Viscount Haldane, J.
1. The questions which arise for decision on this appeal relate to the construction and validity of the provisions of a will dated April 27, 1897, and made hy a Hindu G. Ratna Mudaliar, who died in 1904. He left a widow and three daughters. One of these daughters, Yesodammall, died in 1907 : another, Rajammal, in 1908; and the third Nilayathatchi Ammal, in 1918. Yesodammall had four children, as to three of them, two sons and a daughter, born belore the death of the testator in 1904, and as to one of them, born afterwards in 1907. Rajammal, the second daughter, had had a son Tirugnansambandam, who was born in 1907. This child was constituted a ward of Court in 1910. Nilayathatehi Ammal, the third daughter, had six children, three sons and three daughters, all born after 1904. Of these various families the three sons of the third daughter were plaintiffs in the suit and are appellants today, The others were defendants and are now respondents.
2. It will be convenient first of all to set out the material portion's of the will:-
I give devise and bequeath all ray estate and effects immoveable and move-able unto my trustees upon trust that my trustees shall sell, call in and convert into money the same or such part thereof as shall not consist of money and shall with and out of the proceeds of such gale calling in and conversion and with and out of my ready money pay my funeral and testamentary expenses and debts and shall stand possessed of the residue of such proceeds upon trust to set apart thereout and invest in promissory note of the Government of India such a sum or sums of money as when so invested as aforesaid will produce by the income thereof a monthly sum of rupees one hundred and to pay such income monthly to my wife C. Andalammal during her life and from and after her decease to stand possessed of the said sum and the investments for the time being representing the same Upon the Trusts hereinafter declared concerning the residue of my estate. And as to the residue of my estate I direct that my trustees shall at their discretion invest the same in any of the modes of investment in which trustees are by law authorised to invest trust funds and shall stand possessed of the said residuary trust monies and the investments for the time being representing same (hereinafter called ' the residuary trust funds '), In Trust to apportion the residuary trust funds into as many equal parts or shares as there may be daughters of mine living at the time of my decease or who having predeceased me shall have left issue her or thorn and me surviving and to pay the income of each of such equal parts of shares to my said daughters respectively during their respective lives. And from and after the decease of each of my said daughters to stand possessed of the share of the residuary trust funds so appropriated as aforesaid to such daughter Upon Trust for all the children of such daughter who shall attain the age of twenty-one years in equal shares and if there shall be only one such child the whole to be in trust for that one child and in the event of any of my said daughters dying without leaving lawful issue for or them surviving I direct that my trustees shall stand possessed of the share or shares so appropriated to her or them as aforesaid Upon Trust for all the children of the other or others of my said daughters who shall attain the age of twenty-one years as tenants-in-common in equal shares per stirpes. Provided always and I hereby declare that if any daughter of mine shall die in my lifetime leaving lawful issue at the time of my death such issue as shall attain the age of twenty-one years shall take and if more than one as tenants-in-common in equal shares per stirpes the share which would have been so appropriated as aforesaid to such daughter of mine and her issue if she had survived me.
3. The suit was instituted in the High Court of Madras for a due construction of the will and for administration. The plaintiffs, the present appellants, were, as already stated, grandsons of the testator and children of his third daughter. Their case is that they, along with the sons of the other two daughters, are entitled to succeed to the testator's residuary estate subject to an annuity to the widow and to mere life estates given to the three daughters, who are all now dead. For they contend that the trusts in favour of grandchildren, following in the will on those for the daughters for life, are void by the law of India. The case of the respondents, on the other band, is that the trusts introduced in favour of grandchildren were validly created by the will, or alternatively, that the three daughters of the testator in the result took his residue absolutely.
4. The case was tried before Mr. Justice Courts Trotter, who decided in substance (1) that the testator gave only a life estate to each of his three daughters, and not an absolute estate remarking: 'It seems to me clear that what the testator wished to do was to divide the income of his estate into three shares for the benefit of his three daughters respectively during their lifetime, and thereafter the corpus of each share should belong to such of the children of each daughter as should attain the age of twenty-on years'; (2) that under the provisions of Section 3 of the Hindu Willis Act, 1870, and the rules laid down by the lords of the Judicial Committee in the case of Tagore v. Tagore (1872) L.R.. IndAp 47. and other decisions, the gifts to the grandchildren of the testator born after his death were void; but that the provisions of the Madras Act I of 1914, which were not in his opinion ultra vires of a Provincial Legislative Council, validated the bequest in this respect. The learned Judge was further of opinion that the testators will did not, for reasons which he gave, contravene the Indian rule against perpetuities in view of the provisions of Act IX of 1875, as amended by the Guardians and Wards Act, 1890.
5. There was an appeal to the appellate civil jurisdiction of the High Court of Judicature at Madras. Before judgment on that appeal was delivered certain compromises were made between certain of the parties, for the division between them of what might be the fruits of this litigation. Into the terms of the compromise it is not, however, necessary, at this stage of the suit, to enter.
6. The appeal was heard by the Chief Justice (Sir John Wallis) and Mr. Justice Ramesam. These learned Judges did not agree with the view of the trial Judge as to the effect of the Indian Majority Act, 1875, and of the Madras Act I of 1914, (which they held to have been ultra vires of the Provincial Legislature). They were accordingly of opinion that the disposition of the will could not take effect as regards beneficiaries born after the death of the testator, and, as the provisions in favour of issue of daughters were obnoxious to Section 101 of the Indian Succession Act, 1865, they thought that the whole disposition in favour of the daughters' children failed as a result of Section 102 of that Act. They held, however, that upon the true construction of the will the intention of the testator was, in the first instance, to make an absolute gift in favour of each of his three daughters, the provisions which followed being a mere settlement of the gift thus absolutely made, and that consequently under Section 126 of the Indian Succession Act 1865, the daughters of the testator took absolutely, when these provisions failed of effect. That section, made applicable to the testator's will by tile Hindu Wills Act (XXI of 1870) is as follows :-
Where a testatsr absolutely bequeaths a fund, so as to sever it from his own estate, but directs that the mode of enjoyment of it by the legatee shall be restricted so as be secure a specified benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him, as if the will had contained no such direction.
7. This is an enactment in statutory form of a principle which was already familiar to English lawyers. The case of Lassence v. Tierney (1837) 1 M. & G. 551 shows that where, reading the will as a whole, the intention to confer an absolute estate in the first instance is expressed or implied, and following on that absolute estate there is a provision for settlement which in the event cannot be operative, then the words of prior intention prevail and the absolute estate takes effect notwithstanding the failure of the provision for settlement that follows. In India the words in Section 126 must be followed as laying down the principle, but the principle is not substantially different from what was expressed in Lassence v. Tierney, Their lordships have given consideration to the terms of the will in the present case. The material directions are those to the trustees 'to apportion the residuary trust funds into as many equal parts or shares as there may be daughters of mine living at the time of my decease or who having predeceased me shall have left issue her or them or me surviving.' The trustees are then to 'pay the income of each of such equal parts or shares to my said daughters respectively during their respective lives. And from and after the decease of each of my said daughters to stand possessed of the share of the residuary trust funds so appropriated as aforesaid to such daughter upon trust for the children of such daughter who shall attain the age of twenty-one years.' The testator then directs that in the event of any of the daughters dying without leaving lawful issue the trustees are to 'stand possessed of the share or shares be appropriated to her or them as aforesaid' on trust for her children who shall attain twenty-one. He goes on to introduce a proviso under which, if a daughter dies in his lifetime leaving lawful issue, such issue as shall attain twenty-one years are to take the share 'which would have been so appropriated as aforesaid to such daughter of mine and her issue if she had survived me.
8. Reading the will as a whole their lordships are unable to agree with the conclusion about the construction of these clauses come to by the Court of Appeal, They think that the first trust for apportionment directs merely division of the fund into as many equal parts or shares as there are daughters living at the testator's death, or sets of issue then living of daughters then dead.
9. The words of appointment are introduced for merely arithmetical purposes and so far do not dispose of property. In order to find the interest given under the will it is necessary to proceed to the further words, and these in the case of a daughter, confine her interest to a right to income for life. They are followed by words of disposition in favour of the children and issue. This view of what may be called apportionment clause is even more apparent as regards the suggested gift to issue of a deceased daughter, There is no unqualified gift to them by the apportionment clause The effective gift in the later words of the will is to such of a deceased daughter's children as attain twenty-one. And if, of this will it could be said that the testator had used the words 'issue' and 'children' interchangeably then the limitation to such children only as attained twenty-one would, if there were a prior gift to them without that qualification, be merely otiose. If so much cannot be said then there is no room for the operation of the rule. Their lordships are, therefore, unable to find in this will the absolute bequests required by Section 126, They think that three daughters took only for life, and that it must remain to be seen whether the later gifts in favour of their children or other issue are validly made under Hindu law.
10. Turning to this question, the first observation to be made that the will has apparently been drawn by someone familiar with English law, but not with the Indian statutes which apply. If it were only a question of the English rule against perpetuities, there would be no objection to the will But there comes in Section 101 of the Indian Succession Act of 1865, Under this section 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 (ending at eighteen) 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. The validity of the gifts now in question must be scrutinized as at the death of the testator, i.e., 1904, and if Section 101 then applied the disposition subsequent to the lifetime of the testator's daughters was invalid, for the children of the daughters take only in classes, and by Section 102 of the Indian Succession Act, if a bequest is made to a class of persons, with regard to some of whom it is inoperative by reason of the rules contained in Section 101, the bequest is wholly void. It being plain that this bequest, tested as at the testator's death, made delay beyond the lifetime of the daughters and the minority of some of their children possible, the bequest in favour of the children was inoperative. It was suggested, however, that this section had no application to the will of a Hindu by reason of the fact that, as is shown by the Tagore v. Tagore case (supra), any disposition in such a will is invalid if the disponee is an unborn person at the testator's death, The section, it was said, is only applicable to dispositions which are not otherwise ineffective. One answer to this was that in 1914 the Madras Act above referred to was passed which purported to get rid of the difficulty caused by the Tagore v. Tagore decision. This Act provides by Section 3 that a disposition shall not be invalid by reason only that the transferee or legatee is an unborn person at the date of the transfer, or the death of the testator. Questions were raised, as has already been observed, in the Courts below as to the validity of the Madras Act, but these questions are now superseded by the Act of the Indian Legislature, No. 8 of 1921, which has validated the law contained in the Madras Act, and repeats in Section 5 a provision identical with Section 101 of the Indian Succession Act, 1865. The result is to make that section applicable to this will, upon a view which was not contested before their lordships if the Madras Act or the Act of 1921 were treated as operative. Now in that section, as has been already said, a 'minor' means any person who shall not have completed the age of eighteen years. It was, however, pointed out by the respondents that, by the Majority Act, 1875, every minor of whose person or property a guardian has been or shall be appointed by any Court of Justice, and every minor under the jurisdiction of any Court of Wards, shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before; and this is accompanied by a provision that every other person domiciled in British India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not earlier. These provisions do not, however, in the opinion of their lordships, help the respondents. At the testator's death-for this purpose the relevant date-it was not clear, and could not be certain, whether all or any of the members of the classes in whose favour the disposition was made would ever have guardians appointed. The provision of the wilt fixing twenty-one in every case as the age of vesting was, therefore, in contravention of Section 101, and the whole gift is invalid under Section 102. Their lordships are unable to agree with the view expressed in some detail on this point by the learned trial Judge.
11. Their lordships are of opinion, for the reasons they have given, that the appeal must succeed. There will be a declaration that the appellants are entitled to their respective shares in the property in suit as upon an intestacy, subject to the life estates (now at an end) in favour of the testator's daughters. This will be without prejudice to the compromises referred to in the decree appealed from, and to the sanction given to them by that decree. The case must go back to the High Court for further inquiry on that footing. Their lordships do not think it necessary to interfere with the orders as to costs made in the Courts below. They think that the costs of this appeal should, in the same way, be payable out of the estate.
12. They will humbly advice His Majesty accordingly.