Govinda Menon, J.
1. On 14th December, 1907, one Atchayya executed a will Exhibit D-1, by which he bequeathed his properties to his third wife Buchi Venkamma for her life and after her death to his three sons and the son of his predeceased eldest son in the following words:
that after her death, my sons (1) Narasayya, (2) Chinna Venkayya, (3) Nagayya, (4) my eldest son the late Bapanna's son, Satyanarayana the male heirs surviving in their families shall divide this property in equal shares with reference to good and bad qualities and enjoy the same as of rights....
On the date of the will Narasayya's sons, the present first and second defendants were alive. Chinna Venkayya's sons, defendants 3, 4 and 5 were also alive but none of them were mentioned in the will. On the 29th December; 1943, Buchi Venkamma died and thereafter the properties should have come into the possession of the legatees under the will.
2. The suit out of which this second appeal arises was filed by Satyanarayana the son of the eldest son of Atchayya for partition and recovery of possession of his 1/4 share in the properties left by the grandfather under Exhibit D-1. The only question that was seriously canvassed in the courts below was with regard to the share which the plaintiff is entitled to. The contesting defendants put forward the plea that on a true and proper construction of Exhibit D-1 what was contemplated by the testator was that when his widow Buchi Venkamma died the property should be divided per capita among such of his sons,and grandsons as were alive on that date. In other words, the contention amounts to this that the will created an interest in all the grandsons in equal shares and not on a stirpital basis. Both the lower courts have repelled this contention and held that the plaintiff is entitled to 1/4 share and the present second appeal is by defendants 3 to 7, the children of Chinna Venkayya questioning the correctness of this expression of opinion by the lower courts.
3. It has to be remembered that the property which was the subject-matter of the bequest was not the self-acquired property of the testator Atchayya, but he earns to have absolute rights of disposition over the same as a result of a partition between himself and his sons. It is nobody's case that after the partition, all the sons and their descendants or any two or more of them and their descendants constituted the member of a joint family. In the absence of any such evidence and even contention put forward by the defendants we have to take it that the father on dividing the properties between himself and his sons divided them in such a way that each of the sons was separate from the others. If we bear in mind this aspect of the case the solution to the problem that confronts the court is made easier.
4. Mr. G.C. Venkatasubba Rao, for the appellants, in a learned argument invited my attention to very many decisions and contended that the principle deducible from them ought to be applied in the construction of this will. One need hardly add that the will was not prepared or drafted by anybody conversant with legal terms. It is a devise executed by an ordinary individual in a village and we have to ascertain his intentions by the notions and customs prevalent in the part of the country he lived and the law by which he is governed.
5. The learned advocate for the appellants brought to my notice various English cases, namely, Biackler v. Webb (1726) 2 P. Wms 384 : 24 Eng. Rep. 777. Butler v. Stratton (1791) 3 Bro. C.C. 367 : 29 Eng. Rep. 587 Dowding v. Smith (1891) 3 Beav. 541 : 49 Eng. Rep. 213 Williams v. Tates (1834) C.P. Coo 177 : 47 Eng. Rep. 454 and Kekewich v. Barker 88 L.T. 130. The substance of these decisions is to the effect that if there is a bequest in general terms like this, namely ' to A, B and the children of C equally 'then in such a case A and B together with the children of C take the property per capita and that there can be no division between A, B and the children of C in three equal shares. The decision of the Court of Appeal in In re Stone: Baker v. Stone (1895) 2 Ch. D. 196 and of Swinfen Eady, J., in In re Richards: Davies v. Edwards (1910) 2 Ch. D. 74, are also relied upon to show that if the word equal ' has been used in the wills the division should be on a per capita basis. I do not think that in construing a will of acordinary agriculturist in a mofussil district in the Madras Province prepared without the aid of any persons qualified to give legal assistance, such as a. solicitor or a lawyer, the principles which are so well known in the English Courts; and which have been laid down in the cases above mentioned should be strictlyapplied. In the well-known case of Mahomed Skumsul Hooda v. Shcwukram their Lordships of the Judicial Committee observed as follows:
in construing the will of a Hindu it is not improper to take into consideration what are known. to be the ordinary notions and wishes of Hindus with respect to the devolution of property.
This principle has been very often reiterated by the Judicial Committee in subsequent decisions also. It is sufficient for our present purpose to refer to Radha Prasad Mullick v. Ranee Mani Dassee (1908) 18 M.LJ. 287 : L.R. 35 IndAp 118 : I.L.R. 35 Cal. 896 (P.C.). Very recently in Lalta Baksh Singh v. Phool Chand (1945) 2 M.L.J. 393 (P.C.) the Judicial Committee again re-affirmed the above proposition and observed at page 397 referring to the decisions in Narasimha Apparao v. Parthasarathi Apparao (1913) 26 M.L.J. 411 : L.R. 41 IndAp 51 : I.L.R. 37 Mad. 199 (P.C.) that the primary duty of a court is to ascertain from the language of the testator what were his intentions, when a will has to be construed. They further state that in doing so courts are entitled and bound to bear in mind other matters than merely the words used. Their Lordships referred to the surrounding circumstances also. The decision in 'Bhagabati Barmanaya v. Kalicharan Singh (1911) 21 M.L.J. 387 : L.R. 38 IndAp 54 : I.L.R. 38 Cal. 468 (P.C.) is also instructive in this sense that it is stated there,
the 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 amongst those to whose language they are applied.
Such being the case I do not think that I shall be justified in importing the principles of law enunciated by eminent English Judges in the cases referred to by Mr. G.G. Venkatasubba Rao in the opening of his argument in construing the will.
6. It seems to me that the testator wanted that on the death of his third wife the property should be taken by each of the four groups consisting of such of his sons as were alive and the respective descendants of each of them as well as the son of the predeceased son. This is the only intention that can be ascribed or attributed to a testator like the executant of Exhibit D-1. The fact that the children of Narasayya and Chinna Venkayya were not mentioned in the deed by names and also that the son of Bapanna, the deceased son, was specifically mentioned is sufficient indication of the testator's intention that the property should be enjoyed by his descendants in four groups. If this is so each of these groups which was capable of holding property at the time of his death were devisees of the property under the will., That each of his sons and respective descendants could constitute groups, legally capable of holding, acquiring and inheriting property cannot be disputed and therefore it seems to me that each of these groups got a right vested in it by the will, Exhibit D-1, so that these separate families got a vested interest in these properties on the death of Atchayya and they are entitled to get possession of them when Buchi Venkamma died. I do not find any difficulty in construing the will in this way. Section 119 of the Indian Succession Act, if properly understood, is not against this method of construing the will.
7. In these circumstances I am satisfied that both the lower courts have arrived at a proper decision on the construction of this document. This second appeal therefore fails and is dismissed with costs. No leave.