1. The first ground upon which the deed of settlement of October 13th, 1894 was impeached by the plaintiff was that it was executed by Rajaratna in ignorance of its content'and its legal effect. The suggestion was that when Rajaratna executed the deed he did so under the belief that he was merely appointing his brother-in-law Guruswami as his agent.
2. The trustees appointed by the deed are Rajaratna's wife and his wife's brother Guruswami. There is not a title of evidence that anything in the nature of undue influence was exercised by Guruswami or that Rajaratna was not in full possession of his faculties when he executed the document. The solicitor who drafted the instrument deposed that its contents were explained to Rajaratna. During his lifetime Rajaratna never disavowed or attempted to repudiate the document. His cousin Gopalaswami (the father of the plaintiff), the representative of the branch of the family whose interests were adversely affected by the deed, was aware that it had been executed and took no steps to get it set aside. Rajaratna's wife joined in the deed and conveyed her own private estate to the trustees, and she was also one of the trustees appointed by the deed. It is not suggested that there was any motive for executing the deed such as defeating creditors or otherwise carrying out a sham transaction. The motive for which the deed purports to have been executed, viz., to relieve Rajaratna, who appears to have been a bad man of business, of the responsibility of managing his property and of making provision for his widow and grand-children and their issue, was a perfectly natural one. There is nothing in the circumstances connected with the registration of the instrument, or in the fact that the mitta remained registered in Rajaratna's name, which is inconsistent with the view that Rajaratna knew he was divesting himself of his property and that he intended to do so. It is not necessary to discuss in detail the evidence on which the appellant relied as showing Rajaratna did not know what he was about when he executed the deed. The evidence merely shows that Rajaratna, so long as he lived, continued to take a more or less active part in the management of the property and the trustees wore content that he should do so. This is natural enough. On the other hand we find that Rajaratna wrote to his cousin Gopalaswami six months before the execution of the deed (exhibit G) a letter in which, after referring to his money troubles, he stated that he intended, according to Gopalaswami's advice, to execute a document for the purpose of paying creditors, taking fixture income for expenses and receiving a fixed monthly income for himself Again on May 7th, 1896 a mortgage (exhibit L) was executed by Rajaratna and the two trustees in which the settlement of October 13th, 1894 is recited.
2. We agree with the Subordinate Judge that the plaintiff entirely failed in his attempt to show that when Rajaratna executed the deed he did not know what he was about.
3. It was further argued on behalf of the appellant that, assuming that Rajaratna understood the effect of the document, the document was inoperative, because Rajaratna did not do all that the law required in order to divest himself of the property. The argument was that something was required over and above the execution of the conveyance and the registration, something in the nature of physical delivery of possession in order to transfer the property. There is nothing in Section 6 of the Trusts Act to suggest that trust-property cannot be effectively transferred by a registered instrument. Section 123 of the Transfer of Property Act expressly provides that for the purposes of a gift of immoveable property the transfer must be effected by registered instrument. We see no reason for holding that what is sufficient in the case of a gift of laud is not sufficient in the case of a conveyance of land in trust We are of opinion that the deed in question operates as a transfer of the property and a valid declaration of trust.
4. The real difficulty in this case is with reference to the terms of the document, and this difficulty arises from the fact that the draftsman has followed forms and has used terms of art, with an imperfect appreciation of their legal effect.
5. Under the dead, lauds are conveyed by Rajaratna and his wife to trustees in trust to pay Rajaratna during his lifetime Rs. 100 a mouth, or the net income of the property after paying expenses and the interest on a mortgage (the amount in no case to exceed Rs. 100 a month). It was obviously intended, though the deed does not say so, that this payment should be made during the joint lives of Rajaratna and his wife, and during the life of the survivor, because the deed goes on to provide that on the death of the survivor the Rs. 100 a month, or the net income, shall be paid to Vijiavalli and Rukmani the two grand daughters of Rajaratna in equal shares, On the death of either of the grand-daughters the trustees are to pay Rs. 50 a month to the male issue of the deceased grand-daughter and Rs. 50 a month to the surviving grand-daughter for life. The deed further provides that on the death of the survivor of the grand-daughters the trustees are to hold the property in trust for the sons of the grand-daughters who attain 18 and the daughters of the grand-daughters who attain that age or marry and 'during the said period' the trustees are authorised to expend Rs. 60 a month on the males of each branch of the family for their support and education.
6. It is next provided that a female child on the consummation of her marriage or attaining 18 shall be paid Rs. 1,000 in full discharge of her claim against the trust-property and that a male child on attaining 18 shall be given his share of the property. There is a further provision that neither in the female child, nor in the male child of the grand-daughters, the trust-property shall vest until 'the said children' in the case of sons attain the age of 18 and in the case of daughters attain that age or marry Grammatically, no doubt, the words 'the said children' should be read as referring to all the children of the grand-daughters who attain 18 or marry. Bur we do not think this was the intention of the deed. We think the intention was that the words should refer to 'the female child' and ' the male child' mentioned in the same proviso and that it was not the intention that the vesting should be postponed until all the children attained 18 or married, but that the share of each child in the corpus should vest in interest and in possession when he came of age or (if a female) came of age or married. This construction makes the provision consistent with the preceding provision and puts in a negative form what the preceding provision puts in an affirmative form. The other construction is contradictory of the proceeding provision.
7. The instrument ends with a direction that the divisions and payments referred to in the deed (i.e. the division amongst the sons and the payments to the daughters of the two grand-children) should not be made until after the grand-daughters were past child bearing. As under the deed, on what appears to be the proper construction of the instrument, the division and payments are not to be made until after the death of the survivor of the grand-daughters; this last direction is meaningless and, in attempting to construe the deed, we may ignore it.
8. Vijiaralli and Rukmani, the two grand-children, married the fifth and sixth defendants who are sons of Guruswami (one of the trustees under the deed). Each grand-daughter had one son and these two sons are the third and fourth defendants. They were both in being at the date of the execution of the settlement. At the date of the death of the surviving grand-daughter they were both minors. The widow (the first defendant) is still living.
9. The question is--is the gift to the children of the granddaughters good under Hindu Law or is it bad for remoteness or on any other ground?
10. The main contention on behalf of the appellant was that the interest was created for the benefit of a class, viz., the children of the grand-children and that, with regard to some members of the class the interest failed since the disposition contravened the law against perpetuities as embodied in Section 14 of the Transfer of Property Act, and this being so, the instrument failed as regards the whole class under the provisions of Section 15 of that enactment. Section 2(d) of the Transfer of Property Act provides that nothing in the second chapter of the Act, in which the sections above referred to occur, shall be deemed to affect any rule of Hindu Law. It seems necessary therefore first to consider whether there is any rule of Hindu Law which would govern this case.
11. Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick 9 M.I.A. 134, is an authority for the proposition that under the Hindu Law a settlement by way of remainder on an event to happen immediately on the close of a life in being is good. In the present case all the parties to whom an equitable estate for life was conveyed wore in being at the date of the settlement. On the determination of these life estates the trustees were to hold the property in trust for the children of the grand-children who were not of age or, if females, were unmarried and not of age, and as each child came of age, or, if a female, married, the child was to take his or her share of the corpus. (This as has been pointed out seems to us the right construction of the settlement.) During the minority of any male child the trustees were to hold the property in trust to make provision for the maintenance and education of that child.
12. It seems to us that in the present case the event, viz., the trust in favour of the children of a grand-child was an event which was to happen upon the death of the grand-child or of the widow, whichever should last happen (all being lives in being at the date of the settlement) and that on the authority of the Privy Council decision, the settlement on the children of the grand-children by way of remainder was good. In Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 B.L.R. 377, the Privy Council in dealing with Sreemutty Soorjeemoney Dossee v. Denobundoo Mullic 9 M.I.A. 134, pointed out that the question in that case was not as to the effect of a gift to a person not in existence, but whether a person in existence might become entitled on a future contingency. The Privy Council in the latter case do not question the soundness of the view taken in the earlier case on the facts of that case, the all important fact being that the donee was in existence at the date of the settlement; and a passage in page 400 indicates that they entertained some doubt as to whether it was essential in all cases that the donee should be in existence at the date of the settlement. The passage runs: 'Their Lordships, adopting and acting upon the clear general principle of Hindu Law that a donee must be in existence, desire not to express any opinion as to certain exceptional cases of provisions by way of contract or of conditional gift on marriage or other family provision, for which authority may be found in Hindu Law or usage.'
13. In a recent case the question whether the rule in Leake v. Robinson 2 Mer. 363, applied to the wills of Hindus was exhaustively discussed before a Full Bench of the Calcutta High Court Bhagabati Barmanya v. Kali Charan Singh I.L.R. 32 Calc. 992, the Full Bench were of opinion that it did not apply. The same view was taken by Garth, C.J., and Sir Arthur Wilson with regard to a gift inter vivos in Ram Lal Sett v. Kauai Lal Sett I.L.R. 12 Calc. 663. We do not think the latter case can be distinguished on the ground suggested, viz., that the grand-children who were in existence at the date of the gift were in that case referred to by name. We agree with these decisions. It seems to us that, notwithstanding that the gift was to a class, and that it was possible that some members of the class might come into existence after the death of the donor, the gift can be upheld under the Hindu Law on the short ground that the third and fourth defendants were living members of the class at the date of the gift.
14. We now proceed to deal with the case upon the assumption that it is governed by the provisions of the Transfer of Property Act Sections 5 and 6 are the enabling sections. Section 6 provides that property of any kind may be transferred, with certain exceptions whilst Section 5 defines 'Transfer of Property' as an act by which a living person conveys property, in present or in future to one or more other living person?. As regards Section 14 it seems to us that the answer to the question whether the gift to the children of the grand-children contravenes the law against perpetuity as embodied in that section depends upon the construction to be placed upon the words 'said children' where they occur in the proviso to the settlement which begins 'and provided always that neither in the female child nor in the male child.' If these words are to be construed as referring to all the children of the grand-daughters who attain 18 or, if females, marry, we think the gift is bad because, as regard must be had to possible events and not to the events which actually happened, before the gift could take effect a longer period might elapse than the life times of persons in being at the date of the settlement and the minority of some persons in existence at the expiration of that period. If the interest did not vest till all the children of the grand-children came of age, and if children were born after the death or the settler, the vesting would be postponed until the expiration of a longer period than lives is being aid the minority of a person in existence when the lives in being come to an end.
15. But, as has been already pointed out, this does not seem to us to be the true construction of the deed. We think the words 'said children' mean each child, and if the share of each child in the corpus is vested in interest and in possession when he comes of age, the provisions of Section 14 are not contravened. If this be the true view, Section 15 does not apply and the interest created by the settlement favour of the children of the grandchildren does not fail. No doubt children might have been born to the grand-children after the death of the settler, but whether the widow died first or the surviving grand-child died first, no child of a grand-child could come into existence after all the estates for life came to an end. Any such child must necessarily in the words of Section 14 be 'in existence at the expiration of that period.'
16. As regards items 4, 5 and 6 in the deed of settlement we think the finding of the Subordinate Judge that these items of property r belonged to the first defendant (the widow) and not to Rajaratna, and that the plaintiff has no reversionary interest therein, was right. There seems to be no conceivable reason why the widow should have joined in the deed with her husband and conveyed these lands in trust to herself and her co-trustee if she was not in fact the owner of the lands.
17. It has been stated that the third defendant has died a minor, since the institution of this suit. For the purposes of this case it is act necessary for us to decide whether his interest in the property passes to the fourth defendant, or whether it lapses to the estate of the deceased Rajaratna. We express no opinion as to this.
18. We affirm the decree in so far as it declares that the will is not true and the adoption is invalid. Subject to this the appeal is dismissed with costs and the suit is dismissed.
19. In view of our finding in favour of the deed of settlement the memorandum of objections filed by the defendants was not argued. We dismiss it with costs.