Richard Garth, C.J.
1. During the argument of this case, I confess I entertained some doubt upon both the questions involved in it; but after hearing a very able argument, for which I desire to thank the learned Counsel on both sides, I have arrived at the same result as my learned brother, upon the following short grounds:
2. Upon the authority of the Tagore case (9 B.L.R., 377), and the decisions in this Court which have been already referred to, I consider that the limitation in favour of the sons of the testator's sister and her husband are void.
3. I had some doubt at; one time whether Mr. Hill's argument, founded on the rule laid down in Hawkins on Wills, page 71, was not well founded,--viz., that where a devise was made to a class, and some one or more of that class were living and capable of taking at the death of the testator, there was no reason why the devise should not take effect in favour of the person or persons so capable of taking, and then open out afterwards to let in any more of the class who might be subsequently born. But the able argument of Mr. Evans satisfied me that this view is not consistent with Hindu Law. In England the rule against perpetuities prevents the law contended for by Mr. Hill from producing any inconvenient results. But in this country there is no rule against perpetuities, and we have no right to introduce one; and if we were to hold, that the law for which Mr. Hill contends is applicable in such a case as this it would be applicable also where the class did not consist of sons only, but of grandsons and great-grandsons, who might not be born for fifty or a hundred years after the testator's death. I think, therefore, that the rule laid down in the Tagore case (9 B.L.R., 377) applies here, and that the limitation to the testator's sister's sons is void. The plaintiff then, as the testator's widow, would be entitled to recover the property claimed if she is not barred by the law of limitation. Prima facie, she would certainly he so barred, because her title to it accrued upon the death of her husband, and the defendant has been in possession of it, on behalf of persons for whom she has been acting as trustee, for more than twelve years.
4. But then Mr. Phillips contended that the property had become vested in the defendant 'as a trustee for a special purpose' within the meaning of Section 10 of the Limitation Act of 1871, and consequently that this suit, which is brought to follow up such property in the defendant's hands, is not barred. He argued that although the object for which the trust was created may have failed, the defendant must be considered as holding the trust property for the testator's right heirs; and consequently, that the plaintiff is entitled to the benefit of Section 10. Now 1 should wish to give to Section 10 as large a construction as the language of it reasonably allows. I could have wished, in an equitable point of view, that the scope of that section had been considerably extended. But we are of course tied down to the words of the section, and are bound to see what their true meaning is.
5. I think, after much consideration, that what they mean is this: that where a trust has been created expressly for some specific purpose or object, and property has become vested in a trustee upon such trust (either from such person having been originally named as trustee, or having become so subsequently by operation of law), the person or persons who for the time being may be beneficially interested in that trust may bring a suit against such trustee to enforce that trust at any distance of time without being barred by the law of limitation.
6. It seems to me that the language of the section is specially framed so as to exclude implied trusts, or such trusts as the law would infer merely from the existence of particular facts or fiduciary relations.
7. That being the construction which I put upon Section 10, 1 consider that this case does not come within its scope. The specific purpose for which the defendant became a trustee under the defendant's will was to carry out and protect the disposition of the property in favour of the testator's sister's sons. If that disposition had been a valid one, the persons beneficially interested in the trust might have sued the defendant, or any other person in whom the property had become vested as trustee, to enforce the purposes or objects of the trust at any distance of time, but the plaintiff's object is the very opposite of this. She is suing for the purpose of invalidating the disposition, in furtherance of which the trust was created. Her object is to defeat that trust, not to enforce it. Her interests are directly adverse to those which the trust was designed to protect; and the defendant has been holding the property adversely to her for upwards of twelve years.
8. I am of opinion, therefore, that the learned Judge was quite right in holding that the plaintiff's suit was barred. The defendant has stated here through her Counsel that she has been holding and desires to hold the property for the benefit of the sons of the testator's sister, and it seems to be admitted on all hands that she has been receiving the profits for them, and on their behalf.
9. The appeal will be dismissed with costs on scale No. 2.
10. (after stating the facts, and referring to certain points of the case immaterial for the purposes of this report, proceeded as follows);--The plaintiff in the present suit further submits that the disposition in favour of the sons of the testator's sister and her husband Woodoy are void under the Hindu law, and she accordingly asks to be let into possession of the dwelling-house, and of the other property belonging to her as forming the residuary estate of her husband, and for an account.
11. It is not necessary to notice the written statements, as when the case came on for settlement of issues, the learned Judge in the Court below held, first, that the whole suit was barred by limitation; and secondly, that it was barred by the decree in the previous suit.
12. The plaintiff has appealed, and in the appeal she denies that her suit is barred on either ground. The defendants, on the other hand, contend that even if the suit be not barred as held by the learned Judge below, the plaint ought to be dismissed so far as it seeks to recover possession of the testator's property upon failure of the gift to his sister's sons, for, as they contend, that was in law a good and valid gift.
13. With regard to the question, whether the plaintiff's suit is barred by limitation, that depends upon Act IX of 1871, which contains the law applicable to this case. It seems to me that the best way of considering this case is to see what articles of the schedule to that Act would provide for this case, if it were an ordinary case; and then to see whether there are any special provisions which take the present case out of the ordinary rule.
14. In order to see what articles of the Limitation Act the case falls under, we must see what the plaintiff's cause of action is, and when it accrued.
15. The suit is brought by a Hindu widow for possession of the immoveable and moveable property of her deceased husband, who died childless, and she was entitled as her husband's widow to take possession of his estate on his death, except so far as his will may have given the right of possession to any other person.
16. Now, as regards the immoveable property, I do not think that if the gift to the testator's nephews be void, there is in the will any disposition of the immoveable property at all, I read the clause which directs the defendant Doorgamoney out of the rents and interest to support his nephew, as dependent on the clause disposing of the corpus which preceded it, so that if one falls the other falls also. The allusion by the testator to his wife's maintenance in this clause is evidently a mistake, and that provision of the will is superfluous, as her maintenance had already been provided for in another way. As to the immoveable property, therefore, if the gift to the sons of Woody be void, the plaintiff was entitled to immediate possession on the death of her husband, and the cause of action arose at that date.
17. As to the moveable property, it was, no doubt, necessary for the defendant Doorgamoney to take possession of it, and to retain it so long as was reasonably necessary in order to wind up the affairs of the estate; as to that portion of the property, therefore, no right of suit accrued immediately. But this present suit was not brought till seventeen years after the testator's death, and the plaintiff does not allege that there were any debts or any difficulty in getting in the estate; and therefore, I think we may assume on the plaintiff's own allegations that her right to possession of the moveable property also accrued more than twelve years before this suit was brought.
18. This being so, the case as to the moveable property must fall either under Article 118 or Article 122; and in either view it is barred, unless there is something to take this case out of the ordinary rule.
19. The case as to the immoveable property falls under Article 145. The twelve years, therefore, began to run when the possession, became 'adverse' to the plaintiff. In my opinion the possession of the defendant was adverse to the plaintiff from the testator's death. By 'possession adverse to the plaintiff' I understand to be meant possession of that which the plaintiff is entitled to possess, held not on behalf of the plaintiff, but on behalf of some other person. The defendant Doorgamoney held the property, and never held it on behalf of the plaintiff. Doorgamoney's possession, therefore, was adverse to the plaintiff throughout,
20. Then, does the case fall under any special provision which renders these, which are the ordinary rules, inapplicable? The plaintiff says that the bar of limitation which those rules create is excluded by Section 10. That section provides, that notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his representatives, for the purpose of following in his or their hands such property, shall be barred by any length of time.
21. The defendants, on the other hand, contend that this section has no application to the present case. They argue, first, that this property way never vested in Doorgamoney at all; and secondly, that if vested in her, it was not vested in her in trust for any specific purpose.
22. With regard to the first contention, there is no doubt that the word 'vest' is not an appropriate one to describe the position of a Hindu executor in a will made prior to the Wills Act. It has been frequently held that the mere appointment of a person as executor to a Hindu does not cause any property to vest in him at all, and that if as executor he is entitled to hold the property, he holds only as manager. And ordinarily persons who are called trustees do not under Hindu law, become the owners of the property which is placed in their charge. Possibly, however, as this is an Act which contains the law of limitation for all classes of persons, the word 'vest' may be used when speaking of person standing in a fiduciary relation not in the sense of 'owned', but in the sense of 'held in possession': at any rate I am not prepared to say that had the gift to the sons of Woodoy been vested, the residue of the testator's property would not have been vested in the defendant Doorgamoney within the meaning of the word 'vested' as used in Section 10 of the Act.
23. But the question still remains whether, under the circumstances which the plaintiff sets forth, the property was held by the defendant Doorgamoney in trust for any specific purpose.
24. It was clearly made over to her in the first instance for a specific purpose--i.e., to apply the profits in a certain way, and then to divide the corpus amongst the sons of Woodoy. But that specific purpose is one which the plaintiff herself alleges to have failed, because it was one for which a Hindu could not devise His property. This specific object having failed, Doorgamoney was bound to hand over the property to the testator's legal heirs. Being bound to do this, did she then hold it in trust for a 'specific purpose' within the meaning of the Act
25. If this had been an English case, the property would have actually vested in Doorgamonoy, and there being a clear intention that she should not take it for her own benefit there would have been what is called a resulting trust for the heirs of the testator, for whom, therefore, the executor would be a trustee. But in a Hindu will before the Hindu Wills Act there is, as it appears to me, no room and no necessity for the doctrine of resulting trusts, which arises out of the conflict between equitable and legal estates. The Hindu executor takes no estate, but only a power of management, and upon the special purpose for which the executor is to hold the property failing, the property undisposed of vests at once in the heir, who can sue for it.
26. If, therefore, Doorgamoney was a trustee for the legal heir at all, it must be upon some doctrine other than that of resulting trusts.
27. The relation between the defendant Doorgamoney and the heirs was, undoubtedly, a fiduciary one; and therefore, in a very general sense of the word, she might be called a trustee. But I do not think the 10th section of the Act was intended to comprise all fiduciary relations whatsoever. The position of agents, factors, and managers and benamidars may be, and generally is, a fiduciary one; but agents and factors are specially provided for in other parts of the Act; and benamidars are expressly declared not to be trustees.
28. But even if Doorgamoney could in any sense be called a trustee of the residue of the plaintiff's property for the legal heirs, I still think she was not a trustee for a specific purpose within the meaning of the Act. In one sense of course a he was so. Every trustee must be a trustee for a specific purpose in the sense that a purpose can be indicated to which the property held by the trustee must be applied by him. But I think the words 'specific purpose' were intended as words of restriction, and the conclusion I have come to is that by 'specific purpose' must be meant a purpose which has been specified by the person who created the trust. I am not prepared to say that the word 'specific' in the Indian Act of Limitations corresponds exactly to the word 'express' in the English Act. Express trusts include, besides direct trusts, implied trusts and resulting trusts, but not constructive trust, using those words as defined by Mr. Lewin at p. 86 of the 5th edition in the notes. That language, and that classification of trusts, however, are scarcely applicable in a country where by the word 'trusts' we indicate relationships differing from that of trustee and cestui que trust under the English law, and where such relationships may be created by parol. It may, I think, well be that the Indian Legislature did not think it desirable, after a certain lapse of time, to enforce trusts which had to be gathered from the tenor of a conversation and had not been declared by any specific words. The trust which it is now sought to enforce had not been specified by the testator, and I therefore think that Section 10 does not apply to this case, and that the ordinary rules of limitation must apply.
29. This is sufficient to dispose of the whole suit except as regards the right of the plaintiff' to live in the family dwelling-house. But she has already sued once for that right and had it established. She cannot sue on that cause of action again.
30. In this view of the case, it is not strictly necessary to consider the other question which has been argued,--namely, as to the validity of the disposition by the testator in favour of the sons of his sister's husband. I am obliged, however, to express my opinion upon a similar clause in another case, and so I think it is better to do so in this.
31. I wish to say at once that I entirely agree in the general propositions laid down by the learned Judge below that if there be a gift to a class, some members of which cannot legally take, the whole gift is void. The principles upon which this rule is based, as explained in Leake v. Robinson (2 Mer., 364) and the text-books and other decisions in which that case is commented upon, are broad principles of construction, which are, in my opinion, applicable to the wills of all persons alike.
32. The doubt I have had is, whether any defect can be imported to the gift in this case. It is undoubtedly a gift to a class, but is it a gift to a class some members of which cannot legally take?
33. It is said that, inasmuch as the gift includes persons not in existence at the death of the testator, the gift as to those persons is void upon the principle laid done in Tagore v. Tagore (9 B.L.R., 377). The Privy Council there say of the Hindu law as to gifts inter vivos, that it applies to all persons in existence and capable of taking from the donor at the time when the gift is to take effect, so as to fall within the principle expressed in the Dayabhaga, chap i, v. 21. They then say of wills, that they are a form of gifts, and that a will 'is a continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designated beneficiaries. They take upon the death of the testator as they would if he had given the property to them in his lifetime, There is no law expressly and in terms applicable to persons who can so take. The law of wills has, however, grown up, so to speak, naturally from a law which furnishes no analogy, but that of gifts, and it is the duty of a tribunal dealing with a case new in the instance, to be governed by the established principles and the analogies which have heretofore prevailed in like cases'. Further on they say,--'The analogous law in this case is to be found in that applicable to gifts, and even if wills were not universally to be regarded in all respects as gifts to take effect upon death, they are generally so to be regarded as to the property which they can transfer, and the persons to whom it can be transferred'; and then they conclude,--'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 death of the testator'.
34. From this it appears that wills and gifts are not identical, but only analogous, and of course there is considerable difficulty in saying how far the analogy extends. In this same case the Privy Council say that it does not apply where the donee is an adopted son, nor where (she donee is a foetus in the womb. The Privy Council also seem to think it may not apply in some cases of provisions by way of contract or of conditional gift on marriage or other family provision.
35. The Privy Council also recognize the propriety of the decision in the earlier case of Soorjee Money Dossee v. Denobundhoo Mullick (9 Moore's I.A., 123). In that case there was a devise of property to several sons, with a proviso that, if either of such sons died without leaving a son or a son's son living at his death, neither his widow nor daughter should get his share, but that the property should go over 'to such of my sons and my sons' son (probably meaning sons' sons) as shall then be alive'. This was held to be a valid devise.
36. In a later case--Bhoobun Mohini Debia v. Hurrish Chunder Chowdhry I.L.R., 4 Cal., 23 : S.C. L.R., 5 I.A., 138--a gift was made inter vivos, which had to be construed by the Privy Council. Upon a construction of the whole document it was held to be an absolute gift to a woman and her heirs defeasible in the event of a failure of issue living at the time of her death, in which event the property was to revert to the heirs of the donor, The contest in the case was as to whether the estate given to the donee was an absolute one or not; but it was necessary for the Privy Council to consider the validity of the executory limitation in favour of the donor and his heirs, because they put that construction on the deed, and they say, that there is nothing in such a condition repugnant to Hindu law, appears from the decision of this tribunal as to an executory devise in the case of Soorjee Money Dossee v. Denobundhoo Mullick (9 Moore's I.A., 123), as explained in the Tagore case (9. B.L.R., 377)'.
37. The way in which the case of Soorjee Money Dossee v. Denobundhoo Mullick (9 Moore's I.A., 123) was explained in the Tagore case (9 B.L.R., 377) was as follows: 'It was observed that the question in Soorjee Money Dossee v. Denobundhoo Mullick (9 Moore's I.A., 123)' was not as to the effect of a gift to a person not in existence, but whether a person in existence, and capable of taking under the will when it had effect, might become entitled upon a future contingency to receive an additional benefit. The testator devised an estate to several sons, with a proviso that, if either of such sons died without leaving a son or son's son living at his death, neither his widow nor daughter should get his share, hut that the same should go over to the other sons. Their Lordships held the gift over to be valid. The point in question, therefore, was not raised, and could not have been decided as supposed.
38. It is observable that in these observations it is not noticed that, in the case of Soorjee Money Dossee v. Denobundhoo Mullick, (9 Moore's I.A. 123) the gift over was to the sons' sons as well as to the sons. But it is impossible to suppose that these words were overlooked by their Lordships.
39. These are the only cases in the Privy Council, upon the point, and it is no doubt possible to argue that, where there is a gift to a class, the exigencies of the Hindu law as to testamentary bequests are sufficiently satisfied if some individuals of the class are alive at the time of the testator's death who can be the immediate recipients of the bequest. The estate would then open out for each fresh member of the class as occasion arose; and an estate of this nature would not be wholly without analogy in the Hindu law. This is in fact the ordinary condition of a Mitakshara family, at any rate in Madras and Bombay, where the family is certainly no longer the corporate owner, and each member at his birth takes in his own proper person some sort of joint interest in the family property.
40. But nothing of this kind seems to have been contemplated by the Privy Council. They seem to have considered the case of Soorjee Money Dossee v. Denobundhoo Mullick, (9 Moore's I.A., 123), and Bhoobun Mohini Debia v. Hurrish Chunder Chowdhry, (I.L.R. 4 Calc., 23; S.C.L.L.R., 5 I.A. 138), as forming no exception to, or extension of the rule laid down in Tagore v. Tagore (9 B.L.R., 377).
41. On, the other hand, there are two cases in this Court which perhaps I cannot sitting here treat as binding authorities, but from which I should be very unwilling to differ.
42. In Soudaminey Dossee v. Jogesh Chunder Dutt (I.L.R., 2 Cal., 262), the testator directed that his property should be divided into five parts, four of which were to be enjoyed by four out of his five sons for life, and the remaining share by his two grandsons (sons of a deceased son) for life. The testator then directed that, on the death of any of his sons or grandsons leaving male issue, such male issue should succeed to the share of his deceased father on attaining the age of twenty-one years. There were also devises over which it is not necessary to notice. Pontifex, J., held that the gift to the male issue of his sons or grandsons was void, inasmuch as there might be male issue born after the testator's decease.
43. It was also admitted at the bar that, in a subsequent case (Ramloll Mullick v. Bularam Mullick No. 554 of 1876, not reported. The Judges simply stated that they followed the decision in Soudaminey Dossee v. Jogesh Chunder Dutt), heard before Macpherson and Kennedy, J.J., on the Original Side; but of which I am not able to obtain any report, the view taken by Pontifex, J., was adopted.
44. It was not contended that the devise now under consideration could be held to be valid without overruling these two decisions, and I have reason to believe that in other cases also these decisions have been followed.
45. Upon the best consideration I have been able to give to the present case, I do not think the decisions I have referred to in the Privy Council govern this cases; and if I am unfettered by authority, I have then no difficulty in agreeing with the decisions of this Court. I think that so far from seeking methods of extending the testamentary powers of Hindus, we ought to do everything we legally can to restrain them. I believe the testamentary law of England to be wholly unsuited to the wants and habits of the people of this country, and I think it wise to apply the rule laid down in Tagore v. Tagore (9 B.L.R., 377) strictly. I, therefore, hold that the bequest now under consideration is a bequest to a class some members of whom could not legally take because they were not in being at the testator's death, and that for this reason the bequest is wholly void.