The Common law principle that if an interest created in favour of a class failed with regard to some of the persons of that class, such interest failed as regards the whole class was expounded in the case of Leake v. Robinson . This principle was upheld in the case of Pearks v. Mosley .
Under Hindu law, the gift to an unborn child was void. In the case of Rai Bishen Chand v. Asmaidd it was held by the Privy Council that a gift to an unborn grandson failed not because of the rules contained in sections. 100 and 101 of the Indian Succession Act, 1865 ( now sections 113 and 114 of the Indian Succession Act, 1925 and corresponding to sections 13 and 14 of the Transfer of Property Act, 1882) but by reason of the personal incapacity of the unborn …show more content…
Robinson in the case of Radha Prasad v. Ranimoni . In the English case the gift to a class had failed because of the rule against perpetuities, while in the case that they were dealing with, the rule against perpetuities needn’t have been invoked because the gift with respect to some legatees failed because of personal …show more content…
Kalicharan , the Judicial Committee discouraged the use of the rule laid down in Leake v. Robinson in Indian conditions, which were far different from the English ones. In this case, the gift to some members of a class failed not because of the rule against perpetuities but because they were not in existence at the time of the testator’s death and therefore debarred from taking under Hindu law. The committee went into the intention of the testator. They said that the primary intention of the testator was to benefit all members of the class and the secondary intention was to benefit at least all those who were capable of taking at his death. When the primary intention failed, effect should be given to the secondary intention of the testator.
After that the three acts which validated transfers to an unborn child among Hindus were passed. So a transfer to a class would no longer void with respect to some members of the class who were unborn at the time of the testator’s death or the date of the gift because of personal incapacity as before. But the rule against perpetuity would apply to such transfers and render them void and according to the rules at that time if a transfer failed with respect to some members of the class because of the rule against perpetuity then the gift was wholly
Under Hindu law, the gift to an unborn child was void. In the case of Rai Bishen Chand v. Asmaidd it was held by the Privy Council that a gift to an unborn grandson failed not because of the rules contained in sections. 100 and 101 of the Indian Succession Act, 1865 ( now sections 113 and 114 of the Indian Succession Act, 1925 and corresponding to sections 13 and 14 of the Transfer of Property Act, 1882) but by reason of the personal incapacity of the unborn …show more content…
Robinson in the case of Radha Prasad v. Ranimoni . In the English case the gift to a class had failed because of the rule against perpetuities, while in the case that they were dealing with, the rule against perpetuities needn’t have been invoked because the gift with respect to some legatees failed because of personal …show more content…
Kalicharan , the Judicial Committee discouraged the use of the rule laid down in Leake v. Robinson in Indian conditions, which were far different from the English ones. In this case, the gift to some members of a class failed not because of the rule against perpetuities but because they were not in existence at the time of the testator’s death and therefore debarred from taking under Hindu law. The committee went into the intention of the testator. They said that the primary intention of the testator was to benefit all members of the class and the secondary intention was to benefit at least all those who were capable of taking at his death. When the primary intention failed, effect should be given to the secondary intention of the testator.
After that the three acts which validated transfers to an unborn child among Hindus were passed. So a transfer to a class would no longer void with respect to some members of the class who were unborn at the time of the testator’s death or the date of the gift because of personal incapacity as before. But the rule against perpetuity would apply to such transfers and render them void and according to the rules at that time if a transfer failed with respect to some members of the class because of the rule against perpetuity then the gift was wholly