1. This is a suit in which the plaintiff asks to have the will of one Chandranath Chowdhry construed, and to have certain provisions of that will declared invalid, and for other relief.
2. The will was made in 1872. The testator died in 1873, leaving no sons but the plaintiff, his widow, three unmarried daughters, the defendant his mother, and other female relatives.
3. By his will he appointed the defendant and others executrix and executors, of whom the defendant alone obtained probate. He gave monthly allowances in money to various female relatives, including Rs. 4 to the plaintiff, his widow, and Rs. 2 to each daughter while unmarried, which, on her marriage, was to go to the plaintiff; or if she lived elsewhere than in the family dwelling-house, Rs. 4 to the plaintiff for life. Certain Government papers he appropriated for the marriage expenses of his daughters, if necessary, and subject to this the plaintiff was to have the papers, but without power of sale, and to provide from the interest for certain poojahs. The plaintiff was also to enjoy the income of accumulations, when invested in Government paper or immoveable property, as directed by the will.
4. Then follow the most material parts of the will:
"God forbid, but should I never have a son, in that case my daughters' sons, when they come to years of discretion, shall receive the properties in equal shares. If any daughter be childless or become a widow, she shall receive a monthly allowance of Rs. 10 as long as she lives and resides in my ancestral family dwelling-house, and she will be able to get for her lifetime, in lieu of maintenance, property yielding Rs. 120; she will not be able to sell it; and when the daughters' sons get all said property, my mother Thakooranee and three uterine sisters shall receive property sufficient to yield them each Rs. 10, or a total of Rs. 40, for their lifetime, in lieu of monthly allowances, and they shall be at liberty to reside in the ancestral family dwelling-house. They shall not be competent to sell the property. My wife Alangamonjori Dabee, when my daughters' sons arrive at years of discretion, shall remain in sole tenancy of the whole of the property, and according to her own judgment pay either the above mentioned monthly allowances in cash or give property in lieu thereof, and enjoy the same as long as she lives. God forbid, but should my three daughters have no sons, or not be likely to have sons, then such of those daughters as shall reside in my ancestral family dwelling-house shall receive monthly allowances of Rs. 10 a month from the Sircary estate. When my wife, Alangamonjori Dabee, shall consider that her mother-in-law, sister-in-law, or daughters are above trouble, and that there is no objection, then, if there are no sons of my daughters, she will be able to sell all the said property."
5. The case came on for settlement of issues, and it appeared that the principal controversy was as to the validity of the gift to the daughters' sons. The subsequent gifts were also said to be void as being dependent on this as the principal gift.
6. The important question is, therefore whether the gift is valid.
7. Under the Hindu law in force, prior to the Hindu Wills Act, it is clear that such a gift to unborn persons could not take effect. But the will in this case was made after the Hindu Wills Act came into operation, and is governed by it. And the question, whether such a gift is good under that Act, has not, so far as I have been able to ascertain, been the subject of judicial decision.
8. Section 2 of the Hindu Wills Act (XXI of 1870) applies to the wills of Hindus and others made on or after the 1st September 1870, and a large number of sections of the succession act. Amongst these are Sections 98,99,100, and 101.
9. Section 98 is as follows:
"Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as shall be alive at the testator's death. Exception.--If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them as shall be then alive, and to the representatives of any of them who have died since the death of the testator."
10. Section 99 is as follows:
"Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void. Exception,--If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall at such later time go to that person, or if he be dead, to his representatives."
11. Then Section 100 says:
"Where a bequest is made to a person not in existence at the time of the testator's death subject to a [162] prior bequest contained in the will, the latter bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed."
12. And Section 101:
"No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's decease, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong."
13. Of these sections, Section 98, which is taken from Part xi ("Of the Construction of Wills") deals, amongst other things, with the construction and operation of a gift to a class, some of whom come into existence between the death of the testator and the time when the gift takes effect. See illustrations (d), (e), (g), and (h).
14. Sections 99, 100 and 101 are taken from Part xii ("Of Void Bequests").
15. Section 99, by the exception, deals with gifts to persons described as standing in a particular degree of kindred to a specified individual; and in express terms it declares, that such a gift is to take effect, if any person answering the description comes into existence between the death of the testator and the time to which possession is deferred.
16. That section further deals with two cases of deferred gift,--one where the gift is deferred by reason of a prior bequest; the second, when it is deferred otherwise. Illustrations (b), (c), (d) are examples of gifts deferred by reason of a prior gift; illustration (e) of a gift deferred otherwise.
17. The section, if it stood alone, would absolutely and without restriction empower a testator to give property to unborn persons standing in any particular degree of kindred, provided those persons come into existence before the gift is to take effect in possession.
18. The gift now in question falls within this rule. It is a gift to the unborn children of his three daughters, to take effect when those children attain their majority.
19. Sections 100 and 101 embody restrictions upon the power conferred by Section 99. By Section 100, a gift to an unborn person subject to a prior bequest is void, unless it be an absolute gift of the whole remaining interest of the testator. There is no prior gift in this case, so that this section does not apply.
20. Section 101, which is general in its terms, invalidates any bequest, which delays the vesting beyond a life or lives in being, and the minority of the donee, who must be living at the close of the last life.
21. This section governs such a case as the present. But its requirements are complied with.
22. If, then, these sections are to take effect, it follows that the Hindu law, as established in the Tagore case, has been materially altered, and that the gift now in question is valid.
23. The difficulty arises from Section 3 of the Hindu Wills Act. The last proviso of that section is as follows:
"Nothing herein contained shall authorize any Hindu, Jain, or Sikh, or Buddhist to create in property any interest which he could not have created before the 1st day of September 1870,"
24. It was argued that the interest given to the sons of the testator's daughters is an interest created in property, that it is one which could not have been created before the Hindu Wills Act took effect, and that, therefore, it is still void by reason of the last proviso.
25. The meaning thus sought to be put upon the words 'create any interest' is one which, I think, they may fairly bear. But if the construction contended for be correct, then the whole of Section 99, except the first clause, is inoperative. Section 100 is entirely so. Section 101 is inoperative, because it falls far short of the restrictions existing without it. Now all these form parts of Section 2 of the Hindu Wills Act; therefore, if the argument be sound, the Legislature has in Section 2 enacted an elaborate set of provisions, and in Section 3 it has abolished them all. And in Section 6 it has again referred to them as law, and laid down rules for their construction. If the Legislature has seen fit to legislate in this fashion, I am bound, of course, to accept the fact, and to administer the law accordingly. But I am equally bound to avoid such a conclusion if I can. I am bound to follow the rule adopted and approved by the Queen's Bench Division as a "settled canon of construction,--namely, that a Statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant. See Reg. v. Bishop of Oxford L.R. 4 Q.B.D. 261. If, therefore, a meaning can be found for the words 'create any interest' which will give reasonable effect to those words without overruling the sections embodied in Section 2, that meaning ought to be adopted. In my opinion such a meaning may well be placed upon the words in question. Amongst the many classes of questions arising upon gifts and wills, there are most prominently questions as to the subject-matter of the gift, questions as to the estate or interest sought to be given, and questions as to the capacity of the donee to take.
26. Under the first head are all such questions as the power to deal with debutter property, or of a member of a Mitakshara family to take a gift.
27. Under the second head fall such questions as that of the power to create an estate, such as is dealt with in the Tagore case,--namely, an estate-in-tail male, the power to give an estate which shall never be descendible to any one of another gotra, or an absolute estate, but without power of partition, or without power of sale, or gift, or which shall be liable to forfeiture, if any inheritor shall marry a widow or give a widow of his family in marriage. Of some of these there are examples to be found in the books, and of all of them I have more than once met with examples in this Court.
28. Under the third head, the capacity of the donee, fall such questions as the validity of gifts to unborn persons.
29. It seems to me that the third head may properly be, and indeed logically ought to be, regarded as quite distinct from the second.
30. The Tagore case had not been before the Privy Council when the Hindu Wills Act was passed. But it had been before the Court of appeal; and the judgment of Peacock, C.J., in that case throughout took the question of the estate which may be created by will as an entirely distinct question from that of who may take a gift under a will.
31. The Legislature, had they intended broadly to say that no disposition by will should be valid after passing of the Hindu Wills Act, which was not so before, could easily' have said so in a few words as has been done with the Probate and Administration Act (V of 1881), Section 149.1 But they have not done so. They have, in Section 3, dealt with the property which may be bequeathed and with the interest that may be created, but have said nothing about the person to whom a bequest may be made.
32. These considerations tend to show that the words 'create an interest' are to be read in the narrower sense as referring only to the estate or interest which can be given without reference to the further question to whom it can be given. And as that view of Section 3 gives a meaning to the words of that section at the same time that it allows the sections embodied in Section 2 to take effect, I think it ought to be adopted.
33. That the objection in the present case is purely to the persons and not to the interest in the narrower sense is plain from this; that if the same gifts had been given in the same terms, but the daughters' sons had been living at the testator's death, the payments would have been good without the aid of the Statute. See the cases of Soorjemonee Dassee v. Denobundo Mullick 9 Moore's I.A. 135 explained in Tagore v. Tagore 9 B.L.R. 377.
34. I must, therefore, decide against the plaintiff upon the question of the validity of the gifts to the daughters' sons and the other gifts said to be dependent upon such gift.
35. She has, however, an interest under the will in respect of her annuity, the Government paper, and the interest accumulations, which is sufficient to entitle her to an account of the testator's estate.
36. Until the account is taken, none of the other questions as to the present rights of the parties can usefully be dealt with.
37. Costs of all other questions are reserved.
1[See. 149: Nothing herein contained shall:
Saving-clauses.
(a) validate any testamentary disposition which would otherwise have been invalid;
(b) invalidate any such disposition which would otherwise have been valid;
(c) deprive any person of any right of maintenance to which he would otherwise have been entitled; or
(d) affect the rights, duties, and privileges of the Administrator-General of Bengal, Madras or Bombay.]
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