1. This appeal relates to the construction of the Will in suit. The testator, Nobokrishna Ghose died in Aghran 1268. At the date of the Will and of the testator's death his family consisted of his wife, Sreemali Dasimoni Dasi, and two daughters, Kurani, a widow, and Bhuban Mohini Dasi, a married woman whose husband was then living. Kurani had a son of the name of Nibaran Chandra Sir then living, the husband of the plaintiff in the suit oat of which this appeal arises. There were also living at that time the testator's younger brother Ramratan Ghose and his nephew Harish Chandra Ghosh, son of a predeceased brother la war Chandra Ghose. The Will recites that the testator was in joint possession of his landed and ancestral properties with his co-sharers, referring to his brother and nephew, The following are material portions of the Will:
2. 'I have my wife Sreemati Dasimoni Dasi and my two daughters, of whom the first, Kurani Dasi, is a widow and has a son named Nibaran Chandra bar living, and the second, Bnuban Mohini Dasi, has her husband living, and is likely to have sons born to her. Now, while in full possession of my senses, I make the following disposition of my properties.
1. After my death my wife Sreemati Dasimoni Dasi shall possess my properties, but not by right of inheritance. She shall enjoy the properties during her lifetime, keeping them as they are.
2. After the death of my wife my daughter or daughters whoever among them may be alive, whether with or without sons, shall possess my properties, but not by right of inheritance. She or they shall enjoy the properties during her or their lifetime, keeping them intact.
3. After the death of my daughters my grandson or grandsons, whoever among them may be alive, shall posses? my properties, but not by right of inheritance. He or they shall enjoy the properties during his or their lifetime, keeping them intact.
4. After the death of my grandsons all my properties will go to my father's family, that is to say, my younger brother Ram Ratan Ghose and my nephew Harish Chandra Goose, son of the deceased brother Iswar Chandra Ghose or, on their death, their descendants shall succeed to my properties and the same shall be enjoyed by them and their descendants in succession.
3. The plaintiff is the widow of Nibaran Chandra Sur who died in 1312 B S. Kurani died in 1304 and Bhuban Mohini in 1304, childless. The plaintiff contends that the gift over to the brother and nephew in Clause 4 is bad and inoperative and, therefore, after the death of the testator's daughters the estate vested absolutely in her husband Nibaran Chandra Ghose, and she is now entitled to it as a Hindu widow. The learned Subordinate Judge held that the bequest to the testator's 'grandson or grandsons' in Clause 3 was not wholly void as a bequest to a class, but was operative so far as Nibaran was concerned having regard to the Privy Council decisions in Rai Bishen Chand v. Amaida Koer 6 A. 560; 11 I. A. 16, 4 Sar. P. C. J. 512; 3 Ind. Dec. (N. S.) 861. and Bhagabati Karmanya v. Kali Charan Singh 10 Ind. Cas 641; 38C. 468; 21 M. L. J. 387; 15 C. W.N. 393; 9 M. L. T. 411; 13 C. L. J. 434; 8 A. L. 433; 13 Bom. L. R. 375. (1911) 2 M. W. N. 295; 38 I. A. 54 (P.C.)and the decisions of the High Court in Ram Lal Selt v. Kanai Lal Selt 12 C. 663; 6 Ind. Dec, (N. S.) 450. and Bhoba Tarini Debya v. Peary Lall Sanyal 24 C. 616; 1 C. W. N. 578; 12 Ind. Dec.(N. S.) 1100. inasmuch as the primary intention of the testator was that his daughter's son who was in existence and such other daughter's son who might be born afterwards should take equally, and that his secondary intention was that the grandson, namely the plaintiff's husband, who was then in existence and, therefore, capable of taking, should take. It has been argued that the learned Subordinate Judge has erred in so construing Clause 3. No doubt in that Clause Nibaran has not been specifically named, but there is no doubt whatsoever that by the expression 'my grandson or grandsons' he was referring to his grandson Nibaran who was in existence at the time the Will was made. The testator referred to 'grandsons' as he contemplated the possibility of sons being born to Bhuban Mohini. We do not think there can be any doubt whatever, upon the authorities referred to, that Nibaran Chandra Sur took a life-estate under the Will.
4. It is next argued that the bequest in favour of the testator's grandson or grandsons is void in view of Section 100 of the Succession Act. The Subordinate Judge rightly held that as the Will in question was made before the Hindu Wills Act came into operation that Section had no application. It appears to have been argued before the learned Subordinate Judge that the gift over in this ease was bad having regard to Section 101 of the Succession Act, and it is now argued that the gift over in Clause 4 is not operative as it is said to be too remote and offends against the rule of perpetuities. It is argued that the gift over, having regard to Clause 3 which speaks of a gift to grandson or grandsons then unborn, may delay the vesting of the estate beyond the lifetime of one or more persons living at the testators's decease and the minority of some persons who may be in existence at the expiration of that period. This argument overlooks what the Section requires. It says: 'No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's decease, and the minority of some persons who shall be in existence at the expiration of that period and to whom, if he attains full age, the thing bequeathed is to belong.' Here the thing bequeathed was to take immediate, effect after the death of the daughters and Nibaran and other grandsons, if any, were to take at the same time. No vesting is postponed beyond a life and the attainment of majority of a possible minor. Section 101 by itself does not apply to this Will, as it was made before the Hindu Wills Act. But it has been argued that the rule of perpetuities is operative as a matter of public policy even in respect of Wills made before the enactment. That may be so, but Section 101 lays down a special rule and it differs from the English law on the subject. There is no reason why it should be invoked for the construction of Hindu Wills made before that Section came into operation.
5. It was held in Ram Lall Sett v. Kanai Lall Sett 12 C. 663; 6 Ind. Dec, (N. S.) 450. by Wilson, J., that it was settled law having regard to the decision in Alangamonjori Dabee v. Sonamoni Dabee 8 C. 637; 10 C. L. R. 459; 6 Ind. Jur. 576; 4 Ind. Dec. (N. S.) 409. that by reason of the saving Clause in the Hindu Wills Act neither Section 100 nor Section 101 of the Succession Act, though embodied in the Hindu Wills Act, had any application to Hindu Wills.
6. In Bhagabati Barmanya v. Kali Charan Singh 32 C. 99; 1 C. L. J. 482 (F. B.); 9 C. W. N. 749. all these cases and Leake v. Robinson (1817) 2 Mer. 863; 16 R. R. 168; 35 E. R. 979. were elaborately discussed. In that case the primary intention of the testator was, as found by the learned Judges, that all his nephews then born and those who may be born afterwards should take equally but those that had then been born were the, immediate objects of his affection and bounty, and the idea must have occurred to the testator that if any other nephews were not born those who were then in existence, though not specifically named, should take the whole of the estate. They followed Coleman, In re (1876) 4 Ch. D. 165; 46 L. J. Ch. 33. and the Advocate-General v. Karmali Rahimbhai 29 B. 133; 6 Bom. L. R. 601. The observations made in that case apply to the ease before us.
7. We are of opinion that the bequest in this case is not affected by the rule of remoteness as applied in England and it does not offend against the law as to perpetuities. The secondary intention of the testator was that Nibaran, who was alive at the time of the Will and the death of the testator, was to take and all that he took under the Will was a life-estate and the remainder has rightly vested in the defendants. The Privy Council has upheld and approved the general rule of construction which was held applicable to Hindu Wills in Ram Lal Sett v. Kanai Lall Sett 12 C. 663; 6 Ind. Dec, (N. S.) 450., and it has also affirmed the decision of the High Court in Bhagabati Barmanya v. Kali Charan Singh 32 C. 99; 1 C. L. J. 482 (F. B.); 9 C. W. N. 749. They said that the principle enunciated in Leake v. Robinson (1817) 2 Mer. 863; 16 R. R. 168; 35 E. R. 979. was sought to be introduced in India owing to a mistaken analogy and approved of the observations made in Ram Lal Sett v. Kanai Lall Sett 12 C. 663; 6 Ind. Dec, (N. S.) 450. In this connection Bhoba Tarini Debya v. Peary Lall Sanyal 24 C. 616; 1 C. W. N. 578; 12 Ind. Dec.(N. S.) 1100. may also be referred to. Sivasankara Pillai v. Soobramania Pillai 31 M. 517; 4 M. L. T. 306. has no application to this case. There was no gift to a grandson in that case. The testator there empowered the executor to divide his property into five shares as he had five sons and to deliver the shares to the grandsons in the case of sons with male issue, and in the case of sons without male issue to the sons themselves when the grandsons may attain their age. In that case the learned Judges held that Section 101 was applicable, inasmuch as the distribution in that case was to take place only after all the sons who might be born to the sons of the testator had attained their majority.
8. In Khimji v. Morarji 22 B. 533; 11 Ind. Dec. (N. S.)936. the learned Judge deduced the following propositions from Ram Lall Sett v. Kanai Lall Sett 12 C. 663; 6 Ind. Dec, (N. S.) 450. and other similar oases that 'it is the primary duty of the Court so to construe a Will as to carry out, as far as possible, the intentions of the testator, and that if the Court comes to the conclusion that the testator had the primary intention of benefiting all the members of a class and if such intention fails by reason of its being void, yet if the Court could deduce a secondary intention that at least such members of the class should take as were in existence at the time of the testator's death, then effect should be given to such secondary intention'. In adopting that test he came to the conclusion that in the case before him the testator intended to benefit all the members of certain classes and that he had no intention of benefiting any particular members of any of the classes in the event of the gift to the classes as a whole failing by reason of the non-existence of some of the members at the time of the testator's death. That case, therefore, has no application here, Chandi Churn Barua v. Sidheswari Debi 16 C. 71 (P. C.); 15 I. A. 149; 12 Ind. Jur. 329; 5 Sar. P. C. J. 23 8 Ind. Des. (N. S.) 47. also has no application. It was there held that the manifest purpose of the deed under construction was to fasten upon the grantor and his successors in the Raj a perpetual duty of giving, in some way or other, the means of maintenance to all the descendants of four persons who were in life at its date. It did not directly impose an obligation of that singular and unprecedented description; but on the failure of the then Raj, at any future time, to maintain these descendants, however numerous, the latter were to have immediate right to four of the donor's villages, which thenceforth were not to 'appertain to his kingdom'. That is altogether a different ease from the present one.
9. We agree with the learned Subordinate Judge in his conclusions and dismiss the appeal with costs.