1. One Dadabhoy Byramji, a Parsi inhabitant of Tarapur, died on 21st August 1866 after having made a Will in the Gujarati language on 8th August 1866. He left two sons Pallonji and Jehangirji (defendant No. 1). Pallonji, the elder son, was a person of weak intellect and unable to look after his affairs. Jehangirji entered upon the management of the whole estate immediately after his father's death. He obtained probate of his Will in 1867. His son Byramji (defendant No. 2) was about five years old at the time of the testator's death.
2. Pallonji died in 1897 leaving a widow Kuverbai (defendant No. 3), his son-in-law, Kavasha, husband of a predeceased daughter (defendant No. 4), and his daughter's son Kaikhushru (plaintiff). Pallonji was twice married but had no son born to him. Pallonji was living with his brother Jehangirji up to his death.
3. On 7th March 1906, the plaintiff, as the constituted attorney of Kuverbai, applied for letters of administration to Pallonji's estate. On 22nd December 1909, letters of administration were granted to the plaintiff.
4. On 6th April 1909 plaintiff filed the present suit, praying inter alia for the following reliefs:
(1). That defendant No. 1 be ordered to account for his management of the estates of Dadabhoy and Pallonji.
(2). That the rights and interests of plaintiff and defendants Nos. 3 and 4 in The estates aforesaid be ascertained, declared and awarded to them.
(3). That partition be made of the properties of Pallonji and defendant No. 1 amongst the parties entitled thereto in accordance with their respective interests.
5. Defendants Nos. 1 and 2 contended inter alia (1) that under the Will of Dadabhoy the moiety of the property bequeathed to Pallonji passed on his death to defendant No. 2 as the palak putra of Pallonji, (2) that defendant No. 1 did not manage the property as a trustee for Pallonji, and (3) that the suit was barred by limitation.
6. The Subordinate Judge held that upon the true construction of Dadabhoy's Will his sons Pallonji and Jehangirji took an absolute interest in equal shares in the residuary estate, that Jehangirji managed Pallonji's half share in the estate as a trustee for Pallonji, that Byramji (defendant No. 2) did not take any interest under Dadabhoy's Will, that the suit was in time, and that Pallonji's estate passed on his death to his heirs--plaintiff and defendants Nos. 3 and 4, their shares being one-ninth, two-thirds, and two-ninths, respectively. The Subordinate Judge passed a preliminary decree, appointing Commissioner to take an account of the property of Dadabhoy which came into defendant No. 1's possession since Dadabhoy's death, and report as to what fund, moveable as well as immoveable, was now available for distribution among the heirs of Pallonji.
7. Against this decree defendants Nos. 1 and 2 appeal to this Court.
8. It is contended on behalf of the appellants, that under Dadabhoy's Will Pallonji did not take an absolute interest in the moiety of the estate given to him, that he had only a right to enjoy the income of the moiety till his natural born son attained the age of majority, and that on the happening of that event the son would be entitled to take possession of the moiety.
9. It was further contended for the appellants that as no son was born to Pallonji, Byramji (defendant No. 2) was given as a palak son to Pallonji and as such was entitled to the whole of Pallonji's half share, in the same way and on the same conditions as his natural born son, if he had had any.
10. Lastly it was contended that defendant No. 1 had not been in management of Pallonji's share as an express trustee, and that the suit was, therefore, governed by Article 120, and not by Section 10, of the Limitation Act XV of 1877.
11. At an early stage of the argument we expressed our opinion that the suit was not barred by limitation, as Jehangirji was not only an executor but also a trustee in whom a moiety of the estate was vested in express trust for the benefit of Pallonji, and that the case fell within the purview of Section 10 of the Limitation Act.
12. The case entirely turns on the construction of Dadabhoy's Will. The material portions of the Will bearing on the questions at issue are paragraphs 2, 3, 5, 8 and 11.
13. The first question to be determined is, what interest does Pallonji take in the property bequeathed to him
14. Paragraph 2 provides 'the name of the elder son is Pallonji, the name of the younger son is Jehangirji. The said two sons are proprietors half and half alike, and in equal shares, of my whole estate, outstandings, debts, title and interest;'
15. Under this clause it is perfectly clear that Pallonji took an absolute estate in one moiety of the testator's property. Section 82 of the Indian Succession Act provides 'where property is bequeathed to any person, he is entitled to the whole interest therein of the testator, unless it appears from the Will that only a restricted interest was intended for him.' This is also the rule laid down in the Tagore Will case (Juttendro Mohun Tagore v. Ganendra Mohun Tanjore (1872) L.R.IndAp Supp. 47 : 9 B.L.R. 377, where their Lordships of the Privy Council observe that 'where an estate is given to a man simply without express words of inheritance, it would, in the absence of a conflicting context, carry by Hindu law (as under the present state of law it does by Will in England) an estate of inheritance.' Applying this principle to the present case there is no doubt whatever that Pallonji took an absolute interest in the property given to him by Clause 2 of the Will. Is there anything in the rest of the Will to control or restrict this absolute interest? Clause 3 provides none of my heirs have power in any way to mortgage or sell or give in gift or in charity, &c.;, or to dispose of in any other way whatsoever the immoveable and moveable estate belonging to me, the testator, which there is or may be according to (my) books and according to the partition &c.;, the half share of the Inam Khoti Watan village of Velgam appertaining to my share. Both the heirs are to take care of the said estate and look after it and both the heirs living together are duly to enjoy the balance which may remain after payment of the Government assessment. 'Clause 8 further provides--' If any of my heirs after my death carry on any trade or business of any nature whatsoever, and if a loss or deficiency occur therein, the risk on account thereof (shall) be on the heir (so) trading. The claims or demands of the creditors in regard to the same shall not avail at all against my estate. The whole of my estate is given by me, for the maintenance of my heirs and their descendants. '
16. These clauses undoubtedly place restrictions on the powers of enjoyment, alienation and disposal of the property given to both Pallonji and Jehangirji. Bat such restrictions, being repugnant to the absolute gift already made under Clause 2 of the Will, are invalid and inoperative and opposed to law. In Ashutosh Butt v. Boorga Churn Chatterji 6 I.A. 182 : 5 C. 438 : 5 C.L.R. 296 the testatrix by her Will provided inter alia as follows 'This property of mine will note liable for the debts of any person. None will be able to transfer it. None will have the rights of gut and sale.' The Privy Council held that these restrictions on alienation 'being inconsistent with the interest given were wholly beyond her power and must be rejected as having no operation.'
17. Mr. Shah contends that, reading Clause 5 with Clauses 3 and 8, it was the intention of the testator not to confer an absolute estate on Pallonji but to give him only a right to enjoy the income of one-half of the estate subject to the control and management of his younger brother Jehangirji. It is urged that he must live with his brother and enjoy the income but has no right to separate possession, enjoyment and partition of his share. In support of this contention Mr. Shah relies on the words in Clause 3: Both the heirs are to take care of the said estate and look after it and both the heirs living together are duly to enjoy the balance which may remain after payment of the Sarkar's assessment', and in Clause 8 'The whole of my estate is given by me, the testator, for the maintenance of my heirs and their descendants,' in Clause 5: 'Therefore he (Jehangirji) is to carry on according to my testamentary (writing) the whole management by his true and pure integrity and both the heirs are equally to enjoy half and half alike the whole estate with unanimity with my elder son Pallonji in such a way as not to injure his (Pallonji's) rights.' It appears to me that these directions about the mode of enjoyment of the property given to Pallonji and Jehangirji are inconsistent with the absolute gift to both and, therefore, void under Section 125 of the Indian Succession Act. See also Haliburton v. The Administrator General, Bengal 521 C. 488; Lala Ram Jewan Lal v. Dal Koer 24 C. 406 and Raikishori Dasi v. Debendranath 15 I.A. 37 : 15 C. 409.
18. It was next argued for the appellants that whatever interest Pallonji took under the Will, it was liable to be defeated when a son was born to him and attained the age of majority, or failing the natural born son when a palak, son was given to him. In either of these contingencies, it was urged, a moiety of the estate would pass either to the natural born son or to the palak son. Reliance was placed on the following passages in the Will: 'Therefore, if my elder son gets male issue, half of the estate is to be made over to him on his attaining full age.' (clause 5). 'if a son be born of the body of Pallonji, he (shall) on his attaining his full age be the owner of a half share in the whole of the immoveable and moveable estate belonging to me. My heir (and) Vakil (or executor) Jehangirji or his heirs shall raise no objection to give him the share. If they raise any objection, the responsibility arising therefrom is on their heads. All the clauses written in this Will are applicable to the said son of (his) body.' (clause 11). There can be no doubt that the effect of these passages is to make the absolute gift to Pollonji defeasible in the event of his having a son, and that son attaining majority. But as that event did not occur, the absolute gift became indefeasible. That being the case,: Pallonji's half share of the estate would pass on his death to his heirs and next of kin.
19. But it-is urged that Byramji was given as a palak son to Pallonji on the third day after his death, and that as such he is entitled under paragraph 11 of the Will to the same right of the natural born son. It is contended that the palak stands on the same footing as the natural born son, and that the executory devise in favour of Byramji took effect on Pallonji's death. In support of his contention Mr. Shah relies on the following passage: 'if my son Pallonji does not get a son, my son Jehangirji is to give his son as Pallonji's palak. All the clauses of the Will are applicable to the said palak son.' In this passage there is no doubt a direction to Jehangiriji to make his son a palak son to Pallonji. But there is no express gift either to Byramji or to the palak son in this passage or in any other part of the Will. A gift is sought to be spelt out of the words: 'All the clauses of the Will are applicable to the palak son.' These words are, in the first place, too vague to be susceptible of the interpretation put upon them. The same words are used in respect of the natural born son. It is difficult to say with precision what the testator really meant by these words. But an explanation is offered by Mr. Taraporewala for the respondents, who has argued the case with great care and ability that these words refer to the restrictive Clauses 3 and 8. It appears from the Will read as a whole, that the dominant idea in the testator's mind was that his estate should go down to his descendants unimpaired and undiminished, and free from all claims on the part of his relatives of strangers to the family. For this purpose he places every possible restriction on the power of alienation, and enjoyment of the property, and these restrictions apply not only to his sons and heirs but also to Pallonji's wife, daughter, or any other person claiming through Pallonji. It is, therefore, reasonable to suppose that he intended that Pallonji's son whether natural born or palak, Should be placed under the same restriction. But, whatever be the precise meaning of these words, it is difficult to infer from them that any gift was made to the palak son. It may be that the testator intended to make a gift to the palak son, but he has not said so. 'The question is,' as Lord Wensleydale observes in Bullock v. Dowries (1860) 9 H.L.C. 1 not what, the testator meant, but what is the meaning of the words used.' This is the established rule of construction. There are no words to be found in the Will to indicate a gift to the palak son. Byramji's name is not even mentioned. I am, therefore, of opinion that there is no legacy given to Bramji either as a persona designate or as a palak son.
20. Even assuming that there was an executory bequest to Byramji as a palak son the bequest would be void under Section 111 of the Indian Succession Act. The bequest to the palak son is to take effect on the happening of an uncertain event, namely if no son was born to Pallonji. No time is mentioned in the Will for the occurrence of this event. The bequest would, therefore, be void, unless such event happened before the period of the payment or distribution of the fund bequeathed. So long as Pallonji was alive there was a possibility of his having male issue, and until his death without male issue there was no chance of Byramji becoming a palak son. It follows, therefore, that the event, on the happening of which the legacy to Byramji was to take effect, did not occur before the testator's death, which would ordinarily be the period of payment or distribution of the fund bequeathed. But Mr. Shah relies on 'Edwards v. Edwards (1852) 15 Beav. 357 : 21 L.J. Ch. 324 : 16 Jur. 259 and O'Mahoney v. Burdett (1874) L.R. 7 H.L.C. 388 : 31 L.T. 705 : 23 W.R. 361 and contends that the period of distribution in the present case would be either the time when the natural born son of Pallonji came of age, or the death of Pallonji when Byramji was made his palak son. But it is to be observed that according to the second Rule laid down in Edwards v. Edwards (1852) 15 Beav. 357 : 21 L.J. Ch. 324 : 16 Jur. 259 relating to executory bequest such as was are considering in the present case, which was afterwards affirmed by the House of Lords in O'Mahoney v. Burdett (1874) L.R. 7 H.L.C. 388 : 31 L.T. 705 : 23 W.R. 361 the event on which the gift over is to take effect may happen at any time either before or after the testator's death. This rule is not adopted by the Indian Legislature in Section 111 of the Indian Succession Act, according to which the contingency must occur before the period of distribution. Mr. Shah contends that in the present case the period of distribution should be taken to be the time of Pallonji's death; he says that though Byramji was in fact given as palak on the 3rd day after Pallonji's death, his rights relate back to the date of Pallonji's death. No authority is cited in support of this proposition and none can be found. I am of opinion that in this case the period of distribution should be taken to be the death of the testator. See Norendro Nath Sarcar v. Kamalbasini Dasi 23 C. 563 : 23 I.A. 18, where their Lordships of the Privy Council observe: 'To search and sift the heaps of cases on Wills which cumber our English Law Reports in order to understand and interpret Wills of people speaking a different tongue, trained in different habits of thought, and brought up under different conditions of life, seems almost absurd. In the Subordinate Courts of India such a practice, if permitted, would encourage litigation and lead to idle and endless arguments. The Indian Legislature may well have thought it better in certain cases to exclude all controversy by positive enactment. At any rate, in regard to contingent or executory bequests the Indian Succession Act, 1865, has laid down a hard and fast rule, which may be applied, wherever it is applicable, without speculating on the intention of the testator. '
21. I, therefore, hold that, even assuming that there was a gift to Byramji as a palak son, it would be void under Section 111 of the Indian Succession Act.
22. This being the case, I am of opinion that on the proper construction of the Will of Dadabhoy Byramji, his son Pallonji took an absolute interest in the moiety of the residuary estate, and that on his death it passed to his legal heirs under the Parsee Succession Act.
23.I would, therefore, confirm the decree of the Subordinate Judge, and dismiss the appeal with costs.
24. I am of the same opinion for the same reasons.