Das Gupta, J.
1. In this suit the plaintiff claims a declaration that he is solely entitled to the premises No. 8/2, Kartick Bose Lane and the outer portion of the premises No. 9 Kartick Bose Lane now known as 9/A and 9/B Kartick Bose Lane, Calcutta for possession and for other reliefs. The facts of the case which are not disputed are as follows.
2. One Sm. Kamalmohi Dassi died on 4-6-1908. She was the owner amongst others of the premises in suit. Before her death she left a will probate of which was duly obtained from this Hon'ble Court. Sm. Kamalmoni Dassi left her surviving her husband's brother one Woomesh Chandra Deb and his wife Sm. Kumodini Dassi and their son Sarat Chandra Deb. Sarat Chandra Deb's first wife had died and thereafter he married again. By his first wife Sarat Chandra Deb had a son named Rabindra Nath Deb who is the plaintiff in this suit. The plaintiff was born on 19-10-1906 I e. during the life time of the said Sm. Kamalmoni Dassi. Sarat Chandra Deb had another son by his second wife named Sushil Chandra Deb who is the defendant in this suit. The said Sushil Chandra Deb was born in the year 1920 i.e. after the death of the said Sm. Kamalmoni Dassi.
3. By her said will the said Sm. Kamalmoni Dassi 'inter alia' provided as follows:
'I give bequeath & devise subject to the con- ditions set forth in clause hereinafter appearing to Sarat Chandra Deb (son of my next brother Umesh Chandra Deb) for life & thereafter to his male heirs my immoveable properties viz.: My dwelling house No. 8/2 & outer portion of the premises No. 9 Kartick Bose's Lane.'
'I declare that the said Sarat Chandra Deb will never be competent or entitled to sell or encumber by mortgage or otherwise the said dwelling house or premises No. 8/2 & No. 9, Kartick Bose's Lane or any portion thereof but he will live therein & enjoy the rents & issues thereof.'
4. The said Sarat Chandra Deb died on 4-11-1946 leaving him surviving the pltf. & the deft. his two sons as his heirs & legal representatives. The pltf. claims that on the death of the said Sarat Chandra Deb the pltf. became solely entitled to the said premises No. 8/2 & the outer portion of No. 9 Kartick Boses Lane now known as 9/A & 9/B Kartick Bose's Lane to the exclusion of the deft.
5. Mr. Roy appearing on behalf of the pltf. contended that a bequest in favour of a person not born at the death of the testator, is void under Hindu Law & that although under Hindu Disposition of Property Act (XV (15) of 1916) such a bequest has been validated the said Act is not retrospective in its operation. The testatrix in this case died in the year 1908 & before the said Act came into existence & as such the Hindu Disposition of Property Act 1916 has no application in this case. That being the position Mr. Roy contends the bequest in favour of the deft, who was not in existence at the time of the death of the testatrix is void.
6. Mr. Sen appearing on behalf of the deft, does not dispute that a bequest in favour of a person not in existence at the death of a testator is void under Hindu Law & that the Hindu Disposition of Property Act is not retrospective. But he contends that the entire bequest in favour of the male heirs of Sarat Chandra Deb is void & he puts his point in this way. If it can be shown that the testatrix intended that at least the pltf. would be benefited by the aforesaid bequest & there was at least a secondary if not a primary intention to benefit the pltf., the pltf. would be entitled to. the said bequest. If no such intention can be inferred from the said will the entire bequest in favour of the male heirs of Sarat Chandra Deb would fail. In other words if the intention was merely to provide for whoever may be the male heirs of Sarat Chandra Deb the entire bequest in favour of such male heirs would fail & would become void. Mr. Sen relies on 'Khimji Joiram v. Morarji Joiram', 22 Bom 533; 'Rajomoyee Dassee v. Troylukho Mohiney Dassee', 29 Cal 260; 'Rai Bishen Chand v. Mt.. Asmaida Koer', 11 I A 164; 'Ram Lal v. Kanai Lal', 12 Cal 663, for the purpose of his aforesaid contention. In this case Mr. Sen contends that no secondary intention can be inferred particularly because under Clause 7 of the said will separate provision has been made for Robin. Under the said clause Govt. Securities of the nominal value of Rs. 10000/- are to be endorsed by her executor to Rabindra Nath Deb the in-lant son of Sarat Chandra Deb to be held by the latter as his natural guardian during his minority & should the said Rabindra Nath Deb die before attaining 21 years of age the' said Govt. Securities would belong absolutely to the said Sarat Chandra Deb.
7. Secondly Mr. Sen contends that the provision relating to the bequest in favour of the male heirs of Sarat Chandra Deb is void because by the said provision a line of succession is laid down which is contrary to the provisions of Hindu Law. In other words what is known as tail male is sought to be created which cannot be permitted to be done. 'Jatindra Mohan Tagore v. Ganendra Mohan Tagore', I. A. Sup. Vol. 47 at p. 61.
8. I am unable to agree with the contentions of Mr. Sen. It is not disputed that it is a settled Rule of Hindu Law that a bequest in favour of a person not in existence at the death of the testator is void & that Hindu Disposition of Property Act of 1916 is not retrospective in its operation. That being so the point arising for my consideration is as to whether if there is a bequest to a class some members of which cannot take & with respect to whom the bequest is void is the entire bequest void or is it valid only with respect to persons belonging to the said class who are capable of taking under the said bequest.
9. This has given rise to various conflicting judicial decisions. The earlier decisions were in favour of the view that in the case of a gift to a class some members of whom cannot take being not in existence at the date of the gift the whole gift fails. The case reported in 'Rajomoyee v. Trailakha', 29 Cal 260, & on which Mr. Sen relies is one of such decisions. Their Lordships arriving at the said' decision in 'Rajomoyee Dassee v. Trailokha', relied on 'Leake v. Robinson', (1817) 2 Mer 363 : (16 RR 168).
10. This view came to be materially altered by a decision of the Privy Council in 'Rai Bissen Chand v. Mt. Asmaida Koer', 11 I A 164. In that case Mata Doyal, Uday Narain & Satrujit Narain were grandfather, father & son & formed a joint Mitakshara family. Udoy was a man of extravagant habits & an arrangement was entered into embodied in a deed by which the grandfather & father conveyed certain property declaring that Satrujit himself & his own brothers who may be borne afterwards will be the permanent & rightful owners. Their Lordships held that the transfer was not void but took effect as a valid transfer to Satrujit. Although their Lordships decided the said case on other grounds which I shall presently indicate their Lordships in their judgment while discussing in effect of Sections 100, 101 & 102, Succession Act (equivalent to present Sections 113, 114 & 115 of the said Act) stated as follows:
'Independently however of the distinction which may be taken between wills the operation of which is suspended during the testator's life & deeds which operate immediately, specially such deeds as confer a present interest upon a present person the sections cited have no bearing on such a gift as that under consideration. Section 102 lays down that a bequest inoperative as to some of a class shall be wholly void not in all cases but only when the bequest offends against the Rules contained in Sections 100 & 101 & the gift under consideration does not fall within either of these two sections. It may be that illustration (b) to Section 102 imports into India an English Rule of construction which usually defeats the intention of the testator. But whatever force the illustration may have (& it seems out of place as attached to a section intended pot to define, the word 'class' but only to establish a special incident of gifts to classes) it is not made applicable beyond the two cases contemplated by Sections 100 & 101.'
The said Sections 100, 101 & 102, Succession Act (now Sections 113, 114 & 115 of the said Act) were placed before their Lordships in support of the contention that when a gift is made to a class & some of the class are unable to take none can take. Their Lordships further held that 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 snail fail entirely. Their Lordships no doubt based their decision on the view that the whole scheme of the parties was to save the estate from extra vagance of one of its members & 'the plan they adopt probably the only plan open to them except a complete partition is a transfer by the head of the family with the consent of his son to the lower generation'. And Satrujit was the only member of that generation who is made to take by name & immediately the possession & ownership is transferred to him. Their Lordships treated the entire arrangement as a family arrangement partaking so far of the nature of a partition. To my mind although as to the question that arises in the present case their Lordships did not decide anything definitely & based their decisions on the grounds indicated above yet there is indication in the judgment in favour of the view that when there is gift to a class some members of whom cannot take being not in existence, the whole gift would not fail.
11. The decision in 'Rai Bissen Chand's case', (11 I A 164) has been considered in a subsequent case in this Court by Wilson J. in 'Ram Lall v. Kanailall', 12 Cal 663. With regard to the effect of the decision in 'Rai Bissen Chand's case', his Lordship held as follows:
'The true ground of decision in that case appears to me to be that in construing family settlement of this nature the Courts are to as certain the real meaning of the parties to the transaction; that when that meaning has been ascertained if it appears that the whole plan cannot be carried out that a part of it can effect is to be given to that part.
12. Subsequent to this case a Full Bench of this Ct., in 'Bhagabati v. Kalicharan', 38 Cal 468, considered this point & in the judgment delivered by McLean C. J. his Lordship held in clear terms that there is no rule of Hindu Law 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 sentiente being capable of taking is void also as regards those who are in existence & capable of taking & that such a provision is repugnant to Hindu notions & obviously defeats the intention of the testator. His Lordship also did not follow the principle in 'Leake v. Robinson', 1817-2 Mer 363, in construing the will of Hindus. Of course in the latter part of his judgment while discussing in 'Re. Coleman', (1876) 4 ch. D. 165 & the judgment of Sir George Jessel delivered therein his Lordships held as follows:
'The only question is what was the primary intention of the testator & what the secondary. His primary intention may be taken to be that all his nephews then born & those who be born afterwards should take equally. But those that had then born were the immediate object of his affection & bounty. And the ideas must have occured to him that if any other nephews were not born those who were then in existence though not specifically named should take the whole of his estate. From this point of view his primary intention may be taken to benefit those who were then born.' His Lordship followed the reasoning of Sir George Jessel in 'Re. Coleman', which was in the following terms:
'Now I think there is a convenient mode of interpreting the testator's intention & it is this. The testator may be considered to have primary & secondary intention. His primary intention is that all members of the class shall take & his secondary intention is that if all cannot take those who should, do so. Both intentions co-exist & are frequently exemplified.
13. The case of 'Bhagabati v. Kalicharan', went to Privy Council and their Lordships of the Judicial Committte accepted the view that where there is a gift to a class some of whom are or may be incapacitated from taking because not born at the death of the testator & 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.
14. This point also came up for consideration in a recent case 'Kanai Lall v. Purnendu Nath', I L R (1947) 1 Cal 48, & Das, J. relying on the above mentioned decisions held that the Rule in 'Leake v. Robinson', (1817-2 Mer 363), has been practically abrogated by the Full Bench decision of this Court affirmed by the Judicial Committee.
15. In my view the effect of all these decisions has been to lay down the rule that if a gift is made to a class some of whom cannot take being not in existence at the death of the {testator those who are in existence & can take at the death of the testator will take.
16. Having regard to the subsequent decisions of this Court & of the Judicial Committee as aforesaid I am not prepared to act upon the decision in case of 'Khimji Jairam v. Morarji Jairam', 22 Bom 533. The effect of the decision of the Judicial Committee in 'Rai Bissen Chand's Case', (11 IA 164) was not considered in that case. Besides if the matter is to be decided on the question of primary or secondary intention of the testator as contended by Mr. Sen. I would adopt the mode -of interpretation as laid down by Sir George Jessel & which has been followed by McLean C. J. & hold that primary intention of the testatrix was that all members of the class should take & her secondary intention was that those who can should do so. In this case the plff. had been born during the lifetime of testatrix & was the only son of Sarat living at the time of her will. Her mother was dead & Sarat had married again. To my mind the plff. was the immediate object of her affection & bounty & the idea must have occurred to her that if no other male heir of Sarat was born the plff. who was then in existence though not specifically named should take. I do not agree with the contention of Mr. Sen that because Goyt. Securities of the value of Rs. 15000/- only has been bequeathed to the plff. an inference should be drawn that the testatrix intended to benefit all the male heirs of Sarat born or unborn & had no intention of benefiting those members of such a class who can take if all cannot.
17. I am unable to agree with the second contention put forth by Mr. Sen. By the will in question no new line of inheritence has been sought to be created. The effect of the clause in question to my mind is to create a life estate in favour of Sarat after his death to give the entire interest of the testatrix to the property in question to the male heirs of Sarat absolutely.
18. I therefore hold that the plff. is entitled to succeed in this suit & I decree this suit in his favour accordingly with costs.