Lawrence H. Jenkins, C.J.
1. This appeal arises out of an application made under the liberty to apply contained, in the decree passed in this suit, and it involves the question - whether in the events that have happened the applicant, the appellant before us, has a present interest under the will dated the 30th. October 1870 of Hurry Dass Dutt, who died on the same day. In that will there is a clause in these terms:
But in case none of such adopted sons survive my said wife or in case of either surviving by said wife and dying under the said age without leaving a son or sons I desire and direct my executors after the death of my said wife or the death of such son after her but under such age of eighteen years without leaving a son or sons to make over and divide the whole of my estate both real and personal unto and between my daughters in equal shares in whom and their respective sons I give devise and bequeath the same but should either of my said daughters die without leaving any male issue surviving but leaving my other daughter her surviving then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter or in the case of, the death of either daughter leaving sons the share of such daughter is to be paid to such her son or sons share and share alike.
2. The testator left him surviving his widow Surnomoni Dasi, his daughter Ranimoni Dasi, his daughter Premmoni Dasi and three sons of Premmoni Dasi, i.e., the appellant Had ha Prasad Mallick, Kasi Prasad Mallick, and Jyoti Prasad Mallick.
3. It is common ground that those events have happened in which the gift in favour of the testator's daughters and their sons is expressed to come into operation. It is in these circumstances that the present suit was instituted and the first question of construction that arose was whether the daughters took absolute or limited interests. In reversal of the High Court's view it has been held by the Privy Council that the daughters did not take absolute interests and in the order in Council consequent on that decision it was ordered that the decree of the High Court be varied by substituting for the words therein contained 'are each absolutely entitled to a moiety or half part of the estate of the said testator including the additions and accretions thereto' the words 'are in the events that have happened entitled to the estate of the said testator including the additions and accretions thereto in equal shares for life and with benefit of survivorship between themselves.' In other respects the decree of the High Court was affirmed.
4. Since this order Premmoni has died leaving sons, and Radha Prasad Mallick, one of them, claims to be entitled with his brother Kasi Prasad to her share and so to apply under the liberty in that behalf contained in the decree. His opponents are his brothers Peary Lal and Behary Lal who were born after the testator's death, his aunt Srimutty Ranimoni Dasi and her adopted son Jugol Kissore, whose adoption took place on the 2nd November 1900.
5. An objection has been taken at the outset that the appellant has no right to make this application, but should have B brought a suit for this purpose.
6. But in my opinion this objection is not well founded. The decree of the High Court after declaring the rights of the daughters reserved to the parties liberty to apply for partition upon the necessary parties being added and generally from time to time as they might be advised. This part of the decree was affirmed by the Privy Council. Now the present appellant is a party in whose favour liberty to apply has been Reserved, and when regard is had to the nature of the suit and the decree that has been passed and to all the circumstances it seems eminently proper that the liberty so reserved should be utilised for the purpose of completing the decree and of thus determining the question of construction which arises out of the fresh events that have happened.
7. The contention that a separate suit should have been brought does not commend itself to me; it would involve greater expense and delay and it has not been shown that this procedure prejudices anyone. I therefore hold that the question of construction discussed before us can be properly decided on an application under the liberty to apply. No exception has been taken to the form in which the application has been made or its appropriateness, apart from the objection of jurisdiction, so that I need not enter on that. This brings me to the question of substance that arises on this appeal, and it is this: in the events that have happened has lianimoni become entitled to the whole income of the estate or have Premmoni's sons become entitled to the capital of their mother's share? Fletcher, J. has decided this in Ranimoni's favour on the construction of the order in Council, and this seemed to the learned Judge so clear that he expressed the view that the application ought never to have been brought and he ordered the applicant to pay the costs of all parties.
8. First then I turn to the order in Council and there I find it declared that the daughters 'are in the events that have happened entitled to the estate of the said testttor in equal shares for life and with benefit of survivorship between themselves.' It may be that these words standing alone and isolated from the surrounding circumstances have the force that has been ascribed to them by the learned Judge, but to appreciate their real meaning regard must be bad to the facts to which they relate and to the opinion on which they were founded. Now it is stated by their Lordships almost at the outset of their opinion that the only question raised on the appeal was as to the nature of the estate, which in the events which had happened, the testator's daughters took under the terms of the will. And at this point it is important to bear in mind what those events were, and also that the High Court had determined that the daughters each took a half share in the testator's estate absolutely, but expressed the view that it would be premature to decide whether that gift was defeasible in the event of either daughter dying without male issue, and they expressly left the question open until it was ascertained what the events were. Their Lordships of the Privy Council while dissenting from the views that the daughters took absolute interests went on to describe the utmost interest that they did and could take in the events which up to that time had happened as between themselves and apart from any subsequent disturbing event.
9. As I read the opinion and order in Council there was no intention to decide the rights of sons in reference to a subsequent event which might or might not happen, and this would accord with what I understand to be the practice in ordinary cases. But now a fresh event has happened, for Prenimoni has died leaving sons, and this, as it seems to me, takes the case outside the purview of the order in Council so that the effect of the will under the altered circumstances has to be considered.
10. Now the will contemplates two events and the provision applicable in the event that has happened is in these terms:
'In the case of the death of either daughter leading sons the share of such daughter is to he paid to such her son or sons share and share alike,' and in connection with this provision the opening words of the gift have to he kept in view. Though this part of tile clause has not been specifically construed by their Lordships of the Privy Council, they have indicated their views as to what the testator meant and have stated that according to the true construction of the will the intention of the testator was to create in favour of his daughters and estate for life with a remainder over to their Sons. It seems probable that the word remainder was not used with the special significance that attaches to it in English real property law but was borrowed from the language of the High Court to emphasize the contrast between the view taken by the High Court and the Privy Council. Accepting then this as the intention of the testator is there any legal obstacle in its way? Now it has to be remembered that after the testator's death two sons were born to Premnioni, the defendants Peary Lal and Behary Lal, and that of her sons living at the testator's death Jyoti Prasad predeceased her.
11. The gift is to a class, and the first point to be decided is one of construction: who come within the class? Having regard to the date of the will it is regulated as to its interpretation by the Hindu Wills Act 1870 and the incorporated provisions of the Indian Succession Act 1865.
12. The method of incorporation has been the subject of judicial comment and even animadversion, but the canon on construction to be applied has been thus defined by Lord Esher in In re Wood's Estate (1886) L.R. 31 Ch. D. 607, 615: - 'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. This then is the rule by which the Court is to be guided.
13. Section, 85 of the Succession Act provides that 'where a bequest is made to a class of persons under a general description only, no one to whom the words of the description are not in their ordinary sense applicable shall take the legacy.', By Section 98 it is provided that 'where a bequest is made simply to a described class of persons the thing bequeathed shall go only to such as shall be alive at the testator's death.' These two sections are in Chapter XI and they deal with the construction of wills.
14. Chapter XII, however, is concerned with a different topic, 'void bequests' and by Section 100 it is provided: - 'Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.' Section 101 formulates the rule against perpetuity with which we have nothing to do, while Section 102 provides that 'If a bequest is made to a class of persons, with regard to some of whom it is inoperative by reason of the rules contained in the two last preceding sections or either of them, such bequest shall be wholly void.'
15. Section 3 of the Hindu Wills Act 1870 is by way of a proviso to the portions of the Succession Act incorporated by Section 2 and it is thereby provided that nothing in the Act contained 'shall authorise any Hindu, Jain, Sikh or Buddhist to create in property any interest which he could not have created before the first day of September 1870.' Whether this provision has regard only to the nature of the interest or extends also to the capacity of the person in whose favour the interest is expressed to be created has been a matter of considerable discussion. If the narrow view be adopted, nothing in the shape of repugnancy would arise on the construction of the Act, but this cannot be said of the wider view; indeed its adoption involves to an appreciable extent the nullifying of that which has been incorporated. But to discuss the respective merits of these rival constructions would profit nothing for the point is covered by authority binding on us and going as far back as 1882, when it was decided by the Court of Appeal reversing the judgment of Wilson J. as he then was, that the proviso I have read controls both the quantity and quality of the interest created n and in its natural and ordinary meaning includes the capacity of a donee to take: Alangamonjori Dabee v. Sonamoni Dabee (1882) I.L.R. 8 Calc. 637. Pontifex J. in Cally Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry (1882) I.L.R. 8 Calc. 348, expressed an opinion to the same effect.
16. Accepting then, as I must, this as the true meaning of Section 3 I will now consider what its effect is in the circumstances of this case.
17. The gift is to the sons or sons of Premmoni share and share alike, but their possession of it is deferred until a time later than the death of the testator by reason of the prior bequest to their another; so that under Section 98 the property at their mother's death would go to such of the sons as should be then alive and to the representatives of any of the sons who had died, since the death of the testator. According to this the property would go in five equal shares to Radha Prasad, Kasi Prasad, Peary Lal, Behary Lal and the representatives of Jyoti Prasad. But this result must be controlled by the proviso in Section 3 of the Hindu Wills Act and the rule of Hindu Law that a bequest to a person not in existence at the time of the testator's death is void so that the saving provision in Section 100 cannot be applied. The result then is that Peary Lal and Behary Lal cannot take.
18. What then is the effect of this? On behalf of Ranimoni it is contended that as some of the class cannot take, the whole gift is void and in support of this, Leake v. Robinson (1817) 2 Meir. 363 has been cited. But this contention proceeds on n misapplication of this case and a misconception of the true nature of a gift to a class. In Leake v. Robinson (1817) 2 Meri. 363, the gift to the class failed because the class could not be ascertained within the period allowed by the rule against perpetuities. The gift here in no way offends that rule: its only fault is that the class of legatees includes some who were not in existence at the date of the testator's death and were thus under a personal incapacity. And the difference is obvious. In a gift to a class the testator looks to the body as a whole rather than to the members constituting that body: Kingsbury v. Walter  A.C. 187, 1919, and the class is in a sense personified. But if that class cannot be ascertained until a time beyond that permitted by the rule against perpetuity there is no class to which the gift can legally be made. But if as here the fault is not that the class cannot be ascertained within the period permitted by law, but that certain members of the class are incapable of taking, different considerations apply. Now according to Section 98 sons living at the death of the testator would take and the provision in favour of the representatives of deceased sons shows that the sons would take vested, interests. Apart from the rule against gifts to unborn persons the class thus taking would be liable to enlargement with a corresponding divestment of vested shares. But where that rule applies there can be no divestment for a vested interest cannot be divested by a person incapable of taking.
19. The incapacity therefore of some members of the class does not invalidate the gift under the Succession Act which in this respect seems to be in harmony with the current of English authority on this point: Dowest v. Sweet (1753) 1 Amb. 175, Young v. Davis (1863) 2 Drew. & Sm. 167, Shaw v. McMahon (1843) 4 Dr. & War. 431, and Fell v. Biddulph (1875) L.R. 10 C.P. 701.
20. This view of Section 98 and its effect is borne out by the general scheme of the Succession Act. Chapter XII is headed 'of void bequests' and it indicates the grounds on which a gift to a class is void: They are limited to those set forth in Sections 100 and 101. But the gift here certainly does not offend the rule against perpetuity contained in Section 101, the only question is whether it comes within Section 100. I do not think it does. But for the rule of Hindu Law which forbids the gift to an unborn person, this gift in reversion to sons would be good as it comprises the whole of the remaining interest of the testator in the thing bequeathed and the gift to the unborn sons would therefore have been valid.
21. It is the rule of Hindu Law in combination with the interpretation that has been placed on Section 3 of the Hindu Wills Act that avoids the gift, so that it cannot be said that the bequest to the class is inoperative with regard to some of that class, by reason of the rule contained in Section 100. And so the ground of avoidance on which the gift to Premmoni's sons as a class is open to attack is not one for which provision is made by the Act. The result then is that the gift to the class is good, but reading section o of the Hindu Wills Act in the sense that has been ascribed to it the after-born sons Peary Lal and Behary Lal cannot take, so that those now entitled to participate are Radha Prasad, Kasi Prasad and the representatives of Jyoti Prasad and between them the property bequeathed will be divided in three equal shares.
22. Having regard to all the circumstances I think this is a case where the costs of all parties in the Court of first instance should come out of the estate and also the costs of the appeal. There will be liberty to apply to the Judge sitting on the Original Side, if necessary, as to realizing the money necessary for raising these costs. The case will now go back to the Court of first instance.
23. I agree.