MARKBY, J.:— There is some difficulty in reconciling the decisions upon the Letters Patent, but I am inclined to think now that, whereas in this case, the decision is of such a nature that it can clearly be questioned in appeal at some time or other, the matter is more one of convenience and procedure than of strict law. I should have been inclined to think that in this particular case the appeal might be conveniently heard now, but as the Chief Justice thinks that it cannot be heard until the other issues are decided in the Court below, I shall not differ. [CIVIL APPELLATE JURISDICTION.] KHERODEMONEY DOSSEE AND DOORGAMONEY DOSSEE AND ANOTHER PLAINTIFF; DEFENDANTS. Void Bequest-Hindu Law-Devise to a class-Adverse possession—Limitation-Act IX of 1871, sch. II., cls. 122 and 145. A devise to a class, some of whom are unborn at the death of the testator, is invalid in Hindu law. By his will, after giving several legacies, A devised the rest and residue of his estate "to the son lately born to B, and to the son or sons that may hereafter be born to him." Held, that the devise was invalid under the Hindu Law. Leake vs. Robinson, 2 Mer., 363; and Soudamoney Dossee vs. Jogesh Chunder Dutt, I. L. R., 2 Cal., 262; Tagore vs. Tagore, 9 B. L. R., 377, cited and followed. Where a residuary bequest is made by a Hindu testator to his executors in trust for certain purposes which fail as being void, the person entitled to the property on failure, i.c., the heir-at-law of the testator, may be barred by limitation as regards the moveable property by cl. 122, sch. II, Act IX of 1871, and by cl. 145, sch. II, Act IX of 1871, as regards the immoveable property. A trustee for a specific purpose, within the meaning of section 10, Act IX of 1871, is not the same as an express trustee in the English law. (1) APPEAL EAL from a decree passed by Mr. Justice PONTIFEX, in the Original Civil Jurisdiction of the High Court, dismissing the plaintiff's suit with costs. The proceedings in the Court below (1). See note to the proceedings in the Court below, reported in 2 C. L. R., 119. 1878 1878 MONEY DOSSEE will be found reported in 2 C. L. R., 112. In addition to the KHERODE facts therein given, it should be stated that the son of Woodoy Chund Mullick, who is mentioned in the will as living at the time of its execution, died some time after the testator's death, leaving surviving two younger brothers, both born after the testator's death. One of these brothers died unmarried in 1867. It was on behalf of the other that Doorgamoney claimed to hold the property purported to be given by the will. v. DOORGA MONEY DOSSEE. Statement. Evans and Phillips, for the Appellant. Phillips. We are not called upon here to show that the plaintiff is a trustee, as she herself admits it-Beckford vs. Wade, 17 Vesey, 95. Being then a trustee for purposes which are void, she becomes a resulting trustee for the plaintiff and cannot plead limitation against her; for, in such a case, a resulting trust is an express trust within the meaning of the Statutes of Limitation-Salter vs. Cavanagh, 1 Dr. and W., 668; approved in Watson vs. Saul, 1 Giffard, 197, and in 2 Jones and Latouche, 196. It may be argued that, being a Hindu executrix, the property is not "vested" in her within the meaning of section 10 of Act IX of 1871. But "vested," as there used, has not the peculiar meaning which it bears in English Law. The Act is one intended for the whole of India, and except in the Presidency towns, and perhaps not even there, is there any such thing as "vesting" in the feudal sense. There is no adverse possession here, and we are in time,—as far as regards the immoveable property-under cl. 145, sch. II., Act IX of 1871. The executrix admits that she is holding for the wrong cestui que trust, not that she is holding for herself; and Lister vs. Pickford, 34 Law Jour. Ch. 582, shows, that under such circumstances the cestui que trust will not be barred. See Allen vs. Blakeney, 5 C. & P., 563. The defendant's possession under the will being consistent with ours was not adverse-Nepean vs. Doe, 1 Smith's Leading Cases, 688; Williams on Executors, 1474. She is a trustee for us-Dacre vs. Patrickson, 1 D. & S., 182. [MARKBY, J.-A Hindu executor is like an agent acting under a power of attorney.] Phillips.-Morice vs. Bishop of Durham, 10 Vesey, 522, 1878 at p. 535, and Ommaney vs. Butcher, 1 T. & R., at p. 273, show KHERODEwhat is necessary to constitute an executor a trustee. The learned Judge has held our claim to be personally barred by cl. 122 of Act IX of 1871; but that clause does not apply, as this suit is not for a share. MONEY DOSSER v. DOORGA MONEY DoSSEE. [GARTH, C.J.-Would you not be barred, supposing your suit Argument. came under cl. 118?] Phillips.-No, my Lord. We could not sue for the residue until all the debts and legacies are paid, as until then there is no residue. Prior vs. Horniblow, 2 Y. & C., Exch., 200, does not decide whether a residue is a legacy. This suit is not barred by section 7, Act VIII of 1859. The other suit was by different parties and in a different right-Moonshee Buzloor Ruheem vs. Shumsoonnissa Begum, 11 Moore, 604-5. There we sued the executrix merely; here we do not. The prayer of the plaint is very different. We were not compelled to join different causes of action though we were entitled to do so. Hill, for the infant. A Hindu executor has only a manager's pover unless a contrary intention appears-Sreemutty Dossee vs. Tarachurn Coondoo Chowdhry, Bourke, A. C., 49; Srimoti Joykali Debi vs. Shibnath Chatterjee, 2 B. L. R., (O.C.), 1.; see also Charo Bibi vs. Baldeo Das, 1 B. L. R., (O.C.), 24. Here there is a total want of the intention necessary to create a trust -Lewin on Trusts, 72. A fiduciary relation between the parties is not sufficient to make section 10 of Act IX of 1871 applicable. The meaning sought to be put on the word vested by the opposite side would include the case of factors. Trust for a specified purpose here means a trust specified by the author-Hughes vs. Evans, 13 Simon., 496; Watson vs. Saul, 1 Giffard, 197; Dickenson vs. Teasdale, 1 De Gex., J. & S., 52. Plaintiff is barred as to the moveable property by clause 122 of Act IX of 1871. That is clear on comparing the wording of the clause with section 28 of Act X of 1865. Section 32 of Act IX of 1850, and cl. 2, section 6 of Act XI of 1865 are conclusive that cl. 122 includes the present case. Adverse possession of the immoveable property commenced at latest when the debts were 1878 KHERODEMONEY DOSSEE v. DOORGA MONEY DOSSEE. Argument. barred, for then possession could be determined and demanded. That was in 1863, and therefore the suit is barred under Act IX of 1871, sch. II., cl. 145. The claim is barred by section 7, Act VIII of 1859. Moonshee Buzloor Ruheem vs. Shumsoonnissa Begum, 11 Moore, 562, is in my favour. [GARTH, C.J.-In that case the right and title were the same as in the previous suit. But in this case the plaintiff was entitled as a creditor to what she had previously sued for; here she claims as heir-at-law and dehors the will.] Hill.-If she could have sued for this property at the time she brought the former suit, she will be barred-Gones Chundra Chowdhry vs. Ram Kumar Chowdhry, 3 B. L. R., (A. C.), 265; Abhiram Das vs. Sriramdas, 3 B. L. R. (A. C.), 421; Jumoona Dossee vs. Bamasoonduree Dossee, 2 W. R., 149. Lastly, the plaintiff must show that the gifts are invalid. Nilkaunt Chatterjee vs. Peari Mohun Das, 3 B. L. R. (O. C.) 11, shows that the property will go to those of the class living at the death of the testator. Evans. In that case there was no argument on the point in either Court. Hill.-Krishnaramini Dasi vs. Ananda Krishna Bose, 4 B. L. R. (A. C.), 231, and Hawkins on Wills, p. 71, show the same thing. [Counsel referred to Leake vs. Robinson, 2 Mer., 364; Soudamoney Dossee vs. Jogesh Chunder Dutt, I. L. R., 2 Cal., 262; Jarman on Wills, 149.] Bonnerjee, for Doorgamoney Dossee. My client is willing to give up the property to any one the Court may direct. I support, however, the argument of Mr. Hill, and, with him, dispute the soundness of Soudamoney Dossee's case, I. L. R., 2 Cal., 262. The rule in Leake vs. Robinson, 2 Mer., 364, was laid down on the consideration that the vesting was postponed, but here the vesting took place on the death of the testator, and, therefore, that rule does not apply. The same consideration distinguishes this case from the Tagore case; here the property is at no time in nubibus. Assuming the gift is valid, the case does not come within section 10. We are not trustees at all, and least of all trustees for the plaintiff. Our possession 1878 b was adverse to the plaintiff, and as agent on behalf of the in- KHERODEfants from the death of the testator. Her cause of action accrued then, and she could have come in and sued for what she now claims. Evans, in reply :— The point decided in Soudamoney's case was very carefully considered. The same point was decided in Sreemuttee Bramamoyee Dossee vs. Jogesh Chundra Dutt, 8 B. L. R., 400. The reason of the rule is clearly seen when we look into the case of Leake vs. Robinson, 2 Mer., 364. There, Romilly argued in favour of the will, that, if there were some who could take, and others of the same class who could not, then those who could take would get the property. That would, in effect, be making a new will for the testator. Sir William Grant says (p. 390), that the ground of the rule was, that the Court would not give a series of particular legacies where the testator intended a gift to a class. In the present case it is argued, that on the death of the only living son the estate went to the father as heir to the son, who had a power in him of retaining the property for the other sons when and as they might be born. Such a doctrine is totally opposed to Hindu law. The Tagore case, 9 B. L. R., 377, and the Blindman's case (Kalidas Dass vs. Krishna Chundra Dass, 2 B. L. R., F. B., 103) show that when an inheritance vests it vests once for all and cannot be again divested. The two main points made by the other side are-(1) that the gift to the children is good; and (2) limitation. As to the first point, the gift in this case was in these words "I give in equal shares to the son lately born to my sister's husband, Sreejoot Woodoy Chund Mullick, and to the son (or sons) that may hereafter be born to him." This gift, which purports, and which I contend, to be an immediate gift to a class, is in the first place void for uncertainty, even if it be not a gift to a class; for, in Hindu law, there can be no perfect gift unless the property passes from one sentient being to another. This gift is in equal shares to a person now in existence with persons not in existence; you cannot make it good by giving all to the son in existence at the testator's death, MONEY v. DOORGA- |