1. The law is clear that, prior to the passing of the Hindu Wills Act (XXI of 1870), a gift by will to a person unborn at the time when the testator died was void, with a few exceptions which we need not consider now, as they have no application to the present suit.
2. The law was so declared in 1873 by Peacock, C.J., and Norman, J., overruling Phear, J., and also by the Judicial Committee of the Privy Council in 1872, affirming on this point the decision of the first-named Judges, in the case of Jatendra Mohun Tagore v. Ganendra Mohun Tagore 4 B.L.R. O.C. 103; s.c. on appeal to P.C. 9 B.L.R. 377; L.R. I.A. Sup. Vol. 47.
3. I believe that the decision in the Tagore case (4 B.L.R., O.C.,103; s.c., on appeal to P.C., 9 B.L.R., 377; L.R., I.A., Sup. Vol., 47, so far as it declared the invalidity of a bequest to persons unborn at the testator's death, came with surprise upon some members of the Profession, if not upon the Profession generally; and that, until that decision, it had at least been taken very much for granted that such bequests were valid.
4. When the Hindu Wills Act, however, was passed, and came into force, the law had been settled in the way I have mentioned by the highest authority known in our Courts.
5. The question to be determined here is, whether the Legislature have changed the law in this respect, and whether such a gift is now valid by virtue of the Hindu Wills Act, Section 2, which, amongst other sections of the Indian Succession Act, 1865, extends to the wills of Hindus made on or after the 1st of September 1870, the 99th, 100th, and 101st sections of the Indian Succession Act.
6. I may observe in the first place, that the preamble of the Hindu Wills Act does not disclose any intention in the Legislature to extend the testamentary power of Hindus; the sole objects of the Act being, as there stated, to 'provide rules for the execution, attestation, revocation, revival, interpretation, and probate of the Wills of Hindus.'
7. The sections of the Indian Succession Act above referred to occur in that chapter of the Act which relates to Void Bequests. Section 99, after laying down the rule that a bequest is void, 'when made to a person by a particular description, and no such person exists at the testator's death,' permits an exception when such person stands 'in a particular degree of kindred to a specified individual, but his possession is deferred by reason of a prior bequest.' Section 100 provides in effect that the deferred bequest must comprise the whole of the remaining interest of the testator in the thing bequeathed; and Section 101 contains a rule against perpetuities, which necessarily recognizes the exception contained in Section 99.
8. Did the Legislature, in passing the Hindu Wills Act, intend that the exception mentioned in the 99th Section should extend to the case of Hindu wills executed after the 1st of September 1870; and, by thus conferring upon Hindu testators the power of bequeathing their property to unborn persons answering a certain description, change the law as laid down in the authority which I have cited
9. This question might perhaps have admitted of an affirmative answer but for the fifth proviso in Section 3 of the Hindu Wills Act, which enacts, that 'nothing in the Act contained shall authorize any Hindu to create in property an interest which he could not have created before the 1st of September 1870.'
10. The words 'to create in property an interest' apply both to the quantity and quality of the interest created, and in their natural and ordinary meaning include the capacity of a donee to take. A deceased Hindu testator may be said to create an interest in property which he could not have previously created as well when he makes a gift of his estate in-tail-male as when he makes a gift to a person unborn at the date of his death.
11. The proviso in question was, in my opinion, introduced into the Hindu Wills Act, for the very purpose of preventing the application to Hindu testators of the specific sections mentioned in Section 2 of the Act from being construed into an enlargement of their testamentary power.
12. But it has been contended, and successfully contended, in the Court below, that a narrower construction should be put upon the language of the proviso, and that its operation should be confined to the capacity to take on the part of the donee.
13. The consequence of giving the wider meaning to the phrase is stated in the judgment of the lower Court to be, that 'the whole of Section 99, except the first clause, is inoperative; Section 100 is entirely so; and Section 101 is inoperative, because it falls short of the restrictions existing without it.' The learned Judge considered himself bound to avoid this consequence, and therefore read the phrase in the narrower sense, which allowed of full effect being given to the sections referred to. I may add that the argument of the learned. Judge may be reinforced by a reference to the second Clause of the 6th Section of the Hindu Wills Act, which provides, that, in applying Sections 99, 100, and 101, 'son,' 'sons,' 'child,' 'children,' shall be deemed to include an adopted son, &c.;
14. In arriving at this decision the learned Judge has applied a canon of construction, which has long been applied in construing English Acts of Parliament, and which is thus stated in the case cited by him Reg. v. Bishop of Oxford L.R. 4 Q.B.D. 245. 'A Statute ought to be so construed, that, if it can be prevented, no clause, sentence or word shall be superfluous, void, or insignificant.'
15. I do not for a moment deny that that canon is the correct one to apply to many of the Acts of the Government of India, or that if it is the appropriate rule to apply here, the decision of the Court below is correct.
16. But the Hindu Wills Act is not drawn in the ordinary form of a Statute, or indeed of an Act of the Government of India. It does not enact a series of provisions relating to Hindu wills, but, in point of form, it applies to certain Hindu wills certain portions only of the Indian Succession Act, and it does this by mentioning only the numbers of particular sections and the numbers of particular parts or chapters or portions of parts or chapters of the principal Act.
17. The sections and parts and portions of parts so specified are applied bodily and in globo as it were, without any limitation and without any adaptation of the sections to the peculiar law or custom or circumstances of Hindus.
18. Hindus were expressly excluded from the operation of the Indian Succession Act when it was passed, and although it is not improbable that the Legislature, even at that time, contemplated that, at some future day, the Act might be extended to Hindus, the Legislature must have considered in 1865 that the Act, as it then stood, was not in all respects suited for Hindus, otherwise Hindus would have been included.
19. It is obvious, that an unqualified extension to Hindus of a large number of sections and parts of an Act, in its origin passed for persons other than Hindus, would be attended with some most unexpected and undesired results, unless the operation of the applied sections were controlled.
20. The 3rd section, accordingly, enacts five provisos, the object of which, as it appears to me, is to prevent, so far as Hindus are concerned, the wholesale application, as it were, of the sections and chapters mentioned in Section 2 from directly or indirectly altering or affecting the Hindu law in those matters to which the provisos relate, and from thus introducing changes not contemplated by the Legislature.
21. Hence, in construing an Act of the Government of India passed in the form peculiar to the Hindu Wills Act, I think the sound Rule of construction is to give their full and natural meaning to the provisos, and only to give effect to the enactments contained in the applied sections and chapters, so far as the latter do not contravene the full and natural meaning of the provisos; and that this is the sound Rule of construction, although the result of carrying it out may be, and in the present case is, that some of the applied sections are rendered nugatory.
22. This also appears to me to be the only safe rule in dealing with an Act like the one now before us. To construe such an Act by the canon laid down in the case cited would be to introduce changes into the Hindu law by a side wind, as it were, and also when there is no clear expression on the part of the Legislature of an intention to alter that law.
23. I therefore reverse the decree of the Court below so far as it declares the validity of the bequest to the daughters' sons who were unborn at the death of the testator, and the validity of the other gifts in the will dependent on that bequest.
24. There will be a declaration that that bequest and the gifts dependent upon it are void, and that the plaintiff is entitled, as heiress of her deceased husband, to succeed to a widow's estate in the residue of his property.
25. Costs of the appeal to come out of the residuary estate.
26. I am of the same opinion. I fully appreciate the arguments upon which the judgment of the Court below proceeds, and there is no doubt that, generally speaking, the rule of construction which is laid down in the Bishop of Oxford's case L.R., 4 Q.B.D., 245 is the correct one.
27. But, as regards the Hindu Wills Act, I cannot help thinking that there is much truth in what fell from Mr. Justice Pontifex in the case of Cally Nath Naugh Chowdry v. Chunder Nath Naugh Chowdry I.L.R. 8 Cal. 378; S.C. 10 C.L.R. 207 that the difficulty in construing that Act arises 'from the mode of legislation'; from the way in which upwards of 150 sections of the Indian Succession Act have been imported into Section 2 of the Hindu Wills Act, without sufficient consideration, as to whether some of those sections, which were quite appropriate in the first Act, were equally so in the second. I doubt, for instance, whether it ever occurred to the learned authors of the Hindu Wills Act, that, in introducing Sections 99 and 100 of the Succession Act into Section 2 of the Wills Act, they were enacting provisions which were either inconsistent with the last proviso of Section 3 of that Act, or which would bring about any radical change in Hindu law.
28. And there is also much truth, as it seems to me, in another observation made by Mr. Justice Pontifex,--namely, that, at the time when the Hindu Wills Act was passed, it was by no means finally decided, that by Hindu law property could not be bequeathed to a person not in being at the time of the testator's death. This point could hardly be said to have been conclusively settled, until judgment was given in the Tagore case 9 B.L.R., 377; s.c., L.R., I.A., Sup. Vol., 47 by the Privy Council in the year 1872.
29. My opinion of this case proceeds upon two main points:
1st.--I think it clear from the preamble of the Hindu Wills Act, that it was merely passed for the purpose of providing rules for the execution, attestation, and interpretation of Hindu wills, and was not intended to introduce any material change in Hindu law. This is not only apparent from the language of the preamble itself, but also from the fact, that the Act only extends to the Province of Bengal and to the Presidency-towns of Madras and Bombay. It could never have been intended to make an important change in the Hindu law in those portions only of the Empire, and to leave that law unchanged in all the other provinces.
2ndly.--I think that the last clause of Section 3 ought not to be read in the restricted sense which is attributed to it by the learned Judge in the Court below. If a Hindu testator leaves a life-estate in land to a person who is not born at the time of the testator's death, that is, in my opinion, an attempt 'to create an interest in property which he could not have created before the Act.' In other words, the prohibition, as it seems to me, extends to the person who is to take the interest, as well as to the interest itself.
30. Attorney for the Appellant: Baboo Abhaya Churn Ghose.