1. In this case the plaintiff sued to recover possession of the two houses in suit on the ground that they belonged to one Chhaganlal Jibhai, the uncle of the plaintiff, who died leaving a will dated May 31, 1898.
2. The learned Subordinate Judge dismissed the plaintiff's suit softer raising a preliminary issue as follows:-' Does the plaintiff prove that he is the heir ofChhaganlal Jibhai and has he got any right to bring this suit ?' In the lower Court it was understood by this issue that the plaintiff was the heir ofChhaganlal under his will on the assumption of the genuineness of the will so alleged, without taking any evidence in the case. The learned Subordinate Judge on the preliminary point relating to theconstruction of the will held that the plaintiff wag not entitled under the will of Chbaganlal, and had no right to bring this suit under the alleged will of Chhaganlal.
3. The genealogy of the family appears on page 2 of the print. Ohhaganlal died on June 20, 1898, leaving his widow Vakhat who died in 1917-18, Clause 7 of the will is as follows:-
The main object of this will is that, after the death of my wifo, Bai Vakhat, (my) daughter, Iohha, and grand-daughter, Bhali alias Jadi, and those in herline are the heirs to whatever property may remain. However, by God's will, in case Bahen Bhali or anybody in her line do not exist, (my) grandson, Jasubhai aforesaid, and those in his line are the heirs. However, may God forbid, in case Jasu or any one in his line do not exist, my son's son's daughter, Bahen Bamalaxmi, and those in her line are the heirs. However, in case Bamlazmi and those in her line do not exist, mynephew, Ambalal Hargowan, and those in his line are the heirs. and in Case Ambalal or his line or heirs donot exist, this Ambalal's sister, Dahi, and those in her line are the heirs.
4. Bai Ichha and Bhali died before Vakhat. After Vakhat the property was enjoyed by Jasubhsti, who died in 1920 without leaving an issue, and afterwards by his widow Bala who died on March 25,1924. Chaku died in October 1919 and Ramalaxmi died in 19L0-11. During Chhaganlal's lifetime Naran of the first line, Manilal of the second line, and Manchha of the fourth line had died. So also Jivanlal of the first; line, Govind of the second line, and Vijli of the fourth line had died in Chhaganlal's lifetime. The persons who survived Chhaganlal were Chaku, Ichha, Bhali, Ramalaxmi and the plaintiff! It was common ground in the lower Court that Bai Vakhat took a life estate. Ichha and Bhali died during the lifetime of Vakhat. The only person in existence entitled under the will after the death of Vakhat was Jasubhai. The learned Subordinate Judge held that the period of distribution contemplated by the testator was the death of Vakhat, and that as Jasubhai did not die without leaving anybody in his line before the death of Vakhat, which was the period of distribution under Section 124 of the Indian Succession Act, Jasubhai took an absolute estate, and the gift over in favour of the plaintiff was void,
5. It is contended on behalf of the appellant, relying on the decision in the case of Chunilal v. Bai Samrath : (1914)16BOMLR360 ,p.c. that Section 124 of the Indian Succession Act would not apply as the provisions of the Indian Succession Act, under Section 57, apply to Hindu wills within the territories subject to theLieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Itis contended on the other hand that the principle underlying a 124 should be applied as a rule of justice, equity and good conscience. Itappears however, that Section 124 is based on the decision in Edwards v. Edwards (1852) 15 Beav. 357 which was in part overruled by O'Mahoney v. Bwrdett (1874) L.B. 7 H.L. 388. If the English rule as laid down by later decisions was the same as that embodied in Section 124, the rule could have been applied as a rule of equity, justice and good conscience. But having regard to the decisions in Bhupendra KrishnaGhoee v. Amarendra Nath Dey and Chunilal v. Bai Samrath (1914) 18 Bom. L.R. 366 Section 124 corresponding to Section 111 of the previous Act cannot be applied in the construction of this document to which the Indian Succession Act does not apply.
6. If Section 124 does not apply, the question arises as to the true construction of the will in the present case, It appears that the intention of the testator was that after the death of Bai Vakhat the property should go to Ichha and Bhali and also to the persons' in her line, In the absence of Bai Ichha and Bhali and anybody in her line, the property was to go to Jaaubhai and those in his line, and in the absence of Jasubhai or any one in his line, the property was to go to Ramalaxmi and those in her line, and similarly in the absence of Bamalaxmi and those in her line, the property was to go to the plaintiff Ambalal, It is contended on behalf of the appellant that the successive estates which were created by the will were absolute estates but they were subject to defeasance on condition that if there was no person in that line, there was a gift over in favour of the next person mentioned in the will. The will is susceptible of two constructions : either the testator intended that there should be successive absolute estates and estates in tail male in respect of each of the legatees mentioned in the will. The other construction of which, it is alleged on behalf of the appellant, the will is susceptible is that there was an absolute estate in favour of the several legatees subject, to defeasance on the happening of a subsequent event, If there was a valid defeasance clause, as for instance in this case if the testator had stated that if Jasubhai died without leaving any male issue the estate was to go to the nest person mentioned in the will, the matter would have stood on a different footing, But according to the authorities the event must happen if at all immediately on the close of a life in being and the gift over must be in favour of some person in existence at the date of the gift or at the death of the testator as the case may be, otherwise the gift over is void, and the absolute estate granted to the first donee remains unaffected. SeeSreemutty Soorjeemoney Dossee v. Denobundoo Mullick (1862) 9 M.I.A. 123 Assuming, however, that there is a defeasance clause as urged on behalf of the appellant, it appears that the defeasance clause in the present case is an indefinite failure of a male issue is the line, and according to the decision in Saraju Bala Debi v. Jyotirmoyee Debi the defeasance clause is void asif is not a valid executory gift, the event referred to being an indefinitefailure of male issue, I think, however, that there is no defeasance clause in the present case. The gifts are made to successive legatees and to persons in their line, and it appears that the testator intended to create successive absolute estates with succession indefinitely in their line. According to authorities a Hindu may create a life-estate or successive life-estates or any other estate for a limited term provided the donee is a person capable of taking under the deed or will. See Juttendromohun Tagore v.Ganendromohun Tagore (1872) L.R. IndAp Sup. 47 and Kumar Tarakeswar Roy v. Kumar ShoshiShikhareswar . But the English 'estate tail' is an estate unknown to Hindu law, and no one can succeed under a will as heir to such an estate. See Juttendromohun Tagore v. Ganendromohun Tagore(1872) L.R. IndAp Vol. 47 and Sreemutty Kristoromoney Dossee v. Maharajah Norendro Krishna Bahadoor. According to the decision in Bai Dhanlaxmi v. Hariprasad (1920) 23 Bom. L.R. 433 a Hindu may create a life-estate or successive life-estates. But a series of absolute estates defeasible in succession on the happening of an uncertain event cannot be considered as a succession of life-estates, It can only be considered as an attempt to create a state of inheritance which is not recognised by Hindu law.
7. I think under the terms of the will Jasubhai, after the death of Vakhat, took an absolute estate, and the subsequent provisions being invalid, the ultimate bequest in favour of the plaintiff' must fail. I think, therefore, that the view taken by the lower Court that the plaintiff has no right to bring this suit as a legatee under the will of Chhaganlal is correct.
8. It is urged, however, on behalf of the appellant, that though the plaintiff' may fail as the legatee under the will ofChhaganlal, still he is entitled to contest the alienations in favour of the defendants if it is ultimately proved that he is a reveraioner of Jasubhai. According to our view Jasubhai took an absolute estate and after Jasubhai's death the estate was inherited by Balaj his widow, who took a limited interest. The alienation in favour of defendant No. 1 was from Ohaku, and the alienation in favour of defendant No. 2 was from Bala, the widow of Jasubhai. It is no doubt true that the plaintiff ought to have based his claim in the alternative as a reversioner of Jasubhai from the beginning, but he claimed as entitled under the will of Ohhaganlal in both the Courts, and if he wishes to base his claim as the heir of Jasubhai, who takes an absolute estate under the will of Chhaganlal, it cannot be said that ha does not base his claim under the will of Ohhaganlal. We think, therefore, that he should be allowed to make out his case, if he has got any, as the reversioner of Jasubhai who took an absolute estate after the death of Vakhat. As this case was not made in the lower Court, nor was it made specifically in the memorandum of appeal, we think we must put the plaintiff on terms. The plaintiff' must pay the costs in the lower Court and also the costs in this Court and he should be allowed to make an application to the lower Court for amendment based on his claim as the reversioner of Jasubhai.
9. In these circumstances we think that we must reverse the decree of the lower Court and direct the lower Court to consider the application which will be made to it by the plaintiff based on his claim as the reversioner of Jasubhai. The plaintiff must bear the costs of this Court and also of the lower Court.
10. I agree.