1. The plaintiffs are the executors of the will of their deceased brother Sorabji Pudumji, who died on the nth of January 1910. On the 10th of December 1898, twelve years before his death, Sorabji executed his will. That will was made not long after the death of his wife ; and this misfortune seems to have had a most distressing effect upon his mind. He was a man of intelligence and education, having been for many years a Judicial Officer of high standing in the service of Government. The provisions of his will at first sight appear to be very complicated and in some instances are inconsistent with each other. It seems to me that the extreme distress of mind consequent on the death of his wife is solely responsible for the rather tangled document which he has left behind him in which he makes testamentary dispositions of his property amongst his four children who are defendants herein. After the execution of his will, the testator acquired both moveable and immoveable property and in some instances altered the character of his investments. Instead, however, of making a fresh will or a codicil, he from time to time made marginal notes and alterations on his original will. Such notes and ' alterations being unattested could not be admitted to probate, and the will admitted to probatels the will, as he originally made it twelve years before his death. The testator has left three daughters and a son ; and he has given directions and made dispositions in his will which presented difficulties to r 45 the executors, who have taken out this originating summons, wherein they have submitted several questions for the Court's consideration and directions. The summons was adjourned by me into Court and all parties have been fully heard on all questions raised in the suit.
2. In order to avoid any possible misunderstanding as to the construction I put on the various clauses of the will, I have thought it desirable to write a judgment, giving my reasons for the interpretation and construction of the various clauses of the will, before formally answering the questions which are submitted to the Court in the summons. In the third clause of the will, the testator says :-
My dear daughter Putlibai, when she attains her majority and gets possession of her portion of the legacy, to be a there of ex officio joint executrix with the then existing pair.
3. The plaintiffs ask whether defendant No. 1, Putlibai, is entitled to be co-executrix with them and, if so, when In construing the will of a Parsee, drawn by himself, it appears to me to be unnecessary to put a very strict or technical construction on every word or phrase, which go to make up any particular direction in that will. What the Court has to do is to ascertain the true intention of the testator from the whole clause. The whole will is distinguished b)r the use of diffuse language and expressions loosely strung together throughout. It appears to me that the testator intended that his eldest child Putlibai should have a voice in the management and disposition of his estate, when she attained majority and became entitled to the payment of her legacy. As she has now attained majority and become entitled to be paid or given possession of a very substantial portion of the property bequeathed to her by the testator, I am of opinion that she is entitled to be co-executrix with the plaintiffs and that she is so entitled now without waiting for the possession of the whole of her legacy. The plaintiffs do not actively object to her being associated with them in the administration of her father's estate, but it was stated to me that there was apprehension of possible conflict, judging from the attitude adopted by her in correspondence. Putlibai is married to a solicitor of this Court, in whose discretion and good sense I have great confidence. She is herself a member of one of the most respectable Parsee families, and I have no doubt is well brought up with proper notions of respect towards her elders; and I have every reason to believe that in the discharge of the duties with which she will be entrusted, her conduct towards the C plaintiffs will be all that is expected of a young lady in her position in life.
4. An important question of law is raised by the provisions N of . 17 of the will in respect of the bequests made to the testator's son Nusserwanji. In that clause the testator says:-
In the event of Nasli coming and meeting us there without marrying D or, if married, without any lineal heir, his share shall revert equally to his surviving sisters or their heirs.
5. On behalf of the daughters, it was argued that the restriction imposed on the son's inheritance was good, and reliance was placed on what is stated in an English case Corbett v. Corbett (1888) 14 P.D. 7.
6. In construing a will made in India by a native of India- and the Parsees are as much natives of the country as the Hindoos and Mahomedans of India-it is most important for Judges to keep in mind and always remember the extremely weighty words of Lord Macnaghten in Norendra Nath Sircar v. Kamalbasini Dasi . In referring to the judgment of the Subordinate Judge in the case which was then before their Lordships of the Privy Council, at page 26 he says :-
His judgment, with much display of learning and research, is a good example of the practice which Lord Herschell condemns and the mischief which the Indian Succession Act, 1865, seems designed to prevent. To construe one will by reference to expressions of more or less doubtful import to be found in other wills is for the most part an unprofitable exercise. Happily that method of interpretation has gone out of fashion in this country. To extend it to India would hardly be desirable. To search and sift the heaps of cases on wills which cumber our English Law Reports, in order to understand and interpret wills of people speaking a different tongue, trained in different habits of thought and brought up under different conditions of life, seems almost absurd. In the Subordinate Courts of India such a practice, if permitted, would encourage litigation and lead to idle and endless arguments.
7. In construing the restrictions sought to be placed on Nusssrwanji's inheritance by class. 17 of the will, I must first have regard to the testator's explicit directions in class. 15, wherein he says :' Nasli is to have his legacy free of any restrictions.' That applies to what is given to him under class. 14. The restrictions therefore which are sought to be placed by class. 17 would refer to everything else given to him by other clauses of the will. It seems to me that that could not have been the real intention of the testator, having regard to the whole scheme of the distribution of his property as is evidenced by his will, but quite apart from all other consideration, the Court is bound in construing a Parsee will by the provisions of the Indian Succession Act. Section 111 of that Act provides that where a legacy is given, if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect unless such event happens before the period when the fund bequeathed is payable or distributable.
8. It was conceded in the end that Section r 11 of the Succession Act did govern this particular question under consideration, and it was then attempted to prove that the restriction placed on Nusserwanji's inheritance was good, as in the will time was mentioned for the occurrence of that uncertain event contemplated by the testator. It was argued that the construction of this clause in the will meant that the testator provided that the restriction should take effect on Nusssrwanji's death if Nusserwanji died after the testator, and that therefore time in this instance was mentioned. In other words, it was contended that the testator having fixed the time of his son's death taking place after his own demise, this section had no applicability. This argument, however ingenious, is most unconvincing. The uncertain event contemplated by the will is Nusserwanji dying without marrying or, if married, without leaving any lineal heir. No time whatever is fixed or mentioned for the happening of this event; and -the mere fact that the testator contemplated, that in the ordinary course of nature his son would survive him and die after him, does not justify the Court in concluding that the testator has fixed or mentioned in the will the time for the occurrence of that event. Illustration (b) to the section clearly demonstrates what is contemplated by that section, and the Privy Council case of Norendra Nath Sircar v. Kamalbasini Dasi is a conclusive authority in holding that the restriction, sought to be placed on Nusserwanji's inheritance by the testator by class. 17 of his will, is nugatory and ought not to be given effect to. It was held in that case that in provisions of this kind the period of distribution is the death of the testator and the gift to the sons became indefeasible at that date according to the true construction of Section m of Act X of 1865.
9. Under these circumstances, I am clearly of opinion that the restriction imposed by the first sentence in c of the will is now nugatory and Nusserwanji takes the whole of his inheritance absolutely.
10. I will now proceed to formally answer the questions contained in the summons.
11. On the 1st question I hold that Putlibai is entitled to be a co-executrix with the plaintiff and that she is so entitled now.
12. My answer to the 15th question is in the affirmative. The third defendant takes an absolute interest in all property bequeathed to him under the will.
13. As the questions involved in the suit are many and as it is possible that my answers may require further elucidations or discussion or further questions requiring directions may arise, I reserve liberty to all the parties to apply, when necessary.
14. All costs of all parties to the suit including costs of all adjournments taxed as between attorney and client to come out of the estate of the testator.