Appeal from a decree passed by Mr. Justice Pontifex, in the original Civil Jurisdiction of the High Court, dismissing the plaintiff's suit with costs. The proceedings in the Court below will be found reported in 2 C.L.R 112. In addition to the facts therein given, it should be stated that the son of Woodoy Chund Mullick, who is mentioned in the will as living at the time death. One of these brothers died unmarried after the testator's death, leaving surviving two younger brothers, both born after the testator's of its execution, died in 1867. It was on behalf of the other that Doorgamoney claimed to hold the property purported to be given by the will.

Evans and Phillips for the Appellant.

Phillips.— We are not called upon here to show that the plaintiff is a trustee, as she herself admits it—Beckford v. Wad, 17 Vesey, 95. Being then a trustee for for purposes which are void, she becomes a resulting trustee for the plaintiff and cannot plead limitation against her; for, in such a case, a resulting trust is an express trust within the meaning of the statues of limitaion — Satter v. Covanagh, 1 Dr. and W., 668; approved in Watson v. Saul, 1 Giffard, 197, and in 2 Jones and Latouche, 196, It May be argued that, being a Hindu executrix, the property is not “vested” in her within the meaning of section 10 of Act IX of 1871. But “vested,” as there used, has not the peculiar meaning which it bears in English Law. The Act is one intended for the whole of India, for the whole of India, and except in the Presidency towns, and perhaps not even there, is there any such thing as “vesting” in the feudal sense.

There is no adverse possession here, and we are in time,—as far as regards the immoveable property.—under cl. 145, sch. II Act IX of 1871. The executrix admits that she is holding for the wrong cestui que trust holding for herself; and Lister v. Pickford, 34 Law four. Ch 582 shows, that under such circumstances the cestui que trust be barred. See Allen v. Blakeney possession under the will being consistent with ours was not adverse—Nepean v. Doe, 1 smit's Leading Cases, 688; williams on executors, 1474. She is a trustee for us — Dacree v. Patrickson, 1 D. & S., 182.

[Markby, J.:— A Hindu executor is like an agent acting under a power of attorney.] Phillips.—Morice v. Bishop of Durham, 10 Vesey, 522, at p. 535, and Ommaney v. Butcher, 1 T. & R., at p. 273, show what is necessary to constitute an executor a trustee.

The learned Judge has held our claim to be personally barred by cl. 122 of Act IX of 1871; but that clause does not apply, as this suit is not for a share.

[Garth, C.J:— Would you not be barred, supposing your suit came under cl. 118?]

Phillips.—No, my Lord. We could not sue for the residue until all the debts and legacies are paid, as until then there is no residue Prior v. Horniblow, 2 Y. & C, Exch., 200, does not decide whether a residue is a legacy.

This suit is not barred by section 7, Act VIII of 1859. The other suit was by different parties and in a different right—Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 Moore, 604-5. There we sued the executrix merely; here we do not. The prayer of the plaint is very different. We were not compelled to join different causes of action though we were entitled to do so.

Hill, for the infant.

A Hindu executor has only a manager's power unless a contrary intention appears—Sreemutty Dossee v. Tarachurn Coondoo Chowdhry, Bourke, A.C, 49; Srimoti Joykali Debi v. Shibrath Chatterjee, 2 B.L.R, (O.C), 1.; see also Charo Bibi v. Baldeo Das, 1 B.L.R, (O.C), 24. Here there is a total want of the intention necessary to create a trust — Lewin on Trusts, 72. A fiduciary relation between the parties is not sufficient to make section 10 of Act IX of 1871 applicable. The meaning sought to be put on the word vested by the opposite side would include the case of factors. Trust for a specified purpose here means a trust specified by the author—Hughes v. Evans, 13 Simon., 496; Watson v. Saul, 1 Giffard, 197; Dickenson v. Teasdale, 1 De Gex., J. & S., 52.

Plaintiff is barred as to the movable property by clause 122 of Act IX of 1871. That is clear on comparing the wording of the clause with section 28 of Act X of 1865. Section 32 of Act IX of 1850, and cl. 2, section 6 of Act XI of 1865 are conclusive that cl. 122 includes the present case. Adverse possession of the immovable property commenced at latest when the debts were barred, for then possession could be determined and demanded. That was in 1863, and therefore the suit is barred under Act IX of 1871, sch. II., cl. 145.

The claim is barred by section 7, Act VIII of 1859. Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 Moore, 562, is in my favour.

[Garth, C.J:— In that case the right and title were the same as in the previous suit. But in this case the plaintiff was entitled as a creditor to what she had previously sued for; here she claims as heir-at-law and dehors the will.]

Hill.—If she could have sued for this property at the time she brought the former suit, she will be barred—Gones Chundra Chowdhry v. Ram Kumar Chowdhry, 3 B.L.R, (A.C), 265; Abhiram Das v. Sriramdas, 3 B.L.R (A.C), 421; Jumoona Dossee v. Bamasoonduree Dossee, 2 W.R, 149.

Lastly, the plaintiff must show that the gifts are invalid. Nilkaunt Chatterjee v. Peari Mohun Das, 3 B.L.R (O.C) 11, shows that the property will go to those of the class living at the death of the testator.

Evans.—In that case there was no argument on the point in either Court.

Hill—Krishnaramini Dasi v. Ananda Krishna Bose, 4 B.L.R (A.C), 231, and Hawkins on Wills, p. 71, show the same thing. [Counsel referred to Leake v. Robinson, 2 Mer., 364; Soudamoney Dossee v. Jogesh Chunder Dutt, I.L.R, 2 Cal., 262; Jarman on Wills, 149.]

Bonnerjee, for Doorgamoney Dossee.

My client is willing to give up the property to any one the Court may direct. I support, however, the argument of Mr. Hill, and, with him, dispute the soundness of Soudamoney Dossee's case, I.L.R, 2 Cal., 262. The rule in Leake v. Robinson, 2 Mer., 364, was laid down on the consideration that the vesting was postponed, but here the vesting took place on the death of the testator, and, therefore, that rule does not apply. The same consideration distinguishes this case from the Tagore case; here the property is at no time in nubibus. Assuming the gift is valid, the case does not come within section 10. We are not trustees at all, and least of all trustees for the plaintiff. Oar possession was adverse to the plaintiff, and as agent on behalf of the infants from the death of the testator. Her cause of action accrued then, and she could have come in and sued for what she now claims.

Evans, in reply:—

The point decided in Saudamoney's case was very carefully considered. The same point was decided in Sreemuttee Bramamoyee Dossee v. Jogesh Chundra Dutt, 8 B.L.R, 400. The reason of the rule is clearly seen when we look into the case of Leake v. Robinson, 2 Mer., 364. There, Romilly argued in favour of the will, that, if there were some who could take, and others of the same class who could not, then those who could take would get the property. That would, in effect, be making a new will for the testator. Sir William Grant says (p. 390), that the ground of the rule was, that the Court would not give a series of particular legacies where the testator intended a gift to a class. In the present case it is argued, that on the death of the only living son the estate went to the father as heir to the son, who had a power in him of retaining the property for the other sons when and as they might be born. Such a doctrine is totally opposed to Hindu law. The Tagore case, 9 B.L.R, 377, and the Blindman's case (Kalidas Dass v. Krishna Chundra Dass, 2 B.L.R, F.B, 103) show that when an inheritance vests it vests once for all and cannot be again divested.

The two main points made by the other side are—(1) that the gift to the children is good; and (2) limitation. As to the first point, the gift in this case was in these words— “I give in equal shares to the son lately born to my sister's husband, Sreejoot Woodoy Chund Mullick, and to the son (or sons) that may hereafter be born to him.” This gift, which purports, and which I to be contended, an immediate gift to a class, is in the first place void for uncertainty, even if it be not a gift to a class; for, in Hindu law, there can be no perfect gift unless the property passes from one sentient being to another. This gift is in equal shares to a person now in existence with persons not in existence; you cannot make good by giving all to the son in existence at the testator's death, for that, as was remarked in the Tagore case, would be to make a new will for the testator, and would, in this case, be a violation of his wishes. But their the other side say, that the son in existence at the testator death may take on behalf of the others, notwithstanding that they may never come into existence. There is nothing clearer than that in Hindu law the unborn can never be the object of gift, and if your Lordships were to accede to the argument of the other side, you would be doing indirectly that which you could not do directly.

[Garth, C.J:— Could you not make a gift to all the persons who may form from time to time form a certain committee?]

Evans. Not except in the case of an idol or a charity. The Tagore case shows cleary that a gift of that kind would be void. The reason why in England it is possible to give estates of the kind mentioned by the Chief Justice arises from the fact that, under the doctrine of the contingent uses, an estate may remain in graemio legis without deing absolutely vested in any determinate person; but this doctrine is totally unknown to the Hindu law.

Markby, J.:— Is there [any difference between an absolute estate with a clause of defeasance on a given event, and such an estate as the respondents here contended for?]

Evans.— There would be a very great difference. In the case your Lordship puts, which is that of Soorjeemoney Dassee v. Denobundoo Mullick, 9 Moore's Indian Appeals, 134, the property would be wholly vested in the person taking, subject to the clause of defeasance; and at the time the will took effect, i.e, the death of the testator the person taking by virtue of that clause was actually ascertained and capable of taking.

[Garth, C.J:— In this case you cannot any that at any moment of time the property is not wholly disposed of? The whole vests in one and, when another is born the whole is in those two?]

Evan.—There would be many difficulties in the way of that explanation, my Lord. An estate left to an infant and others unborn, which might open and shut ad infinitum to let in those others as they should come into existence, would require to be limited in some way. Besides we should have completely got rid of the Tagore case.

[Markby, J., referred to Bhoobun Mohini Debia v. Hurish Chunder Chowdhry, 2 C.L.R, 339.]

Evans.—Before I go on to the Tagore case, I wish to refer your Lordships to a case which clearly shows the necessity of vesting, namely, Kally Prosonno Ghose v. Gokul Chunder, I.L.R, 2 Cal., 295. In the Tagore case, their Lordships stated their views with regard to gifts, in the first instance. [Counsel read from 9 B.L.R, pp. 395 to 400.] The conclusion at which their Lordships arrive is, “that a person capable of taking under a will must be such a person as could take a gift inter vivos, and therefore must, either in fact or in contemplation of law, be in existence at the death of the testator.” Now, if a gift to an unborn person is void, how can it be made better by joining a living person with that unborn person? To use a living person for the purpose of feeding the uses of unborn persons is merely to bring in the doctrine of contingent uses of English law. The explanation given by the Privy Council of the case of Denobundhoo Mullick is totally against such a proposition of law. It is clear, then, that these unborn persons cannot be considered as donees. It is admitted that the full 16 annas has been given over to the son which was alive, but to open on the birth of new heirs. Here, then, there is property impressed with a series of incidents unknown to the law of Bengal. Such an estate is incompatible with an estate of inheritance, which is not endowed with this quality of opening and shutting, but when once divested it descends to the heir.

[Counsel read 9 B.L.R, 401-2.] Trusts estates are, therefore, in the judgment of the Privy Council, recognised in Hindu law, but they cannot be created for beneficiaries to whom the property could not be given directly. Now, is not that the present case? Is it not an attempt to give a benefit to an unborn person? The Tagore case also shows why a law against perpetuities is unnecessary in Hindu law, namely, on account of the character of the Hindu law of gifts. But if the contention of the other side is to be upheld, the law would be as necessary here as in England, as the property might be tied up for the next fifty years.

I shall now put to your Lordships the consideration whether this is not really a gift to a class. In Jarman on Wills, vol. 1, p. 243, it is laid down that the question, whether a gift is one to a class, “depends upon the mode of gift itself, namely, that it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take equally, the share of each being dependent for its amount upon the ultimate number of persons;” and that precisely covers the present case. Porter v. Fox, 6 Simon, 485, is very like this case in some respects, and it shows that in no case will a gift to a class be turned into a gift to an individual. There is no ground on the authorities for saying Soudamoney's case should be questioned. In No. 554 of 1876— Ramloll Mullick v. Buleram Mundul — the same point came up, and Soudamoney's case was followed by Macpherson and Kennedy, JJ.

I now come to the point of limitation. The first question is, — Is there a trust? and the whole scope of the will shows that there is here a trust. Burdick v. Garrick, L.R, 5 Ch., 233, shows there needs no such thing as a legal estate to constitute a trust, and in Edwards v. Warden, 1 App. cas. 231, it is laid down that where a person gets property to manage and hold for the benefit of another, he is a trustee. This brings us clearly within the 10th section of Act IX of 1871. Vesting in that section means nothing more than clothed with the power of dealing with the property. It cannot mean that the trustee should have an estate in him, for in Hindu law which recognises trusts there is but one estate, that of the beneficiary. A trustee under as 10th section must mean, then, a person who has a right to take the possession of property, and to manage that property, not for his own benefit but for that of others. The defendant is therefore a trustee; and where on the face of a deed of trust a resulting trust appears, it is an express trust, and against the donor or his heirs the trustee cannot plead limitation. The precise point was decided in Salter v. Cavanagh, 1 Dr. & W., 668. That case shows that where you give in trust an estate of which the whole beneficial interest is not exhausted, the portion remaining undisposed of will be held on an express trust. There is no question of legal or equitable estate. The rule is, that where a man holds under a document which completely negatives any idea that he holds for himself, the law says that such a man will not be allowed to take advantage of non-claim on the part of the beneficial owner. When an express trust is made, the law writes in the deed that, if the trust fails in whole or in part, or does not exhaust the beneficial interest, then the trustee shall hold, as on an express trust, for the resulting cestui que trust. This is clearly English law, and the 10th section only expresses the English law on the subject.

The following judgments were delivered by the Court :

Markby, J.:— The following facts are stated in the plaint filed in this suit. On the 28th of January 1860, one Gopaul Lall Bysack executed a will, whereby he gave to his mother, the defendant Doorgamoney, Rs. 5,000 Company's paper for the performance of religious acts and pilgrimages, with power to sell the same, if necessary. Then he gives Rs. 5,000 to his wife, the plaintiff, Kherodemoney Dossee, for her maintenance and the performance of certain religious duties, and directs that she is to draw the interest in her own name, but she is to have no power to expend the principal. He directs his wife to live in that portion of the family dwelling house which he occupied, and to perform the religious acts with the concurrence of the defendant, Doorgamoney. He gives to his sister, Doorgamoney Dossee, Rs. 2,000, and to his sister's daughter, Kadumbenee, Rs. 500; and having thus provided for the females of his family, and having no son of his own, he directs that “whatever ready money and Company's papers will remain after deduction of the abovementioned legacies, and the family dwelling-house, tenantable land, wearing apparel, & c., whatever there are, the same I give in equal shares to the son lately born to my sister's husband, Sreejoot Woodoy Chund Mullick and to the son (or sons) that may hereafter be born (to him): when all of them will attain majority you will divide (the property) amongst them; at present you remain (are) the Kurta (Sole manager); you will support the said son, and others and my wife, (i.e,) all of them, with the amount of rent and interest on the Company's papers, and you will sell Company's papers if required in giving those sons in marriage or performing koola ???i.e, the customary ceremonies of the family.” Then follows a clause which is not very intelligible, but which seems the purpose of the present decision, immaterial, and then he says:— “You will pay my debts and get in the dues (moneys receivable to me) for the management of the above business. I, of my own accord, appoint yon my attorney, that is, executrix; you will manage the business altar asking (i.e, taking the opinion of Sree Kulla Chand Bysack, my elder brother, (or cousin) Mohashay and Sreejoot Woodoy Chund Mullick Baboo, and having sold my library that is books, & c., whatever there are, you will add that money (the proceeds of that sale) to the estate.” Then follows a gift of Rs. 1,000 to his wife in lie of certain jewellery which had been promised to her at her marriage.

The testator died on the 4th of February 1860, and the defendant Doorgamoney, having proved the will, took possession of the testator's property. At the time of the testator's death, his sister and her husband Woodoy Chund Mullick had one son only, who died in 1869 or 1870, an infant unmarried. After the testator's death two other sons were born, one of whom died in 1867 or 1868, unmarried; the other is the present defendant, Judoololl Mullick. The testator is alleged to have died possessed of Rs. 25,000 Company's papers, two dwelling-houses, and moveable property of about Rs. 2,500 value.

On the 18th of August 1865, the plaintiff instituted a suit against the defendant, Doorgamoney Dossee, for the recovery of certain jewellery and furniture; for a declaration that she was entitled to reside in the family house; for her maintenance; for Rs. 1,000 in lieu of jewellery given to her by her husband's will; for the Company's papers for Rs. 5,000 also given to her by the will; and for Rs. 19-4-8, which she had expended on her husband'. The decree in that suit, dated the 8th of March 1866, directed that the plaintiff was entitled to reside in the family house; to have the Rs. 1,000 paid to her; to have the Rs. 5,000 Company' papers brought into Court, and to have the interest thereof paid to her. The plaintiff, however, says that she has nevertheless not been allowed to reside in the family house.

The plaintiff in the present suit further submits, that the disposition in favour of the sons of the testator's sister and her husband Woodoy are void under the Hindoo law, and she accordingly asks to be let into possession of the dwelling-house, and of the other property belonging to the plaintiff forming his residuary estate, and for an account.

It is not necessary to notice the written statements, as when the case came on for settlement of issues, the learned Judge in the Court below held, first, that the whole suit was barred by limitation; and, secondly, that it was barred by the decree in the previous suit.

The plaintiffs have appealed, and in the appeal they deny that their suit is barred on either ground. The defendants, on the other hand, contend that, even if the suit be not barred, as held by the learned Judge below, the plaint ought to be dismissed, so far as it seeks to recover possession of the testator's property upon failure of the gift to his sister's sons; for, as they contend, that was in law a good and valid gift.

With regard to the question, whether the plaintiff's suit is barred by limitation, that depends upon Act IX of 1871, which contains the law applicable to this case. It seems, to me that the best way of considering this case, is to see what articles of the schedule to that Act would provide for this case if it were an ordinary case, and then to see whether there are any special provisions which take the present case out of the ordinary rule.

In order to see what articles of the Limitation Act the case falls under, we must see what the plaintiff's cause of action is, and when it accrued. The suit is brought by a Hindoo widow for Possession of the immovable and movable property of her deceased husband, who died childless; and she was entitled, as her husband's widow, to take possession of his estate on his death, except so far as his will may have given the right of possession to any other person. Now, as regards the immovable property, I do not think that, if the gift to the testator's nephews be void, there is in the will any disposition of the immovable property at all. I read the clause, which directs the defendant Doorgamoney, out of the rents and interest to support his nephews, as dependent on the clause disposing of the corpus, which preceded it, so that if one falls the other falls also. The allusion by the testator to his wife's maintenance in this clause is evidently a mistake, and that provision of the will is superfluous, as her maintenance had already been provided for in another way. As to the immovable property, therefore, if the gift to the sons of Woodoy be void, the plaintiff was entitled to immediate possession on the death of her husband, and the cause of action arose at that date.

As to the movable property, it was no doubt necessary for the defendant Doorgamoney to take possession of it, and to retain it so long as was reasonably necessary in order to wind up the affairs of the estate. As to that portion of the property, therefore, no right of suit accrued immediately, but this present suit was not brought till seventeen years after the testator's death, and the plaintiff does not allege that there were any debts, or any difficulty in getting in the estate, and, therefore, I think we may assume on the plaintiff's own allegations that her right to possession of the movable property also accrued more than twelve years before this suit was brought. This being so, the case as to the movable property must fall either under Article 118 or Article 122, aud in either view it is barred, unless there is something to take this case out of the ordinary rule.

The case as to the immovable property falls under Sch. II Art. 145; the twelve years therefore began to run when the possession became “adverse” to the plaintiff. In my opinion, the possession of the defendant was adverse to the plaintiff from the testator's death. By possession adverse to the plaintiff, I understand to be meant possession of that which the plaintiff is entitled to possess, held, not on behalf of the plaintiff, but on behalf of some other person. The defendant Doorgamoney held the property and never held it on behalf of the plaintiff. Doorgamoney's possession, therefore, was adverse to the plaintiff throughout.

Then does the case fall under any special provision which renders these, which are the ordinary rules, inapplicable? The plaintiff says that the bar of limitation which these rules create is excluded by section 10. That section provides that, “notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his representatives, for the purpose of following in his or their hands such property, shall be barred by any length of time.” The defendants, on the other hand, contend that this section has no application to the present case; they argue, first, that this property was never vested in Doorgamoney at all; and, secondly, that, if vested in her, it was not vested in her in trust for any specific purpose.

With regard to the first contention, there is no doubt that the word “vest” is not an appropriate one to describe the position of a Hindu executor in a will made prior to the Wills' Act. It has been frequently held that the mere appointment of a person as executor to a Hindu does not cause any property to vest in him at all; and that, if, as executor, he is entitled to hold the property, he holds only as manager. And ordinary persons who are called trustees do not, under Hindu law, become the owners of the property which is placed in their charge. Possibly, however, as this is an Act which contains the law of limitation for all classes of persons, the word “vest” may be used when speaking of a person standing in a fiduciary relation, not in the sense of “owned,” but in the sense of “held in possession.” At any rate, I am not prepared to say that, had the gift to the sons of Woodoy been vested, the residue of the testator's property would not have been “vested” in the defendant, Doorgamoney, within the meaning of the word “vested,” as used in section 10 of the Act.

But the question still remains, whether, under the circumstances which the plaintiff sets forth, the property was held by the defendant Doorgamoney in trust for any specific purpose. It was clearly made over to her, in the first instance, for a specific purpose i.e, to apply the profits in a certain way and then to divide the corpus amongst the sons of Woodoy, but that specific purpose is one which the plaintiff herself alleges to have failed, because it was one for which a Hindu could not devise his property. This specific object having failed, Doorgamoney was found to hand over the property to the testator's legal heirs. Being bound to do this, did she then hold it in trust for a “specific purpose” within the meaning of the Act?

If this had been an English case, the property would have actually vested in Doorgamoney, and, there being a clear intention should not take it for her own intention that she benefit, there would have been what is called a resulting trust for the heirs of the testator for whom, therefore, the executor would be a trustee. But in a Hindu will before the Hindu Wills' Act there is, as it appears to me, no room and no necessity for the doctrine of resulting trusts, which arises out of the conflict between equitable and legal estates. The Hindu executor takes no estate, but only a power of management; and, upon the special purpose for which the executor is to hold the property failing, the property undisposed of vests at once in the heirs who can sue for it. If, therefore, Doorgamoney was a trustee for the legal heir at all, it must be upon some doctrine other than that of resulting trusts.

The relation between the defendant Doorgamoney heirs was undoubtedly a fiduciary one, and, therefore, in a very general sense of the word she might be called a trustee. But I do not think the 10th section of the Act was intended to compromise all fiduciary relations whatsoever. The position of agents, factors, and managers and benameedars may be, and generally is, a one; but agents and factors are specially provided for in other parts of the Act, and benameedars are expressly declared not to be trustees.

But even if Doorgamoney and the could in any sense be called a trustee of the residue of the plaintiff's property for the legal heirs, still think she was not a trustee for a specific purpose within the meaning of the Act. In one sense, of course, she was so. Every trustee must be a trustee for a specific purpose in the sense that a purpose can be indicated to which the property held by the trustee must be applied by him; but I think the word “specific purpose” were intended as words of restriction and the conclusion I have come to is, that by “specific purpose” must be meant a purpose which has been specified by the person who created the trust. I am not prepared to say that the word “specific” in the Indian Act of limitations corresponds exact to the word “express” in the English Act. Express trusts includes besides direct trusts, implied trusts, and resulting trusts, but no constructive trusts, using those words as defined by Mr. Lewin at p. 86 of the 5th edition, in the notes. That language and the classification of trusts is, however, scarcely applicable in a country where by the word “trusts” we indicate relationship differing from that of trustee and cestui que trust under the English law, and where such relationships may be created by parol. It may, I think, well be that the Indian Legislature did not think it desirable, after a certain lapse of time, to enforce trusts which had to be gathered from the tenor of a conversation, and had not been declared by any specific words. The trust which it is now sought to enforce had not been specified by the testator, and I, therefore, think that section 10 does not apply to this case, and that the ordinary rules of limitations must apply.

This is sufficient to dispose of the whole suit, except as regards the right of the plaintiff to live in the family dwelling-house. But she has already sued once for that right and had it established. She cannot sue on that cause of action again.

In this view of the case, it is not strictly necessary to consider the other question which has been argued, namely, as to the validity of the disposition by the testator in favour of the sons of his sister's husband. I am obliged, however, to express my opinion upon a similar clause in another case, and so I think it is better to do so in this. I wish to say at once that I entirely agree in the general propositions laid down by the learned Judge below, that, if there be a gift to a class some members of which cannot legally take, the whole gift is void. The principles upon which this rule is based, as explained in Leake v. Robinson, 2 Meriv. 364, and the text books aud other decisions in which that case is commented upon, are broad principles of construction which are, in my opinion, applicable to the wills of all persons alike.

The doubt I have had is, whether any defect can be imputed to the gift in this case. It is undoubtedly a gift to a class, but it a gift to a class some members of which cannot legally take?

It is said, that inasmuch as the gift includes persons not in existence at the death of the testator, the gifts as to those persons is void, upon the principle laid down in Tagore v. Tagore, 9 B.L.R, 377. The privy Council there say of the Hindu Law as to gifts inter vivos, that it applies to all persons in existence, and capable of taking from the donor at the time when the gift is to take effect so as to fall within the principle expressed in the Dyabhaga, ch. 1, v. 21. They then say of wills, that they form of gifts, and that a will “is a fiduciary continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designated as beneficiares. They take upon the death of the testator as they would if he had given the property to them in his life time. There is no law expressly and in terms applicable to persons who can so take. The law of wills has, however, grown up, so to speak, naturally from a law which furnishes no analogy but that of gifts, and it is the luty of a tribunal, dealing with a case new in the instance, to be governed by the established principles and the analogies which have heretopre prevailed in like cases.” Further on they say, “the analogous law in this case is to be found in that applicable to gifts, and even if wills were not universally to be regarded in all respects as gifts to take effect upon death, they are generally so to be regarded as to the property which they can transfer, and the persons to whom it can be transferred;” and then they conclude “that a person capable of taking under a will must such a person as could take a gift inter vivos, and, therefore, must, either in fact or in contemplation of law, be in existence at the death of the testator.

From this it appears that wills and gifts are not indentical, but only analogous, and of course there is considerable difficalty in saying how far the analogy extends. In this same case the Privy Council say, that it does not apply where the donee is an adopted son, nor where the donee is a foetus in the womb. The Privy Council also seem to think it may not apply in some cases of provisions by way of contract or of conditional gift on marriage or other family provision.

The Privy Council also recognize the propriety of the decision in the earlier case of Soorjeemoney Dossee v. Deno Bundhu Mullick, 9 Moore's Ind. App. 123. In that case there was a devise of property to several sons with a proviso that, if either of the sons died without issue, leaving a son or sons living at his death, neither his widow nor daughter should get his share, but the property should go over “to such of my sons and my son's son (probably meaning son's sons) as shall then be alive”. This was held to be a valid devise.

In a later case not yet reported (Bhoobun Mohiny Dabee v. Hurish Chunder Chowdry) a gift was made inter vivos which had to be construed by the Privy Council. Upon a construction of the whole document it was held to be an absolute gift to a woman and her heirs, defeasible in the event of a failure of issue living at the time of her death, in which event the property was to revert to the heirs of the donor. The contest in the case was, as to whether the estate given the donee was an absolute one or not, but it was unnecessary for the Privy Council to consider the validity of the executory limitation in favour of the donor and his heirs, because they put that construction on the deed, and they say “that there is nothing in such a condition repugnant to Hindu law appears from the decision of this tribunal as to an executory devise in the case of Soorjeemoney Dassee v. Deno Bundhu Mullick, (9 Moore's Ind. App. 123,) as explained in the Tagore case.”

The way in which the case of Soorjeemoney Dassee v. Deno Bundhu Mullick was explained in the Tagore case was as follows: It was observed that the question in Soorjeemoney Dassee v. Deno Bundhu Mullick “was not as to the effect of a gift to a person not in existence, but whether a person in existence, and capable of taking under the will when it had effect, might become entitled upon a future contingency to receive an additional benefit. The testator devised an estate to several sons, with a proviso; that if either of such sons died without having a son or son's son living at his death, neither his widow nor daughter should get his share, but that the same should go over to the other sons. Their Lordships held the gift over to be valid. The point in question, therefore, was not raised, and could not have been decided as supposed.” It is observable that in these observations it is not noticed that, in the case of Soorjeemoney Dassee v. Deno Bundhu Mullick, the gift over was to the son's mm as well as to the sons. But it is impossible to suppose that these words were overlooked their Lordships.

These are the only cases in the Privy Council upon the point, and it is no doubt possible to argue, that where there is a gift to a class, the exigencies of the Hindu law as to testamentary bequests are sufficiently satisfied, if some individuals of the class are alive at the time of the testator's death, who can be the immediate recipients of the bequest. The estate would then open out for each fresh member of the class as occasion arose; and an estate of this nature would not be wholly without analogy in the Hindu law. This is, in fact, the ordinary condition of a Mitakshara family, at any rate in Madras and Bombay, where the family is certainly no longer the corporate owner, and each member at his birth takes in his own proper person some sort of joint-interest in the family property.

But nothing of this kind seems to have been contemplated by the Privy Council. They seem to have considered the cases of Soorjeemoney Dassee v. Deno Bundhu Mullick, and Bhoobum Mohiny Dabee v. Hurish Chunder Chowdhry, as forming no exception to, or extension of, the rule laid down in Tagore v. Tagore.

On the other hand, there are two cases in this Court which, perhaps, I cannot, sitting here, treat as binding authorities, but from which I should be very unwilling to differ. In Soorjeemoney Dassee v. Jogesh Chunder Dutt, Ind. L.R 2 Cal., 262, the testator directed that his property should be divided into five parts, four of which were to be enjoyed by four out of his five sons for life, and the remaining share by his two grandsons (sons of a deceased son) for life. The testator then directed, that on the death of any of his sons or grandsons leaving male issue, such male issue should succeed to the share of his deceased father on attaining the age of 21 years. There were also devises over which it is not necessary to notice. Pontifex, J., held, that the gift to the male issue of the sons or grandsons was void, inasmuch as there might be male issue born after the testator's decease.

It was also admitted at the bar, that in a subsequent case (Mullick v. Mullick, No. 554 of 1876) heard before Machpherson and Kennedy, JJ., on the Original side, but of which I am not able to obtain any report, the view taken by Pontifex, J., was adopted.

It was not contended that the devise now under consideration could be held to be valid without overruling these two decision and I have reason to believe that in other cases also these decisions have been followed.

Upon the best consideration I have been able to give to the present case, I do not think the decisions I have referred to in the Privy Council govern this case, and if I am unfettered by authority, I have then no difficulty in agreeing with the decisions of this Court. I think that, so far from seeking methods of extending the testamentary powers of Hindus, we ought to do everything we legally can to restrain them. I believe the testamentary law of England to be wholly unsuited to the wants and habits of the people of this country, and I think it wise to apply the rule laid down in Tagore v. Tagore strictly. I, therefore, hold that the bequest now under consideration is a bequest to a class some members of whom could not legally take, because they were not in being at the testator's death, and that for this reason the bequest is wholly void.

Garth, C.J:— During the argument of this case, I confess I entertained some doubt upon both the questions involved in it, but after hearing a very able argument, for which I desire to thank the learned councel on both sides, I have arrived at the same result as my learned brother, upon the following short grounds.

Upon the authority of the Tagore case, 9 B.L.R, 377, and the decisions in this Court which have been already referred to, I consider that the limitation in favour of the sons of the testator's sister and husband are void. I had some doubt, at one time, wheter Mr. Hill's argument, founded on the rule laid down in Hawkins on Wills, page 71, was not well founded, viz., that where a devise was made to a class, and some one or more of that class were living and capable of taking at the death of the testator, there was no reason why the devise should not take effect in favour of the person or persons so capable of taking, and then open out afterwards to let in any more of the class who might be subsequently born. But the able argument of Mr. Evans satisfied me that this view is not consistent with Hindu law. In England, the rule against perpetuities prevents the law contended for by Mr. Hill from producing any inconvenient results. But in this country there is no rule against perpetuities, and we have no right to introduce one; and if we were to hold that the law for which Mr. Hill contends is applicable in such a case as this, it would be applicable also where the class did not consist of sons only, but of grandsons, and great grandsons, who might not be born for fifty or a hundred years after the testator's death. I think, therefore, that the rule laid in the Tagore case applies here, and that the limitation to the testator's sister's sons is void.

The plaintiff then, as the testator's widow, would be entitiled to recover the property claimed, if she is not barred by the law of limitation. Prima facie, she would certainly be so barred because her title to it accrued upon the death of her husband and the defendant has been in possession of it on behalf of the persons for whom she has been acting as trustee for more than twelve years. But then, Mr. Phillips contended that the property had become vested in the defendant “as a trustee for a specific purpose,” within the meaning of section 10 of the Limitation Act of 1871, and, consequently, that this suit, which is brought to follow up such property in the defendant's hands, is not barred. He contended that, although the ??? which the trust was created may have failed, the defendant must be considered as holding the trust property for the testator's right heirs, and, consequently, that the plaintiff is entitled to the benefit of section 10.

Now, I should wish to give to section 10 as large a construction as the language of it reasonably allows. I could have wished, in an equitable point of view, that the scope of that section had been considerably extended, but we are of course tied down to the words of the section, and are bound to see what their true meaning is. I think, after much consideration, that what they mean is this: That where a trust has been created expressaly for some specific purpose or object, and property has become vested in a trustee upon such trust, (either from such person having been originally named as trustee, or having become so subsequently by operation of law,) the person or persons who for the time being may be beneficially interested in that trust may bring against such trustee to enforce that trust at any distance or time without being barred by the law of limitation. It teems to me that the language of the section is specially framed so as to exclude implied trusts, or such trusts as the law would infer merely from the existence of particular facts, or fiduciary relations.

That being the construction which I put upon section 10, I consider that this case does not come within its scope. The specific purpose for which the defendant became a trustee under her son's will was to carry out and protect the disposition of the property in favour of the testator's sister's sons. If that disposition had been a valid one, the persons beneficially interested in the trust might have sued the defendant, or any other person in whom the property had become vested as trustee, to enforce the purposes or objects of the trust, at any distance of time. But the plaintiff's object is the very opposite of this. She is suing for the purpose of invalidating the disposition in furtherance of which the trust was created. Her object is to defeat that trust, not to enforce it. Her interests are directly adverse to those which the trust was designed to protect, and the defendant has been holding the property adversely to her for upwards of twelve years.

I am of opinion, therefore, that the learned Judge was quite right in holding that the plaintiff's suit was barred. The defendant has stated here, through her Counsel, that she has been holding, and desires to hold, the property for the benefit of the sons of the testator's sister; and it seems to be admitted on all hands that she has been receiving the profits for them and on their behalf. The appeal will be dismissed with costs.