Judgement Appeal from a judgment of the High Court (June 1, 1905) affirming a decree of the District Judge of Murshidabad (April 24, 1903). The point decided was as to the true construction of a will executed by one Ram Lal Singh on March 2, 1868. The material clause was, " My mother Phudan Kumari Barmanya and my wife Bhagobati Barmanya shall, as long as they shall live, hold possession of all my properties, movable and immovable, and enjoy and possess the same on payment of the collectorate revenue and the zemindars rents, and by maintaining intact and continuing the service of the established deities and the ancestral rites according to the practice heretofore obtaining, and shall pay off all my debts and realize my dues. They shall not be competent in any way to transfer the immovable property to any one. On the death of my mother and my wife, the sons of my sisters, Golap Sundari Barmanya and Annapurna Barmanya, that is to say, their sons who are now in existence, as also those who may be born hereafter, shall, in equal shares, hold the said properties in possession and enjoyment by right of inheritance, and shall maintain intact and continue the service of the established deities and the ancestral rites according to the practice heretofore obtaining." Ram Lal Singh, the testator, died on March 3, 1868, leaving him surviving his mother, his wife, two sons (Nilkanth and Jagabandhu) of one sister, Golap Sundari, and one son (Syama Charan Singh) of another sister, Annapurna. Subsequent to the death of the testator, another son, Madhu Sudan, was born to Golap Sundari, who died in the year 1901. On the death of Ram Lal Singh, his widow and mother obtained possession of his estate in accordance with the provisions of his will. The mother died in the year 1887, and on October 11, 1901, the widow executed a deed, purporting to be a deed of relinquishment, by which she surrendered her life estate in the property of Ram Lal Singh to Syama Charan Singh, the son of Annapurna, who would have been the reversioner had Ram Lal Singh died intestate. The mother died in the year 1887, and on October 11, 1901, the widow executed a deed, purporting to be a deed of relinquishment, by which she surrendered her life estate in the property of Ram Lal Singh to Syama Charan Singh, the son of Annapurna, who would have been the reversioner had Ram Lal Singh died intestate. The suit was brought in 1902, on behalf of Kali Charan Singh, who was then a minor, to obtain a declaration that, under the clause of the said will already recited, Nilkanth, deceased, the plaintiffs father, who was son to Golap Sundari, obtained a vested estate in remainder, and that on the death of Ram Lal Singhs widow and mother the plaintiff would be entitled to possession of one third share in Ram Lal Singhs estate, notwithstanding the execution of the said deed of relinquishment. The defendants to the suit were Bhagabati Barmanya, Syama Charan Singh, and Basanta Kumari, the widow of Jagabandhu. The two former contended that the gift in remainder under the said clause of the will was to a class, namely, the sons of the testators sisters, born and to be born, that it was invalid as to sons unborn, and was consequently invalid in its entirety. The District Judge was of opinion that the devise in favour of the testators nephew, alive at the time of his death, was valid, and was not invalidated, because, under the ruling in the Tagore Case (( 1872) L. R. Ind. Ap. Supp. 47 ; 9 B. L. R. 377.), it could not operate in favour of nephews then unborn. He decided that Nilkanth took a vested interest in remainder under the said will, and that on his death the interest passed on to his son, the plaintiff; and he accordingly made a decree granting the declarations claimed in the plaint, which decree was affirmed on appeal. The material passage of the judgment of the High Court which is reported in I. L. R. 82 Calc. 1005 is as follows— " The rule as to invalidity of a bequest by a Hindu to a person who is unborn at the date of the death of the testator rests on the peculiar doctrine of Hindu law expressed by the phrase relinquishment in favour of the donee who is a sentient being. 1005 is as follows— " The rule as to invalidity of a bequest by a Hindu to a person who is unborn at the date of the death of the testator rests on the peculiar doctrine of Hindu law expressed by the phrase relinquishment in favour of the donee who is a sentient being. With certain well-known exceptions pointed out in the Tagore Case (( 1872) L. R Ind. Ap. Supp. 47 ; 9 B. L. R. 377.), no gift by a Hindu can be valid unless it is made to a person or persons in existence. The rule has been often repeated, and it renders the bequest to such of the nephews of Ram Lal as would be born after his death inoperative. " There is no rule of Hindu law (so far as we are aware, and our attention has not been drawn to any text of sages or approved commentaries) to the effect that a gift inter vivos or a bequest to a class of persons, some of whom are incapable of taking by reason of the rule that a gift is valid only if it is made to a sentient being capable of taking, is void also as regards those who are sentient and capable of taking. Where then is the rule contended for on behalf of the appellants to be found ? The analogy to English law, even if we were bound to accept it, does not hold good, as it is based on peculiar rules inapplicable to Hindus. "But even in England the rule in Leake v. Robinson ((1817) 2 Mer. 363.) has been followed not without expressions of reluctance. In Leake v. Robinson ((1817) 2 Mer. 363.) itself Sir William Grant said Perhaps it might have been as well if the Courts had originally held an executory devise transgressing the allowed limits to be void only for the excess, where that excess could be clearly ascertained. In Re Moseleys Trusts (( 1879) 11 Ch; D. 555.) the Lords Justices similarly expressed their non-concurrence with the reason of the rule though they were bound to follow it; and in Pearks v. Moseley (5 App. Cas. In Re Moseleys Trusts (( 1879) 11 Ch; D. 555.) the Lords Justices similarly expressed their non-concurrence with the reason of the rule though they were bound to follow it; and in Pearks v. Moseley (5 App. Cas. 714.), which was an appeal from the decision of the Lords Justices in Re Moseleys Trusts (( 1879) 11 Ch; D. 555.), Lord Selborne, Lord Penzance, and Lord Blackburn sufficiently indicated their inclination against the rule, which, however, was settled in England by a long series of cases and could not be disturbed except by legislation. " In India, however, we stand on a different footing. There is no series of cases, no current of decision which we are likely to disturb by adopting a different rule. There is a clear conflict of authorities in the Indian Courts. Bramamoyi Dasi v. Jogesh Chandra Dutt (( 1871) 8 B. L. R 400.), Soudamini Dassee v. Jogesh Chander Dutt (( 1877) I. L. R. 2 Calc. 262.), Khirodemoney Dassee v. Durgamoney Dassee (( 1878) I. L. R. 4 Calc. 455.), Jairam Narronji v. Kuver Bai (( 1885) I. L. R. 9 Bomb. 491.), and Rajamoyi Dasi v. Trailokya Mohini Dasi (( 1901) I. L. R. 29 Calc. 260.) follow the rule of English law; while in Manjamma v. Pudmanabhayya (( 1889) I. L. R. 12 Madr. 393.), Mangal Das Parmanandas v. Tribhuvan Das Narsi Das (( 1891) I. L. R. 15 Bomb. 652.), Tribhuvan Das Ruttonji v. Ganga Das (( 1893) I. L. R. 18 Bomb. 7.), Krishna Rao Ram Chandra v. Bena Bai (( 1895) I. L. R. 20 Bomb. 571.), Khimji Jairam. Naronji v. Morarji (( 1897) I. L. R. 22 Bomb. 533.), Bhobatarini Debya v. Peari Lal. Sanyal (( 1897) I. L. R. 24 Calc. 646.), and Gordhandas Soonderdas v. Bai Ramcoover (( 1901) I. L. R. 26 Bomb. 449.) a different view has been entertained. " The proposition that a gift must fail in its entirety, because effect cannot be given to a part of it, and that some person or persons whom the donor never intended to benefit should receive the entire property covered by the gift, to he exclusion of all the intended donees, is repugnant to Hindu notions. It obviously defeats the intention of the testator. It obviously defeats the intention of the testator. Courts have therefore struggled to carry out the intention of the testator as far as possible, and, as observed by the Judicial Committee in Rai Bishen Chand v. Asmaida Koer (( 1883) L. R. 11 Ind. Ap. 164.), J Cases are not rare in which a Court of construction finding that the whole plan of a donor of property cannot be carried into effect will yet give effect to part of it rather than hold that it shall fail entirely. Hardey Narain v. Rooder Perkash (( 1883) L. R. 11 Ind. Ap. 26.), Ram Lal Sett v. Kanai Lal Sett (( 1886) I. L, R. 12 Calc. 663.), and Srinivasa Danda-Yudapani (( 1889) I. L. R. 12 Madr. 411.) are instances which may be noted besides Rai Bishen Chand v. Asmaida Koer. (11) These latter are cases of gifts inter vivos, but the Hindu law of wills is a recent development of the Hindu law of gifts inter vivos—Tagore v. Tagore (9 B. L. R. 377.)—and the doctrine of the invalidity of bequests to the unborn has been taken bodily from the law of gifts. The Indian Legislature has also assimilated the Law of Transfers by act of parties as contained in ss. 13, 14, and 15 of the Transfer of Property Act to the Law of Wills as we find it in ss. 100, 101, and 102 of the Indian Succession Act. " The rule Laid down in Leake v. Robinson (2 Mer. 363.) was applied in this Court in Bramamayi Dasi y. Jages Chandra Dutt (8 B. L. R. 400.), Soudamini Dasi v. Jogesh Chandra Dutt (I. L. R. 2 Calc. 262.), and Kherodemoney Dassee v. Doorgamoney Dassee (I. L. R. 4 Calc. 455.); but the tide turned as soon as the decision of the Judicial Committee in Rai Bishen Chand v. Asmaida Koer (L. R. 11 Ind. Ap. 164.), which was pronounced in March, 1884, was known in India. In Rai Kishori Dasi v. Debendra Nath Sarkar (( 1884) I. L. R. 15 Calc. 415.) Tottenham and Field JJ. observed, referring to the case of Rai Bishen Chand, The case was no doubt a case not of a will but of a deed inter vivos and intended to have immediate operation; and as regards the applicability of the principle to Hindu wills, their Lordships decided nothing definitely. 415.) Tottenham and Field JJ. observed, referring to the case of Rai Bishen Chand, The case was no doubt a case not of a will but of a deed inter vivos and intended to have immediate operation; and as regards the applicability of the principle to Hindu wills, their Lordships decided nothing definitely. They did, however, refer to illustration (b) to s. 102 of the Succession Act (X. of 1865) as importing into India an English rule of construction which usually defeats the inten tion of the testator; and it would appear that the adoption of the English rule of construction did not recommend itself to their Lordships on that occasion as a sound principle applicable to the wills of Hindus. If we had to decide whether this principle ought to be adopted in this country, we should perhaps think it necessary to refer the question to a Pull Bench, having regard to the recent observations of the Privy Council in the case just referred to, and because we ourselves entertain some doubt as to whether this principle ought to be followed in con struing the wills of Hindus. In Ram Lal Sett v. Kanai Lal Sett (I. L. R. 12 Calc. 663.), which, as already stated, was also a case about a gift inter vivos, Wilson J. pronounced a decided opinion as to the inapplicability of the rule in Leake v. Robinson (1) to the wills of Hindus; and his view was adopted in this Court in Bhobatarini Debya v. Peari Lal Sanyal (I. L. R. 24 Calc. 646.) In Rajamoyi Dassee v. Troylukho Mohiney Dassee (I. L. R. 29 Calc. 260.), however, Stanley J. adopted the rule in Leake v. Robinson (1), but it does not appear that his attention was drawn to Ram Lal Sett v. Kanai Lal Sett (2) and Bhobatarini Debya v. Peari Lal Sanyal (I. L. R. 24 Calc. 646.) The High Courts of Madras and Bombay have, as we have seen, adopted the view expressed by Wilson J." Sir R. Finlay, K.C., and Ross, for the appellants, contended that the plaintiffs suit should have been dismissed. The plaintiffs father did not take a vested interest in the property in suit. 646.) The High Courts of Madras and Bombay have, as we have seen, adopted the view expressed by Wilson J." Sir R. Finlay, K.C., and Ross, for the appellants, contended that the plaintiffs suit should have been dismissed. The plaintiffs father did not take a vested interest in the property in suit. Under the true construction of the will there was no disposition by way of devise to the nephews, and the provisions of the will merely described the course of descent after the death of the two ladies under the ordinary Hindu law of inheritance. They were to take " as heirs," and the evidence established the order of succession. Assuming there was a devise in their favour, it was void as a gift to a class with regard to some of whom it might be inoperative. Accordingly there was an intestacy beyond the life estate to the testators mother and widow, and the interest un-disposed of vested in his widow as heiress. Reference was made to Ram Lal Sett v. Kanai Lal Sett. (I. L. R. 12 Calc. 663.) It is cited in Maynes Hindu Law, 7th ed., p. 505, s. 882, where it is said to have held " that the rule in Leake v. Robinson (2 Mer. 363.) was only applied in England to gifts to a class tainted with the vice of remoteness, and that the Indian Succession Act, s. 102, and the Transfer of Property Act, s. 15, marked the intention that the rule should only be extended to India in similar cases." Reference was made to Transfer of Property Act, 1884, ss. 13,14, and 15, and it was contended that ss. 100, 101, and 102 of the Indian Succession Act did not apply to this will. The following cases were cited —Javerbai v. Kablibai (( 1891) I L. R. 15 Bomb. 326.) ; Rojomoyee Dassee v. Troylukho Mohiney Dassee (I. L. R. 29 Calc. 260.); Jairam Narronji v. Kuverbai (I. L. R. 9 Bomb. 491, 508); Rai Bishen Chand v. Asmaida Koer (L. R. 11 Ind. Ap. 164.); Manjamma v. Pudmanabhayya (I. L. R. 12 Madr. 393.); Mangaldas Parmanandas v. Tribhuvandas Narsidas (I. L. R. 15 Bomb. 652.) ; Tribhuvandas Ruttonji Modi v. Gangadas Tricumji (I. L. R. 18 Bomb. 7.); Krishnarao Ramchandra v. Benabai (I. L. R. 20 Bomb. 571.); Khimji v. Morarji (( 1898) I. L. R. 22 Bomb. Ap. 164.); Manjamma v. Pudmanabhayya (I. L. R. 12 Madr. 393.); Mangaldas Parmanandas v. Tribhuvandas Narsidas (I. L. R. 15 Bomb. 652.) ; Tribhuvandas Ruttonji Modi v. Gangadas Tricumji (I. L. R. 18 Bomb. 7.); Krishnarao Ramchandra v. Benabai (I. L. R. 20 Bomb. 571.); Khimji v. Morarji (( 1898) I. L. R. 22 Bomb. 533.); Bhoba Tarini Dehya v. Peary hall Sanyal (I. L. R. 24 Calc. 646.) ; Gordhandas v. Bai Ramcoover (I. L. R 26 Bomb. 449.); Advocate - General v. Karmali. (( 1903) I. L. R. 29 Bomb. 133, 150.) The foregoing cases follow the authority of the judgment in 12 Calc. 663. Then there are three cases which follow the English decisions, namely, Bramamayi Dasi v. Jages Chander Dutt (8 Beng. L. R 400, 410.); Soudaminey Dossee v. Jogesh Chander Dutt (I. L. R. 2 Calc. 262.); Kherodamoney Dossee v. Doorgamoney Dossee. (I. L. R, 4 Calc. 455.) [De Gruyther, K.C., referred to Fell v. Biddolph. (( 1875) L. R. 10 C. P. 701.)] De Gruyther , K.C., and Dube, for the respondents, were not heard. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from a judgment of the Calcutta High Court delivered by Maclean C.J., affirming a decree of the District Judge of Murshidabad. The question turns upon the meaning and effect of the will of a Hindu gentleman named Ram Lal Singh. The will was executed on March 2, 1868. The testator died on the following day. At the date of the will the state of the testators family was this. The testator had no issue. His mother and his wife were alive and he had four sisters living. Two were childless widows. The other two had male offspring. The will, so far as material, is in the following terms — " My mother, Phudan Kumari Barmanya, and my wife, Bhagabati Barmanya, shall, as long as they live, hold possession of all my properties, movable and immovable, and enjoy and possess the same on payment of the collectorate revenue and the zemindars rents, and by maintaining intact and continuing the service of the established deities and the ancestral rites according to the practice heretofore obtaining, and shall pay off my debts and realize my dues. They shall not be competent in any way to transfer the immovable property to any one. They shall not be competent in any way to transfer the immovable property to any one. On the death of my mother and my wife, the sons of my sisters, Golap Sundari Barmanya and Annapurna Barmanya, that is to say, their sons who are now in existence, as also those who may be born hereafter, shall, in equal shares, hold the said properties in possession and enjoyment by right of inheritance, and shall maintain intact and continue the service of the established deities and the ancestral rites according to the practice heretofore obtaining." The difficulty, so far as there is any difficulty in construing the will, is occasioned by the bequest to the after-born sons of the testators two sisters, which has been taken to include nephews born after the testators death. It may perhaps be doubted whether the will properly construed gives rise to the question on which so much argument has been expended. If an English will expressed in similar terms were before an English Court it would probably be held that the gift to after-born children was confined to children coming into existence between the date of the will and the testators death. There is nothing in the circumstances in which this will was made, though the testator died the next day, to render that view improbable, for he expressly provides that if he recovers the will shall hold good unless altered. " The real doctrine of the Court," says Wood V.-C. in Mann v. Thompson (( 1854) Kay, 638, 643.),. "is that when children are mentioned in a will that means prima facie, if no intervening interest be given, that which is considered to be the testators meaning in the case of a gift to individuals, namely, those who may be living at the death of the testator. "is that when children are mentioned in a will that means prima facie, if no intervening interest be given, that which is considered to be the testators meaning in the case of a gift to individuals, namely, those who may be living at the death of the testator. If the gift be not immediate it may be that he intends to include all those children who may be living at the time of distribution, and the Court judges of the intention in this respect from the whole scope of the will." The rule is not altered by the addition of words of futurity as if the gift be to children " born and to be born " or to children "begotten and to be begotten." In accordance with this rule a gift expressed to be to a daughter and her husband and " their child now existing and also the other children which may hereafter be procreated" was held by this Board to be limited to children born between the date of the will and the testators death Dias v. De Livera. (5 App. Cas. 123.) The fact that this rule is a rule of convenience is some reason for applying it to Hindu wills, and an additional reason may be found in the well-known doctrine of Hindu law that a gift to an object not in existence is absolutely void. But however this may be, it has been assumed throughout that the testator intended children born after his death to be included in the gift. And their Lordships propose to deal with the case on that assumption. It will be convenient at the outset to dispose of a point suggested by the words " by right of inheritance." It was said that there was really no bequest in favour of the nephews, and that so far as they were concerned the will only declared a right of inheritance. The High Court had no difficulty in rejecting that contention, and their Lordships are of the same opinion. The High Court had no difficulty in rejecting that contention, and their Lordships are of the same opinion. It is not very easy to determine the proper meaning of the expression translated by the words by right of inheritance." The learned Chief Justice explains that the literal translation should be " as after-takers," and he adds "that it maybe that the testator used the expression in the sense that the nephews would take with the same incidents of proprietorship as heirs would." Whatever the exact meaning of this doubtful expression may be, it cannot in their Lordships opinion have been inserted for the purpose of rendering meaningless words which had only just been used. Apart from this point the learned counsel for the appellant argued in the first place that there was no vesting until the death of the survivor of the mother and the widow. Their Lordships, however, think it is clear on the construction of this will that the nephews were intended to take a vested and transmittable interest on the death of the testator, though their possession and enjoyment were postponed. Whether it was the intention of the testator that on the birth of nephews after his death interests vested should be divested so as to let in such after-born nephews is another question. It was contended in the second place (and this of course was the principal contention) that the gift, including, as it did, a gift to persons not in existence at the time of the testators death, was altogether void. Upon this question there has been, as the learned Chief Justice observes, a conflict of judicial opinion in India, but in their Lordships opinion the question was set at rest for all practical purposes by the judgment of Wilson J., as he then was, in the case of Ram Lal Sett v. Kanai Lal Sett. (I. L. R. 12 Calc. 663.) In that case the learned judge disposed of the cases which had been treated in India as authority for introducing into the construction of Hindu wills the rule commonly referred to as the rule in Leake v. Robinson. (2 Mer. (I. L. R. 12 Calc. 663.) In that case the learned judge disposed of the cases which had been treated in India as authority for introducing into the construction of Hindu wills the rule commonly referred to as the rule in Leake v. Robinson. (2 Mer. 363.) He shewed that the rule was introduced into India owing to a mistaken analogy, and at the end of a judgment which leaves nothing more to be said he stated that he should be " prepared to hold as the general rule that where there is a gift to a class, some of whom are or may be incapacitated from taking because not born at the date of gift or the death of the testator as the case may be and where there is no other objection to the gift, it should enure for the benefit of those members of the class who are capable of taking." In that conclusion their Lordships agree, and they are glad to have this opportunity of expressing their entire concurrence in the judgment to which they have referred. It would serve no useful purpose to recapitulate the learned judges arguments. But there is one passage at p. 678 to which their Lordships desire emphatically to call attention. It is this " It is no new doctrine that rules established in English Courts for construing English documents are not as such applicable to transactions between natives of this country. Rules of construction are rules designed to assist in ascertaining intention, and the applicability of many such rules depends upon the habits of thought and modes of expression prevalent amongst those to whose language they are applied. English rules of construction have grown up side by side with a very special law of property and a very artificial system of conveyancing, and the success of those rules in giving effect to the real intention of those whose language they are used to interpret depends not more upon their j original fitness for that purpose than upon the fact that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus, who view most transactions from a different point, think differently, and speak differently, from Englishmen, and who have never heard of the rules in question." Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellants will pay the costs of the appeal.