Lawrence Jenkins, K.C.I.E., C.J.
1. The only question arising on this appeal is whether the defendant Ardeshir Cursetji Powalla acquired under his father's will an interest, which vested on his insolvedency in the Official Assignee.
2. The testator by the 10th clause of his will directed that all the rest residue and remainder of his property should be divided into four equal shares; that one such share should be given to each of his sons, the 3rd and 4th defendants: and that another share should be held in trust to pay the income there of to his son Pallonji Cursetji Powalla until he should attain the age of 21 years, and on his attaining that age in trust to pay the share to him absolutely.
3. By the 11th clause of his will the testator directed as follows:- 11. As regards the remaining one equal fourth share of the said residue I direct that if at the time the said residue is divisible my son Ardeshir shall have no debts due by him or any liabilities likely to result in a debt on debts of morethen Rupees Five thousand the said share shall be made over to him absolutely but if other wise then I direct that' the said share shall be held or settled by my Executors upon trust Until the said Ardeshir shall be free from such debts and liabilities oruntil (sic) shall die to apply the income of the same in or towards the maintenance and support of him his wife and Children or such or one or more of them the saidArdeshir (sic) wife and Children as the trustees may at their absolute discretion determine and the education and other benefit of such children including their marriage but when and be soon as he the said Ardeshir shall be free from such debts and liabilities as aforesaid upon trust to pay the same and all unapplied income if any to him the said Ardeshiir absolutely....
4. On the 5th October 1889 the testator died.
5. On the 8th of February 1890 the defendant Ardeshir filed his petition for relief under the In solvent Debtors Act, and on the 20th of August 1890 judgment was entered up against him in the name of the Official Assignee for Rs. 58,265-14-6, the amount of his scheduled debts.
6. On the 30th of January 1895 it was ordered that satisfaction be entered up on the judgment, and that the Official Assignee should deliver over to the defendant Ardeshir the balance of moneys, property, books of account, papers, documents, &c.; relating to his dealings and transactions, if any, in the Official Assignee's possession, or subject to his control, and it was further ordered that the same be vested in the defendant Ardeshir.
7. Notwithstanding these Insolvency proceedings and the entry of satisfaction, it is common ground that the defendant Ardeshir still continued to have debts due by him of more than Rs. 5000, and at no time has he been free from indebtedness to that extent.
8. It is in these circumstances that the question involved in this appeal arises: the Official Assignee contends that the debts and liabilities, to which the 11th clause refers, are only those in existence at the time the residue was divisible: the appellants, who are Ardeshir's wife and children, contend that the clause must not be read in this limited sense.
9. Though it was argued before Chandavarkar J. that the residue would not be divisible until the whole estate had been realized, this point was abandoned before us, and the only question discussed has been whether the trust in Ardeshir's favour 'when and so soon as he the said Ardeshir shall be free from such debts and liabilities as aforesaid 'has reference only to debts and liabilities existing at the time when the residue was divisible, for if not, then admittedly the trust in favour of Ardeshir has not arisen and the Official Assignee is not entitled to the share he claims.
10. Chandavarkar J. decided in the Official Assignee's favour: ' such debts and liabilities ' in his opinion mean such as existed when the residue became divisible.
11. But he was led to this conclusion by the sense in which he thought the word such had been used in other parts of the will. The extent to which this consideration influenced the learned Judge in rejecting the defendant's contention appears from that part of his judgment where he says, 'If in the will this had been the only use of the word 'such' I should have allowed that contention,'
12. Mr. Lowndes, however, has sought to support the conclusion wholly on other grounds: he has argued that the antecedent to such debts and liabilities is to be found in an expansion of the words ' but if otherwise. ' If that which is involved in them is expressed, then, according to his argument, the antecedent will be found to be debts and liabilities existing when the residue becomes divisible.
13. Is this the true construction of the testator's will? If so, then it was within Ardeshir's power to defeat the testator's scheme at any time, by the simple expedient of discharging the debts and liabilities existing at that point of time by for rowing money or creating substituted liabilities for that purpose. But, in my opinion, the view, for which Mr. Lowndes contends, cannot be accepted. The debts and liabilities of Ardeshir to which Clause 11 relates are ' debts due by him or any liabilities likely to result in a debt or debts of more than Rupees five thousand, ' and it is, I think, with debts of that description that a comparison is implied by the use of the word such. Time (in my opinion) is no part of their description ; it is extraneous to it, and the reference to time is made only to indicate the event on which certain consequences are to follow according as debts and liabilities of the description indicated do or do not exist.
14. The point does not admit of elaboration, and is one which would strike different minds in different ways. And though I naturally hesitate to differ from so careful a Judge as Chandavarkar J., this is the conclusion to which I come.
15. The result then is that the decree of the first Court must be reversed and the suit dismissed. The cost of all parties throughout will come out of the residue, those of the executors as between attorney and client.