1. This is an appeal on behalf of the first defendant in an action for recovery of possession of landed property upon declaration of title, and for mesne profits for the period of dispossession. The case for the plaintiffs-respondents briefly stated is as follows. The subject-matter of the litigation belonged to their ancestor Navadwip Chandra Sarkar who made a testamentary disposition of his properties on the 22nd May 1889, and died four days later. The will provided that upon the death of the 'testator, one-fotirth share of his landed property would pass to Biraj Kamini Dasi, the wife of his eldest son, Girish Chandra Sarkar. Another one-fourth share would be taken by Radha Ballav Sarkar and Jagat Ballav Sarkar, his grandsons by his predeceased son, Govinda Chandra Sarkar. The remaining half share would pass to the wives of his sons Bhagaban Chandra Sarkar and Harish Chandra Sarkar immediately upon their marriage, and so long as these sons would not marry, his youngest son Harish Chandra Sarkar alone would enjoy the proceeds of the said half share and hold possession thereof. At the time of the death of the testator, Bhagaban Chandra and Harish Chandra were both unmarried. They were married, however, in 1892, to two ladies by name Ganoda Sundari and Kuloda Sundari, respectively. Subsequently Ganoda Sundari died leaving an infant son, Diuesh Chandra: Kuloda Sundari died leaving an infant son, Ram Chandra. The plaintiffs assert that they were in possession of the disputed properties up till the 12th April 1897, by receipt of rent collected on their behalf by the executor to the estate from the tenants defendants, that is, the defendants other than the first defendant; that after the estate had been released by the executor in favour of the plaintiffs, the first defendant, an influential landlord, induced the other defendants to withhold payment of rent on the allegation that the lands were included in his zemindary: and that as a result of this combination amongst all the defendants, the plaintiffs have been dispossessed. The wife of Girish Chandra, the sons of Ganoda Sundari and Kuloda Sundari, and the sons of Govinda Chandra, therefore, commenced this action on the 19th January 1906, for declaration of title and recovery of possession and mesne profits. The defendants contested the claim on the grounds that the ancestor of the plaintiffs had no title to the disputed property, and that, in any event, the plaintiffs had acquired no valid title to any portion of his estate under his testamentary disposition.
2. The Courts below have concurrently found upon the question of fact, whether the disputed property was part of the estate of Navadip Chandra Sarkar, in favour of the plaintiffs: indeed, though the first defendant obtained repeated adjournments to produce evidence, and considerable indulgence was shown to him, he did not adduce any evidence at all in support, of his alleged title. Upon the question of law, namely, whether the plaintiffs had acquired a title under the testamentary disposition of their ancestor, the Court of first instance did not express any opinion, although it decreed the claim in full. The Subordinate Judge, however, has considered the question and held that the disposition was valid in law and operative to create a good title in the legatees. In this view, the decree of the Original Court has been affirmed by the Court of Appeal below. Upon the present appeal, the only question which has been argued is as to the validity of the testamentary disposition made by the testator.
3. It has not been disputed that there was a valid disposition in so far as an one-fourth share was given to the wife of the eldest son, Biraj Kamini, the first plaintiff in the suit, and also in respect of the other one-fourth share given to the grandsons of the testator, the fourth and fifth plaintiffs. But it has been argued that in so far as the second and third plaintiffs are concerned, who claim as the infant sons of their mothers, the wives of the two sons of the testator, Bhagaban Chandra and Harish Chandra, they have acquired no valid title as the disposition in favour of the wives of the two sons was invalid in law, because contrary to the provisions of Section 99 of the Indian Succession Act. It is worthy of remark that the objection in this form was neither specifically taken in the written statement, nor raised in the issues. It was undoubtedly not presented in this form in the Court of first instance. If it had been so taken, it would have been equivalent in substance to, an objection that there was an intestacy as to this one-half share, subject to the gift of the income in favour of Harish Chandra, that is, that this one-half share vested in interest in the sons and grandsons of the testator, subject to the gift of the intermediate income to Harish for his life. Two of these sons, including Harish, were acting as next friends to the second and third plaintiffs, and the two grandsons were themselves suing as plaintiffs. If, therefore, this specific objection had been taken, it is more than probable that the three sons of the testator might have applied to be added as parties plaintiffs,' and thus completely met the objection of the defendants. As I have stated, however, the objection does not appear to have suggested itself to the defendants till the case was argued on appeal before the Subordinate Judge, who held, upon a construction of the will, that the testamentary disposition was valid and operative. The only question, therefore, which requires consideration in this Court, is whether there was a valid testamentary disposition in favour of the wives of the two sons of the testator, Bhagaban Chandra and Harish Chandra.
4. The learned vakil for the appellant has net disputed that the decision of this Court in Nafar Chandra Kundu v. Ratnamala Debi (1910) 13 C.L.J. 85 : 15 C.W.N. 66 is completely antagonistic to his contention. In that case, it was ruled that the general principle that a donee must be in existence for the validity of a gift is subject to an exception in the case of conditional gifts on marriages, so that a bequest in favour of a girl who if was to be married by the testator's son, and who was in existence at the time of his death, is valid. In the case before us, the two ladies who were married to Bhagaban Chandra and Harish Chandra in 1892 had been born, so far as we can gather, before the death of the testator, which took place on the 26th May 1889. Under these circumstances, according to the principles of Hindu law as explained in the case of Nafar Chandra Kundu v. Ratnamala Debt (1910) 13 C.L.J. 85 : 15 C.W.N. 66, the disposition may be sustained. The learned vakil for the appellant has, however, argued that as the disposition is contrary to the provisions of Section 99 of the Indian Succession Act, which was made applicable to Hindus by Section 3 of the Hindu Wills Act, it is invalid, notwithstanding any principles of Hindu law to the contrary. This position has been strenuously controverted by the learned vakil for the plaintiffs respondents, who has further argued that if Section 99 of the Indian Succession Act be held to be applicable, the disposition is covered by the exception to that section, and must consequently be sustained. The argument addressed to us, on both sides, therefore, raises two questions of considerable importance, namely, first, whether Section 99 of the Indian Succession Act applies to the will of a Hindu and invalidates provisions made in accord with the principles of Hindu Lawand, secondly, whether the exception to Section 99 applies to a case of this description.
5. In so far as the first of these questions is concerned, the answer must depend upon the true construction mi Section 3 of the Hindu Wills Act, which provides that nothing contained in that Act shall authorize any Hindu to create in property any interest which he could not have created before the 1st September 1870. The learned vakil for the appellant has contended that this provision is unilateral and of a purely restrictive character that is, while it provides that the power of testamentary disposition of a Hindu is not enlarged by the provisions of the Hindu Wills Act, that is, by the provisions of the Indian Succession Act incorporated therein, it does not provide that such powers are not curtailed by those provisions. The question raised is one of some novelty and nicety, and it may be conceded that the view put forward by the appellant may be justified by a strict and literal construction of the language used by the Legislature in Section 3 of the Hindu Wills Act. The learned vakil for the respondents has, however, argued that the true intention of the Legislature was to leave matters where they were before the enactment of the Hindu Wills Act: and in support of this view, he has relied upon the cases of Alangamoniori Dabee v. Sonamoni Dabee (1882) I.L.R. 8 Calc. 637 on appeal Cally Nath Naugh v. Chunder Nath Nangh (1882) I.L.R. 8 Calc. 378, Ram Lal v. Kanai Lal (1886) I.L.R. 12 Calc. 663, Jai Ram v. Kuverbai (1885) Calc. 9 Bom. 461, and Anand Rao v. Administrator-General of Bombay (1895) Calc. 20 Bom. 420. Our present inclination is in favour of the view put forward by the respondents which is supported by the history of the legislation on the subject.
6. The Hindu Wills Act, 1870, was passed before the Judicial Committee of the Privy Council had decided the case of Jatindra Mohan Tagore v. Ganendra Mohane Tagore (1872) 9 B.L.R. 377 : L.R. I.A. Sup. Vol. 47 and finally laid down the doctrine that except possibly in certain exceptional cases, no interest could, by Hindu law, be created in favour of an unborn person. The true limits of the rules of the Hindu law on the subject were at the time matters of serious controversy, and under such circumstances, the Legislature appears to have thought that the safest course was to leave untouched the rules of Hindu law in this matter. A similar policy appears to have been pursued in the case of the Transfer of Property Act, where Clause (d) of Section 2 provides, in somewhat wider and less ambiguous language, that nothing in the second chapter of the Act shall be deemed to affect any rule of Hindu law. No doubt, as observed in Bhabatarini Debya v. Peary Lal Sanyal (1897) I.L.R. 24 Calc. 646, 650 there is a striking difference between the phraseology used in Section 8 of the Hindu Wills Act and that used in Section 2 of the Transfer of Property Act. It is difficult, however, to believe that different policies were adopted by the Legislature on the two occasions, and there is considerable force in the contention of the respondents that the true intention, was to leave unaffected the rules of Hindu law. If this interpretation is adopted, no question arises as to the validity of the bequest in this case in view of the decision in Nafar Chandra Kundu v. Ratnamala Debi (1910) 13 C.L.J. 85.
7. It is worthy of note that if the restricted construction put upon Section 3 of the Hindu Wills Act by the learned vakil for the appellant were adopted, the result would be that in so far as the rule in Section 99 restricts the power of testamentary disposition of a Hindu, it would be operative: but in so far as the exception to that rule enlarges the power of testamentary disposition, it would be inapplicable. In other words, in this view, the Legislature intended to impose a considerable hardship on Hindu testators, namely, to deprive them of the benefit of the rules of Hindu law on the subject and also of the benefit of the exception to the statutory rule in respect of this matter. It is difficult to hold that such could have been the intention of the Legislature; from this point of view, it appears more reasonable to hold that the rule and the exception ought to be read together, and if the rule applies, it does so only as qualified by the exception: but possibly the true intention was to make neither the rule nor the exception applicable to Hindus. If we assume, however, for a moment, that Section 99 is applicable, the question at once arises whether the case is not covered by the exception to that section. But before we deal with this question, it may be observed, that if Section 99 is held applicable and the exception is not wide enough to cover the case, the bequest cannot be upheld. It could hardly be predicated of the mothers of the second and third plaintiffs that, although their marriage took place after the testator's death, they were persons in existence at the testator's death who answered the description the section requires, not only that they must have been in existence at the testator's death, but they must also answer the description at the testator's death. Not having married before the testator's death it is manifest that they could not answer the description of wives of Bhagaban and Harish at the testator's death. The gift must vest at least in interest at the testator's death, and it could not so vest in persons who must be deemed persono incerto at the time.
8. The second question which requires consideration is whether the bequest falls within the exception to Section 99. Here we may premise that it has not been seriously argued that the rule in Section 99 applies to the case of a Hindu will, because it restricts the testamentary powers of a Hindu, while the exception to the Rule does not apply, because it enlarges the testamentary powers of a Hindu. The case has been argued before us on the assumption that if Section 99 applies to the case of a Hindu will, both the rule and the exception thereto are applicable, and the only controversy is, whether the exception is comprehensive enough to cover the case before us. The exception is in these terms:
If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise: and if a person answering the description is alive at the death of the c testator, or comes into existence between that event and. such later time, the property shall, at such later time, go to the person, or if he be dead, to his representatives.
9. It has been argued that here the bequest to the future wives of the sons of the testator was not a bequest to a person described as standing in a particular degree of kindred to a specified individual. This contention has been based on Section 20 of the Indian Succession Act, where the term 'kindred' is defined as follows:
Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.
10. With reference to this definition, it has been argued that the future wives of the sons could not be called 'kindred' of their respective husbands, as they were not and could not, according to Hindu law, be descendants from the same stock or common ancestor. This contention is entirely fallacious: it overlooks the fundamental point that although Section 99 is incorporated in the Hindu Wills Act, Section 20 is not so incorporated, and we must take it, therefore, that this definition was not intended to be made applicable to Hindus. It is well known that the definition in question is based upon the principles of the English Statute of Distributions (Stat. 22 and 23, Charles II, Chapter 10), the substance of which was borrowed from the 118th Novel of Justinian (Kent's Commentaries, Vol. II, page 422: Institutes of Gaius and Justinian by Dr. Mears, Introduction, page 58, and text, page 593). Under the English law, it is well known, as stated by Blackstone in his Commentaries (Vol. II, page 203) quoted in Williams on Executors (10th edition, Vol. I, page 329), that consanguinity or kindred is 'Vinculum personarum abeadem stipite descendentium' the connection or relation of persons descended from the same stock or common ancestor: in other words, as Lord Coke observed in Hensloe's Case (1600) 9 Coke 36(a), 39(a), the next-of-kin are those that are 'next of blood who are not attainted of treason, felony, or have any other lawful disability,' that is, the nearest blood relations of the propositus in an ascending and descending line: Ration v. Foster (1868) L.R. 3 Ch. App. 505 and Harris v. Newton (1877) 46 L.R. Ch. 268. On this principle, it has been ruled that a gift to a next-of-kin under the English law does not include a husband or a wife: Watt v. Watt (1796) 3 Ves. 244, Garrick v. Lord Camden (1807) 14 Ves. 372, In re Fitzgerald (1889) 58 L.R. Ch. 662, and Milne v. Gilbert (1852) 2 DeG. M. & G. 715. But the question arises, whether, in view of the fact that the Legislature has deliberately omitted to incorporate into the Hindu Wills Act the definition of the term 'kindred' borrowed from the principles of English law and embodied in Section 20 of the Indian Succession Act, it is necessary or desirable that the Court should place the same restricted interpretation upon the expression and hold that to constitute next-of-kin, there must be blood relationship between the two persons. It is useful to remember in this connection that Hindu wills, as a rule, should be interpreted by Hindu law alone, without any mixture of laws or ideas derived from any foreign source, Bhyah Singh v. Bhyah Ugur Singh (1870) 13 Moo. I.A. 373, 390 : 5 B.L.R. 293 technical rules of English law, altogether foreign to Hindu Jaw and ideas, ought not to be applied in the construction of Hindu gifts and wills. Now the term 'kindred,' as pointed out in the Oxford Dictionary (Vol. V, page 702), though ordinarily employed to indicate relationship by blood or descent, is occasionally, though perhaps not very correctly from the point of view of the technicalities of English Jurisprudence, used to indicate relationship by marriage, and reference is made to a passage from Green (Short History, B III, Section 7, 148), in which the learned writer states: ' A secret match with the King's sister raised him to kindred with the throne.' It is not necessary, however, to rely upon what may, perhaps, be deemed a somewhat loose use of the expression kindred. But the same remark can hardly be applied to the definition of the term 'next-of-kin' in the Administrator-General's Act, 1874. where it is made to include a widower as well as a widow. We are, however, on more solid ground when we bear in mind the conception of the marriage relationship as understood by Hindu jurists, and hold that a wife may be deemed as standing in the relation of kindred to her husband. In Chapter XI, Section 1, paragraph 2 of the Dayabhaya, Jimutavahana observes as follows:
Vrihaspati says: In scripture and in the code of law, as well as in popular practice, a wife is declared by the wise to be half the body of her husband, equally sharing the fruit of pure and impure acts; of him whose wife is not deceased, half the body survives: how then should another take his property while half of his person is alive? Let the wife of a deceased man, who left no male issue, take his share notwithstanding kinsmen (sakulya), a father, a mother or uterine brother be present. Dying before her husband, a virtuous wife partakes of his consecrated fire, or if her husband die before her, she shares his wealth: this is a primeval law.
11. In another passage, again, in the Dayabhaga, chapter IV, Section 2, paragraph 14, Jimutavahana observes as follows:
Here yautuka signities property given at a marriage; the word yuta' derived from the verb 'yu,' to mix, imports mingling, and mingling is the union of man and woman as one person, and that is accomplished by marriage. For a passage of scripture (Veda) expresses, her bones become identified with his bones, flesh with flesh, skin with skin. Therefore, what has been received at the time of the marriage is denominated yautuka.
12. To the same effect is Manu (IX, 45, 46):
The husband is even one person with his wife for all religious, not civil, purposes. Neither by a sale nor desertion can a wife be released from her husband.
13. The identity of person between husband and wife thus emphatically expounded for religious purposes is also indicated by Vijnaneswara in his Mitakshara where he comments upon verse 52 of Book II of the Institutes of Yajnavalkya: see the passage translated by Sastri Golap Chandra Sarkar in his treatise on Hindu Law (4th Ed., page 186). The same view is luminously expounded by Savara Swami in his Bhasya on the Purva Mimansa (Book VI, Section 1, Sutras 13 to 17). A practical application of this doctrine will be found indicated in the case of Srinath Das v. Probodh Chunder Das (1910) 11 C.L.J. 580 where it is pointed out that a Hindu wife's right to maintenance may be and has on good grounds been attributed to a kind of identity with her husband in proprietary right, though her right may be of a quite subordinate character: but it is by virtue of this right that she gets a share equal to that of a son when partition takes place at the instance of male members: West and Buhler, Digest of Hindu Law, 3rd Ed., pp. 262 and 392. In view of this principle which lies at the root of the Hindu conception of marriage, it may be reasonably held, without undue violence to the language used in the exception to Section 99 of the Indian Succession Act, when it is sought to be applied to the case of a Hindu will, that a bequest made by ii father to the would-be wife of his son may be deemed a bequest to a person described as standing in a particular degree of kindred to his son. If this interpretation is adopted, there can be no room for controversy that the bequest in this case is valid.
14. The result, therefore, is that the entire bequest c must be sustained, the decree of the Subordinate Judge affirmed, and this appeal dismissed with costs.
15. By his will, dated the 22nd May 1889, Navadwip Chandra Sarkar provided, inter alia, that the wives of two of his sons were to get a quarter share each of his property, and chat, if his said sons were not married at his death, the gift would take effect (after an intermediate enjoyment by the testator's youngest son) when his sons did marry. It is not disputed that the two sons married after the death of Navadwip Chandra Sarkar; that the persons who became their wives were in existence when the testator died; and that the plaintiffs Nos. 2 and 3 are the sons of those ladies who are not now alive.
16. Both the lower Courts have decreed the suit for recovery of possession of the disputed lands upon declaration of the plaintiffs' title as founded on the bequest made by Navadwip Chandra Sarkar. The contention of the defendant No. 1, the appellant in this Court, is that the bequest being 'invalid, the plaintiffs Nos. 2 and 3 derived no title to the property in suit.
17. The arguments at the bar have turned upon the construction of Section 99 of the Succession Act, which runs thus: 'Where a bequest is made to a person by particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void.'
Exception: If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest, or otherwise;' and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he be dead, to his representatives.
18. Section 99 of the Succession Act has been made applicable (by Section 2 of the Hindu Wills Act) to Hindu wills made after the 1st September 1870, but the exception has been held to be inoperative in the case of Hindus, even when they are governed by the Hindu Wills Act, because their laws does not permit bequests to persons who were unborn at the date of the death of the testator. This is the contention of the defendant 'No. 1 and, in the alternative, it is urged that the word 'kindred' in the exception, means blood relations and not relations, as here, by marriage. I think the defendant No. 1 cannot succeed in either view of the case.
19. The cardinal rule governing Hindu wills is that a person capable of taking under a will must be such a person as could take a gift inter vivos, and, therefore, must either in fact, or in contemplation of law, be in existence at the date of the death of the testator. The daughters-in-law of Navadwip Chandra Sarkar were alive when he died, though they were not then married to his sons. There was no uncertainty as to their existence, and the will made provision for an intermediate enjoyment by one of the sons. But, even if Section 99 be not strictly applicable, the word 'kindred' in the exception must not be construed in the strict sense of the law of England. The expression 'next-of-kin' occurs in Section 22 of the Probate and Administration Act (Section 199 of the Succession Act), but it is nowhere defined, except in the Administrator-General's Act which is not applicable in the present instance. The word 'kindred' occurs in Section 20 of the Succession Act, Which, however, is not part of the; Hindu Wills Act. In the absence of authority, but in accordance with the principle of the benignant construction enunciated in Tagore v. Tagore (1872) L.R. I.A. Sup. Vol 47, 70 : 9 B.L.R. 377 I think that 'kindred' should not be limited to blood relations when that word is imported into a Hindu will. The testator did not use it, and the test to be applied is to ascertain whether a gift to a daughter-in-law is lawful under the Hindu law. As to this there can be no doubt. A daughter-in-law can offer the funeral cake (pinda) to her father-in-law. She is capable of receiving a gift from him during his life-time. It is clear that she can, similarly, take the gift after his death.
20. The views I am disposed to adopt are in accordance with the decision of this Court in Najar Chandra Kundu v. Ratnamala Debi (1910) 13 C.L.J. 85 : 15 C.W.N. 66 where certain observations of the Privy Council in Tagore v. Tagore (1872) L.R. I.A. Sup. Vol. 47, 70 : 9 B.L.R. 377 are cited: 'Their Lordships, while 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 off provisions by way of contract or of conditional gift on marriages or other family provisions for which' authority may be found in Hindu Law.'
21. I agree, therefore, that this appeal must fail and be dismissed with cost.