1. The question for decision is whether Exhibit B, a settlement by the 1st defendant in favour of the 2nd defendant, his daughter, will be operative beyond the former's life-time. The answer to it depends on whether at its date the 1st defendant was able to make an absolute disposition of the property or, as the plaintiffs contend, had already disposed of all except his life-interest in it by a prior deed, Exhibit A.
2. Exhibit A is a deed of partition between the first defendant and his son, Nilakahtaiyar. It contains, first, dispositions regarding houses and debts, as to which there is no dispute. Next, the lands are divided, Schedule A going to the first defendant and Schedule B to Nilakantaiyar; and the difficulty arises from the fact that the balance of Schedule A, remaining in the former's hands after any alienations necessary in order to the payment of debts, is, in the words of the document, to 'be enjoyed by him, as long as he is alive, without being subjected to any sort of alienation and after his time his grandsons shall receive and enjoy it paramparyamai. ' There is then a provision for the enjoyment of one item, Survey No. 281), with all absolute rights of alienation. Lastly, it is provided that the share of Nilakantaiyar shall be enjoyed by him and his male heirs, though he must not place any kind of alienation on the said land.' Before referring to the actual words by which the first defendant's estate is described, I observe that three indications as to their meaning are available in the rest of the document. Firstly, the portion relating to Survey No. 28.D is in sharp contrast with that relating to other items. It may be that those concerned hoped or expected that the former item would be sufficient for payment of the debts. But it is clear that they knew how to create an absolute title to it and used other words for that purpose than those used in connection with the rest of the first defendant's share.
3. Secondly, there is again a significant contrast between the expressions used to effect a transfer to the first defendant and those used in the case of his son. It is not disputed that the latter took an absolute estate; and then it is to be supposed that the result in the case of the former was different. Lastly, there is no reason for assuming that the intention was to create similar estate for father and sou. The former was aged--seventy-five at the time; and it is almost, if not quite as likely that he combined a future settlement with an immediate partition as that he made the latter alone.
4. Then as to the words, the interpretation of which is directly in dispute, there is, first, the fact that plaintiffs, the first defendant's grandsons, were in existence at the date of Exhibit A and that the effect of their construction would be to confine to them the gift of the estate in reversion, although it was possible that Nilakantaiyar might have more sons whom the first defendant would not naturally desire to exclude. But to admit this objection is in effect to substitute the settlement, which the first defendant might be supposod likely to have made, for that which on the construction of his language, as it stands, it will be found that he did make.
5. As regards authority, the plaintiff's interpretation is not open to criticism as an attempt to create a novel course of inheritance. For after the beneficiaries specified and in existence, that is, the 1st defendant and the plaintiffs have taken, no line of devolution is prescribed and the property would follow the ordinary course by inheritance or survivorship. The principle enunciated in Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 B.L.R. 377 : 18 W.R. 359 : I.A. Sup 47 : 2 Suth P.C.J. 692 : 3 Sar. P.C.T. 85 and other similar decisions is, therefore, inapplicable.
6. It is next contended that the actual words of the first defendant's disposition, in Exhibit A, should be read in the light of the statement in Jatindra Mohan Tagore's case 9 B.L.R. 377 : 18 W.R. 359 : I.A. Sup 47 : 2 Suth P.C.J. 692 : 3 Sar. P.C.T. 85, that 'a gift to a man and his sons and grandsons, or to a man and his son's sons, would, in the absence of anything showing contrary intention, pass a general estate of inheritance according to Hindu Law,' a vernacular expression corresponding with that already specified as occurring in Exhibit A, being referred to as entailing the same result; and this is cited with approval in Ram-lal Mooherjee v. Secretary of State 8. A. 46 : 7 C 304 : 10 C.L.R. 349 : 4 Sar. P.C.J. 225 : 5 Ind. Jur. 327: vide also Lalit Mohun Singh Roy v. Chukkun Lal Roy 24 C. 834 : 24 I.A. 76 : 1 C.W.N. 387. But there is nothing in these cases irreconcilable with the plaintiffs' claim, which is based on the presence in Exhibit A of further words expressly or impliedly limiting the first defendant's estate, the matter on which the inferences already drawn are founded and the express prohibition, of alienation by him. It was recognised in the last case cited that if a similar limitation had been expressed in the document then under construction, the Court would have given effect to it. And the Court gave effect to one in the authority relied on by the District Munsif, Padmanund Singh v. Hayes 28 C. 720 : 3 Bom. L.R. 803 : 5 C.W.N. 806 : 28 I.A. 152. In accordance with it the decisions in the plaintiffs' favour were justified. The second appeal fails and is dismissed with costs.
7. I agree with my learned brother in accepting the constructions put upon Exhibit B by the lower Courts. To the reasons contained in the judgments under appeal and my learned brother's judgment I have nothing to add.
8. I agree, therefore, that the second appeal should be dismissed with costs.