1. The defendant is the appellant in this case. The facts are shortly these: One Joyram Lal Mahta executed a will on the 22nd April 1878, whereby amongst other things, he bequeathed a sum of Rs. 5,000 to his son's daughter, Jodha Bibi, to be paid to her out of a certain sum of money that was due to him from the Maharajah of Bettia. The testator died on the 2nd February 1881, and Jodha predeceased him, having died in October 1879. The plaintiff' Binda Bibi, who is the daughter of Jodha Bibi, was, of course, born before the death of Joyram Lal; and the money out of which the legacy to Jodha Bibi was to be paid was realized from the Maharajah of Bettia on the 7th December 1884.
2. That being the state of things, the plaintiff, Binda Bibi, brought this suit to recover the sum of Rs. 5,000, with interest, upon the ground that she was the sole heir of Jodha Bibi.
3. The defence was that the bequest had failed by reason of Jodha Bibi having predeceased the testator.
4. The Court below overruled this objection, and gave the plaintiff a decree according to the provisions of Section 96 of the Indian Succession Act which applies to wills of Hindus, holding that as the bequest was in favour of a lineal descendant of the testator, and as that lineal descendant died leaving issue, the bequest did not lapse.
5. The defendant has appealed and the two objections urged on his behalf are, first, that even if Section 96 of the Indian Succession Act was applicable to this case, still, there being a clear intention in the will, inferable from other provisions in that document, that the legacy to Jodha Bibi should Iapse in the event of her predeceasing the testator, the Court below was wrong in giving the plaintiff a decree; and, in the second place, that though Section 2 of the Hindu Wills Act makes Section 96 of the Succession Act applicable to wills of Hindus, generally, yet, having regard to the provisions of Section 3, it must be held that Section 96 cannot operate in favour of the plaintiff so as to prevent the lapsing of the legacy.
6. With regard to the former of these two contentions, we think there is nothing in it. The provision of the will to which reference was made, as indicating a contrary intention, is a bequest in favour of one Ram Churn Lal, the brother of the testator, that provision being to the effect that the legacy is bequeathed to Earn Churn Lal, and, in case of his death, to his sons and grandsons. It has been contended that as there is no similar provision in the case of the bequest to Jodha Bihi, we must take it that the bequest to Jodha Bibi was for her personal benefit alone. We do not think that any such inference follows. In construing this will, we must take it, that the testator knew the. law that governed his case; and if, under that law, Section 96 of the Succession Act could prevent a lapse in the case of a bequest to a lineal descendant, it was not necessary for the testator to have made any provision in the case of the bequest to Jodha Bibi, such as he has made in the case of the bequest to Earn Churn Lal, in whose case there is not a similar rule for preventing the legacy from lapsing. Therefore, the question of a contrary intention, being inferable, depends upon the other question, viz., whether Section 96 applies to this will.
7. This brings us then to the second contention raised by the learned Counsel for the appellant. That contention is sought to be supported in this way It is urged that the parties being Hindus, and it being a settled rule of Hindu law as laid down in the Tagoro case, that none but a person in existence, either in fact or in the contemplation of law, can take a bequest under a will, to allow Section 96 to have operation in this case in enabling Jodha Bibi to take a bequest at a time when she was dead, would be in direct contravention of that rule. And, in support of this contention, the case of Alangamonjori Dabee v. Sonamoni Dabee I.L.R. 8 Cal. 637 is referred to. That case no doubt puts a comprehensive meaning upon the language of the last clause of Section 3 of the Hindu Wills Act, and would apparently lend some support to the appellant's contention. But the facts of that case were not the same as the facts in the present case, and all we need, therefore, say about that case is that it cannot be taken as governing the one now before us.
8. In the present case the mode in which the bequest to Jodha Bibi has been construed by the Court below and has to be construed under the provisions of Section 96 of the Indian Succession Act, is one that comes, in our opinion, within the rule in the Tagore case 9 B.L.R. 377 which is laid down in these terms: 'A person capable of taking under a will, must, either in fact or in contemplation of law, be in existence at the death of the testator. Now, Jodha Bibi was, in the contemplation of law as provided in Section 96, a person in existence at the time of the testator's death, because a lineal descendant of hers survived the testator. That being so, we do not think that by giving effect to this bequest, the rule in the Tagore case is in any way contravened.
9. It was urged that when that rule speaks of a person being in existence in the contemplation of law, the law referred to must be taken to be the Hindu law. We do not think that that is so, for in the judgment in the Tagore case we find that their Lordships, when speaking of a person in embryo as being a person in existence, referred to general principles of jurisprudence for coming to that conclusion and not to any specific rule of Hindu law.
10. We may also observe that the effect of our upholding this bequest is to make the legacy vest in Binda Bibi, a person who was in existence at the time of the testator's death, so that, in fact, the application of Section 96 does not lead to the creation of any estate which the testator could not have created under the Hindu law. We think, therefore, the Judgment of the Court below upon this point ought to be upheld.
11. An objection was taken that the Court below was wrong in allowing interest upon the legacy; but we do not think that objection to be of any weight, having regard to the provisions of Section 131 of the Probate and Administration Act.
12. The result is that this appeal must be dismissed with costs.