, what is the true rule. The true rule is that those members of the class take who are at his death capable of taking. The rule of construction is to ascertain the intention of the testator as artificially expressed. Now I think there is a convenient mode of interpreting the testator''s intention, and it is this, the testator may be considered to have a primary and a secondary intention. His primary intention is that all members of the class shall take, and his secondary intention is that if all cannot take those who can shall do so. Both intentions coexist and are frequently exemplified."
15. The bequest in the case now before us is not effected by the vice of remoteness as understood by the law in England : it does not offend against the law as to perpetuities. The only question is, what was the primary intention of the testator and what the secondary. His primary intention may be taken to be that all his nephews then born and those who may be born afterwards (should take equally. But those that had then been born were the immediate objects of his affection and bounty. And the idea must have occurred to him that if any other nephews were not born, those who were then in existence, though not specifically named, should take the whole of his estate. From this point of view his primary intention may be taken to benefit those who were then born; and following the train of reasoning that was adopted in Re Coleman and Jarrom L.R. 4 Ch. Div. 165 (1876) we may safely say that, if not his primary intention, his secondary intention was, as is clear from the several clauses of his Will that, at least, those of his nephews who were then capable of taking should take as already mentioned. The testator''s sisters, their husbands and sons were living with him as dependent members of his family; he made provisions for their maintenance and residence after his death; his nephews were objects of his affection and he knew that unless he bequeathed his estate to them by his Will, as be has done, they might have no interest in his estate, and if they died before the death of Ids mother and widow, their children and parents would not take anything. He would ho naturally inclined to favour such of his nephews who were then born. We may take it that his secondary intention was that at least such of his nephews as were then born would take. Since the present case was argued our attention has been directed to the case of The Advocate-General v. Karmali (26) in which the observations of the Court appear to support the view taken above. For these reasons we are of opinion that the bequest to the Plaintiff''s father is valid. We accordingly dismiss this appeal with costs.
