1. The determination of this suit turns on the validity of a bequest contained in the will of Heramba Nath Ghose in favour of the defendants.
2. The original plaintiff was Kissorey Money Dasee, the testator's mother; on her death the suit was continued by Troylackya Nath Ghose, the next reversioner, and, when he died, by his executor, the present; appellant. It is not disputed that if the bequest in favour of the defendants fails, the petitioner is entitled to the estate.
3. The will, after appointing the testator's wife, Paritoshini Dasee, sole executrix and authorising her to adopt, proceeds as follows: 'If my said wife dies without adopting a son, or if such adopted son predeceases her without leaving any male issue, in such case my estate after the death of my said wife shall pass to the sons of my sister Sreematee Benodini Dasee who may be living at the time of my death'. There then follow provisions for the maintenance and residence of his widow and for certain annuities.
4. Heramba Nath Ghose died on the 10th November 1907, and was survived by his wife Paritoshini Dasee. She adopted Hem Chander Ghose under the authority vested in her but the adopted son died on the 11th March 1910 unmarried. Paritoshini died on the 16th March 1910. The defendants are the sons of the sister Benodini Dasee, and were both alive at the testator's death. It is in these circumstances that the present rival claims to Heramba Nath Ghose's estate are made.
5. If, as Fletcher J. has held, the gift in favour of the defendants is good, the suit must fail. The petitioner however maintains that the bequest is bad, and so has appealed from the judgment of dismissal pronounced by Fletcher J.
6. The appellant based his contention on two grounds.
7. First, he argued, that if property vests in a full owner under the ordinary Hindu law of inheritance, then the future devolution of the property from him cannot be disturbed except by a restriction imposed from the beginning.
8. Next, he maintained that if effect were given to the bequest in favour of the sons, there would be such an uncertainty as to who would take, that the property would be in abeyance, and this would contravene a fundamental rule of Hindu law.
9. I am not much impressed by either of these contentions.
10. The first is founded on a fallacy, for it assumes that the complete interest in the property has devolved on the full owner. But that is the very point in dispute, for if the bequest is operative, there would be merely a partial intestacy, and only a qualified interest would vest in the widow or adopted son as the case might be. The conditional bequest would not be an attempt to give an unauthorised direction to property vested in a full owner, but simply the curtailment of the interest in that property. Nor do I think the second line of argument possesses any greater merit, for I see no ground for saying that the property would be in abeyance, or that there was any more uncertainty as to the destination of the property than in the necessary consequence of every contingent bequest.
11. The testator's scheme is, I think, clear from the terms of his will. First he contemplated that he would be survived by his wife, to whom he gave authority to adopt a son. By appointing her his sole executrix he provided that she should be his legal representative, and that on his death all his property should vest in her as such. It thus became her duty to carry out, as far as the law would permit, the testator's directions as to the property so vested in her.
12. Though it is not expressly so stated, still it must have been the testator's intention that his estate should be beneficially enjoyed by his wife or adopted son until the death of his wife without male issue. If there was no adopted son or male issue of an adopted son then living, he expressly provided that the estate should pass to the defendants.
13. It has been argued that the interests preceding this bequest to the defendants arose by implication under the will; but, whether this be the true view or not I think the bequest is good. It does not infringe any rule against remoteness, nor are the legatees incapable of taking.
14. It is true that the bequest is contingent, but that does not avoid it (Section 107 and Part XV of the Succession Act).
15. Nor was it fatal to the bequest that it was to take effect, not necessarily at the testator's death, but possibly at a future date. This view is sanctioned by the illustrations to Section 107.
16. It has never been suggested that an annuity cannot be created by a Hindu will, and yet according to Lord Cottenham an annuity of 100 is the gift of 'as many sums of 100 as the donee shall live years:' Blewitt v. Roberts (1841) 1 Cr. & Ph. 274, 280.
17. And so a bequest of a legacy, or of an estate on a future contingent event, would be good within the meaning of Section 107 of the Succession Act: see the illustrations to that section and Soorjeemoney Dossee v. Denobundoo Mullick (1862) 9 Moo. I.A. 123, 135.
18. But if the future contingent bequest of a sum of money, or an estate, or a farm or a fund all of which are mentioned in the illustrations to Section 107, be sanctioned, why is the bequest in this will bad? It was conceded by counsel for the petitioner that if the bequest had been of a sum of money it would have been good, unless it was a sum of money that exhausted the whole estate: this it was argued, would have been a fraud on the law. In other words according to the petitioner the validity of the legacy is dependent upon its relative amount. I am unable to perceive any sound principle in this.
19. In my opinion, rightly held the bequest to be good, and the appeal should therefore be dismissed with costs.
20. I agree.