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The plaintiffs appealed from the judgment and decree of the Additional Civil Judge to the High Court of Judicature at Allababad. by its judgment and decree dated the 30th July 1951 the High Court agreed with findings 1 and 2 of the trial court but held that the plaintiffs and the pro forma defendants were the heirs of the testator under the law of succession applicable to Parsis as laid down in section 56 of the Indian Succession Act read with Part 2 of Schedule 11 thereto. The result was that the High Court allowed the appeal and decreed the suit but directed the costs of the parties in both Courts to be paid out of the estate of the testator. On the 13th February 1953 on the application of Shirinbai and her two daughters (Defendants Nos. 1, 5 and 6) the High Court granted a certificate under section I 10, C. P. C. and article 133 of the Constitution. Hence the pre- sent appeal which has come up before us for hearing. Shri S. K. Dar appearing in support of the appeal has not questioned the propriety of the High Court's decision that the bequest in favour of Shirinbai is void in law or that the plaintiffs and the pro forma defendants supporting them are the heirs of the testator under the law of intestate succession applicable to Parsis but he has rested his whole argument on one point, namely, that even if the bequest to Shirinbai is void under section 67 of the Indian Succession Act, the entire will does not fail and no intestacy intervenes because on a true construction of the will there is a substitutional bequest in favour of the heirs, executors and administrators of Shirinbai. He draws our attention to the terms on which the be-, quest is made. He frankly concedes that if the first sentence of the bequest stopped with the words "her heirs, executors and administrators" and those words had not been followed by the words "for her and their own use and benefit, absolutely and forever" then it might have been said that the words "her heirs, executors and administrators" were words of limitation conferring an absolute estate on her; but those words are followed immediately by the words "for her and their own use and benefit, absolutely and forever" which completely alter the position. Says learned counsel that the relevant words used in the will for making the bequest under consideration should be read distributively, viz. "I hereby give, devise and bequeath to my so called mother named Mrs. Shirinbai Maneckshaw Bejonji Mistri.................... for her own use and benefit absolutely and forever and to her heirs, executors and administrators for their own use and benefit absolutely and forever". So read it becomes immediately apparent that the words "her heirs, executors and administrators" can have no reference to the estate given to Shirinbai and cannot be regarded as words of limitation of Shirinbai's estate but are clearly words of purchase indicating that they are the direct objects of the testator's bounty and that an estate is given to them for their own use and benefit, absolutely and forever. The testator having given the estate to Shirinbai for her own use and benefit absolutely and forever, it was not necessary for him to use the words "her heirs, executors and administrators" as words of limitation in order to confer an absolute estate on her. The testator, it is said, knew that there was a possibility of Shirinbai dying before his own death and the bequest in her favour lapsing and evidently did not intend that his estate should pass as on intestacy to his step-brothers and step-sisters. Indeed he made this will to prevent that possibility and to effectively secure that object he made a double bequest, one in favour of Shirinbai for herown use and benefit absolutely and forever and the other, to her heirs, executors and administrators for their own use and benefit absolutely and forever. The two bequests were evidently successive and the bequest to the heirs, executors and administrators was to take effect on the failure of the bequest to Shirinbai. The two bequests, it is said, were mutually exclusive and independent of each other and even if the bequest to Shirinbai failed under section 67 of the Indian Succession Act by reason of her husband M. B. Mistry having attested the will, the other bequest to 'her heirs, executors and administrators for their own use and benefit absolutely and forever' must take effect under section 129 of the Indian Succession Act. Learned counsel for the respondents strenuously oppose this construction of the bequest and maintain that there was only one bequest to Shirinbai of an absolute estate and there was no alternative or substitutional bequest to her heirs, executors and administrators as independent objects of the testator's bounty. In any event they contend that the case should rather be governed by section 130 than by section 129 of the Indian Succession Act.

The will is a holograph will written, by the testator himself He was a person who bad settled down in Allahabad where he was carrying on business and had acquired his properties. There is no evidence that he maintained any connection with his step-brothers and stepsisters. As will appear from the will itself, the testator regarded Shirinbai as his mother. It also appears from the will that Shirinbai with her husband was residing at 20, Canning Road, Allahabad, where the testator himself was also residing. The bequest to her wag immediately followed 'by the words "her heirs, executors and administrators". According to Jarman, 8th edition, volume 2 page 1304, an intention to create a substitutional gift can be inferred when the gift is to a person "or" his issue, children, etc. or sometimes to a person "and" his issue, children, etc. In this case neither of the two conjunctions appears in the will before the words "her heirs, executors and administrators". But this does not conclude the matter, for the words following, viz. "for her and their own use and benefit" are clearly indicative of an intention to create a substitutional bequest. The primary intention of the testator was evidently to benefit Shirinbai but it is quite likely, in view of the language used by him, that he had in view the possibility of her predeceasing him and the bequest to her lapsing and the estate passing to his step relations as on intestacy. The language used by the testator unmistakably evinces an intention on his part to prevent that contingency and he accordingly made a provision for her heirs, executors and administrators as independent objects of a substitutional bequest. If it is to be assumed that the testator was familiar with the niceties of English law that in a bequest to a person the addition of the words "her heirs, executors and administrators" would only be regarded as words of limitation conferring an absolute estate on that person, then it is not intelligible why he should again use the words "absolutely and forever". Further,, if the intention of the testator was to use the words "her heirs, executors and administrators" as words of limitation, then it is not understandable why he should have used the words' "for her and their own use and benefit". The provision for the "own use and benefit" of "her heirs, executors and admini- strators" is only compatible with an intention of making a bequest in favour of her heirs, executors and administrators. If there was to be no direct gift to her heirs, executors and administrators, then the question of "their own use and benefit" was wholly out of place. If the intention of the testator was only to give an absolute estate to Shirinbai and that her heirs, executors and administrators were only to claim through her and not independently of her, then the death of Shirinbai during the life-time of the testator would have defeated his object, namely, to benefit Shirinbai absolutely. -If, therefore, we are. to give effect to the words "for her and their own use and benefit", as we must according to the rule of construction embodied in the Succession Act to which reference has been made., there can be no getting away from the fact, apparent on the language of the will, that the testator intended to provide for the contingency of the bequest to Shirinbai failing by reason of her death in the life-time of the testator by making a substitutional bequest in favour of her heirs, executors and administrators. In In re, Mcelligott(1) a testator, who died in 1941, directed by his will that his residuary estate which consisted only of personal estate be given to his wife "and her heirs for her and their use and benefit absolutely and forever". It was held by a single Judge that neither the rule in Shelley's case nor section 131 of the Law of Property Act) 1925, which abolished that rule, had any application to the bequest and that the widow was entitled to an absolute interest in the residuary estate of the testator. We are, of course, not concerned either with the rule in Shelley's case or with the provisions of the English Law of Property Act, 1925, but the decision may be said to be against the contention of learned counsel for the appellant, for at the end of his judgment Vaisey, J. said that the super-added words "for her and their use and benefit absolutely and forever" did not in his view make any difference or throw any light on the matter. There is no reason given why no effect should be given to those words and no reference is made to any decided case and the observation of the learned Judge is no more than a bald statement of his view unsupported by any reason or judicial decision. It runs counter to the rule of construction embodied in section 85 of the Indian Succession Act. In our view these words, on the facts of this case, cannot be ignored and they (1) L.R. [1944] Chancery 216.

There being thus a substitutional bequest in favour of the heirs, executors and administrators the question arises whether section 129 or section 130 of the Indian Succession Act will apply. It may well be that the testator had in his contemplation the possibility of Shirinbai predeceasing him and he was, therefore, making a substitutional gift, Nevertheless, the bequest ex facie and in terms does not show an intention that the second bequest was to take effect only in the event of the first bequest failing in a particular manner, namely, the death of Shirinbai before the death of the testator, as the will in the illustration to section 130 did and consequently section 130 cannot apply to this bequest. In the circumstances section 129 comes into play and although the bequest to Shirinbai became void under section 67 of the Indian Succession Act and did not fail in the manner which was perhaps in the,contemplation of the testator the substitutional bequest must take effect. It is pointed out that Shirinbai being alive at the time of testator's death, there can be no person answering the description of her heirs, executors and administrators and therefore the substitutional gift cannot take effect. This argument is unanswerable in so far as the executors and administrators are concerned but in many cases the word "heirs" has been used in a lax way to comprise persons who may be said to be heirs presumptive at a particular point of time which in this case. was the death of the testator. In cases of a direct gift to the heir where the ancestor is living, since no one can be the heir of a living person, the technical meaning may be displaced and the person who is heir presumptive at the relevant time may be so designated (see Halsbury, Vol. 34, Art. 358, page 309). There is no dispute that at the death of the testator Shirinbai bad two daughters. The fact that the bequest to the executors and administrators cannot take effect is no ground for holding that the request to the heirs of Shirinbai must also fall with it.