During the past four years, the problem who is entitled to benefit when a gift has been made to a class of persons, such as “the children of A,” has been analysed and clarified by a number of learned authors. These investigations were directed principally, though not exclusively, towards the impact upon class gifts of the rule against perpetuities. The following is an attempt, stimulated chiefly by two decisions of Upjohn J., reported in 1957, to explore certain other aspects of the class-closing rules. By way of introduction, however, it is perhaps desirable to begin with (a) an attempt to summarise these class-closing rules, followed by some general observations upon them, and in particular upon (b) the extent to which they can override a donor's evident intentions and (c) the principles upon which they are said to be founded.

There is nothing indigenous about the Indian Contract Act of 1872 (hereinafter referred to as “the Act”), which is a comprehensive though not necessarily exhaustive code of the subject. According to the eighteenth-century charters, which established courts of justice for the three Presidency towns of Calcutta, Madras and Bombay, the law there applicable was the English common and statute law then in force, so far as it was appropriate to Indian circumstances. Elsewhere it was the practice to have recourse to justice, equity and good conscience. Appeal to these three precepts was also to be made in the Presidency towns themselves in case no specific rule existed. This was the state of the law of contract in 1866, as briefly described by the Indian Law Commissioners in their report. This commission, which prepared the first draft of the Act, had been appointed in England in 1864, with Lord Romilly M.R. as chairman. The other members were W. M. James q.c., the Chancery leader shortly to become James L.J., Sir Edward Ryan, formerly Chief Justice of Bengal, who at this time often sat as a member of the Judicial Committee of the Privy Council in Indian appeals, Robert Lowe, as Lord Sherbrooke then was, a politician, later Chancellor of the Exchequer and Home Secretary, J. M. Macleod, a member of the Indian Civil Service, and John Henderson, barrister. The commission sat in London, and produced a draft report in 1866. This had still not become law by 1870, largely because of the opposition of Sir Henry Maine, then Law Member of the Governor-General's Council, to the proposals as to specific performance.