1. This is an appeal by Joseph Henry Jones and Ema Adelaide Jones, the executor and executrix of the late Thomas Gill Jones, claiming as the next of kin of Henry Willkin Jones, late of Calcutta, against the judgment of my learned brother, Mr. Justice Chaudhuri, delivered in 1918.
2. The parties to the suit were as follows:--The Administrator-General of Bengal, and as such the Executor and Trustee of Henry Wilkin Jones, was the plaintiff. The first defendants were the Pastor and Deacons of the Circular Road Baptist Church, Calcutta, and they were sued as representing the Baptist Church. The next defendant was the Pastor of the Howrah Baptist Church, sued as representing that Church. The third defendant was the Pastor of the Lall Bazar Baptist Church, sued as representing that Church; and, the fourth defendant was Thomas Gill Jones, whose name I have already mentioned and whose representatives are the appellants in this appeal.
3. Now, in the suit several matters were raised by the Administrator-General upon which the directions of the Court were asked; but this appeal relates to one matter only, namely, whether the bequests to the Howrah Church and the Lall Bazar Church were good and valid bequests.
4. The material portion of the will is Clause 17 which runs as follows--'On the death of the last survivor 'of them the said Eliza Humphreys, Anne Elizabeth 'Moffat Humphreys and Helen Winifred Ledlie then 'I direct my said Trustee to sell and convert into 'money all my real property and to invest the same in 'the securities of the Government of India and out 'of the said Trust Funds to hold securities of the 'Government of India for the full sum of Rupees thirty 'thousand if the said Trust Funds shall amount to so 'much or shall exceed that sum but not otherwise and 'if the said trust funds shall not amount to so much 'then to hold the whole thereof upon trust to pay the 'income thereof quarterly to two of the Deacons for the 'time being of the Circular Road Baptist Church to be 'by them applied in manner following, namely, as to a 'moiety thereof for the poor's funds in connection with 'the said Church for the sustenance and support of the 'poor belonging to the said Church or the congregation usually worshipping in the said Baptist Chapel 'and as to the other moiety for the General Fund in 'connection with the said Church for the following 'purposes' Then he sets out certain purposes. From the terms of this clause it is obvious that this was a trust both for charitable and for religious purposes. There were no less than four codicils to this will. The one which is material to this appeal is the second codicil. By Clause 7 of that codicil the testator directed as follows:--'I direct that the provision made'in my said will and codicil in favour of the Baptist 'Church Worshipping in the Lower Circular Road 'Baptist Chapel shall be subject to the following 'further conditions:
(a) That no ordained Minister of the Gospel or 'Missionary or member of the Baptist Missionary 'Society be ever elected as a Deacon of the said Church 'or be allowed to canvass for votes to secure his 'election as a Deacon of the said Church.
(b) That at each of the Communion Services 'commonly called the Lord's Supper celebrated in the 'Chapel or elsewhere, there shall be two cups used one 'of alcoholic or fermented wine and one of unfermented wine and each person communicating shall be permitted to partake of whichever cup he or she pleases 'without having his conscience overridden.
(c) That the said Deacons do not introduce any 'innovation into the practice of the said Church but 'adhere to the old practices which have always been 'observed in Baptist open Communion Churches.
(d) That before any money is paid by my 'Executors or Trustees quarterly to Deacons for the 'time being of the said Church, there shall be given to the said Executors or Trustees every quarter a 'certificate signed by the Pastor and two of the Lay 'Deacons testifying that the conditions of this and of 'the other codicil and of my will have been carefully, 'conscientiously and. strictly observed.
5. Then in Clause 8 the testator directed as follows:
I further direct that should the conditions laid down 'in the last clause hereof, or in the previous codicil 'or in my said will be broken or in anywise infringed then and in that case one half of the interest 'dividends etc. that I have set aside for the said Lower 'Circular Road Baptist Church, shall be made over and 'paid to the Pastor for the time being of the Howrah 'Baptist Church for the benefit of the said Church 'generally and the other half thereof to the Reverend 'Arthur Jewson's Faith Orphanage at present of 'No. 117 Dhurumtolla Street (if then existing) or if not' in existence to the Pastor of the Lall Bazar Baptist 'Church for the benefit of the said Church and of the 'poor of the Church.' We have no concern with the Faith Orphanage in this appeal because it was stated that the Faith Orphanage had ceased to exist at the material time and the consequence was that the two churches, the bequests to which were in question in this case, were the Howrah Baptist Church and the Lall Bazar Baptist Church.
6. The question which was argued on the appeal was whether the gifts to the Howrah and Lall Bazar Churches were invalid on the ground of remoteness.
7. It was said that by the terms of the codicil No. 2 these gifts were to vest upon the happening of a specified uncertain event viz., the failure of the Circular Road Church to perform the conditions set out in the 2nd codicil) which might be too remote.
8. It was urged that it was possible that the above mentioned event might not happen until some time (whether it is short or long is immaterial) after the lifetime of the last survivor of the persons living at the testator's decease, mentioned in Clause 17 of the will, and that consequently the gifts would he invalid by reason of Section 101 of the Succession Act of 1865; for the vesting of the bequests would be delayed beyond the lifetime of one or more persons living at the testator's decease.
9. The first point raised was that this matter was res judicata, by reason of the decision which Chaudhuri, J. had given in the same suit on the 16th of July 1912.
10. Section 11 of the Code of Civil Procedure is the material Section. That runs as follows--'No Court 'shall try any suit or issue in which the matter directly 'and substantially in issue has been directly and 'substantially in issue in a former suit between the 'same parties, or between parties under whom they 'or any of them claim, litigating under the same title, 'in a Court competent to try such subsequent suit or the 'suit in which such issue has been subsequently raised, 'and has been heard and finally decided by such Court.
11. I am not sure that, having regard to the words of the Section, it applies to this case at all.
12. It prohibits the trial of a suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit and the first explanation provides that 'the expression 'former suit' shall denote a suit which has been 'decided prior to the suit in question whether or not it 'was instituted prior thereto.'
13. In this case the previous decision was in the same suit.
14. Further, although Mr. Justice Chaudhuri in his judgment of 1912 did decide that the gift over to the Howrah and Lall Bazar Churches was valid and that there was no intestacy, he confined the directions to the disposal of the residuary Trust. Funds during the lifetime of Eliza Humphreys who was the last survivor of the persons mentioned in Clause 17 of the will, and the decree concluded as follows:--'and this Court doth not think fit at present to determine the destination of the income of the said residuary Trust Funds 'or of the corpus thereof or the rights of parties 'therein and thereto, respectively, after the death 'of the said Eliza Humphreys, and doth defer the 'determination of the said questions until after the 'death of the said Eliza Humphreys, when the parties 'entitled shall be entitled to apply to the Court in this 'suit for the determination thereof.
15. I think this provision left it open to the parties to raise the question of the validity of the gift over to the two Churches, which would be one of the questions involved in considering the matters, the determination of which was expressly deferred by the decree.
16. Further, it appears that the argument which was based on Section 101 of the Succession Act was not raised before Chaudhuri J., in 1912, and in any event, in my judgment, the previous decision of Chaudhuri J. would not prevent him considering and deciding that question on the further hearing in the same suit. In view of the abovementioned matters and the express reservation contained in the decree of 1912, which has been already referred to, I do not think the matter can be said to have been 'finally decided' within the meaning of Section 11 of the Code of Civil Procedure so as to prevent Chaudhuri J. considering the point raised in respect of Section 101 of the Succession Act.
17. In any event, in my judgment, the matter must be open to the appellants in this appeal.
18. The decree of 1912 did not finally decide all the matters raised in the suit.
19. On the contrary, it expressly deferred for determination in the future the question of the destination of the corpus and income of the residuary Trust Funds after the death of Eliza Humphreys: and this is the matter now under discussion.
20. It was in a sense an interlocutory decree in the suit and it did not finally decide the above question. This was not finally decided until Chaudhuri J.'s judgment in March 1918
21. For these reasons, in my judgment, it was open to the appellants to raise the matter in dispute on this appeal.
22. As regards the main question in the appeal, it was argued on behalf of the appellant that the question must be decided by the terms of Section 101 of the Succession Act, that the Act was one which amended and defined the rules of law applicable to intestate and testamentary succession in British India, and that unless the two Churches in question could show that the bequests to them were specifically excepted from the operation of its provisions, the Act must apply.
23. It was argued by Mr. Avetoom, for the Lall Bazar Church, that the bequest to charity was one bequest and included the gifts to the two Churches in question, and that the mere shifting of the charitable bequest from one object to another was not material and did not render the bequest invalid.
24. Mr. Camell, for the Howrah Church, argued that the rule against perpetuity involved two matters:
(i) a provision against perpetual inalienability;
(ii) a prohibition against vesting beyond a certain time.
25. He urged that perpetual trusts in favour of charities were permissible in India, and if so, there was no reason why the exception which had been grafted on to the rule in England allowing the shifting of the charitable bequest from one object to another [as in Christ's Hospital v. Grainger (1894) 1 Mac. & G. 460] should not also be permitted.
26. In other words, it was argued that the above principles of English Law were in force in India at the time of the passing of the Succession Act in 1865 and that it was not the intention of the Legislature to alter the law in India by departing from the law of England in this respect.
27. In my judgment, that is not the course which should be adopted in construing this Act.
28. In Norendra Nath Sircar v. Kamalbasini Dasi (1896) I.L.R. 23 Calc. 563; L.R. 23 I.A. 18, the Judicial Committee of the Privy Council indicated the proper mode of dealing with an Act intended to codify a particular branch of the law. At page 26 Lord Herschell's opinion in Bank of England v. Vagliano (1891) A.C. 107, 144 was approved. It is as follows: 'The proper course is in the first instance to, examine 'the language of the statute and to ask what is its 'natural meaning uninfluenced by any considerations 'derived from the previous state of the law, and not 'to start with enquiring how the law previously 'stood, and then, assuming that it was probably 'intended to leave it unaltered, to see if the words of 'the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody 'in a code a particular branch of the law, is to be 'treated in this fashion, it appears to me that its utility 'will be almost entirely destroyed, and the very 'object with which it was enacted will be frustrated, 'The purpose of such a statute surely was that on any 'point specifically dealt with by it, the law should be 'ascertained by interpreting the language used instead 'of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions...'And the head note of the Privy Council case is 'a code must be construed according to 'the natural meaning of the language used, and not on 'the presumption that it was intended to leave the 'existing law unaltered.
29. This was with reference to the Succession Act of 1865 which we have now under consideration.
30. The Act recites that it is expedient to amend and define the rules of Jaw applicable to Intestate and testamentary succession in British India.
31. Section 2 provides as follows:--'Except as provided 'by this Act or by any other law for the time being 'in force, the rules herein contained shall constitute 'the law of British India applicable to all cases of 'intestate or testamentary succession.' So that, saving the excerptions there mentioned, the rules in the Act contained are to constitute the law in India applicable to all cases of intestate and testamentary succession.
32. With reference to this Section it has been held by this Court in Nepen Bala Debt v. Siti Kanta Banerjee (1910)15 C.W.N. 158, that the words 'applicable to all cases' operate as a repeal of the previously existing law, and that subject to the exception in the Section the Courts must look to this Act and this; alone for the law of British India applicable to all cases of testamentary and intestate succession; and with regard to the exceptions, the burden is upon those who rely upon the exceptions to prove that their case comes within them.
33. The first part of the exceptions in Section 2 is clearly confined to provisions which are to be found in the Act itself, and the other half refers to provisions of 'any other law for the time being in force.'
34. I have great doubt whether this can be taken to mean that the rules of English Law, which were in force in India at the time of the passing of this Act, are to be preserved, but it is not necessary to decide that, because, in my judgment, the matter under discussion is dealt with by the Act, and the positive language of the Act, as contained in the provisions of Section 101, is sufficient to preclude the application of English Law.
35. Section 101 provides as follows:--'No bequest is 'valid whereby the vesting of the tiling 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.'
36. The provisions of this Section create a rule which is different to the rule in English Law existing at the time of the passing of the Act. The rule in English Law was that no valid interest could be created which did not of necessity vest within the prescribed period of a life or lives in being and 21 years after, subject to the exception which had been grafted upon the rule that where charities were concerned the mere shifting of a charitable trust from one object to another did not invalidate the bequest.
37. By Section 101 the above rule is departed from, for the bequest is not valid if the vesting 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 then only if the thing bequeathed is to belong to him if he attains full age.
38. By the definition in Clause 3, 'minor' means a person who shall not have completed the age of 18 years, and minority means the status of such person, so that the rule in India as Said down by the Section is different from that existing in England at the time of the passing of the Act.
39. The language of the Section is positive; it provides that 'no bequest is valid whereby, etc.' To apply the plain meaning of the language used, 'no bequest' must mean no bequest of any kind, whether a bequest to an individual or a charity. It is said that the words contained in the Section relating to the minority of some person show that this Section could not be intended to apply to a charitable bequest, but could only be applicable to bequests to individuals. I do not think this is a sound argument.
40. The Section in the first part provides that no bequest is valid if the vesting may be delayed beyond the lifetime of one or more persons living at the testator's decease; the second part of the Section provides that in a certain event the jesting may be still further delayed, i.e., it may be delayed for the minority of a person who shall be in existence at the expiration of that period (i.e., the lifetime of one or more persons already mentioned) provided that the thing bequeathed is to belong to him if he attains full age.
41. It was argued that the result of holding that a charitable bequest was included in Section 101 would be that the vesting of the bequest could not be delayed for so long a time as if the bequest had been to an individual living at the testator's decease with a gift over to a minor if he attains full age. That may be so but that docs not seem to me a sufficient reason for disregarding the plain words of the Section.
42. Section 105 deals with bequests to religious and charitable uses, so that the framers of this Act had bequests to charity in their minds at the time the Act was drafted, and they must be presumed to have known of the exception in favour of charitable bequests as laid down in Christ's Hospital v. Gnainger (1849) 1 Mac. & G. 460, and it seems to me that if the Legislature had intended to except bequests to charities from the operation of Section 101, nothing would have been easier than to add a proviso to Section 101 carrying oat the rule laid down in Christ's Hospital v. Grainger (1849) 1 Mac. & G. 460.
43. There is, however, no such proviso. The main rule of English Law in this respect has been materially altered, as I have shown, by the provisions of the Section, and that being so, and in the absence of any specific provision in the Act preserving the exception which had been grafted on the English rule of Law in favour of charities, I see no reason for holding that the Act intended the exception to be preserved.
44. The language of Section 101, in my judgment, is clear and unequivocal and applies to all bequests, whether they are of a charitable nature or not.
45. In my judgment, therefore, the bequests to the Lall Bazar and Howrah Churches are within the Section 101, and it remains to be considered what is the result;
46. It was not seriously disputed that by the terms of Clause 17 of the will and Clauses 7 and 8 of the second codicil the bequests to the Howrah and Lall Bazar Churches might not come into operation until sometime after the death of the last survivor of persons living at the testator's decease, viz., those persons mentioned in Clause 17 of the will; for the Lower Circular Road Church might have performed the conditions set out in Clause 7 of the second codicil for a time (it might have been for a year or years, the length of the time is hot material) and then it might have failed to comply with the conditions, so that the bequests to the Howrah and Lall Bazar Churches were: dependent, upon the happening of a specified uncertain event (viz., the failure by the Lower Circular Road Church to perform the conditions laid down in Clause 7 of the second codicil) which might not have occurred until sometime beyond the lifetime of persons living at the testator's decease as. mentioned in Clause 17 of the will.
47. Consequently, in my judgment, the bequests to the Howrah and Lall Bazar Churches were not valid on the ground that the vesting of the funds bequeathed to these Churches might be delayed beyond the lifetime of one or more persons living at the testator's, decease.
48. There is one more argument which I must deal with, viz., that presented by Mr. Avetoom that there was only one bequest to charity, and that it vested upon the death of Miss Eliza Humphreys. This I cannot accept, and I think the terms of the will and the second codicil make it clear that there were three bequests, one to the Lower Circular Road Church and. the other two to the Howrah and Lall Bazar Churches which latter bequests would only come into force in the event of the Lower Circular Road Church failing to perform the conditions laid down; and as regards the vesting, in my judgment, the bequests to the Howrah and Lall Bazar Churches would not vest in. them until the Lower Circular Road Church had failed to perform the specified conditions. That this must be so, is indicated by the terms of Section 107 which relate to the vesting of a legacy; the same reasoning would apply to the vesting of the be quests.
49. There is no doubt that in fact the bequests to the Howrah and Lall Bazar Churches, if valid, would have in fact come into operation on the death of Miss Eliza Humphreys, inasmuch as it appears from the decree of 1912 that the Lower Circular Road Church had not complied with the conditions contained in the codicil and was not in a position to do so; but the question does not depend upon what did in fact happen; it was admitted that the material question was whether under the terms of the will and the codicil the bequests to the two churches in question might be delayed beyond the time specified by the Act. For these reasons, in my judgment, the appeal should be allowed and a declaration made that the bequests to the Howrah Church and Lall Bazar Church are invalid, that as regards the corpus and income of the residuary Trust Funds in question after the death of Eliza Humphreys there is an intestacy, and that an enquiry by the Registrar, if necessary, should be held as to the next of kin entitled thereto. There should be a direction to the Administrator-General to make over the corpus and income to the persons so found to be entitled thereto.
50. We think that, having regard to the terms of the will and the codicils, the costs of all parties except of those to whom I shall refer directly should come out of the estate, the costs of the Administrator-General being as between attorney and client. Of the three respondents--Mrs. Blanche Grace Walsh, Wilfred Bos-well and Mrs. Nesta Naomi Sherwiu--Mrs. Blanche Grace Walsh did not appear, and we make no order as to her costs. With regard to W. Bos well and Mrs. N.N. Sherwin, we think that the proper order is this:--The question of their costs cannot be determined definitely at the present moment and will be dependent upon the enquiry as to the next of kin. The order, therefore, will be that if it turns out upon the enquiry that they are entitled as of next of kin, then they will get their costs of this appeal out of the estate. If it turns out that they are not entitled as of next of kin, they will not get costs out of the estate but will have to bear their own costs themselves.
51. We think that the Administrator-General may, pending the enquiry as to the next of kin, invest the sum which is now released, in the War Loan.
52. In my opinion it is quite clear that the question before us is not res judicata On the contrary, the decree of 1912 expressly reserved the question of the destination of the corpus and income of the residuary Trust Fund after the death of Eliza Humphreys, which is the matter now for decision.
53. On the merits, it appears from the Indian Succession Act that its framers had in mind charities, and have in fact under Section 105 made a new and specific provision therefor. The language of Section 101 is plain and applicable to the present case unless it be shown that a reservation in favour of charities existed either by virtue of the previous law or by the Act itself. The Act itself has no such reservation. Though its framers must have been aware of the leading case of Christ's Hospital v. Grainger (1849) 1 Mac & G. 460 they have not made the finding in that decision a proviso to the Section. This indicates, so fat as it goes, that it was not the intention to apply this decision to this country, and this again meets the argument that this exception in favour of charities is to be found in a law existing previously to, and now independently of, the Act, assuming that there is now such a law of succession.
54. I may here add that according to English Law a gift to charity may be bad for remoteness if it follows the gift to an individual. Upon the contention of the respondent that Section 101 docs not apply to charities at all, it follows, and indeed it is admitted, that there is no Section in the Act which would, exclude a case of remoteness not allowed by English Law. It is accordingly said that the whole matter is to be dealt with independently of the Act whether the bequest is a good or a bad one. I do not think, however, that this was the intention of an Act enacted to deal with the whole subject, There may be matters with which it has not dealt; but this is, in my opinion, not one of them, The language of Section 101 is clear and no exception is stated.
55. The argument that we are here to deal with only one bequest, is not in accordance with the facts.
56. I agree, therefore, with the judgment of the learned Chief Justice.