1. In this suit the plaintiff Bai Saraswati, daughter of the testator Mahasukhram, sued on behalf of herself and her minor son for the construction of a will. It has been contended on behalf of the appellants, the cousins of the deceased testator, that the minor has not been properly represented in this litigation since his interests are manifestly in conflict with those of his natural mother Saraswati. In the view we take, however, we think that it is impossible that the minor could be prejudiced. It has not been contended here, and we think that it could not be contended, that upon any construction of the will the minor would obtain any portion of the estate, nor is he under the Hindu law an heir to the deceased in the event of there being an intestacy. The minor, therefore, has clearly no real interest in this suit. The contest lies between Saraswati, who in the event of an intestacy would take the whole estate, and the cousins of the deceased Mahasukhram, who are the appellants here.
2. Both the lower Courts have found that upon a proper construction of the will there is an intestacy, and that the daughter Saraswati is, therefore, entitled to the whole estate. We think the learned Judges below were in error. The will is the work of an inexpert layman, and it would be unreasonable to look for too great technical accuracy in its composition. But reading it as a whole we can feel no doubt as to the general scheme of the will and what the real desire and intention of the testator were. Briefly the will provides first a life estate for his widow Parvati. She has since died. Next the will provides that on the death of Parvati, his daughter Saraswati should have a life-estate of Rs. 150 and the rent of a house. In the event of his daughter Saraswati having male children or a male child, that male child (or possibly male children, if there should be more than one) is or are to take the whole estate of the testator on attaining the age of 18, and then bearing a good character. Presumably, if Saraswati should then have been surviving, the testator's intention was that her sons should provide for her as no provision appears in the will for the continuance of her maintenance after her male issue should have attained the age of eighteen years and at that time borne a good character. The appellants' cousins or, as they are called in this will sometimes, brothers of the deceased testator, are the general executors of the will and trustees of the life estates provided in the will, and also trustees for the minor male son or sons of Saraswati until they should attain the age of 18. Then follows a clause which has given rise to the main contest in this suit, and that is, that should Saraswati have no male issue then on her death, that is to say, on the termination of her life estate, the whole of the testator's estate is to go to the appellants, his cousins, absolutely.
3. Now Saraswati bore no male child during the life-time of the testator. The intended bequest, therefore, to her male issue, should she have any, fails under the rule in the Tagore case : Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 9 Beng. L.R. 377. After the death of the testator she has had male issue, and her son, the minor in this suit, still lives. It has, therefore, been contended, and that contention has prevailed in both the Courts below, that by reason of the apparent condition, namely, should Saraswati have no sons (that condition not having been fulfilled) the appellants cannot take after the death of Saraswati, and since the intended bequest to the son actually in existence cannot take effect either, there is an intestacy. We are entirely unable to accede to this contention. What we are to look at and, if we are able to ascertain, give effect to is the intention of the testator. In doing so, we must be governed by general principles such as are to be found stated in cases like that of Jones v. Westcomb (1711) 1 EC A 245. and many others in the English Law Reports. Now here it is perfectly clear that the dominant intention of the testator, after providing a suitable life estate for his widow, was to give the whole of his property to his grandson. That intention has unhappily been defeated as no grandson was alive at the date of his death. Failing this it is equally clear that his dominant intention was to retain his estate in his own family, that is to say, in the hands of the appellants, his cousins. To the best of his ability he appears to us to have carefully guarded against the effect of there being an intestacy, namely, his estate passing absolutely into the hands of his daughter Saraswati.
4. Nor do we think that so literal and strict a construction ought to be put on the condition annexed to the appellants' taking the estate after the death of Saraswati. That this could not have been the testator's intention is perfectly clear from other clauses in the will. Thus he expressly annexed a condition in the event of his grand-son taking the estate that the boy shall attain the age of 18 and shall be of good character. Clearly then if the will is to have any meaning he must have contemplated the possibility of his grand-son, should any such have been in existence at his death, not attaining the age of 18 or not being of good character at that time, and in either event, although this is not actually expressed, it would be equally clear that he meant the appellants to take the estate after the death of Saraswati precisely as though no son had been born to her. In our opinion, there, fore, it would clearly defeat the intention of the testator were we to adopt the view that in the events which have happened there has been an intestacy and so give the whole estate to Saraswati. As between her and appellants it is clear beyond all possibility of argument that the testator preferred the appellants, and desired that they should take the whole estate after having provided a suitable maintenance for Saraswati during her life-time, nor can we find anything upon a reasonable construction of the will as it stands, in the events which have happened to preclude us from giving effect to that intention. In our opinion, therefore, the decree of the lower appellate Court must be reversed and it must now be declared that Saraswati is entitled to the life estate reserved to her upon the condition stated in the will, and that thereafter the appellants are entitled to take the whole estate. All costs to come out of the estate.