JUDGMENT Khundkar, J. - A testator who professed the Christian faith made certain bequests one of which was in the following words: (2) To Fela Hari an annuity of Rupees Three hundred and to Hela Hari Rupees Two hundred and forty to each to be paid by monthly instalments of Rupees twenty-five and Rupees twenty respectively. The first payment whereof shall be made one calendar month after my death. These annuities will continue to be enjoyed by the said Fela and Hela and their male descendants and in case of the death of any of them without any male issue, the other or his male descendants will be entitled to both annuities. A 'certain sum of money to be invested in Government Securities to be set apart by my trustees with power to vary investments to produce such a sum of money, as will, when invested, produce by the income thereof an annual sum equal to the amount of annuities aforesaid mentioned in (1) and (2). The provision just quoted was the second clause of the Will and was numbered (2). In the first provision of the Will which was contained in a clause numbered (1), the testator had given directions for the payment of an annuity to another person and with those directions we are not concerned here. What has to be noted at the moment in connection with the clause of the Will above set out, is that a fund of a permanent nature was to be established, out of which a perpetual income was to be obtained and paid, as annuities, to persons called Fela and Hela and their male descendants. In my opinion the words "will continue to be enjoyed by the said Fela and Hela and their male descendants" are ordinary words of bequest and nothing more. It is this clause which has come before the Court for construction upon an originating summons. 2. I have little doubt as to the real wishes of the testator, which were that Fela and Hela were to be paid the allowances indicated for the terms of their natural lives, and that thereafter their immediate male descendants were to be in receipt of these allowances, and after them their male descendants again, generation after generation. The desire of the testator clearly was to create an annuity to be enjoyed in perpetuity by Fela and Hela and their male descendants. The desire of the testator clearly was to create an annuity to be enjoyed in perpetuity by Fela and Hela and their male descendants. Whether the words of the bequest would operate to effectuate the wishes of the testator is another matter. The question calls for an examination in the first instance of certain sections of the Indian Succession Act. 3. Sec. 113 provides that where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest 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. In the present case Fela has three sons, and Hela has one, all of whom with the exception of Fela's youngest son, were in existence at the time of the testator's death, but the sons have no sons. In the present case also the testator desired that the bequest to the unborn sons and grandsons of Fela and Hela would be only a life-interest, that is to say, it would be a bequest to unborn persons of something less than the whole interest that would remain to the testator in the thing bequeathed after the death of persons to whom prior bequests had been given. This position is covered by the first illustration to sec. 113 which is as follows: (i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the tame of the testator's death, A has no eon. Here the bequest to A's eldest son is a bequest to a person not in existence at the testator's death. It is not a bequest of the whole Interest that remains to the testator. The bequest to A's eldest son for his life is void. 4. The grandsons of Fela and Hela and Fela's youngest son thus would take nothing. 5. It is not a bequest of the whole Interest that remains to the testator. The bequest to A's eldest son for his life is void. 4. The grandsons of Fela and Hela and Fela's youngest son thus would take nothing. 5. Sec. 114 of the Indian Succession Act is in these terms: 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 death and the minority of some person 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. 6. The fund directed to be set apart for the purchase of annuities was never to vest in anyone, its vesting was to be delayed for ever. Sec. 115 runs thus: If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of sec. 113 or sec. 114, such bequest shall the void in regard to those persons only and not in regard to the "whole class.'' 7. It follows that if these sections apply to a right to receive an annuity, then though the bequest is good as regards Fela and Hela and their sons, other than Fela's youngest son, it is void as against any remoter descendants of Fela and Hela and also against Fela's youngest son. 8. The illustrations to sees. 113, 114 and II5 deal with the bequeathing of a fund or a sum of money. There is nothing in the illustrations to suggest that these sections have any literal application to a case where, as in the present instance, the thing bequeathed is the right to receive a perpetual allowance out of a specified fund. Bequests of annuities are dealt with in Chapter XX of the Act, and, in my opinion, it is sees. 173 and 174 contained in that chapter which are relevant in the present case. These two sections deal expressly only with the case where an annuity is bequeathed to a legatee without a gift over to his heirs. Bequests of annuities are dealt with in Chapter XX of the Act, and, in my opinion, it is sees. 173 and 174 contained in that chapter which are relevant in the present case. These two sections deal expressly only with the case where an annuity is bequeathed to a legatee without a gift over to his heirs. Sec. 173 is in these terms: Where an annuity is created by Will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the Wall, notwithstanding that the annuity is directed to be paid out of the property generally, or that a sum of money is bequeathed to be invested in the purchase of it. 9. In the present case there are clear words in the will indicating a contrary intention, and sec. 173 need not, therefore, be considered any further. Sec. 174 is as follows: Where the Will directs that an annuity shall be provided for any person out of the proceeds of property, or out of property generally, or where money is bequeathed to be invested in the purchase of any annuity for any person, on the testator's death, the legacy vests in interest in the legatee, and he as entitled at his option to have an annuity purchased for him or to receive the money appropriated for that purpose by the Will. Illustration. (i) A by his Will directs that his executors shall, out of his property, purchase an annuity of 1,000 rupees for B. B is entitled at his option to have an annuity of 1,000 rupees for his life purchased for him or to receive such a sum as will be sufficient for the purchase of such an annuity. 10. The section and the illustration show that, where out of property a sum is to be set aside in order that it might furnish an allowance for a legatee who is to receive that allowance periodically, i.e., annually, the law recognises the right of the legatee to take that sum itself. 11. There is another principle embodied in the Indian Succession Act which also has to be taken into account. It is to be found in sec. 11. There is another principle embodied in the Indian Succession Act which also has to be taken into account. It is to be found in sec. 97 which is in the following words: Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the Will. 12. This section, it is true, does not appear in the chapter which deals with annuities, but the language is very wide. In my opinion "where property is bequeathed to a person " are words which may be extended to embrace the giving of a right to receive periodical payments. 13. In the Will, which is here under consideration, the testator has directed a permanent fund to be created which is to continue to yield a perpetual income for all time. The right to receive that income is bequeathed to two persons, Fela and Hela, but is not restricted to the terms of their natural lives, for then, the testator goes on to employ the following words, "these annuities will continue to be enjoyed by the said Fela and Hela and their male descendants " The words just quoted cannot be said to denote the male descendants of Fela and Hela " as direct objects of a distinct and independent gift." "And their male descendants" are mere words of inheritance, words added to the words Fela and Hela in the same way as the words "and his descendants" are added to the words "to A" in the ninth item of illustration (I) of sec. 97:-"To A and his descendants." The fifth item of illustration (i) " To A and the heirs male of his body " provides a similar instance. 14. It has been argued that the material words in the present case operate to enable Fela and Hela to claim the corpus of the fund, which the testator had directed to be set aside for the purpose of producing an income, sufficient to pay perpetual annuities to Fela and Hela and their male descendants. 15. The effect of a perpetual annuity such as this has been considered by the highest authority, and the following cases may be seen in this connection. 16. 15. The effect of a perpetual annuity such as this has been considered by the highest authority, and the following cases may be seen in this connection. 16. In Stokes v. Heron (1645) 12 Cl. & F. 161, the House of Lords was called upon to consider a Will which contained the following words: My Will is that whatever I die possessed of, or anyway entitled to, together with whatever property my wife may be any way entitled to, shall produce to my wife, an annuity 100 per annum, to each of my daughters 100 per annum for themselves and their children, and to my wife's mother an addition to any property she may possess, so as to make up to her during her life an annuity of 100 per annum, said annuities after the decease of my wife and her mother, to be equally divided among my three children, William, Mary and Julia Louisa: all the rest and residue of my property and possessions I give and bequeath to my son William.' 17. At page 194 of the report there appears this observation, upon the face of the Will, therefore, no doubt, I think, can arise, that all these annuities were perpetual annuities; that is to say, they were gifts of so such property as should produce an income which he prescribed as the amount of the gift that he intended for these individuals. 18. This case is helpful merely by showing that the law recognises what has been called a perpetual annuity as a legitimate bequest, or in other words, that an annuity of this kind is to be regarded like any other property, as capable of being bequeathed. 19. In Blight v. Hartnoll (1881) 19 Ch. D. 294 a testatrix bequeathed an annuity payable out of the rental of certain hereditaments to her sister C for life, with remainder for life to certain persons, and on their deaths the testatrix directed her executors to pay the annuity out of the said rental to the surviving children of B. Fry, J., said: As a general rule there can be no doubt that the gift of an annuity to A is a gift of the annuity during the life of A and nothing more. It is equally free from doubt that where the testator indicates the existence of the annuity without limit after the death of the person named, and therefore implies that it is to exist beyond the life of the annuitant, there the annuity is presumed to be a perpetual annuity. It is equally without doubt that there are cases in which the Court has come to the conclusion that the gift is not really that of an annuity, but the gift to a person of the income arising from a particular fund without limit, and there the Court holds that the unlimited gift of the income is a gift of the corpus from which the income arises. 20. In my opinion, it may well be said that the last sentence of the words just quoted have direct application to the facts of the present case, and the gift to Fela and Hela of the income arising from the fund which the testator was setting up, which was a gift without limit of duration, inasmuch as it was to be enjoyed by the descendants of Fela and Hela, amounts to an unlimited gift of the income. 21. This case was followed in Morgan v. Morgan [1893] 3 Ch. 222. The Will in that case contained the following words: I give and bequeath the whole of my property, both real and personal, in reversion or expectancy, unto my executors and trustees hereinafter named and mentioned, upon trust to pay out of the interest and rents arising from the same the following sums of money I give to Capt. H.H. Morgan, or to his descendants, 250 per year. Also to Mr. Percy Morgan, or his descendants, 250 per year. To Mrs. Annis Augusta Hardie, or her descendants 250 per year. 22. Lindley, L.J., (page 228 of the report) quoted the passage from Blight v. Hartnoll (1881) 19 Ch. D. 294 set out above, and proceeded to say: That is to say, if the annuity is given, not only to the person, but afterwards to others, in language which shows there is to be no end of it, of course it is a perpetual annuity. 23. D. 294 set out above, and proceeded to say: That is to say, if the annuity is given, not only to the person, but afterwards to others, in language which shows there is to be no end of it, of course it is a perpetual annuity. 23. In the case of Lett v. Randall (1860) 2 De G.F.&.J. 388 a testator devised and bequeathed to trustees all his property upon trust to pay an annuity to his wife for and during the term of her natural life, and directed that from and after the decease of his wife, the annuity to be paid to her should go and be equally divided amongst the testator's children who should then be living. It was decided that this was a gift not of a perpetual annuity but was limited to the lives of the testator's widow and children. The Lord Chanceller held that in the Will in that case there were no express words to continue the payment of the annuity after the death of the children who survived the widow, and also that there was no segregation or appropriation of part of the testator's property in respect of the annuity, while the facts in that case are, therefore, distinguishable from the case under consideration, the law as enunciated by the Lord Chancellor (p. 392 of the report) has to be appreciated: It is admitted, that if an annuity is bequeathed generally to A, or to A for life, and on A's death to B, in the one case the annuity expires on the death of A, and in the other on the death of B. To make an annuity created by Will perpetual there must be express words in the Will so describing it, or the testator must, by some language in the Will, indicate an intention to that effect. The most common indication is a direction by the testator to segregate or appropriate a portion of his property from the interest or profits of which the annuity is to be paid. Where this is done, the annuity when mentioned in the Will, represents the corpus so appropriated, and the corpus passing by the bequest of the annuity, the annuity may be said to be perpetual. 24. Where this is done, the annuity when mentioned in the Will, represents the corpus so appropriated, and the corpus passing by the bequest of the annuity, the annuity may be said to be perpetual. 24. In the case of Panchu Gopal Mukerjee v. Kalidas Mukerjee(1919) 24 C.W.N. 592 a testator made a sum payable to one of his sons out of the profits of property allotted to another of his sons with the object of equalising their shares, and the words he employed were as follow-: " So in regard to the profits of the aforesaid lot Devarbasini, I make the provision that my eldest son Narendra Nath Mukerjee shall, year after year, go on paying to my third son Nagendra Nath Mukerjee the sum of Rs. 500 per annum "Upon a consideration of the scheme of the Will, Chatterjee and Duval, JJ., held, that the sum of Rs. 5OO per annum out of the profits of lot Devarbasini formed part of the share allotted to Nagendra and stood on the same footing as the properties specifically allotted to him. Applying Blight v. Hartnoll (1881) 19 Ch. D. 294 and Lett v. Randall (1860) 2 De G.F.&.J. 388 it was held that the words of the bequest did not limit the payment of Rs. 500 to the life of Nagendra. 25. In Sobha Kanta Misra v. Kariman Halvai (1920) 60 I.C. 750 another Division Bench of this Court held that where a Will provided that an annuity was to be received by the first annuitant, and by his sons, grandsons and so on in due order of succession, the intention was that this should be a perpetual annuity. 26. In Madhavrao Ganpatrao Desai v. Balabhai Raghunath Agaskar L.R. 55 IndAp 74: (1927) 32 C. W.N. 925 a Hindu had conveyed property upon certain trust, one of which was to pay to his daughter Krishnabai during her life for her sole and separate use, and after her death in trust for her male heirs, share and share alike. 26. In Madhavrao Ganpatrao Desai v. Balabhai Raghunath Agaskar L.R. 55 IndAp 74: (1927) 32 C. W.N. 925 a Hindu had conveyed property upon certain trust, one of which was to pay to his daughter Krishnabai during her life for her sole and separate use, and after her death in trust for her male heirs, share and share alike. Buckmaster, L.J., delivering the judgment of the Board, said: Their Lordships are of opinion that the true interpretation is that the persons who answer the description of male heirs at the date of Krishnabai's death were the persons in whose favour an independent gift was made, but that by operation of the Hindu law there would be excluded from that class of people who were not living when the deed was executed. There is nothing whatever in the words of the grant to show that the estate so conferred was anything but an absolute estate upon such persons. For there is nothing to suggest, one the one hand, that such estate was limited to their life or, on the other, that any line of descent was marked out after their death. It is true that the gift is in the form of a gift of income, but it is a gift unlimited in point of time, and if there be no restriction in the gift and no limitations beyond the actual beneficiaries at Krishnabai's death such a gift carries the whole estate. 27. In that case the male heirs of Krishnabai who were living at the time of her death, took the corpus which had been set aside for the purpose of yielding the annuity to Krishnabai and her male heirs. In that case, however, there were clear words by the settlor limiting the interest of Krishnabai to her life, and also indicating the intention of the testator to make an independent gift in favour of Krishnabai's male heirs. In the present case there are no words which conclusively restrict the enjoyment of the annuity to the life-time of Fela and Hela, nor are there words which show that the persons who answered the description of male descendants of Fela and Hela were persons in whose favour an independent gift was being made. In the present case there are no words which conclusively restrict the enjoyment of the annuity to the life-time of Fela and Hela, nor are there words which show that the persons who answered the description of male descendants of Fela and Hela were persons in whose favour an independent gift was being made. The words of the legacy are actually to a contrary effect in both respects, for they are: " These annuities will continue to be enjoyed by the said Fela and Hela and their male descendants." So far as the gifts to Fela and Hela are concerned, the observations of the Judicial Committee would tend to indicate that the bequest to them give them a right to claim the corpus of the fund out of which the annuity is to arise. Applying the language of Buckmaster, L. J.'s judgment, it is a gift in the form of a gift of income, but it is a gift unlimited in point of time, there is no restriction in the gift and no limitation beyond the beneficiaries, Fela and Hela. In my opinion the language of the Will creates here no restriction or limitation beyond the beneficiaries, Fela and Hela, inasmuch as, in the words of sec. 97 of the Indian Succession Act, which may, I think, be called in aid, " property is bequeathed to a person, and words are added (and their male descendants) which describe a class of persons but do not denote them as direct objects of a distinct and independent gift." 28. For the foregoing reasons I am of opinion that Fela and Hela are entitled to claim the corpus of the fund set aside by the testator for the purpose of providing annuities for Fela and Hela and their male descendants. 29. Before leaving this case, I ought to mention an argument advanced by Mr. Meyer who appears for two sons of Fela named Suresh and Naresh, and the only son of Hela named Pada. All three are minors. As already stated, the youngest son of Fela, who is Naresh, was not in existence at the time when the testator died, and Mr. Meyer frankly concedes that he cannot take any benefit under the Will by reason of sec. 113 of the Indian Succession Act. 30. As regards Suresh, son of Fela, and Pada, son of Hela, Mr. As already stated, the youngest son of Fela, who is Naresh, was not in existence at the time when the testator died, and Mr. Meyer frankly concedes that he cannot take any benefit under the Will by reason of sec. 113 of the Indian Succession Act. 30. As regards Suresh, son of Fela, and Pada, son of Hela, Mr. Meyer has raised a contention which, if it could prevail, would inure to benefit also of Gour, the eldest son of Fela who is now sui juris being aged 21. Mr. Meyer has contended that cl. (2) of the Will does contain words which operate to limit the interest of Fela and Hela to the term of their lives, and by so doing indicate their sons as distinct objects of a separate bequest. According to Mr. Meyer such a conclusion would follow from the words:-" And in case of the death of any of them without any male issue, the other or his male descendants will be entitled to both annuities." 31. I do not think the words in question take away from the conclusion at which I have arrived. These words constitute a survivorship clause as between Fela and Hela in the event of either of them dying without male issue. The provision is limited to such an event only, which, in fact, has not happened. It does not limit the benefit conferred on Fela or on Hela to a life-interest, but merely diverts the succession from one brother to the other and his male descendants in the event contemplated so as to prevent the annuities from going to the other possible heirs of a brother who might die without leaving male descendants. The words employed certainly do not constitute an independent gift in favour of the sons of Fela and Hela, because they do not say that the annuities are to be enjoyed by any sons of Fela and Hela who might survive their fathers. 32. In view of my findings above, the answers to the questions, contained in the Originating Summons will be as follows: (a), (b) and (c). The bequests to Defendants Nos. 1 and 2 and their male descendants as made in cl. (2) of the Will are valid, but the same are affected by the provisions of sees. 32. In view of my findings above, the answers to the questions, contained in the Originating Summons will be as follows: (a), (b) and (c). The bequests to Defendants Nos. 1 and 2 and their male descendants as made in cl. (2) of the Will are valid, but the same are affected by the provisions of sees. 113, 114 and 115 of the Indian Succession Act, so as to prevent Naresh, the youngest son of Fela as also the grandsons and remoter descendants of Fela and Hela from taking any benefit. (d) The answer is in the affirmative. (e) In view of what has been stated, if Fela and Hela exercised the option provided in sec. 174 of the Indian Succession Act, no descendants of theirs will have any claim against the estate of the testator under cl. (2) of the Will. (f) The trustee is entitled to make investments in securities other than 31/2 per cent. Government paper thereby securing better benefits to the estate, but Fela and Hela are entitled to take absolutely the securities in which the fund is now invested, if they so wish. Fela and Hela may have the security in which the fund is invested, converted into cash and paid to them by the trustee. The costs of the parties appearing will come out of the estate, taxed as of a defended suit, certified for three hearings and certified for two Counsel.