Shah, Acting C.J.
1. This is an appeal from a judgment of Mr. Justice Kanga. The Originating Summons which has given rise to this appeal was taken out by Ratanbai, the widow of Rustomji Edaljee Dadachanjee, for the construction of a will dated February 10, 1913, made by her husband, who died on July 17, 1913. When he made his will in February his wife was pregnant and she gave birth to a son on May 27, 1913. The infant died on July 2, 1914. The defendant No. 1 is the brother of the deceased Rustomji and the sole executor under the will. Defendant No. 2, who was subsequently joined, is the daughter of Rustomji by another wife who had predeceased him. The defendant No. 1 took out probate of the will on October 3, 1913. The probate with a copy of the original will which is written in the Gujarati language and its translation is marked Ex. A. The questions that were raised in the summons were these:-
(1) Whether under the will of Rustomji Edalji the bequest of the residue of his estate to his son was vested in interest at the date of the testator's death or was contingent on the said son attaining the age of majority ?
(2) Whether if the bequest was vested it was divested by the death of the said son before attaining the age of majority ?
(3) Whether the plaintiff as the heir of the said son is entitled to the said bequest and
(4) Whether the estate of the said Rustomji Edalji Dadachanjee should be administered by and under the directions of this Hon'ble Court?
2. The fifth question was subsequently added which is as follows:
(5) In the event of the bequest of the residue to the son being held to be contingent, whether the 1st defendant in entitled to the residue under the said will or whether the testator died intestate as to his residuary estate.
3. The learned Judge was of opinion that the bequest of the residue of his estate in favour of his son was contingent on the said son attaining the age of majority.
4. The second question did not survive for consideration.
5. The answer to the third question really depended upon the answer to the first question, and the question was answered in the negative.
6. The fourth question as to the direction to administer the estate was also answered in the negative, and it was held as regards the fifth question that the first defendant was entitled to the residue of the estate.
7. In the appeal before us the same questions have been reagitated, and the most important question among them is the first question whether the bequest in favour of the son was contingent or vested in interest. The other question is whether under the residuary clause the executor got the estate subject to the payment of the legacies mentioned in the will.
8. In the course of the argument several English cases were cited, but it seems to me that the questions, so far as they relate to the construction of the will, must be answered with reference to the terms of this particular will. It is hardly necessary to point out that the reference to the English decisions cannot be of any help on those questions. Their Lordships of the Privy Council point out in Norendra Nath Sircar v. Kamalbasini, Dasi that 'to construe one will by reference to expressions of more or less doubtful import to be found in other wills is for the most part an unprofitable exercise,' and they further point out that 'to search and sift the heaps of oases on wills which cumber our English Law Reports, in order to understand and interpret wills of people speaking a different tongue, trained in different habits of thought and brought up under different conditions of life, seems almost absurd.' To the same effect are the observations in Bhagabati Barmanya v. Kali Charan Singh and these observations are emphasised in the recent decision of Dinbai v. K.B. Nuserwanji Rustomji in Privy Council Appeal No. 47 of 1921, not yet reported. In dealing with the construction of the will I propose to confine my attention as far as possible to the terms of this will. In the case of Dinbai v. K.B. Nuserwanji Rustomji the general principle is stated in these terms: 'The rule of law is to ascertain the intention of the testator as declared by him, and apparent in the words of his will, and to give effect to this intention so far as, and, as nearly as may be, consistent with law.'
9. The will in question was made by a Parsi gentleman who left considerable moveable and immoveale properties in Bombay, Deolali, Nasik, Kherwadi and Naosari, and a flourishing business in Bombay. It is written, as I have said, in the Gujarati language and in the handwriting of the testator himself. He does not appear to have consulted any lawyer, and on its face it is a will written by a layman. As regards the translation of this will in the trial Court there was some difference between the parties but ultimately the learned Judge accepted the translation of the will which was attached to the probate. That is the translation which has been referred to in the course of the argument before us, and that is the translation, to which. I shall refer. I may also mention that I have referred to the original will which is in Gujarati, and derived such assistance as the perusal of a document of this nature in the original may give; but I may say generally that the sense of the original is fairly conveyed almost on all points in controversy in the translation to which I have referred.
10. It will be convenient to set forth the material parts of the will before proceeding to deal with the questions which have been raised in the argument before us. It may be mentioned that thought the paragraphs are numbered in the translation and in the copy of the will there are no paragraphs in the original.
11. The testator has appointed his brother Dr. Cawasji Edalji Dadachanjee as the sole executor.
12. In the fourth clause the testator directs that after thirteen months have elapsed after his death the legacies (the word used for that in the original is 'Varsa') shall be paid without interest and that none of his heirs was to raise any objection thereto, and that if any of them raise any objection the legacies shall not be paid to them.
13. The next paragraph which appears as paragraph 5 in the translation is very important and runs as follow:-
My present surviving wife Ratanbai is now in the family way. And she has expressed in my presence her free will and accord to live as a member of the family with my executor (i.e.) my elder (or eldest) brother Doctor Cawasji Edalji Dadachanjee. As to whatever children (child) there may be born of her womb my brother shall bring up and maintain the same. And my said executor shall defray all the expenses in connection therewith out of my property and effects. And he shall maintain the family. (The expression maintenance of the family includes) that of the maintenance of my said executor also. Should a daughter be born of the womb of my wife Ratanbai, she shall be brought up and maintained and shall be educated properly and myexecutor or after his death his executors or executrices shallafter making outlays in accordance with my circumstances get her married at a proper place (i.e. in a suitable family). Should a son be born he also shall be cherished and maintained, and educated and brought up. And when he comes of age my executor or after his death his executors or executrices shall make over the whole of my remaining properties to the said son. Should the child (whether daughter or son born of the womb of my wife, die in tender age, i.e., a minor, and should my wife for any reason whatever be unwilling to live as a member of the family with my executor then my executor shall out of my property purchase Bonds for Rs. 5,000 bearing interest at 4 per cent, at the market rate and shall transfer the same to the name of my said wife, Ratanbai.
14. In the sixth paragraph the interest in the Bonds which are referred to at the end of the above paragraph is absolutely given to his wife.
15. In the next following paragraph certain furniture and effects and pots and pans belonging to the testator have been given to his wife absolutely. The testator further provides as follows.- 'Except this my said wife Ratanbai shall have no right over my estate and effects for maintenance or (no right) of any kind whatever or shall have (no right) even to her funeral (and subsequent) expenses (being paid by my estate). This arrangement (or provision) has been made at the desire of the said Ratanbai herself.' She is also given the ornaments or trinkets, clothes, and wearing apparel made for her.
16. In the next paragraph the testator provides for the funeral expenses of his mother-in-law and directs certain legacy to be given to his daughter Dehebanu by his predeceased wife. Then he provides that '(save and) except this my daughter Dehebanu shall not have any right to or interest in my property whatever the same may be or wherever the same may be situated.'
17. Then he gives certain legacy to his female Mukadam Muktibai Bhikaji Jayakar.
18. He also gives a legacy of Rs. 3,000 to his sister Avabai, and the same sum to his other sister Bai Bachubai.
19. He provides then for outlays in connection with his death at the discretion of his executor.
20. Then he provides for the withdrawal of his moneys from his business at the discretion of his executor.
21. In paragraph 14 the testator provides as follows:-
After having defrayed all the household expenses out of the income of my Punji (property), as to whatever there may remain ever my executor shall, if he thinks proper, expend the same in giving encouragement to education and the works of science and arts as well as in erecting troughs for cows (and) cattle to drink water from. In case my executor should not do that he has absolute authority to do so. If he likes he may make outlays in this manner or he may not even make the same.
22. In paragraph 15 he makes a certain bequest in favour of his brother and provides that he shall be the absolute owner of the interest in those properties.
23. Though in the translation under Clause 16 there are two paragraphs, in the original it is all in one paragraph, and he provides in that paragraph as follows :-
As to the whole of the effects and furniture chattels in my house and the goods and property whatever there may remain over after payment of the above 'Varsas' I bequeath the same to my said executor.
24. In paragraph 18 the testator further says :-
Should (any Varsa) in respect of the above matters become null (and void) through objections connected with any law whatever or in any other way, then I bequeath all those 'Varsas' to my said executor.
25. It is contended on behalf of the widow that under Clause 5 the bequest in favour of the son was vested in interest at the death of the testator and that as the infant son survived the testator the property must go on the death of the son according to the rule of Parsi Intestate Succession to the heir of the infant son. It is contended that having regard to the provisions of Section 106 of the Indian Succession Act there is a bequest in favour of the son which is not in any sense contingent upon his attaining the age of majority but which only specifies the time for the delivery of possession of the property in question. It is further contended that even if the bequest in favour of the son be treated as contingent on his attaining the age of majority, in view of the provisions in the will as to the maintenance of the son the case falls within the Exception to Section 107, and that as in substance either the whole or part of the income, or the whole of the income with a part of the corpus is to be used for the benefit of the son, the case is clearly covered by the Exception.
26. On the other hand, on behalf of respondent No. 1, it is argued that the bequest in terms is contingent as there are no words of prior gift to the son but there is only provision to hand over the property to his son 'when he (the son) comes of age,' and that Section 106 of the Indian Succession Act does not apply but Section 107 would apply. It is also contended that the Exception to Section 107 would have no application as the provision as to maintenance does not mean that any income or any part of the income as such is to be applied for the benefit of the son, and further that even if that (sic)
27. It is contended that the word used is ' tyare ' (sic) which would indicate by necessary implication the use of the correlative term 'jyare'
28. (sic) the word 'upaj', i.e. income, and provides that after having defrayed all the household expenses out of the income of his 'punji' or property, as to whatever there may remain over it may be spent by the executor for educational and other purposes at his discretion. I am not sure that the testator really used the word 'income' there in the sense of 'income' as distinguished from the 'corpus'. It is possible that he meant the whole of the corpus with the income as realized by the executor. The word used, however, in Gujarati which has been correctly rendered in English by the word 'income' indicates ordinarily and primarily income as distinguished from the corpus, and the testator evidently contemplated that the maintenance of the family including the maintenance of the son was to be out of his estate. I do not think that it is essential for the application of the Exception that the direction to the executor should in terms refer to 'income' or a part of it. It is sufficient in my opinion if in substance that meaning is indicated, and I find it difficult to avoid the inference that that was really the meaning of the testator.
29. It remains to deal with the further contention that these provisions as to maintenance are not in terms limited to the income but they may extend to the use of the corpus. It is quite true that under the provisions of the will the expenses incurred for the maintenance of the son and other persons may go beyond the income, but that would not be sufficient to take the case out of the Exception. This is by no means an easy point. Though it has been urged on behalf of respondent No. 1 that if the direction to the executor is to use the property for the benefit of the legatee, so as to include the power to exceed the income, the Exception would not apply. No authority has been cited on his behalf in support of that proposition, and on principle I am unable to see any reason why the direction to use the property including the income primarily for the maintenance of his son should not be sufficient to bring the case within the Exception. I recognise that this view of the Exception to Section 107 would tend to defeat to a large extent the intentions of the testator as I gather them from the language used by him. But I am unable to see my way to hold that these provisions as to maintenance of the family and of the son are insufficient to bring the case within the Exception to Section 107. The ignorance of the testator as to what constitutes the vesting of legacies may lead to the use of language which may tend to defeat at times the intentions which he has most at heart. This case appears to me to be of that type. It is needless to refer to any of the cases which have been cited. I rest my decision upon the meaning of the words used in the will and upon the application of the Exception to Section 107 to the provisions of the will as I understand them. On this point I am unable to agree with the view taken by the lower Court. After referring to certain English decisions the learned Judge has come to the conclusion that the Exception to Section 107 does not apply because the provisions as to maintenance do not refer to the whole income but to a part of it. and, secondly, because those provisions are wide enough to include the power to the executor to spend the corpus also. As regards the first point, it seems to me that the rule referred to in the English decisions would not apply because the Exception here in terms refers not only to the whole income but to a part of the income as well. Where the provisions in the will amount to a direction to spend a part of the income for the benefit of the legatee, it would be sufficient to bring the case within the Exception. As regards the power of the executor to spend a part of the corpus, if necessary, I do not think that it is sufficient to repel the application of the Exception if it otherwise applies. I think, therefore, that the first question should be answered in the sense that the bequest in favour of the son was vested in interest at the date of the testator's death.
30. The second question which did not arise in the view which the learned Judge below took of the first question, it is enough to say that there is no divesting clause in the will, and the only clause which may possibly be referred to as divesting the estate vested in the son would be the clause relating to the bequest of Bonds worth Rs. 5,000 in favour of his wife in case the son died before attaining majority. But the simple answer is that really speaking there is no divesting clause. The intention, as I have already said, of the testator undoubtedly was that the property on the death of the son, if he died a minor, should not go to the widow. But that is an intention which, if the bequest is vested, is defeated by the operation of law, and the situation cannot be saved by reading that clause as divesting the estate which on the application of the provisions of Section 107 must be treated as vested. I would answer it in the negative.
31. As to the third question, if the bequest was vested in the son, it would go to his representatives after his death. Until the letters of administration are taken out it is difficult to say that the plaintiff is his representative, in view of the provisions of Section 190 of the Indian Succession Act. At the same time it is clear that the plaintiff would be the heir of the infant son according to the rules of intestate succession among Parsis under Act XXI of 1865. That question may be answered in the affirmative subject to the proviso that the letters of administration are obtained.
32. As regards the fifth question, I think that if the bequest of the residue in favour of the son be held to be contingent the residue goes to the executor as provided in Clause 16 of the will. It has been contended before us that even if the bequest in favour of the son be held to be contingent, the words used in Clause 16 are insufficient to give the residue of the estate to the executor. I am, however, unable to accept this contention. It seems that the interpretation of this clause was much debated in the lower Court, and it has been also debated before us; but I do not feel any such difficulty as was felt in the lower Court. I do not see any need to read this clause as preceding Clause 5. I am content to read it, as it should be read, as coming at the place in the will where it occurs. The natural explanation of the Somewhat defective wording appears to me to be that when the testator came to provide for the residue in favour of the executor he really forgot to add the words 'in case the son died before attaining majority' which he had inserted in Clause 5 while providing for the particular bequest in favour of his wife. If he had put in those words there would not have been the slightest doubt. But in effect that is the meaning of the words used. I have no hesitation in rejecting the contention that the expression 'the effects and furniture chattels in my house and the goods and property whatever there may remain over after paying the varsas' is not correctly translated, and that the true meaning of the expression used is, that only the goods and property in the house are Conveyed and not the whole of the residue. It is enough to say on this point that the words used are clear as I read them and they mean the whole of the residue as left over after the legacies previously mentioned in the will are satisfied. Of course if the legacy in favour of the son takes effect, the residuary clause in favour of the executor would not take effect. But as to the meaning of the residuary clause I have no doubt and the intention of the testator is made further clear by the provision made in paragraph 18. His intention was to make it clear so far as he could that the property, subject to the payment of the legacies referred to in other paragraphs, should go to his son in the first instance, and if that failed on account of the death of the boy during infancy, it was to go to his brother. The testator intended that nothing beyond what was expressly given under the will should go to his wife. But the provisions made by the testator as regards the maintenance of his infant son bring the case within the Exception to Section 107; and that is a provision of law which must be given effect to, even though it tends to defeat the intentions of the testator. Having regard to the view which we have taken on the first question it is not necessary to express any opinion on this point. But as it has been fully argued I see no objection to do so. My answer to the question is in the affirmative.
33. After delivering the judgment on the above points we have heard the parties today on question No. 4 as to whether any order should be made as to the administration of the estate of the testator. As regards that question, I do not see why there should be any direction for the administration of the estate in these proceedings. The parties have not suggested any such reason and I do not think that under the circumstances such a direction is required. Further, it appears from the arguments on this point that there may be some further points of dispute between the parties, which cannot be properly dealt with on this summons. Besides, until the letters of administration are taken out in respect of the estate of the infant son, it is difficult to direct the executor to hand over the residue to the plaintiff, I would make no order for the administration of the estate of the testator. On these grounds I would allow the appeal, and answer the questions as indicated in this judgment.
34. Having regard to the difficulty of construing this will as also to the fact that for a number of years the parties interested really acted upon the view that the residue of the estate effectively went to the executor under this will, I think the costs of all parties should come out of the estate as between attorney and client.
35. In paragraph 3 of the will the testator appointed his brother as executor. In paragraph 4 he directed the executor to pay certain legacies which are defined in paras 8 to 15 of the will.
36. So far there is no difficulty. The only part of the will that presents any difficulty is paras 5 to 16, where the testator makes provision for his family and for disposal of the residue, His wife was pregnant and in para 5 the testator, believing that his wife and the child that may be born to her would live with his brother, the executor, directs that they all should be maintained by the executor. This direction is contained in the following paragraph of the will:-
My present surviving wife Ratanbai is now in the family way. And she has expressed in my presence her free will and accord to live as a member of the family with my executor my elder brother Doctor Kavasji Edalji Dadachanji. AS to whatever child there may be born of her womb my brother shall bring up and maintain the same. And my said executor shall defray all the expenses in connection therewith out of my property and effects. And he shall maintain the family. The expression maintenance of the family includes that of maintenance of my said executor also.
37. Then follow more particular directions as to maintenance according as the child should be a daughter or a son. If daughter, 'she shall be brought up, maintained and shall be educated properly and my executor shall after making outlays in accordance with my circumstances get her married at a proper place.' If son, 'he shall also be cherished and maintained, and educated and brought up. And when he comes of age my executor shall make over the whole of my remaining properties to the said son'.
38. I would here note that this direction is one sentence in the original. There is no full stop after 'brought up' and the Gujarati word translated as 'make over' is 'swadin karo' which literally refers to possession rather than to ownership.
39. Then follows a direction that on the death of the child during its minority the mother if she preferred not to live with and be maintained by the executor should receive bonds worth Rs. 5000, some furniture, household effects, and ornaments. These directions are stated in paras 5, 6 and 7 of the will.
40. If there were no further provision in the will there would be an undisposed of residue
(1) if a daughter was born
(2) if a son was born-on the death of that son during minority in case he did not take a vested interest.
41. This contingent residue the testator disposed of in Clause 16 of the will. I agree for the reasons given by Kanga J. that this clause refers to the whole residue. There in no inconsistency between this residuary bequest and the bequest of the residue to the son, for it refers only to 'whatever there may remain over after payment of the above varsas' (i.e., legacies or bequest). In other words Clause 16 is subject to Clause 5.
42. So far the provisions of the will are harmonious and the only real difficulty is the question whether the son took a vested or contingent interest. Now the interpretation of the will is governed by the Indian Succession Act. Kanga J. held that Section 106 did not apply as the only gift was a direction to pay at a future time. Then applying Section 107 he held that the case did not fall under the Exception-(a) because the income was to be applied to the maintenance of others besides the legatee; (b) because power was given to the executor to use the corpus for maintenance.
43. Now it is conceded that the first reason (a) though supported by English cases is not valid under Indian law. The Exception to Section 107 goes beyond the English law and it is sufficient to bring the case within the exception if the direction is to apply so much as may be necessary of the income to the maintenance. That is the case here and indeed the inclusion of the mother and the uncle in the provision for maintenance is really for the benefit of the son as it is a means of making a home for him.
44. Then as to reason (b) assuming that the general direction to defray all maintenance expanse 'out of my property and effects' includes a power to spend the corpus, does that prevent vesting It is no doubt inconsistent with the direction to postpone payment or possession, but it is no more inconsistent with immediate vesting than a power of advancement: see, for instance, Vivian v. Mills (1839) 1 Beav. 315; In re Parker; Barker v. Barker (1880) 16 Ch. D. 44. A power of advancement is generally an argument in favour of vesting; see Theobald on Wills, p. 588. But I do not think the power to defray maintenance expense 'out of my property and effects' was intended to give a power to deal with the corpus. In para 14 the testator speaks of all his household expenses being defrayed out of income.
45. I am, therefore, of opinion that the bequest to the son is within the Exception to Section 107 and that he took a vested interest.
46. This conclusion is further supported by the fact that the bequest was of the residue and the phrase used is 'swadin karo' or 'make over' As said by the Privy Council on a similar phrase in Harris v. Brown I.L.R. (1901) Cal. 621 'the executor as guardian would have charge of the share vested in the son and these words merely point to the possession or enjoyment of it'.
47. The direction that in case of the death of the son or daughter the executor should pay the widow a lump sum for the maintenance is inconsistent with the son taking a vested interest. But it has not the effect of divesting the interest and, in so far as it applies to the case of a son, is in ray opinion void for repugnancy : In re Dixon; Dixon v. Charlesworth (1903) 2 Ch. 458. The answers to questions will, therefore, be :- (1) The bequest of the residue was vested at the time of the testator's death. (2) It was not divested by the death of the son. (3) The plaintiff as heir of the son is entitled tc the bequest on obtaining letters of administration. (5) Not necessary.
48. Question No. 4 is a prayer for administration by the Court. We have heard the parties on this question and on the question of costs. It is usual to include a prayer for administration 'so far as may be necessary' in order to give the Court wider power to deal with the matters raised in the summons. It is not obligatory on the Court to make an order for administrtaion if the questions between the parties can be determined without such order being made. See Rules of Supreme Court, Order LV, Rule 10. The rights of the parties have been determined and as to the enforcement of these rights there may be defences. I, therefore, answer question No. 4 in the negative.
49. As to costs, the usual practice in summons for construction and in administration actions where the executor has not been guilty of misconduct should be followed. Costs of all parties as between attorney and client should come out of the estate.