1. This is an appeal by two of the defendants in a suit for partition of joint property. The property originally belonged to one Ramlochan Ganguly, who made a Testamentary disposition on the 5th November 1850. He left three sons--Tarini, Guru Charan and Ishan, and a grandson by a daughter, named Nilmoney. Tarini left two sons--Sasi Kumar and Basanta. The plaintiffs-respondents are the legal representatives of Sasi Kumar. The eighth and ninth defendants are the representatives of Basanta. The defendants-appellants have acquired the interest of Nilmoney in the portion of the property in dispute. The substantial question in controversy between the parties was, whether Nilmoney took a life-interest in the estate of his maternal grandfather, which terminated upon his death, or whether he took an absolute interest (subject to a condition which was fulfilled by him) which, upon his death, passed to his representatives. The Court of first instance decided in favour of the present appellants. That decree was assailed in appeal by the plaintiffs who claim by right of inheritance a half share of the interest which was vested in.Nilmoney during his life-time. The eighth and ninth defendants, who set up a precisely similar claim in the primary Court, were not joined as respondents, nor did they prefer an appeal on their own account. Upon the appeal of the plaintiffs, the District Judge has reversed the decision of the Subordinate Judge and has made a decree, not only in favour of the appellants before him, but also in favour of the two defendants who were not parties to that appeal. On the present appeal, the decree of the District Judge has been assailed on two grounds, namely, first, that it was not competent to him to vary the decree of the Court of first instance in favour of persons who were neither appellants nor respondents before him; and, secondly, that upon a true construction of the Will of the original proprietor, he should have affirmed the decision of the Subordinate Judge.
2. As regards the first ground, it is plain that neither Rule 4 nor Rule 20 of Order XLI of the Code is of any assistance to the respondents. Rule 4 is in these terms: Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any-ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants, may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Consequently, to justify the application of this rule, it is essential that the appeal should have been preferred against the whole decree. In the case before us, the decree of the Court of first instance was assailed by the plaintiffs alone, and only to the extent that they were prejudicially affected thereby. Rule 20 is in these terms: 'Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future date to be fixed by the Court and direct that such person be made a respondent.
3. This rule has obviously no application to this case, and the District Judge did not take action under it.
4. Rule 33, however, is expressed in much wider terms as follows: 'The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such farther or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.' For the application of this rule, consequently, it is not essential that the appeal should be directed against the entire decree; nor need the order be made in favour of persons who are parties to the appeal or have filed objections in the Court below. In the case before us, plaintiffs as the representatives of Sasi Kumar and the eighth and ninth defendants as the representatives of Basanta were in an identical position with regard to the estate of Nilmoney; in other words, if the contention prevailed that Nilmoney had an interest terminable with his life, that interest would vest, after his death, equally in the representatives of Sasi Kumar and Basanta. Consequently, if upon the appeal of the plaintiffs, the Court was satisfied that the decree of the primary Court was erroneous and was based upon an incorrect interpretation of the Will of the original proprietor, the ends of justice required that the benefit of such decision should accrue not merely to the plaintiffs-appellants before the lower Appellate Court, but also to the representatives of Basanta, although the latter were neither parties respondents to the appeal nor appellants in an appeal preferred by themselves. The first ground upon which the decree of the District Judge is assailed cannot consequently be supported.
5. As regards the second ground, the validity of the respective contentions of the parties must be tested with reference to the terms of the Will. On behalf of the representatives of Basanta, it has been argued that Nilmoney had nothing beyond a right of residence in a portion of the property of his maternal grandfather. On behalf of the plaintiffs-respondents a higher status has been conceded to him; and it has been contended that he took a life-interest in the estate of his maternal grandfather, which terminated on his death. In opposition to these contentions, the appellants have argued that Nilmoney was given an absolute interest subject to a condition, namely, that he should have an interest so long as he resided in the house of his maternal grandfather. Under Section 82 of the Indian Succession Act, it is plain that where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him. Prima facie, Nilmoney had an absolute interest. The question is, whether he took, as is argued by the appellants, an absolute interest subject to a condition, or whether, as is argued by the plaintiffs-respondents, he took a life-interest. The terms of the Will are by no means free from ambiguity, as is indicated by the fact that the Courts below have taken divergent views upon this the most material point in the case. After anxious consideration of the arguments addressed to us on both sides, we have arrived at the conclusion that the view taken by the Subordinate Judge is correct. In our opinion, the intention of the testator was to give an absolute interest to Nilmoney, his grandson by daughter, who lived with him and was brought up by him. It is plain that he intended to make a provision for him; but he insisted, as was not unnatural, that his grandson should reside in his house. This was imposed as a condition, and not as an indication that the interest created was a life-estate. It would further be an unreasonable interpretation of all the provisions of the Will to hold that the testator intended to enforce the condition of residence even after the death of Nilmoney. The condition was perfectly legal under Section 121 of the Indian Succession Act Ganendro Mohun Tagore v. Rajah Juttendro Mohun Tagore 1 I.A. 387 : 14 B.L.R. 60 : 22 W.R. 377, Bhoba Tarini Debya v. Peary Loll Sanyal 24 C. 646 : 1 C.W.N. 578, Shyama Charan v. Naba Chandra 14 Ind. Cas. 708 : 17 C.W.N. 39 and it was fulfilled by Nilmoney because there is no dispute that, during his life-time, he continued to reside in the dwelling house of his maternal grandfather. The result was that, upon his death, his interest passed to his representatives and has now vested, not in the respondents, but in the appellants.
6. Reference has finally been made to the observations of their Lordships of the Judicial Committee in the case of Mohamed Shumscol Hooda v. Shewukram 2 I.A. 7 : 14 B.L.R. 226 : 22 W.R. 409; and it has been argued that as there is a presumption that a Hindu does not desire that any portion of his property should pass beyond his own family, every effort should be made to avoid a contrary result. That, however, is not an inflexible guiding principle of universal application, as is made manifest by contrasting the decisions in Surajmani v. Rabi Nath Ojha 35 I.A. C.W.N. 231 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144 and Radha Prasad v. Ranee Mani Dassee 35 I.A. 118 : 35 C. 836 : 10 Bom. L.R. 604 (P.C.) : 12 C.W.N. 729 : 8 C.L.J. 48 : 5 A.L.J. 460 : 18 M.L.J. 287 : 4 M.L.J. 287 : 4 M.L.T. 23. Where, as here, the terms of the Will indicate that an absolute interest, subject to a condition, was intended to be granted to a grandson by a daughter, it would be wrong to interpret its provisions so as to restrict that interest and thus defeat the intention of the testator.
7. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored. In view, however, of the obscurity in the terms of the Will, which justifies a contest, we direct that each party pay his costs both here and in the Court of Appeal below.