1. This action is brought by Kartick Chunder Dey against Gopal Chunder Bose and others to have a declaration that the plaintiff and certain of the defendants are entitled as representatives of the late Nilmoney Dey to be sebaits or superintendents of a pagoda, which was endowed by Nilmoney Dey to carry out the religious trusts created by his will and for the usual accounts and declarations. The plaintiff also applied that possession of the trust estate-should be delivered over to the representatives of Nilmoney Dey, and, if necessary, that a scheme should be framed for carrying out the trusts.
2. Nilmoney Dey died on the 1st January 1839, having made a will dated the 15th March 1838, whereby, amongst other things, he made the following bequest: 'I give and bequeath Company's Rs. 20,000 for the religious worship at my house, a lower-roomed house in which the pagoda is established, and another house situated to the north of the pagoda, consisting of about five cottahs of ground, two upper rooms and two lower rooms, and also a flower garden situated to the east of the pagoda, containing more or less five cottahs of ground and two lower brick-built sheds,' and then later on in the will the testator directed as follows: 'The superintendence of the pagoda I entrust to my wife, and after her death to hold it by my son, Gour Mohun Dey, after his death by my daughter and her husband, Nundo Doolall Bose, and their male children successively.'
3. Probate of the will was granted on the 16th February 1839 to William Oxborough and Gour Mohun Dey. William Oxborough did not act in the trusts, and left this country many year ago.
4. 'The persons purporting to act under the will as sebaits were first Doorgi Money Dassee, then Gour Mohun Dey, upon whose death Sham Chand Bose became the sebait, his father Nundo Doolall Bose 'having died before Gour Mohun Dey. Sham Chand Bose was, the eldest son of Nundo Doolall Bose; Sham Chand Bose died in 1884, and thereupon his son, Gopal Chandra Bose, and Bo lie Chand Bose, who was the son of Gopal's brother, Ram Chand, took over the management and superintendence of the pagodas. The plaintiff, who is the heir of Nilmoney Dey, now contends that, upon the true construction of the will, the succession to the ofiice of sebait has wholly failed, and that the right to the management of the pagoda reverted to the heirs of the founder, Nilmoney Dey; that the will only provided superintendents of the pagoda during the life of the testator's wife and the lives of his son and daughter and her husband and their male children; and that the last survivor of such male children having died, the succession of sebaits provided by the will determined. It is necessary to scrutinize carefully the words used by the testator in this short paragraph of his will.
5. For the plaintiffs it has been contended that the word 'children' used in that paragraph must be read in their ordinary signification, that is, as denoting the immediate offspring. On the other hand, Mr. O'Kinealy on behalf of the defendant, has forcibly argued that the language of the will manifests an intention on the part, of the testator to confer upon his daughter's family the perpetual sebaitship of the pagoda, and he contends that the words giving the sebaitship to the testator's daughter and her husband and their mole children successively are equivalent to an absolute gift to them of the sebaitship; that these words are equivalent to the expression putra vautradi krame, i.e., son and son's son successively commonly found in a Hindu will, find which are regarded as apt words to pass an estate of inheritance.
6. In construing a will words are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected and that other sense can be ascertained.
7. There is a class of cases which supports Mr. O'Kinealy's argument, namely, Cases in which an estate is devised to a person and his children in succession where the Court, in order to effectuate the general intent, will construe the gift as of successive estates in tail. The case of Lord Tyrone v. Marquis of Waterford, 1 D. F. and J. p. 613, is an illustration of this class of cases. There the Marquis of Waterford devised estates, to Lord John Beresford and to his children in succession, and it was held that the intention of the testator was to give a succession of fee simple estates, but inasmuch as it would he contrary to law to limit a fee upon a fee, the Court must adopt the Cypres doctrine and interpret the will so that it may be as nearly in accordance with the intention of the testator as the law will permit. Accordingly the Pull Court of Appeal decided that Lord John Beresford took under the will an estate in tail.
8. This question was discussed in the case of Studdert v. Von Steiglitz, 23 L. E. Ir. 681, in which I was one of the Counsel.
9. In that case the gift of an estate. was to the sons in succession of the testator's eldest sister. The learned Vice-Chancellor of Ireland reviewed all the cases, and following the decision in Lord Tyrone v. The Marquis of Waterford held that the sons took successive estates in tail. He stated the principle thus: 'When there is a devise to several in succession in words sufficient to pass the fee or the whole interest of the testator in freehold, the Court will, in order to give effect to the general intent, construe the gift as of successive estates in tail.' The general intent must be ascertained from the whole will.
10. Beading the words of the gift in the present will, is it possible to say that; the testator intended to give the sebaitship absolutely to his daughter or to his--daughter and her husband? I think not.
11. The word 'successively' appears tome to apply as well to the gift to the testator's daughter and her husband as to their male children; that is, the testator intended that as the sebaitship first went to his wife for her life, and after her death to her son for his life, so after the death of her son he intended that it should go to his daughter for her life only and then to the daughter's husband for his life, and afterwards to their male children in succession.
12. If it had been the intention of the testator to vest the sebaitship absolutely in his daughter and her husband and their male children in succession, it may be that the principle laid down in the cases to which I have referred would have applied, and the contention of Mr. O'Kinealy would have been well founded. But it appears to me that the language of the will precludes me from adopting this construction. The testator manifestly did not intend that his daughter should, take an absolute interest because after her death the sebaitship was to pass to her husband, and then to their male children successively. I am unable therefore to adopt the argument of the defendants Counsel. In my opinion the words 'male children' must be construed as male offspring, and such male offspring were intended to enjoy the sebaitship in succession for life only in the same way as their parents were intended to hold it. Consequently on the death of the last surviving son of the testator's daughter, the succession of sebaits failed.
13. It has been admitted that if this be so, the appointment of sebaits reverts to the heirs of the founder of the trust.
14. The plaintiff and the defendants in the same interest with him are such heirs, and in my opinion are entitled to hare the superintendence of the pagoda and worship of the temple.
15. Another contention has, however, been raised by the defendants. They say a suit was instituted for the administration of this estate on the 30th January 1850, in which Nundo Doolall Bose, Kissory Money Dassee, and their children Ware plaintiffs and Gour Mohun Dey and Doorga Dassee were defendants.
16. That suit was instituted for the enforcement of the payment of legacies given, by the will of Nilmoney Dey and for the administration of his estate. On the 15th August 1851 a primary decree was pronounced. That was an ordinary primary decree not determining rights, but directed accounts and enquiries.
17. Gour Mohun died and the suit was revived by his son Gobindo. Shortly after this, the suit was compromised and a deed was on the 24th June 1853 executed, whereby Gobindo assigned his interest in the trust properties to the Boses to hold upon the trusts declared by the will. It is contended by the defendant that the present plaintiffs are estopped by this deed from raising the present contention. The plaintiffs were not represented in that-suit at all. It is a deed between the immediate parties to that suit for the purpose of carrying out the terms of the compromise. Neither the plaintiffs nor those through whom they claim were parties to the suit or to the deed. Moreover, according to the recital in the deed, Nundo Lall Bose was then entitled to- the superintendence of the pageda, and it was to him as temporary superintendent the conveyance of the property was made. In the operative part of the deed the property is conveyed to him to the uses and subject to the limitations contained in the will I fail to see therefore how the rights of the plaintiffs in respect of the sebaitship are prejudiced by this deed. On the contrary, the deed appears to me expressly to preserve the rights of all parties in respect of the pagoda according as soma are to be gathered from the language of the will.
18. Consequently, I am of opinion that this deed does not operate as an estoppel, and that the defence wholly fails, and accordingly I must make a decree and declare that the defendants, the Deys, are, as the present representatives of the testator, entitled, in the events which have happened, to be the sebaits and superintended of the pagoda and to carry out tie religious trusts in the will mentioned.
19. Further, the plaintiff and the defendants, the Deys, are as such representatives entitled to possession of the trust estate with accumulations. I direct an account of what the trust estate consisted and of what it now consists with accumulations, and an account of the dealings of the defendants with the estate and of the accumulations thereof from the 29th November 1884, the date of the death of Sham Chand, to the present time. I do not think it necessary at present to frame a scheme.
20. The defendants Gropal Chunder Bose and Bolye Chand Bose appealed from this decision to the Appellate Bench, Maclean C.J. Macpherson and Hill JJ., who delivered the following judgment, dismissing the appeal:
For the appellant it was contended by the Advocate-General that one ' three contentions must prevail: (1) That the sebaitship was conferred upon the testator's daughter Kishori absolutely, or (2) that she, her husband and children took as joint tenants absolutely, or (3) that the sebaitship was given to Kishori for life, then to her husband for life, and then to their children absolutely. This, in effect, means that we are to read the words 'and their male children successively,' as equivelent to a well-recognized Hindu expression 'putra pautradi krame--'words regarded as sufficient to pass an estate of inheritance; or, to out it in another way, that we must read the words used as words of limitation and not as words of purchase.
As regards the suggested construction pointing to the creation of a joint tenancy, I may at once point out that the principle of joint tenancy as known to the English Law is one unknown to Hindu Law, except in the case of co-parcenary between the members of an undivided family. (See Jogeswar Narain Deo v. Sam Chandra Dutt (1896) I. L. R. 28 Calc. 670, 679; L. R. 23 I. A. 37, 44. On the other hand, the plaintiff contends that the sebaitship was given to Kishori and her husband successively for life, then to their male children successively for life, and that, upon the death of the survivor of such children, the management reverted to the heirs of the testator Nilmoney Dey.
It was contended before us for the respondent that we are not dealing with an actual bequest or gift of immovable property, but only with the appointment of (sic)pers(sic) to superintend and manage the pagoda. It would appear, however, from the observations of their Lordships of the Judicial Committee of the Privy Council in the recent, and, as yet, unreported case of Gnanasambanda Pandara Sanadhi v. Velu Pandaram (1899) L. R. 27 I. A. 69; I. L. R. 23 Mad. 271, delivered on the 19th December 1899, that the ruling in the Tagore case (1872) L. R. I. A. Sup. Vol. 47; 9 B. L. R. 877, is applicable to a hereditary office and endowment as well as to other immovable property.
For the appellant it is urged that, looking to the general scope of the will, the testator intended to exclude from the sebaitship the adopted son of his son Gour Mohun Dey, and also the heirs of his eldest son Kristo Mohun Dey, who predeceased his father; and that, in this view', he intended to confer upon his daughter's family the perpetual sebaitship of the pagoda. To which it is answered that one must gather the testator's intention from the language he has used, and that it may very well be that he was satisfied to leave the management of the pagoda in the hands of his daughter and her husband and their male children, all of whom were living at the date of his will and death; and that, after their deaths, he was equally willing that the management should revert to his heirs.
In construing the will, I ought to mention that the case is not touched by the Indian Succession Act. We are guided by the principles laid down by their Lordships of the Judicial Committee of the Privy Council, in the case of Soorjeemoney Dassee v. Denobundoo Mullieh (1857) 6 Moore's I.A. 526, 550, where their Lordships say at page 550 of the report.
In determining that construction, what we must look to is the intention of the testator. The Hindu Law, no less than the English Law, points to the intention as the element by which we are to he guided in determining the effect of a testamentary disposition nor, so far as we are aware, is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator's wishes; but the meaning to be attached to them may he affected by. surrounding circumstances; and where this is the case, those circumstances no doubt must be regarded. Amongst the circumstances thus to be regarded is the law of, the country under which the will is made and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition a particular effect, it must be assumed that the testator, in the dispositions which he has made, had regard to that meaning or to that effect, unless the language of the will or the surrounding circumstances displace that assumption.
The case is not free from difficulty; but upon the best consideration I can give to the language used, I do not think the testator intended to confer a perpetual sebaitship upon the daughter or her husband, or their male children. I do not see what reasonable effect we can give to the word 'successively' if we adopt such a construction.
It is true, no doubt, that in another part of his will he has, when he intended a gift to his wife to be only for life, used the expression 'for life,' and from this we are invited to infer that, inasmuch as in the matter of the sebaitship he has not used the expression 'for life,' he must have intended to create a perpetual sebaitship. This reasoning seems to me rather fallacious, for we are at once led to inquire what meaning in this view we can fairly attribute to the word 'successively,' and which are the words which create the perpetual sebaitship. The scheme of the clause appears to be based on life sebaitships. The wife was to have it for life, Gour Mohun Dey was to have it for life, and the daughter,' her husband and their male children were to have it 'successively.' The latter expression, which to my mind controls the whole gift to the daughter, her husband and male children, must mean, I think, that the daughter, her husband and their male children were to take it one after another for their respective lives, and in that sense 'successively;' and that the words 'male children' must be read as words of purchase and not as words, of limitation. I do not think we can reasonably read, as the appellants invite us to do, the word 'successively' as meaning 'sons and sons' sons in succession.' I see nothing in the will which would justify us in reading the expression ' male children,' save in its ordinary acceptation.
In my opinion the view taken by the Court below is right; and, in this view, it is not disputed that the sebaitship would revert to the heirs of the testator.
21. Mayne and G. Branson for the appellants contended that the intention of the testator was that the superintendence of the endowment should he held by his daughter, her husband, and their descendants in regular succession, and this intention was sufficiently evidenced by the language he used. Tagore v. Tagore (1872) L. R. I. A. Sup. Vol. 47, 65; 9 B. L. R. 377, 395 and Bhoobun Mohini Debya v. Hurrish Chunder Chowdhry (1878) L. R. 5 I. A. 138, I. L. R. 4 Calc. 23, 28, were cited to show that such an interpretation was borne out by decisions of the Judicial Committee. In cases of religious trusts the fact that a perpetuity is created does not make the trust invalid by the Hindu Law. Greedharee Boss v. Mind Kishore Dutt (1863) Marshall 573, 581; (1867) 11 Moore's I. A. 405, 428. Muttu Ramalinga, Selupati v. Perianayagum Pillai (1874) L. R. 1 I. A. 209, 228 and Janoki Bebi v. Gopal Achaijia (1882) L. R. 10 I. A. 32; I. L. R. Calc. 766. Gnanasambanda Pandara Sanadhi v. Velu Pandaram (1899) L. R. 27 I. A. 69, 77; I. L. R. 23 Mad. 271, 280, 281, were referred to.
22. Cohen K. C. and A. Phillips for the respondents were not called upon.
23. The judgment of their Lordships was delivered by
Lord Macnaqhten, J.
24. Their Lordships think the High Court has given a perfectly correct interpretation of the will, which is the subject-matter of this appeal, and that no other interpretations possible.
25. Their Lordships will therefore humbly recommend His Majesty to dismiss this appeal, and the appellant must pay the costs of the first respondent, who alone appeared therein.