1. The question for decision in the appeal is the construction of the will of N.N. Pochaji, a Parsi inhabitant of Karachi, who died there in August, 1908. The testator left a will dated June 21, 1907, of which probate has been granted to the respondents 1 and 2. The appellant is the widow of a son of Pochaji, named Jamshedji, and has obtained letters of administration to his estate. She asks for a declaration that as representative of Jamshedji she is entitled to a half of Jamshedji's four-sevenths share of the residuary estate of Pochaji under Sections 8 and 6 of the Parsi Intestate Succession Act, 1865.
2. The action was tried by Mr. C. Fawcett, Additional Judicial Commissioner, who held that Pcohaji, by the terms of his will, intended that the appellant should be entirely excluded from any share in the distribution, whether as heir of Jamshedji or otherwise. It is clear that the learned Judge appreciated the case put forward on behalf of the appellant before their Lordships. He states her claim to be that, though the will may exclude her from sharing as an heir of the testator, it does not exclude her as an heir of Jamshedji. This decision was confirmed in the Appellate Court, the Court holding that whatever might be the construction of the will in other respects, the appellant was excluded from claiming any share in the residuary estate of Pochaji by the clause 'excluding the widow of Jamshedji from getting any share in such distribution.' The general principle to be applied in the decision of the appeal is not in dispute. The rule of law is to ascertain the intention of the testator as declared by him, and apparent in the words of his will, and to give effect to this intention so far as, and, as nearly as may be, consistent with law. In the present instance no issue of inconsistency with law arises, so that; the only question is one of construction. Pochaji, a Parsi merchant at Karachi, made his will in the English language. It is not necessary to set out the whole will, but Clauses 7 and 8 are as follows:
7. From and after the death of my wife my executors shall stand possessed of the residuary trust estate upon trust to spend from and out of the same a sum of rupees two thousand for the funeral expenses of my wife and for other ceremonies for one year after her death, and shall hold the residue upon trust to pay the net income thereof to my son Jamshedji, for and during his lifetime and from and after his death upon trust for the widow and children of my son Jamshedji absolutely us tenants-in-common in such proportions that each male child shall get double the share of each female child, and the widow shall get the same share as a female child. Provided, however, that if any child of my son Jamshedji shall have died in his lifetime leaving a child or children him surviving, then such child or children shall take the share which his or her parent would have taken of the residuary trust estate, if such parent had survived my son Jamshedji, and if more than one the males always taking twice the share of the females.
8. In the event, however, of the said son Jamshedji dying without leaving any issue how low so ever, but only leaving a widow, then my executors shall pay out of such residuary trust funds a sum of rupees ten thousand absolutely to such widow, and in such case and also in the event of the said Jamshedji dying without leaving any widow or issue bow low so ever, my executors shall stand possessed of the balance of the said residuary thrust estate in trust to spend rupees two thousand for the funeral expenses of the said son Jamaedji and to appropriate a moiety of the balance to such charitable objects for the purpose of promoting liberal and religious education among the Parsi Zoroastrians of Karachi as my executors may in their discretion think fit, and divide the other moiety amongst my heirs according to the law of intestate among Parsis, but excluding the widow of Jamshedji from getting any share in such distribution.
3. In the event of her surviving him, Pochaji appointed his wife, Khurshedbai, sole executrix and trustee of his will; but she pre-deceased her husband. At the death of Pochaji in 1905 he left surviving him his son Jamshedji, Dinbai, Jamshedji's wife, (who is the appellant), two daughters, and four grandsons (who are respondents). Jamshedji died childless in May, 1913, leaving his widow Dinbai surviving him. It is contended on behalf of the appellant that Jamshedji is one of the heirs named in the will of the testator, being thereby entitled according to the law of intestate succession among Parsis to four-sevenths of the moiety of the estate, and that his rights are now vested in the appellant as his administratrix, and that her rights as administratrix of the estate of Jamshedji are not aflected by Clause 8 of the will.
4. It will be convenient to consider, in the first place, the meaning of the words 'excluding the widow of Jamshedji from getting any share in such distribution.' In substance the counsel for the appellant suggested two limitations on these words. It was argued that the distribution was completed be the allocation of the residuary estate amongst the heirs of Pochaji, and that the words did not apply to any subsequent devolution of the property. Their Lordships are unable to accept this interpretation, and see no reason for dissenting from the opinion of the Appellate Court that they would apply to funds coming to the appellant as representative of Jamshedji, in the event of Jamshedji being included is the class of heirs to the testator. It was further argued on behalf of the appellant that these words were directed to exclude claims of the appellant which might have arisen under Section 5 of Act XXII of 1865 if Jamshedji had died in the life-time of the testator, leaving his widow surviving him. In the first place the words construed in their natural meaning contain no such limitation, and secondly Clause 8 appears to contemplate conditions which will arise after the death of the testator, and when the provision of Section 5, Act XXII, 1865, would have ceased to be operative. In any case there is no reason why the words ''excluding the widow of Jamshedji from getting any share in such distribution' should not have their natural general meaning, and to limit them to the event of Jamshedji pre-deceasing Pochaji, is to introduce a limitation not to be found in the terms of the will. It may be true that Jamshedji might have defeated the intention of the testator by making a will, or in some other form, alienating his interest in the residuary estate. The answer to this objection is that Jamshedji did not, in fact, either make a will or alienate his interest, and the testator may well have thought that this was an improbable contingency, and that he had sufficiently safeguarded the interest of the other members of his family.
5. It is pointed out in the judgment of the Appellate Court that on this construction of the words 'excluding the widow of Jamshedji from getting any share in such distribution,' it is not necessary to decide whether the words 'my heirs' in paragraph 8 of the will include Jamshedji among the class. This issue, however, was argued at some length before their Lordships. The will was written in English, and there is no doubt that in a will so written the word 'heirs' would naturally include heirs as at the date of the testator's death, subject always to a contrary intention being declared in a particular will. It is hardly necessary to re-state so clear a principle, but reference may be made to the case of Hood v. Murray (1889) 14 App. Cas. 124. This was a Scotch will, and Lord Watson states the rule as follows:
The rule, as I understand it, is dimply this, that in cases where a testator or settlor, in order to define the persons to whom he is making a gift, employs language commonly descriptive of a class ascertain able at the time of his own death, he must prima facie, and in the absence of expressions indicating a different intention, be understood to refer to that period for the selection of the persons whom he means to favour. In my opinion, the rule has no other effect than to attribute to the words used their natural and primary meaning, unless that meaning is displaced by the context.
6. Accepting this principle in its fullest sense, the question in the present appeal is whether the natural primary meaning has been displaced by the context. Various cases were referred to in the argument which depend on rules of construction, adopted in the construction of wills made in this country, and applicable to documents framed with the knowledge of the rules of construction which are afterwards applied to them. These cases are not of assistance in the construction of a Parsi. will made at Karachi. In Bhagabati Barmanya v. Kali Charan Singh Lord Macnaghten, delivering the judgment, says:
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 such rules depends upon the habits of thought and modes of expression prevalent among 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.
7. A similar opinion is expressed in Norendra Nath Sircar v. Kamalbasini Dasi :
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 oases 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.
8. It is therefore not necessary to examine the present will in the light of rules of construction which have been applied in English decisions. On the construction of the will of Pochaji their Lordships agree with the Appellate Court. In their opinion the testator did not intend that his son Jamshedji should take any interest under his will as an heir. The testator intended that the only interest in his property which Jamshedji should take or have wa8 a right of maintenance under paragraph 6 during the life-time of the testator's wife if she survived the testator, and a life interest under paragraph 7 in the testator's property undisposed of under the earlier paragraphs of the will, and that he did not intend to include Jamshedji as one of his 'heirs' as that term is used in paragraph 8. If the contention of the appellant could be maintained, she would be entitled not only to Rs. 10,000 specifically bequeathed to her for her absolute use, but also to one-half of the four-sevenths of the moiety of the testator's residuary trust estate mentioned in the fifth paragraph of the will.
9. In their Lordships' opinion this would not be in accord with the intention of the testator as declared in the terms of his will.
10. Their Lordships will humbly advise His Majesty that the appeal shall be dismissed with costs to be paid out of the estate.