1. This is an appeal on behalf of the plaintiffs in a suit to enforce a mortgage security executed in favour of their father by one Sasi Bhusan Chakraburty, the husband of the defendant on the 23th January 1892. The loan was re-payable on the 12th April 1893 and as the suit was not commenced till the 7th April 1905, the remedy of the mortgagees is restricted to the mortgaged premises. The question in controversy between the parties is, whether the mortgage is binding upon the property in the hands of the defendant, who claims to have acquired title thereto independently of her husband. It may be assumed for the purposes of the present appeal that the property originally belonged to the father-in-law of the defendant, Earn Kumar Chakravarty. He made a testamentary disposition of his properties on the 30th October 1899 and died on the 19th November 1899. 'Under his Will, his widow, Umasundari, became absolutely entitled to the property in suit. On the 15th October 1891, Uma Sundari made a testamentary disposition of her estate and died shortly after. The Will was addressed to her eldest son, Dwarka Nath Chuckerbutty, and directions were given for the disposal of the properties, the legal effect of which is now in controversy. The substance of the disposition was that Dwarka Nath. would take possession of the estate upon the death of her mother, that he would get his brother, Sasi Bhusan, married in the course of 10 years, that if Sasi Bhusan married within this period the estate would be taken by his wife, but that if Sasi Bhusan did not marry within 10 years, upon the expiry of this period Dwarka Nath would sell the properties and apply the proceeds for certain speei-fied religious purposes. The Will concluded with a statement that Dwarka Nath would be the executor till the marriage of Sasi Bhusan, when his wife would succeed to the office of executor. Dwarka Nath died in 1892, after Sasi Bhusan had executed the mortgage now in suit. Sasi Bhusan was married in 1893 to the defendant, Ratan Mala, who was born about the year 1883. The case for the plaintiffs is that the bequest in favour of the wife of Sasi Bhusan was void and that Sasi Bhusan succeeded to property as upon intestacy. The case for the defendant is that the bequest in favour of the wife of Sasi Bhusan was valid, that Sasi Bhusan did not take any interest in the estate of his mother and that consequently the mortgage executed by him is ineffectual to bind the property. The Court of first instance pronounced in favour of the invalidity of the bequest and decreed the suit. Upon appeal the Subordinate Judge has reversed that decision. The plaintiffs have now appealed to this Court.
2. Before we deal with the question of the legal effect of the dispositions contained in the Will, it is necessary to state that in the Court below an objection appear. to have been taken to the frane of the suit. It was argued, upon the authority of the decision of this Court in the case of Jaggeswar Dutt v. Bhuban Mohan Mitra 33 C. 425 : 3 C.L.J. 205, that the suit could not proceed against the defendant as she claimed a title paramount to that of the mortgagor in the mortgaged premises This objection was, in our opinion, rightly overruled because, as pointed out in the case of Bhaja Chowdhury v. Chuni Lal Marwari 5 C.L.J. 95 : 11 C.W.N. 284, the rule that the question of paramount title cannot be properly investigated in a mortgage suit is subject to exceptions. In the case before us, the defendant is the legal representative of the mortgagor, and if the property really belonged to the mortgagor she would be the proper person to besned. When sued by the mortgagee upon the assumption, it was obviously open to her to set up her own title. It would be an idle formality to compel the mortgagee to institute a suit for a declaration that the property belonged to the mortgagor, and to stay the mortgage suit till the disposal of that litigation. We must, therefore, treat the suit as properly framed and deal with the question raised as within its scope.
3. The first point which requires consideration is as to the true position of Dwarka Nath. It appears to have been argued on behalf of the plaintiffs in the Court below that the testatrix intended to create a limited interest in his favour and in support of this view reference was made to passages in the Will in which it is stated that what-ever rights and interests the testator had, should be vested in Dwarka Nath who was to own and hold possession subject to the conditions set forth In our opinion, the 'Will taken as a whole indicates that the true position of Dwarka Nath was no higher than that of. an executor in whom the estate necessarily vested under Section 4 of the Probate and Administration Act of 1881. Dwarka Nath had clearly no power under the Will to use or spend the income for his own purposes, He was to accumulate the income for a period which might extend to 10 years and might be shorter if Sasi Bhusan should be married in the meanwhile. It has been suggested before us that this trust for accumulation was invalid, but we are not prepared to adopt this position as well-founded on principle. There was no trust for perpetual accumulation as would be necessarily had. Asima Krishna v. Kumara Krishna 2 B.L.R.O.C.J. 11; Krishna Ramani v. Arauda Krishna 4 B.L.R.O.C.J. 231; Sookhmoy v. Monohurri 12 I.A. 103. On the other hand, the cases of Soorjee money v. Denobundo 6 M.I.A. 526 : 1 Ind. Jur. O.S. 37 : 4 W.R. 114; Bissonath Chunder v. Bama Soonderi 12 M.I.A. 41, certainly indicate that a direction for accumulation is not necessarily had, while in the case of Amrito Lall v. Surnomoyee 24 C. 589 : 1 C.W.N. 345, Mr. Justice Jenkins was inclined to the view that if accumulations are permissible, the limit must be that which determines the period duling which the course or devolution of property can be directed or controlled by a testator. We are not unmindful that the judgment of Mr.justice Jenkins was reversed upon appeal on another point Amrito Lall v. Surnomoni 25 C. 662 : 2 C.W.N. 389, and the decision on appeal was affirmed by the Judicial Committee [Amrito Lall v. Surnomoyee 27 C. 996 : 4 C.W.N. 549 : 27 L.A. 138]. Mr. Justice Trevelyan in the Court of appeal conceded that a direction to accumulate would be valid if there was a present gift to support the direction to accumulate. We are, therefore, of opinion that the true position of Dwarka Nath was that of an executor and that he was directed to accumulate the income for a specified purpose, namely, for the marriage expanses of the son of the testator, Sasi Bhusan Chueker-butty.
4. The second point, which requires consideration, is as to the alternative gifts intended by the testator. The Will taken as a whole makes it reasonably plain that the object of the testator was that her whole estate was to be applied for religious purposes, for the spiritual benefit of herself and of her husband, except in the contingency, namely, if Sasi Bhusan married within 10 years, the estate was to vest in the wife of Sasi Bhusan. The question appears to have been argued in the Court below, whether Section 99 of the Indian Succession Act, which is made applicable to Hindus by the Hindu Wills Act, is sufficient to validate these gifts, In our opinion, it is unnecessary to consider the effect of Section 99, first, because neither the rule laid down in the section nor the exception thereto really cavers the case before us, and, secondly, because, as pointed out in the case of Ram Lal Seit v. Kanai Lal Sett 12 C. 663, Section 99 would be applicable only in so far as it did not contravene any rule of Hindu Law [Jairam v. Kuverbai 9 B. 491; Anandrao Vinayak v. Administrator General20 B. 450]. The real question, therefore, which arises is, whether the bequest is invalid under the Hindu Law. On behalf of the plaintiff, it has been argued that there was no valid bequest, because the bequest here might be in favour of a person not born at the death of the testator. On behalf of the respondent it has been argued that although the decision of the Judicial Committee in Jatindra Mohan Tagore v. Ganendra Mohan Tagore Supp. Vol. L.A. 47 : 18 W.R. 859 : 9 B.L.R. 337 lays down the rule that under the Hindu law there can be no valid gift in favour of an unborn person, yet their Lordships recognised an exception in the case of adopted children and indicated another possible exception in the following passage from their judgment (page 70):
Their Lordships, 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 of provisions by way of contract or of conditional gift on marriages or other family provision for which authority may be found in Hindu Law.' A. passage indicative of such authority may be found in the text of Vyasa and the comments thereon by Jagannath in his Digest (translated by Colebrooke, Book II, Chapter IV Section 2, paragraph 30). Reference may also be made to paragraphs 49 to 52 which treat of valid irrevocable gifts. From this point of view, no question can really arise as to the invalidity of: the bequest which may also be supported from another point of view. The decision of their Lordships of the Judicial Committee in the case of Bai Motivahu v. Bai Mamoobai Bai 24 I.A. 73 : 21. B. 709 shows that although the English Law of powers is not to be applied generally to Hindu Wills, yet a gift by a, Hindu testator of a power of disposition by Will over his estate is valid, and a gift to an. appointee in exercise of such power of appointment will be good, if he be a person in existence at the death of the testator. [See also Jarerbai v. Kablibai 16 B. 492 and Yathi Rajulu v. Mufkunthu 28 M. 363 : 15 M.L.J. 299]. There can be no controversy here that if Sasi Bhusan had been married in the life-time of the testator to the defendant, a bequest in favour of the daughter-in-law would have been good; the only difference, which the Will made in substance, was that Dwarka Nath was authorized to effectuate the intention of the testator and the estate vested in the defendant as soon as she was married, although it could not vest in her so long as she was a persona incerta, in our opinion, there was a valid bequest, and Sasi Bhusan never acquired any interest in the property.
5. The result, therefore, is that the decree made by the Court below must be affirmed and this appeal dismissed with costs.