After making provisions for the maintenance of his son, he proceeded to vest the whole property both ancestral and self acquired in trustees and bequeathed the beneficial interest in the following manner:
1. Jitendra Mohan for life.
2. Jitendra’s eldest son for life, born during the testator’s life-time.
At the death of the testator, Jitendra had no sons. Surendra was alive.
The main objections of the plaintiff were as follows:
(1) It was invalid as to the ancestral estate.
(2) The grant of the mere life-estate is illegal in Hindu Law.
(3) The grant to Jitendra’s unborn son is invalid.
(4) Every other grant after this invalid.
(5) The creation of the trust is invalid as there is no difference between legal and equitable estate according to Hindu Law.
(6) The testator was bound to provide him with an adequate maintenance. Having regard to the extent of property the grant of rupees seven thousand is inadequate.
(7) His dis-inheritance was illegal.
The Privy Council held as follows:
(1) The Bengali father has the same power of disposition over ancestral as over self-acquired property, even to the prejudice of the son.
(2) Inheritance being a thing laid down by the State for reasons of public policy, a private person cannot lay down a mode of inheritance unknown to the law. Thus if a testator grants property to a person and his eldest nephew and the eldest nephew of such nephew, and so forth, here the mode of inheritance not being legal, it fails except as to those persons in whose favour it is valid by way of gift. Here the succession of life-estate, being repugnant to Hindu law, it fails as a mode of inheritance. It remains to be seen whether it can be upheld by the law of gift.
(3) Under the Hindu Law, in the case of a gift, the donee must be a person in existence and, therefore, the life-estate of Jitendra’s unborn son is illegal.
(4) The next question is “whether the life-estate of Jitendra’s son being illegal the grant to Surendra who is living, is illegal”. It is not valid because he was to take only on ‘failure of determination’ of the previous estate. The condition precedent must be fulfilled in the manner contemplated by the testator; the life estate of Surendra is invalid.
(5)Trusts of various kinds have been reorganised and acted on in India and there is no reason why they should not be upheld, if created by Hindus. But the interposition of trustees in this case cannot cure the illegality of the will. Trusts for illegal purposes are invalid.
(6) The maintenance is sufficient. The amount of maintenance is to be determined by various circumstances among which the magnitude of the property is one; but it is not to have a fixed proportion to the extent of the property.
(7) The result is, as to everything after Jitendra’s life estate, there was an intestacy, and the plaintiff would succeed, not as legatee, but as heir in spite of his being expressly disinherited. A general provision in the will that the heir at law shall be disinherited is ineffectual, without a valid bequest to another person.
The principles of Hindu Law laid down in this case were a governing factor for half century. Now it has been superseded by the Hindu Disposition of Property Act (XV of 1916) which provided that a gift of bequest to an unborn person is valid, provided he is given an absolute interest and the gift is in conformity with Section 113 of the Indian Succession Act, 1925.