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Jiban Krishna Das Vs. Jitendra Nath Das - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberCivil Appeal No. 5 of 1948
Judge
Reported in(1949)51BOMLR442
AppellantJiban Krishna Das
RespondentJitendra Nath Das
DispositionAppeal dismissed
Excerpt:
will-construction-intention of testator, how to be gathered-rules of construction adopted by english courts whether can be invoked in construing will made by a hindu.;a testator by his will disinherited his two sons and after giving certain legacies to his daughters and making provision for his wife and the education and marriage expenses of all his grand-children, gave the entire residuary estate to the sons of his two sons in the following words: 'the sons of my said two sons...shall get all the properties.' on the question whether the grandsons were entitled to share the residuary estate per stirpes or per capita:-;by kania c.j., fazl ali, patanjali sastri, and mukherjea jj. (mahajan j. dissenting) that on the language of the will the bequest was to the testator's grandsons as a class.....harilal kania, kt., c.j.i have read the judgment prepared by mukherjea j. i agree with the reasoning and conclusion of that judgment and have nothing to add.mukherjea, j.1. this appeal is directed against a judgment of a division bench of the calcutta high court dated november 14, 1944, by which the learned judges reversed a decree of dismissal made by the subordinate judge, first court, alipore, in a suit for partition and accounts.2. the material facts are not controverted and may be briefly stated as follows. the properties which are described in the schedules to the plaint belonged admittedly to one kedar nath das, who died on december 18, 1920, leaving behind him a will which was executed on july 5, 1916. the near relatives of kedar who survived him were his wife golapmoni, two.....
Judgment:

Harilal Kania, Kt., C.J.

I have read the judgment prepared by Mukherjea J. I agree with the reasoning and conclusion of that judgment and have nothing to add.

Mukherjea, J.

1. This appeal is directed against a judgment of a division bench of the Calcutta High Court dated November 14, 1944, by which the learned Judges reversed a decree of dismissal made by the Subordinate Judge, First Court, Alipore, in a suit for partition and accounts.

2. The material facts are not controverted and may be briefly stated as follows. The properties which are described in the schedules to the plaint belonged admittedly to one Kedar Nath Das, who died on December 18, 1920, leaving behind him a will which was executed on July 5, 1916. The near relatives of Kedar who survived him were his wife Golapmoni, two sons-Bejoy Sashi and Benoy Sashi-and two daughters Hemnalini and Mrinalini. There were four grandsons also born during the life-time of the testator and actually in existence at the date of his death, three of whom were sons of Bejoy Sashi and one of Benoy Sashi. By his will, the testator disinherited both his sons. The younger son Benoy Sashi was given an allowance of Rs. 50 per month. A similar allowance was given to the family of Bejoy Sashi but not to Bejoy Sashi himself; and after giving certain legacies to his two daughters and making provisions for his wife and the education and marriage expenses of all his grand-children, the testator gave the entire residuary estate to the sons of his two sons.

3. It appears that after the death of the testator, neither of his two sons took any steps for taking out probate of his will; on the other hand, they applied for and obtained a succession certificate for collecting the debts due to the deceased on the footing that he died intestate. On July 31, 1922, Bejoy Sashi died. On September 4, 1933, Hemnalini, the elder daughter of the testator, filed an application in the Court of the District Delegate at Alipore for letters of administration in respect of the estate of her deceased father with a copy of the will annexed. This application being opposed by Benoy Sashi, it was returned to the applicant and was refiled in the Court of the District Judge at Alipore, where it was registered as a contested suit. During the pendency of these proceedings, the three sons of Bejoy Sashi filed, as plaintiffs, a suit for partition and accounts in the Court of the Subordinate Judge, 24 Parganas, and it is out of this suit that the present appeal has arisen. Jiban Krishna, the minor son of Benoy Sashi, is defendant No. 1 in the suit and Benoy Sashi himself figured as defendant No. 2, though he died pending the hearing of the suit. The other two defendants are Hemnalini and Mrinalini, the two daughters of the testator, to whom certain legacies were given by the will. Golapmoni, the widow of the testator, was already dead when the suit was instituted. As the proceedings for letters of administration were, at the date of the institution of the partition suit, still pending before the Probate Court, the reliefs prayed for by the plaintiffs were cast in an alternative form. It was prayed in the first place that if the Probate Court pronounced in favour of the will, the plaintiffs, as the three grandsons of the testator, were entitled to separate possession, by partition, of a three-fourths share of the residuary estate of the testator after excluding the legacies payable under the will, and defendant No, 1 was entitled to the remaining one-fourth share. The alternative prayer was that in case the decision of the Probate Court was against the existence or genuineness of the will and the properties of Kedar were to devolve as on intestacy, the plaintiffs were entitled to half share of the entire property, the other half going to defendant No. 1.

4. The records show that on the application of Benoy Sashi, the hearing of the partition suit was stayed pending the disposal of the proceeding for letters of administration in the Probate Court. This proceeding -ended in the Court of the Subordinate Judge at Alipore on March 25, 1936, and letters of administration, with a copy of the will annexed, were granted to Hemnalini. Against this order, an appeal was taken by Benoy Sashi to the Calcutta High Court, and the appeal was dismissed on January 27, 1938. After this, the partition suit instituted by the plaintiffs, proceeded, and on the application of the plaintiffs the description of Hemnalini, who was defendant No. 3 in the suit, was altered and she was described as administratrix to the estate of the late Kedar Nath Das. Written statements were filed both by Hemnalini as well as by Jiban Krishna, defendant No. 1. The defence raised was substantially of a two-fold character. In the first place, ft was contended that the plaintiffs as residuary legatees could not claim partition as against the administratix in possession of the estate so long as administration was not completed and the residue was not ascertained. The other defence was that on a proper construction of para. 4 of the will, the share of the three plaintiffs in the residuary estate would be one-half and not three-fourths as claimed by them.

5. The Subordinate Judge, who heard the suit, accepted both these contentions and the plaintiffs' suit was dismissed. It was held by the Subordinate Judge that as administration of the estate was not complete and legacies had not been paid off, the estate was still in the administratrix and the plaintiffs had not acquired title to any ascertained residue on the basis of which they could claim partition. As the suit was dismissed on this preliminary ground, it was, strictly speaking, not necessary for the trial Judge to go into the other question raised in the suit. The Subordinate Judge, however, for the purpose of giving completeness to his judgment, dealt with the question of construction of the will and held that the grandsons of the testator were under the terms of the will entitled to share the residuary estate per stirpes and not per capita. The result, therefore, was that the plaintiffs, according to the decision of the learned Subordinate Judge, were entitled to 8 annas' share in the residuary estate and the other 8 annas' share was to go to defendant No. 1.

6. Against this decision, an appeal was taken by the plaintiffs to the High Court of Calcutta and the appeal was heard by a division bench consisting of Mitter and Khundkar JJ. The learned Judges allowed the appeal differing from the Court below on both the points mentioned above.

7. On the first point, the High Court held that it was amply proved from the materials on the record that the debts of the testator had been paid off long ago and all his assets were realised. The directions in the will relating to the education and marriage expenses of the testator's grand-children were also carried out and the wife of the testator being already dead, there was no question of paying her any allowance as directed by the will. There remained only the two legacies payable to the two daughters. As regards Hemnalini, the elder daughter, who was given as her legacy G.P. Notes of the face value of Rs. 6,000, it was pointed out by the High Court that on her obtaining the letters of administration, she got possession of all the G.P. Notes belonging to the testator, and out of them she gave G.P. Notes of the face value of Rs. 6,000, which was precisely the amount she was entitled to under the will, as security for the due administration of the estate. In substance, therefore, Hemnalini in her capacity as administratrix gave assent to the legacy in her favour. So far as Mrinalini, the other daughter, was concerned, the will provided for her 3 cottas of land out of a larger area situated at 47, Paddopooker Road, and a sum of Rs. 500 in cash. The evidence showed that the administratrix had in her hands funds much exceeding the sum of Rs. 500, and to complete the administration the only thing necessary was to pay over the sum of Rs. 500 to Mrinalini and to demarcate the 3 cottas of land that were given to her by the will. In these circumstances, the High Court held that it would not be right to throw out the suit on the ground that it was premature and drive the plaintiffs to bring a fresh suit for administration and partition. The defect in, the plaint could, according to the learned Judges, be cured by slight amendment and in this very suit the residue could be ascertained and a proper decree for partition made. On the other point, the High Court held disagreeing with the trial Judge that the words used by the testator in his will did not show that he intended his grandsons to take his estate per stirpes and not per capita. The plaintiffs, therefore, were entitled to have three-fourths of the residuary estate in their shares, the remaining one-fourth to be allotted to defendant No. 1.

8. The result was that the appeal was allowed and the case was sent back to the trial Court. The plaintiffs were given liberty to amend the plaint within a certain time, and on the plaint being amended, the trial Judge was to proceed with the suit and make an order for partition on the lines indicated in the judgment of the High Court.

9. Against this decision, defendant No. 1 obtained leave to appeal to His Majesty in Council. The records, however, were not transmitted to England prior to the passing of Act I of 1948 which enlarged the jurisdiction of this Court. The records accordingly came to this Court, and the petition of appeal was filed by the appellant in June, 1948. Mr. Panchanan Ghosh appearing in support of the appeal has reiterated both the points upon which the High Court decided adversely to his client.

10. So far as the first point is concerned, it seems clear that there are no merits in the contention of the appellant. Technically it is true that the properties have not yet vested in the plaintiffs as the legacies have not been fully paid and the residue ascertained. That is no reason, however, to drive the plaintiffs to institute a fresh suit for administration and partition. There could be a specific prayer for administration added to the plaint in the present suit, and as circumstances show, very little is necessary to complete the administration. No question of limitation arises in this case, and I cannot accept the contention of Mr. Ghosh that in giving the plaintiffs an opportunity to amend the plaint the High Court really allowed them to substitute one cause of action for another. Ascertainment of residue after completion of administration is certainly a prerequisite to a claim for partition, but the material facts were all set out in the plaint and there is nothing in law which stands in the way of combining prayers for administration and partition in one and the same suit. As a matter of fact, there was a prayer for partitioning the estate, after excluding the legacies payable under the will, in the plaint as it originally stood. The respondents have stated in their case filed in this Court that the legacy to Mrinalini has already been paid, and the ascertainment of the residue is now a mere formal matter. As the Judicial Committee observed in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 IndAp 214 24 Bom. L.R. 682 'The rules of procedure are nothing but provisions intended to secure the proper administration of justice, and full powers of amendment must be enjoyed and should be liberally exercised to serve that purpose.' To throw out a suit for partition on the technical ground that there is no specific prayer for administration in the plaint would not, I think, serve the ends of justice at all. I have no hesitation, therefore, in holding against the appellant on the first point raised by his learned advocate.

11. The second point raised by Mr. Ghosh involves a question of construction of the will, and the question is whether on a proper interpretation of the terms of the will the residuary estate that is bequeathed to the sons of the two sons of the testator is to be distributed amongst them per capita or per stirpes.

12. The trial Court held that the gift was not to a 'class' and that the intention of the testator was that his estate should go in two equal halves to the sons of his two sons. There is indeed nothing stated definitely in the will as regards this method of distribution, but the Subordinate Judge points out that in construing a will executed by a Hindu it is quite legitimate to take into consideration the ordinary notions and wishes of a Hindu; and as according to the Bengal School of Hindu law, which governs the parties, the grandsons take the share of their own father, it may be presumed that the testator had in his mind this normal mode of division according to the law of succession when there was nothing in the will to indicate a contrary intention. This construction, according to the Subordinate Judge, receives support from another provision in the will which gives the same amount of monthly allowance to the families of the two sons of the testator. This view was not accepted in appeal by the High Court and the learned Judges of the High Court are of opinion that in the absence of any specification of shares the interest of all the grandsons must be held to be equal. According to the learned Judges, there is nothing in the body -of the document or in the surrounding circumstances which would go to show that the intention of the testator was that his grandsons would get the residuary estate per stirpes. The question for our consideration is whether or not the view taken by the High Court is correct.

13. Now all the authorities agree, that in construing a will the cardinal maxim to be observed is that the Court should, in all cases, endeavour to ascertain the real intention of the testator. The intention means the intention which the will itself by express words or by implication declares, and the primary duty of the Court is to ascertain from the language of the entire document what the intentions of the testator are. The meaning to be attached to the actual words used may certainly be affected by surrounding circumstances, and in interpreting the language the Court has got to bear in mind other matters than mere words used. As was observed by their Lordships of the Judicial Committee, the Court must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure: 'The Court is entitled to put itself into the testator's arm-chair,' vide Venkata Narasimha Appa Row v. Parthasarathy Appa Row Amongst such surrounding circumstances, the Court, in construing the will of a Hindu, is competent to take into consideration what are known to be the ordinary notions and wishes of a Hindu with respect to the devolution of property, and a testator may be presumed to have made the bequest with these ideas in his mind, vide Mahomed Shumsool v. Shewukram and Radha Prosad Mullick v. Ranimoni Dassi These surrounding circumstances are relevant, however, for the purpose of putting the right interpretation upon the actual words used by the testator, and it is from these words alone that the intention of the testator has got to be gathered.

14. These propositions are too well settled to require any discussion. The technical rules of construction adopted by the English Courts which have grown up under a special law of property and an artificial system of conveyancing are, no doubt, not of much assistance in construing the wishes of a Hindu who views most transactions from a different standpoint, and may presumably be altogether ignorant of these rules. But a rule of construction which is not based on any technicality of English law and is helpful to Court in getting at the substance of the intention of the parties can certainly be invoked even in construing a Hindu will. It is well known that many of the rules of construction of wills which have been embodied in the Indian Succession Act and made applicable to Hindus are based upon decisions of English Courts.

15. I will now examine the contents of the will in the present case in the light of the above principles.

16. The will is a short document and is divided into five paragraphs. In the preamble, the testator gives his reason for making a will. He says that as there is a chance of all his properties being ruined if they fall in the hands of his sons, it became necessary for him to make a will. The terms of the will are set out in the five paragraphs that follow.

17. The first paragraph relates to the appointment of executors and three persons were appointed executors, none of whom were related to the family. In the second paragraph, the testator makes provision for his two daughters. The elder Hemnalini was given G.P. Notes of the face value of Rs. 6,000 and the younger Mrinalini was to get 3 cottas of tankfilled land out of a larger area situated at 47, Paddopooker Road, and a sum of Rs. 500 in cash. The third paragraph provides inter alia that Golapmoni, the widow of the testator, was to enjoy during her life-time the interest on G.P. Notes of the face value of Rs. 10,000 which were kept in deposit with Army and Navy Co-operative Stores, Ltd., by way of security on behalf of a friend of the testator who was an employee in that firm. After the widow's death, this money was to go to the estate. There is also a small provision for charity in this paragraph. The fourth paragraph is most important for our present purpose and it runs thus:

I have two sons Bejoy Sashi Das and Benoy Sashi Das. My elder son Bejoy Sashi Das is a man of very loose moral character and is addicted to drinking and prostitutes. I, therefore, think that if any property is given to him, it will be lost. My younger son Benoy Sashi has no sense of right or wrong and is of extremely irritable disposition. So I think that they may at any time do something wrong, or waste the properties. Hence, the sons of my said two sons Bejoy Sashi and Benoy Sashi shall get all the properties. Bejoy Sashi Das shall get nothing. His wife and children-such of them as will remain alive-shall get a monthly allowance of Rs. 50 and my youngest son Benoy Sashi Das shall get a monthly allowance of Rs. 50. Be it also stated that the marriages of their sons and daughters shall be performed from this estate.

18. Then follow certain directions regarding the marriage and education expenses of the grand-children, and the paragraph ends by saying that if the testator's wife does not pull on well with his sons or their families, the wife would have the right to reside in the family dwelling house at 56, Lands-downe Road, and the sons or their families would have to shift elsewhere for their residence. The fifth and the last paragraph lays down that if any of the properties disposed of by the will are acquired by Government, the executors shall purchase other properties with the compensation money which would be held subject to the same terms and conditions as are given in the will.

19. To determine whether the testator intended his residuary estate to be divided per capita or per stirpes amongst the grandsons, it is necessary, in the first place, to look closely into the language of the will, for it is from the words actually used by the testator that his intention has primarily to be gathered. The language used by the testator in making the bequest to his grandsons is very simple. The words are: 'The sons of my said two sons Bejoy Sashi and Benoy Sashi shall get all the properties.' The plain meaning of the words obviously is that everyone who would stand in the relation of a son to either of the two sons of the testator at the time of distribution would be entitled to get the properties left by him. It is not disputed that when a gift is made in favour of a number of persons either individually or as members of a class, each of them in the absence of any specification of shares will take an equal interest in the property given. Prima facie, therefore, the grandsons of the testator would take the residuary estate per capita and not per stirpes, unless a contrary intention is deducible from the will. On behalf of the appellant stress is laid upon the fact that the testator uses the expression 'sons of two sons' and does not describe the objects of his bounty as 'grandsons' simply. The suggestion is that the sons of the two sons do not form a class to whom the gift is made. It appears that the trial Judge in his judgment expressed an opinion that in the present case the gift could not rank as a gift to a class, and as some arguments were advanced before us on this point by the learned lawyers on both sides, it is necessary, I think, to examine the matter a little more in detail.

20. A gift to a 'class' as distinguished from a gift to individuals has a well recognised meaning in law. The expression undoubtedly has its origin in English Courts, but it has been adopted in the Indian Succession Act, and the provisions relating to it are applicable to the Hindus also. As was said by Lord Cottenham :

A gift to a class implies an intention to benefit those who constitute the class, and to exclude all others; but a gift to individuals described by their several names and descriptions, though they may together constitute a class implies an intention to benefit the individuals named,' (vide Barber v. Barber (1838) 3 My. & C. 688

21. Important legal consequences flow from this distinction. Thus the addition or diminution of members does not affect a class, the share of each being dependent upon the ultimate number of persons. Again in case of death of a member of the class, the legacy does not lapse but passes by survivorship to the other members. These matters, however, are hardly relevant for our present enquiry. It is not the contention of the appellant that the gift in the present case is a gift to individuals as distinguished from a class, and even if that be so, the position of the appellant would not in any way be improved. What the appellant really wants to say is that the sons of the two sons of the testator constitute two classes and not one, and there may be equal division only between these two classes inter se but not between the individuals comprised in them, as they do not form a single class. This contention, I think, cannot be accepted as sound. Ordinarily, a class gift means gift to a class of persons who are included and comprehended under some general description and bear a certain relation to the testator. The true test is, however, the intention of the testator and the gift would rank as a class gift if the testator intended that the donees should take as a class. There are instances again of 'composite class' recognised in English law, such as when a gift is made to the children of A and the children of B. (Per Lord Davey in Kingsbury v. Walter [1901] A.C. 187 In the case before us the sons of the two sons of the testator do come under a general description and do bear the same relation to the testator. I do not think that because they were described not as 'grandsons' simply but as 'sons of two sons,' it should be held that the testator intended them to take as two distinct classes and not one. The testator certainly intended that after his sons were excluded, his grandsons as a class should get his properties. The decision of the House of Lords in Kingsbury v. Walter referred to above would be an instructive case in point. Here the gift was to A and the child or children of B.A. was a niece of the testator being the daughter of a sister of his, and B was another sister. A died during the testator's life-time. It was held that the bequest did not lapse as the intention of the testator was to make one class of nephews and nieces and the gift was to that class. It was held by the Bombay High Court in Khimji v. Morarji I.L.R. (1897) Bom. 533 that the expressions 'sons of sons' and 'daughters of sons' should be treated as denoting a class; and even 'wives of sons' would form a class amongst the Hindus as polygamy is permissible under Hindu law. This view seems to me to be perfectly sound. On the language of the will in the present case, I have no hesitation in holding that the bequest was to the testator's grandsons as a class and all the members of the class would take per capita unless different shares were indicated in the will.

22. Questions have frequently arisen before the Courts in England as to whether division should be capital or stirpital when a gift is made to a number of donees taking as a class or combination of classes. Thus a gift may be made to one person and the children of another, or it may be made to the children of several persons, and the general rule that is followed in such cases is that prima facie and apart from the context or special circumstances the division shall be per capita and not per stirpes (vide Re Daniel: Jones v. Michael [1945] 2 A.E.R. 101 The prima facie rule can, however, be displaced by the language of the instrument or any surrounding circumstance which indicates an intention to divide the gift per stirpes. The authorities on this subject are numerous, and I will advert only to some of the recent pronouncements upon it for the purpose of determining, if possible, the general principles that guide the English Courts in such matters.

23. It happens frequently that bequest is made of property to be divided equally between A and the children of B. If A and the children of B belong to the same generation or are equally related to the testator, it has been held in Alcock, In re: Bonser v. Alcock [1945] 1 Ch. 264 that the prima facie rule of capital distribution would not be displaced. The position might be otherwise if A was a stranger to the testator whereas B was his brother or sister, or if A was of a different or higher generation from the children of B, and such circumstances might indicate that division per stirpes was intended. When a gift is made to one brother or sister of the testator along with the children of the other brothers and sisters, a stirpital division is ordinarily indicated, for the testator must be deemed to have intended to benefit the families of all his brothers or sisters equally, and a capital division would work injustice in such cases. This principle can be well illustrated by reference to two very recent decisions of the English Courts. In Re Daniel: Jones v. Michael [1945] 2 A.E.R. 101 a testatrix by her will directed the residue of her estate 'to be equally divided between my sister M.A.M., should she predecease me her children to benefit in her share, the children of ray deceased sister E.T. and the children of my deceased brother T.E.' The testatrix was survived by her sister M.A.M., three children of the deceased sister E.T. and two children of her deceased brother T.E. It was held that the division should be per stirpes and M.A.M. would get one-third of the residuary estate. If capital division was directed in such cases, M.A.M. would get only a sixth share in the estate and that sixth share would devolve on her children in case she predeceased the testatrix. The intention was clearly to benefit the families of the three sisters and hence stirpital division was the proper rule to apply.

24. The other decision which is still more recent is to be found reported in Hall Deed., In re: Parker v. Knight [1948] 1 Ch. 437. Here a testatrix by her will gave half of the estate to one of her sisters, and a legacy of 100 to one E.P., and directed the residue to be divided equally between her sister M. and her niece 'I' and her children. This 'I' was the only child of another sister of the testatrix. Harman J. held that the prima facie rule would yield here to the special circumstances of the case and M. would get half of the residuary estate, the other half going to the niece of the testatrix and her children. Stress was laid by the learned Judge on the existence of a comma after M, and it was said that 'the distribution being a family distribution a stirpital rather than a capital distribution was intended.' The testatrix obviously intended not to benefit M the individual only, but her family as well, and it would be inequitable if one of the sisters who herself might have several children of her own be given a per capita share with the niece and her children. In a family distribution the essential thing is that the gift is meant not merely for the individual legatee but for his or her children as well. The rights of the children to step into the shoes of the parent may be expressly mentioned in the instrument or that might be the implication of the grant. When, however, the children of different parents are mentioned together as one single group or class, they must take 'per capita unless there is any other indication of an intention to divide the gift per stirpes. There are numerous authorities in support of this proposition Vide Halsbury's Laws of England (2nd Edn.), Vol. XXXIV, p. 357 and it is covered entirely by the decision in Dale, In re: Mayer v. Wood [1931] 1 Ch. 357. In this case there was a gift by the testator of certain proceeds of sale to 'be divided equally between the children of my son A, and my daughter B'. The gift was construed to be one for the testator's grand-children comprising the children of both his son and his daughter, and it was held that all of them would take per capita.

25. The principle is that when all the objects of the testator's bounty belong to the same class and bear the same degree of relationship to the testator, it should be presumed that unless the testator makes any distinction between them they are to share the gift equally between them. This would be a case of individual and not of family distribution and the per stirpes rule would not be the proper rule to apply.

26. In the case before us the residuary estate has been given to all the grandsons of the testator, and although they are sons of different parents, they constitute only one class whose relationship to the testator is. identically the same. If the gift had been to the sons of the testator and their children or if it had been to one of the sons and the children of the other, per stirpes rule would certainly have been applicable according to the principles discussed above. As the sons are eliminated altogether, there is no further question of stocks or families. The grandsons take as one class and there is no scope for the application of the per stirpes rule in such cases.

27. In my opinion, the present case comes directly within the purview of the principle enunciated in Dale, In Rs. The distribution, therefore, should be capital distribution unless it is shown that there are other circumstances from which a different intention can be gathered. I will now examine these other circumstances upon which reliance has been placed by the learned advocate for the appellant.

28. I am not impressed by the argument of Mr. Ghosh that the testator's only intention in executing the will was to disinherit his two sons, and bequeath his properties to his grandsons, so that they might take them in the same way as they would do on intestacy.

29. It is quite true that the testator was very much apprehensive of the fact that his properties might be wasted if they were to devolve upon his two sons after his death, and it was his intention certainly that none of his two sons should get his properties. But the entire provisions of the will do not, in my opinion, indicate that the testator intended that after his two sons were excluded, his properties should devolve in the same way as they would on intestacy. On the other hand, they go to show that when the testator did execute a will he attempted to make what he considered to be a better and more equitable distribution of his properties than would be possible under the law of intestacy. In the first place, he does not give the entire estate to his grandsons who would be his next heirs after the sons. They get only the residuary estate after the legacies are paid off. The testator has given substantial legacies to both of his daughters, who would get nothing under the law of inheritance. In the second place, he has set apart a fund however small for charity and the provisions made for the wife are also different from what she would be entitled to under the Hindu law after the death of her husband. She has been given the interest on G.P. Notes of the face value of Rs. 10,000 during her life-time and a right of residence in the family dwelling house. Under the Hindu law applicable to the parties, she would be entitled to a share when a partition took place between her sons or grandsons and this right obviously she could not exercise after the will. In the third place he has expressly provided for defraying the marriage and education expenses of all his grand-children from out of the estate. No distinction has been made in this respect between the families of the two sons. These directions are certainly inconsistent with the idea of giving the grandsons all they were entitled to as intestate heirs under the Hindu law.

30. The fact that a sum of Rs. 50 was given as monthly allowance both to Benoy Sashi as well as to the family of Bejoy Sashi does not, in my opinion, throw any light on the question as to whether the testator intended that his grandsons should take the property per stirpes or per capita. If there had been a direction by the testator for application of the annual income of his properties equally among the two sets of grandsons until the distribution took place, it would certainly have afforded an indication of his intention that the actual distribution should also be a stirpital distribution. There is, however, no such direction in the will. These monthly allowances do not by any means represent the income of the estate nor are they given to the two sets of grandsons. It is also not clear whether the directions regarding the payment of these allowances are to be in force only so long as the estate is not distributed. It is difficult to see what is the period of distribution which the will contemplates. If it is the date of the testator's death, these monthly allowances to Benoy Sashi and the family of Bejoy Sashi would apparently remain charged on the residuary estate and would have to be paid even after the sons of the two sons get the estate. If distribution is to be postponed till both the sons are dead, the maintenance allowance in favour of Benoy Sashi would undoubtedly cease, but there is nothing in the will to show that the liability to pay the sum of Rs. 50 to the family of Bejoy Sashi will not still remain. The will is apparently obscure on many points and no argument, in my opinion, can be founded on this provision for monthly allowances as indicating the way in which the testator intended his grandsons to take the property.

31. I will now advert to the argument upon which considerable stress was. laid by the learned advocate for the appellant, namely, that in construing a Hindu will, the Court should take into consideration the ordinary notions and wishes of a Hindu in respect to devolution of property. It is argued that as under Hindu law in case of division of grandfather's property, the grandsons take per capita and not per stirpes, the testator must have had that idea in his mind when he made the dispositions in favour of his grandsons. The presumption, therefore, will be that he intended his grandsons to take the property per stirpes unless a contrary intention appears from the body of the will. I do not think that this contention really assists the appellant in the present case.

32. The case of Mahomed Shumsool v. Shewukram is possibly the earliest pronouncement of the Judicial Committee, where it was authoritatively laid down that in construing a Hindu will the ordinary notions and wishes of a Hindu as regards devolution of property would be a legitimate matter for consideration. The proposition was affirmed and reiterated in the subsequent case of Radha Prosad Mullick v. Ranimoni Dassi In Shumsool's case, a Hindu inhabitant of Bihar executed a document of a testamentary character, by which he made a gift of his ancestral properties in favour of his widowed daughter-in-law Rani Dhun Kowur. The testator had already lost his wife and only son, and his brother and brother's wife were also dead at the time when the document was executed. The only near relatives he had at that time were his widowed daughter-in-law Rani Dhun Kowur and two daughters of his son born of her to wit Mussummat Shitaboo and Bebee Dularee. After reciting the deaths of his wife, son and brother, the testator said 'except Mussummat Rani Dhun Kowur aforesaid, none other is, nor shall be, my heir and malik.' He proceeded then ten refer to daughters of Rani Dhun Kowur and said as follows: 'Furthermore, to the said Mussummat Rani too, these very two daughters named above-together with their children who after their marriage may be given in blessing to them by God Almighty, are and shall be heir and malik.' The first of these passages would seem to confer an absolute estate on the daughter-in-law, but the second introduced an element of inconsistency and indicated that the testator desired that the property should go to his grand-daughters and their children. In these circumstances, having regard to the fact that the property disposed of was ancestral property, their Lordships held that it could be assumed that a Hindu would naturally desire to retain such property in his family, and it might be assumed further that the testator was well aware that as a general rule women under Hindu law do not take an absolute estate of inheritance which they can alienate at pleasure. The ordinary ideas and wishes of a Hindu were thus taken into consideration to explain the apparent inconsistency in the will and it was held that the entire will could be harmonised and consistently explained if it was taken to mean that Mussummat Dhan Kowur would take the limited interest of a Hindu female heir and after her death the property would go to her daughters.

33. The position was not much dissimilar in the subsequent case of Radha Prosad Mullick v. Ranimoni Dassi In that case, a Hindu testator inter alia directed his executors to make over and divide the whole of his estate 'unto and between his daughters in equal shares, to whom and their respective sons, the same was given, devised and bequeathed.' The High Court of Calcutta held that each of two daughters became entitled under the terms of the will to a moiety of the estate absolutely. This judgment was reversed on appeal by the Privy Council and their Lordships pointed out that the gift was not to the daughters merely but to their sons as well, and there was an express provision that in case of a daughter dying without male issue, her share would go to the other daughter and her sons to the exclusion of female heirs in both cases. It was observed by the Judicial Committee that as an orthodox Hindu the testator could not tolerate the idea of his daughter's daughter, who could confer no spiritual benefit upon him, succeeding to his property; and to reconcile the different parts of the will, the only proper construction to be put upon it was that the testator intended to create an estate for life in favour of the two daughters with the benefit of survivorship between them, the remainder being vested in the daughter's sons.

34. In my opinion the correct position is, that the ordinary wishes and feelings of a testator, who belongs to a particular community, could be taken into consideration only for the purpose of interpreting the will as a whole by removing any ambiguity or inconsistency in its provisions, and for putting the right meaning upon the words which the context might show were not used in their ordinary or literal sense. But in the absence of any ambiguity or inconsistency the plain meaning of the words has certainly to be accepted. In the case before us, as I have said already, in no part of the will has the testator expressed an intention that after his two sons are excluded from inheritance, the devolution of his properties would be according to the ordinary rules of intestate succession. There is nothing in the context or in the surrounding circumstances which throws doubt upon the plain meaning of the words that have been actually used, and there is no indication anywhere that the testator contemplated or proceeded on the footing that his grand-children would take his property not in equal shares but according to the shares which their fathers might have obtained if they were not disinherited. When no discrepancy is created either by the context or surrounding circumstances, the words in the will should be taken in their ordinary sense, and it is immaterial that the testator being a Hindu was likely to have particular ideas on particular matters.

35. I would like to add that I am extremely doubtful whether it could be said at all, that the social usage or religious feeling of the Hindus is opposed to the idea of allowing grandsons by different sons to take the property of their grandfather in equal shares. Division per stirpes is certainly the rule of Hindu law which is applicable when the grandfather's property is to be divided among grandsons, but the Hindu law recognises per capita division in many other cases and amongst grandsons by different sons division per stirpes is prescribed by the Hindu law givers on the ground 'that their interest in the wealth (of their grandfather) is founded on their relation by birth to their own father and they have a right to just so much as he (the father) would have been entitled to' (vide Dayabhaga, Chapter III, Section 2, paragraph 21). When the father himself is disinherited, the very foundation of the right of the grandsons to step into the shoes of their father is gone and in such circumstances there is nothing unusual to make the grandsons equal sharers in their grandfather's property.

36. It may be pointed out here that under the statute of distribution in English law, when the intestate's children are all dead leaving children of their own, the descendants take per stirpes and not per capita Vide Williams on Executors, Vol. II, p. 1024. This has not influenced in any way the rule of construction adopted by English Courts that in gifts to grand-children as a class, each one would take per capita irrespective of the shares which their parents would have got had they been alive.

37. In my opinion the view taken by the High Court is right, and this appeal should be dismissed with costs.

Fazl Ali, J.

38. In this difficult case, I am not quite confident that the view taken by the High Court is wrong, and therefore I agree that the appeal should be dismissed.

Patanjali Sastri, J.

39. I agree that the appeal should be dismissed with costs.

Mahajan, J.

40. This is an appeal against the judgment of the Calcutta High Court, delivered by Mitter J. reversing the decree of the Subordinate Judge of Zilla 24-Parganas, 1st Court at Alipore, December 21, 1940, in Title Suit No. 37 of 1934.

41. The question turns upon the meaning and effect of the will of one Kedar Nath Das. The will was executed on July 5, 1916. The testator died on December 18, 1920.

42. At the date of the will and the testator's death the state of the testator's family was as appears from the following.

What happened after the death of the testator may now be briefly stated. Soon after the death of their father, the two sons took out a succession certificate in regard to his estate ignoring the will. They thus entered into enjoyment of the properties left by their father as tenants in common. Bijoy Sasi died in July 1922 and a succession certificate to his estate was taken out by his widow. This state of affairs continued for a period of over thirteen years, when in September 1933 Shrimati Hemnalini Dasi, one of the daughters of the testator, made an application for the grant of letters of administration with a copy of the will annexed before the District Delegate of Alipore. This application was not granted till March 25, 1936. The grant was finally confirmed by the High Court on January 27, 1938.

43. During the pendency of the application, the suit out of which this appeal arises was instituted by the three sons of Bejoy Sasi for partition of the properties left by Kedar Nath Das. The plaintiffs claimed a three-fourths share in the estate on the basis of the will and a half share in it in case the execution and genuineness of the will was not established. In the plaint it was expressly set out that the residue of the estate be ascertained after payment of cash legacies and after excluding the properties to which the legatee-defendants were entitled. Partition was claimed of the properties left after distribution of the legacies. As indicated above, this suit was instituted fourteen years after the death of the testator and the question about payment of the funeral expenses and of any debts outstanding was then no longer a live matter. This suit remained stayed till the decision of the application for letters of administration. It was revived in July, 1939, and two months before this, Binoy Sasi, the second son of the testator, had also died. In reply to the plaint the defendants raised a number of pleas and in particular, emphasis was laid on two grounds, (1) that the suit was premature as the estate was still in the hands of the administrators and administration had yet not been completed and residue not ascertained, and (2) that on a true construction of the will, the plaintiffs could not claim a three-fourths share in the residue but were only entitled to a moiety, the rule governing distribution of the estate being not per capita, but per stirpes. As many as ten issues were framed on the pleadings of the parties. The material issues in the case however were issues 2 and 6, and the other issues were either not pressed or became unnecessary at a later stage of the case.

Issue 2:-Is the suit maintainable in its present form? Is it premature?

Issue 6:-Are the plaintiffs entitled to get three-fourths share of the properties in suit under the terms of the will of deceased Kedarnath Das? If not, what is their share therein? Are the plaintiffs entitled to partition of the estate as prayed for herein?

The trial Judge on issue 2 gave a finding in favour of the defendants and as a result of this finding dismissed the suit. The learned Judge, however, while dismissing the suit also expressed an opinion on issue 6 in favour of the defendants that the estate was distributable between the grandsons of the testator per stirpes and not per capita. This opinion is in these terms:-

The words 'dujaner putragam' do not seem to have been used to exclude daughters' sons as urged for the plaintiffs as daughters' sons are expressed by the world 'douhitra.' Nor was the term 'poutra' appears to have been used. There was thus no gift to a class also here. Two sons were given equal amount of maintenance and 'dujaner putragam' appear to have been used to indicate that the estate will go to them per stirpes and not per capita under the will. There appears nothing in the whole will to indicate that the testator had in his mind to give the property to all the grandsons per capita and, in my opinion, perusal of the whole will seems to indicate that the testator's intention was to bequeath the estate in equal halves to the sons of his two disinherited sons as no distinction was made in giving their maintenance in consideration of the number of members of the family of each.... Considering the ordinary predilections of the Hindus to which community the testator belonged and in the absence of any expression to indicate his desire to give them in equal share per capita it seems to be more reasonable to hold that the testator's intention was to bequeath the properties per stirpes.

44. This decision of the Subordinate Judge was set aside on appeal by the Calcutta High Court on both the points. The case was remanded to the trial Court and opportunity was given to the plaintiffs to amend the plaint in the manner indicated in the judgment. Direction was given to the Court to pay the legacy to the daughter and to partition the rest of the properties on the rule of per capita between the plaintiffs and defendant No. 1. On an application having been made to the High Court for leave to appeal against the decree of that Court to His Majesty in Council, a certificate was granted to the plaintiffs as required by Section 110 of the Code of Civil Procedure on August 31, 1935. The records of the case, however, were not transmitted to the Privy Council before the statute enlarging the jurisdiction of this Court was enacted. In view of the provisions of this new statute the records were transmitted to this Court in May 1948 and petition of appeal was lodged here on June 9, 1948.

45. The same two questions which were agitated before the High Court were urged before us. The question about the premature character of the suit does not require any serious consideration. The High Court disposed of this question with the following observations:-

On the grant of Letters of Administration to Hemnalini, the administrator pendente lite made over possession to her and she gave Government Promissory Notes of the face value of Rs. 6,000 which belonged to Kedar Nath as security for the due administration of the estate. The one-sided evidence is that Hemnalini, as administrator pendente lite, has cash assets or equivalent to cash assets which would enable her to pay the legacy of Rs. 500 to her sister Mrinalini. The evidence further is that the debts of the testator had long been paid and the moneys owing to the testator at the time of his death had been realized. All that is, therefore, necessary in respect of the estate now is that the legacy of Rs. 500 is to be made over to Mrinalini and she should be given possession of the said three cottas of land. Hemnalini has already taken away her legacy for she has given Government Promissory Notes of the face value of Rs. 6,000, which belonged to her father Kedar Nath Das as security to the District Judge, when the grant of letters of administration was made to her. So, it is in a technical sense only that it can be said that the residue has not been ascertained; because Mrinalini has not been actually paid her legacy although a sum which would amply cover the pecuniary legacy to her is in the hands of the administratrix and the land is there. In these circumstances, we do not think it right that this suit should be dismissed, leaving the parties to bring a suit for administration and partition. A little amendment of the plaint would be quite sufficient.

46. I fully concur in this decision and in the reasons on which it is based. It may further be observed that though the suit in form was one for partition, in substance and in effect it was a suit for administration of the estate of the deceased. It was clearly stated in the plaint that the property be divided by metes and bounds between the plaintiffs and the defendants after excluding those properties that had been given to the legatees under the will and by ascertaining the residue. It was not expressly designated as an administration suit as the plaintiffs were disputing the execution and the genuineness of the will and on the date of the suit that matter was in issue between the parties in the letters of administration proceedings above referred to. The plaint wanted the residue of the estate to be ascertained and after that had been done, it wanted its partition by metes and bounds between the contesting parties. No change in any legal relationship between the parties could happen by allowing an amendment of this plaint and by converting its form into one of an administration suit. The dismissal of the suit on the ground of being premature at the stage at which it was so dismissed by the trial Court was not justifiable. In the situation that was created by efflux of time the decision that a suit for administration of the estate was necessary and a suit for partition must fail amounted to a denial of justice. For the reasons given above the first contention of the learned Counsel for the appellant is negatived.

47. The substantial point in the appeal however is the second one. The will, so far as is material, is in the following terms:-

I have two sons Bejoy Sashi Das and Benoy Sashi Das. My elder son Bejoy Sashi Das is a man of very loose moral character and is addicted to drinking and prostitutes. I, therefore, think that if any property is given to him, it will be lost. My younger eon Benoy Sashi has no sense of right or wrong and is of extremely irritable disposition. So I think that they may at any time do something wrong, or waste the properties. Hence, the sons of my said two sons Bejoy Sashi and Benoy Sashi shall get all the properties. Bejoy Sashi Das shall get nothing. His wife and children-such of them as will remain alive-shall get a monthly allowance of Rs. 50 and my youngest son Benoy Sashi Das shall get a monthly allowance of Rs. 50. Be it also stated that the marriages of their sons and daughters shall be performed from this estate. The executors shall spend. Rs. 500 in the case of marriage of a son and Rs. 700 in the case of marriage of a daughter, and if the executors consider it necessary, they may also incur such larger expense therefor as they, in their decision, think proper, and as regards the education expenses of their sons and daughters, the executors shall spend such amount therefor if they think reasonable in their decision. Neither of my said two sons shall be competent to transfer all those properties at any time by gift, or otherwise and if they do the same, it shall be null and void and shall be rejected by Court. Be it also stated that the house at No. 56 Lansdowne Road shall remain for residence only-my wife, two sons and youngest daughter shall live there. If my wife Srimati Gopal Moni Das does not pull on well with my said two sons, or their wives and children, then, it is my wife who shall live in that house and my sons or their wives and children, as the case may be, shall have no right to live in the said house. They shall live elsewhere on renting house at their own expense.

48. In his anxiety to preserve his property from waste by one extravagant and the other half-witted son and in giving it to the sons of these two sons, the testator has set a problem which is somewhat novel so far as my experience goes. The difficulty in construing the will is occasioned by the bequest of the residue of the estate to the sons of the two sons (dujaner putragam). If an English will was expressed in similar terms, it would in all probability be held that all the grandsons at the time of distribution of the estate should share the residue per capita, unless there was something in the surrounding circumstances in which the will was made or in its context to render that view improbable and to lead to the conclusion that the sons of the sons were to take the residue per stirpes. This is the general rule of English law applicable to class gifts. The trial Judge held that the gift in the present case could not fall within the description of class gifts. In this decision, in my view, he was not right.

49. The question whether the gift is one to a class depends upon the mode of the gift itself, namely, whether it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time. A gift to a class implies an intention to benefit those who constitute the class and to exclude all others. One has to look to the description, and those who do answer to it are the legatees described. The decease of any person constituting a class during the testator's lifetime will occasion no lapse because in such a case the testator looks to the body as a whole rather than to the number constituting the body. The legal incidents of those gifts are in some respects analogous to the case of a member of an undivided Hindu family under the Mitakshara system. Judged on the above principles, the gift to sons' sons is a bequest to a class of persons as such. The observations of Tyabji J. in Khimji v. Morarji I.L.R. (1897) Bom. 533 support this view. The learned Judge stated as follows (p. 538):-

It is, of course, beyond doubt that the expressions 'sons of sons' and 'daughters of sons' must necessarily be treated as denoting a 'class' as denned in Leake v. Robinson (1817) 2 Mer. 363 and Jarman on Wills (4th Edn.) p. 268. The term 'widows of sons' raises more difficulty; but as Hindus are, by their law, permitted to marry and to have more than one wife at the same time, I must hold that they also form a 'class'.

50. The general rule of distribution of the estate between the legatees who constitute a class is stated by Jarman on Wills in the Sixth Edition at p. 17H of Vol. II in these terms:-

Where a gift is to the children of several persons, whether it be to the children of A and B, or to the children of A and the children of B, they take per capita, not per stirpes.

51. According to this view, a gift to sons of sons taken by itself would entitle the legatees to take per capita. This rule, however, is subject to certain qualifications. If the context of the will or the surrounding circumstances indicate a different intention, then that intention prevails and distribution has to be made amongst the class as desired by the testator. The rule is firmly established that the Court must look at the whole will to discover what really was the intention of the testator. Jarman, while stating the above rule, further remarked:-

This mode of construction will yield to a very faint glimpse of a different intention in the context, Thus the mere fact, that the annual income, until the distribution of the capital, is applicable per stirpes, has been held to constitute a sufficient ground for presuming that a like principle was to govern the gift of the capital.

52. The decision of the Master of the Rolls, Lord Langdale, in Brett v. Horton (1841) 3 Beav. 239 49 E.R. 331 is an authority in support of the above statement. In that case the testatrix directed the trustees to divide the rents of her real estate between A, B, C, and D, widow of E, until E's children attained twenty-one and upon their attaining twenty-one, the trustees were to sell and divide the produce between A, B, C, and the children of E in equal shares and proportions as tenants in common; but if D married, her part of the income was to be applied to the maintenance of E's children; and she gave the residue of her real and personal estate equally between A, B, C, and the children of E who attained twenty-one. There were four children of E who attained twenty-one. It was held that they did not take the property per ca-pita with A, B and C but one-fourth between them. When delivering the judgment, the Master of the Rolls observed as follows (p. 332):-

The testatrix had given the purchase-money to arise from the sale of the real estate, and the residue, in such terms, as, if taken by themselves, would, I think most clearly, have entitled every one of the children to an equal share in the fund; that is, according to the construction which the Court has frequently given to words of this kind, it would have to be divided into seven parts. But though this would be the effect of the words taken by themselves, yet, in this case, as in all cases, we must look at the whole will to see if we can discover what really was the intention of the testatrix, and this must control those technical and arbitrary rules which would otherwise prevent the real intention from being carried into execution.

53. As the income of the fund had been divided equally between A, B, C, and the children of E, it was held that though A B, C and the children formed a class, yet the distribution between them should be as if they constituted four separate groups.

54. In Hall Deed., In re: Parker v. Knight [1948] I Ch. 437 Harman J. observed that the prima facie rule of construction whereby the division would be per capita can be easily displaced. In that case the testatrix disposed of her estate in the following terms:-

I leave to my sister M.B.P. half of my estate-1001 to E.P.: the remainder to be divided equally between my youngest sister M. and my niece I and her children.

55. The testatrix left surviving her three sisters, the said M.B.P. and M., and one other, whose only child was the niece I. It was held that, there were sufficient circumstances and context to displace the prima facie rule and that the sister M. was entitled to a one-half share of the residuary estate, and the niece and her children to the other half share. It was further observed that the reconciling principle to be gathered from the authorities was that cases of stirpital distribution were cases or family distribution, and cases of capital distribution were cases not of family distribution.

56. In Re Daniel: Jones v. Michael [1945] 2 A.E.R. 101 Vaisey J. applied the stirpital rule with, the following observations (p. 101):-

I start with the undoubted presumption that prima facie and apart from the context or special circumstances, the division in such a case must be per capita. In other words, I must approach this will with the prima jade impression that where there is a direction for equal division between a number of persons, each of those persons takes the same amount as each of the others.... In the present case I have come to the conclusion that the testatrix has indicated that the division should be into one-third shares.

57. The circumstances on which this decision was based was that the living sister who was given a share, if she died during the lifetime of the testatrix, her children were to take her place. As I will show later, in the present will the uncle and the nephews in one particular matter were put on the same footing.

58. On a careful reading of the will as a whole, I am of the opinion that there are sufficient indications of a different intention in its context to justify the distribution of the residue amongst the sons of the sons per stirpes. The general rule applicable to class gifts stands displaced accordingly. In the operative part of the gift the testator said that his sons 'may at any time do something wrong, or waste the properties. Hence, the sons of my said two sons Bijoy Sashi and Benoy Sashi shall get all the properties.' The words employed (dujaner putragam) instead of the word Poutras, give me the impression that he was treating the sons of the two sons, Bijoy Sashi and Benoy Sashi, as their representatives and as standing in their shoes. He just substituted them for these two sons. The dominant intention of the testator in executing this will was to save the property from waste by his two sons, one of whom was, as I have already said, half-witted and of an irritable disposition and the other a wastrel and a drunkard. With this object in view he wanted to eliminate the two sons from the order of inheritance as laid down in Hindu law. If he had simply disinherited his two sons without saying more and without conferring his estate on someone else, it would have resulted in intestacy. To avoid this, he named the sons of these two sons as legatees in the will. It cannot be gathered in this bequest from any circumstance whatsoever that the intention of the testator was to deprive the descendants of one son of their right to take equal share with the descendants of the other son in the inheritance. So far as I can see, the testator did not want to interfere with the normal course of inheritance except to the extent of excluding his two sons from it. The interpretation that I am placing on the will is supported by the whole scheme of this document. Throughout the will the testator treated the families of the two sons as two separate entities. In giving maintenance to the two families, he gave this maintenance in equal shares. Bijoy Sashi was given nothing whatever, but his wife and children were given a monthly allowance of Rs. 50 and the younger son was also given a monthly allowance of Rs. 50. It is noteworthy that the descendants of one son were placed on an equal footing with the other son, i.e., the uncle and nephews were given equal maintenance. This clause supports the claim of the defendants for a distribution of the residue per stirpes and indicates the intention of the testator to that effect. This is also consistent with the rule of intestate succession under which the grandsons would take per stirpes the property of their grandfather. The grandson represents his father at the time of partition and takes equally with his uncles. It has to be presumed that the testator knew that by eliminating the sons from the inheritance and in substituting the grandsons in their place he was doing no violence to the ordinary rules of intestate succession and was not in any way disturbing the shares in -which they would take his estate. In construing the will of a Hindu gentleman a construction has to be placed which is more consonant with the rules of succession and it is not improper to take into consideration what are known to be ordinary notions of Hindus with respect to the devolution of properties.

59. Lord Macnaghten, in delivering the judgment of their Lordships of the Privy Council in Bhaghati Barmanya v. Kalicharan Singh I.L.R. (1911) Cal. 468 13 Bom L.R. 375 quoted with approval and emphasis the observations of Wilson J. in ham Lall Sett v. Kanai Lal Sett I.L.R. (1886) Cal. 663 in the passage reported at page 678 of that report. The passage to which attention was called is in these terms:-

It is no new doctrine that rules established in English Courts for construing English documents are not as such applicable to transactions between natives of this country. Rules of construction are rules designed to assist in ascertaining intention; and the applicability of many of such rules depends upon the habits of thought and modes of expression prevalent amongst those to whose language they are applied. English rules of construction have grown up side by side with a very special law of property and a very artificial system of conveyancing, and the success of those rules in giving effect to the real intention of those whose language they are used to interpret, depends not more upon their original fitness for that purpose than upon the fact that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus, who view most transactions from a different point, think differently, and speak differently from Englishmen, and who have never heard of the rules in question.

60. Not only are the families of the two sons treated as two separate entities in the maintenance clause but towards the concluding portion of Clause 4, when dealing with the residential house, the testator mentions the two sons alone. He uses the expression 'my sons or their wives and children' as indicating two separate entities. When dealing with the house, he does not even mention the grandsons, he only mentions 'my wife, two sons and youngest daughter.' It is no doubt true that in the clause dealing with marriage expenses and education expenses of the sons and daughters of the sons, he places them on a footing of equality. This is also in consonance with the ordinary Hindu notions as to the responsibility of the head of the family to educate and marry the dependent members. It seems to me that in this matter what the testator had in view was that while the family remained joint each member of the family should be treated on the same footing except, of course, in the matter of the maintenance allowance. If there had been nothing wrong with the two sons, in all likelihood there would have been no occasion for the testator to make a will and the property would have gone to the two sons equally and their sons would get it in the same ratio. The sons' incapacity to preserve the property was the only reason for making the will and he intended to give to the grandsons no more than they would have got under the law as descendants of their fathers. That to my mind is the true construction of the bequest. The residue therefore is distributable per stirpes. It was argued that in all likelihood the testator had no intention one way or the other on the point whether his grandsons would take the estate per capita or per stirpes. This contention has to be overruled in view of the observations of Jessel M.R. in an English case to the following effect. It is the duty of the Court to find out the meaning of a will, howsoever obscure, and though it is probable that the testator himself may have no particular meaning, still that is no reason why the Court should not find a particular meaning.

61. The High Court, on this part of the case, made the following observations:-

As the respective shares of his grandsons, the sons of Benoy Sasi and Bijoy Sasi, are not specified, prima facie they would take equally unless there is something in the will, or in the surrounding circumstances which would modify the prima facie effect of the aforesaid disposition.

The learned Subordinate Judge has relied upon two circumstances which, according to him, modify the prima facie effect of the aforesaid disposition. He says that the intentions of the testator were that his grandsons would not take per capita, that is to say not equally, but per stirpes, the sons of Bejoy Sasi getting half and the son of Benoy Sasi getting the other half, because the testator made equal provisions with regard to maintenance for his two sons Bijoy Sasi and Benoy Sasi. That is the first circumstance on which the learned Subordinate Judge relies for his conclusion and the second circumstance on which the learned Subordinate Judge relies for his conclusion is that as the Hindu law is that grandsons take per stirpes and not per capita, that had been the intention of the testator because in the clause which we have quoted above he does not use the phrase that 'his grandsons would get' but the phrase that the sons of his two sons 'would get.' We do not think that the learned Subordinate Judge is right. The provision for maintenance of his sons has no bearing upon the question as to what shares the grandsons were intended to take. We do not also think that it is legitimate to speculate upon the intentions of the testator. His intentions must be gathered from the words he has used. There is nothing in the will which modifies the prima facie effect of the dispoistion which he makes.

62. This decision does not go beyond criticizing, and not very accurately, the judgment of the trial Court. It is not quite correct to say that the testator had made equal provision with regard to the maintenance of his two sons. The fact is that he made no provision whatsoever for the maintenance of one son at all. As pointed out above, his descendants were given equal maintenance with the other son. The import of the equal maintenance clause in the will does not seem to have been fully realized by the learned Judges when they observed that the provision for maintenance has no bearing on the question as to what shares the grandsons were intended to take. This provision certainly gives a glimpse into the intention of the testator. It is also not correct to say that the reference to the provision of intestate succession under Hindu law amounted to a speculation on the part of the Subordinate Judge, as to the intentions of the testator. It was a relevant matter to be taken into consideration because that may provide the key to the mind of the testator. It may point to the fact that there would ordinarily be no idea in the testator's mind to affect the rights of the grandsons inter se and to reduce one grandson's share by 50 per cent. Though in holding this opinion I am in a minority of one, I feel satisfied that if the interpretation that I have put on this will was read out to the testator, he would not have demurred to it.

63. For the reasons given above I am of opinion that the learned trial Judge construed the will correctly and the High Court in appeal was not justified in setting aside his judgment. The result, therefore, is that in disagreement with my brothers on the Bench I would allow the appeal, set aside the judgment of the High Court and would direct that in the distribution of the estate between the plaintiffs and the defendant, the rule applicable is per stirpes and not per capita.

64. Per Curiam, In accordance with the opinion of the majority, the appeal is dismissed with costs.


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