Nasim Ali, J.
1. The subject-matter of dispute in the suit out of which this second appeal arises is that portion of the 3 bighas 2 cottas of land with the structures and buildings thereon mentioned in para. 12 of the last will (dated 11th July 1879) in Bengali language of Babu Joy Kissen Mukherjee, a wealthy zamindar of Uttarpara which does not appertain to the Uttarpara Public Library. The following geneaology shows the relationship of the parties in this suit to Babu Joy Kissen:
JOY KISSEN MUKHERJEE
died in 1888.
| | |
Hara Mohan (son) Raja Peary Mohan (son) Raj Mohan (son) died in 1870
died in 1871 died in 1923 |
| | -----------------
----------------- ------------------------- |
| | | | |
Rashbehari (son) Shibnarain (son) Rajendra (son) Bhupendra (son) |
died in 1921 died in 1923 born before 1869 defendant 2 |
| | died in 1911 born in 1869 |
Pramila Devi Abani (son) | |
(daughter) defendant 1 -------------------------------- |
| born in 1879 | | | | |
| Taraknath Lokenath Amarnath Chandranath |
Santanu Kumar (son) (son) (son) (son) |
(son) plaintiff 3 plaintiff 2 plaintiff 1 Pro. |
deft. 3 |
| | |
Sures (son) Pores (son) Probal (son)
died in 1924 died in 1919 defendant 4
| | | | |
Jahar Lal (son) Pannalal (son) Durga Charan Satya Charan Ambika Charan
defendant 8 defendant 9 (son) defendant 5 (son) defendant 6 (son) defendant 7
2. On 14th June 1928, defendant 1 granted in 'favour of defendant 2 a lease of the disputed property for 15 years. The material portions of the last will of Baboo Joy Kissen are paras. 12 and 16 of the will. Para. 12 of the will may be divided into four clauses: Clause 1 - Rashbehari Mukhopadhyay, in accordance with previous arrangement (made in some previous will) will become 'Shatya-dhikari Oh Dokholikar' (of the disputed property). Clause 2 - God forbid, if at the time of his death he leaves no male child then his uterine brother Shib Narayan Mukhopadhyay and on his death his eldest son 'purusannukromah' will become 'Shatyaban Oh Dakholikar: Clause 3-God forbid, if my two aforesaid grandsons (Rashbehari and Shib Narayan) or any male child of their family (bangsha) be not in existence then my existing son Peary Mohan Mukhopadhyay or his eldest son shall become 'Satayaban Oh Dokholikar' and shall continue as such: Clause 4-But ... none of my heirs shall have power to transfer.
Paragraph 16 - If anyone among my heirs or their descendants will get dances, amusements or music, etc., held on the occasion of any marriage, sradh or puja ceremony or hold any conference in the rooms on the floor above the said Library, no one shall be entitled to raise any objection thereto. All shall have equal rights in these matters.
3. The questions for determination in this appeal are whether on a true construction of the last will of Joy Kissen (1) the heirs of Joy Kissen or their families have the right to hold nach (dances), tamasa (amusements), gan (music), etc,, on the occasions of marriage, sradh or puja, etc., or any bai-thak (conference) in the baithakkhana (the floor above the library) in the manner specified in para. 16 of Joy Kissen's last will; (2) defendant 1 has got only a life interest in the disputed property; (3) the lease of the disputed properties granted by defendant 1 to defendant 2 on 14th June 1928 or any other alienation of the disputed property by defendant 1 will be operative after the death of defendant 1. The Courts below have answered the second question in affirmative and the third question in the negative. So far as the first question is concerned, the finding of the trial Judge is that the plaintiffs and defendants 3, 5 to 7 and defendant 9 have no such right of enjoyment but the other defendants have. A declaration to this effect was embodied in the decree passed by him. The Additional District Judge, however, deleted from the decree of the trial Court that portion of the declaration which was in favour of defendants 2, 4 and 8 as he was of opinion that these defendants did not join in the suit as plaintiffs and did not also pay the requisite court-fees for such relief though at the same time he observed that the trial Judge was justified in making observation in his judgment that defendants 2, 4 and 8 had such rights of enjoyment.
4. Hence this second appeal by defendants 1 and 2. The plaintiffs and the other defendants have filed no cross-objections. The first contention on behalf of the appellants in this appeal is that the District Judge having found that defendants 2, 4 and 8 are not entitled in this suit to a declaration in their favour to the effect that they have got right of enjoyment of the baitakkhana as specified in Clause 16 of the will and that he having directed the deletion of this declaration from the decree of the trial Judge he should have also deleted the observations of the trial Judge in his judgment in connexion with this matter from the judgment of the trial Judge. I accept this contention as this position was not controverted by defendants 2, 4 and 8. The second question relates to the quantity of interest of defendant 1 in the disputed' property under the terms of Joy Kissen's last will. The decision on this question depends on the true construction of para. 12 of the will. It appears from other parts of the will (e.g., paras. 2, 3, 6, 10 and 17) that wherever the testator intended to bequeath his whole interest he used the word 'paibin' (shall get). He did not use this word in para. 12. The words 'Shatyadhikari Oh Dokholikar' in Clause 1 of para. 12, therefore, were not used by him to convey all the interest possessed by him. He must have used the word to confer some interest which is less than his own interest:
There is no rule that the first recipient must take all the interest possessed by the testator for limited interests are common enough : Kristoromoney Dossee v. Norendra Krishna Bahadoor ('89) 16 Cal 383
5. What then is the nature of this limited interest? Clause 2 lays down that on the death of Rashbehari without a male issue the property would go to Shib Narayan or his eldest son. The contention of the plaintiffs that the limited interest given to Rashbehari by the clause is an English tail male. The argument in support of this contention is this. Clause 1 should not be construed independently of the subsequent clauses. The words 'God forbid if at the time of his death he leaves no male child' in Clause 2 and the words 'if there be no male child of their (two grandsons') families' in Clause 3 by implication lay down the course of succession and limit it to the male issues of Rashbehari in succession. Clause 4 forbids alienation. The combined effect of these provisions is that the estate created in favour of Rashbehari is an English estate tail male. I am unable to accept this contention for the following reasons.
6. The estate was given to Rashbehari simply without express words of inheritance. It would in the absence of a conflicting context carry by Hindu law an estate of inheritance: Tagore case Ganandro Mohun Tagore v. Juttendro Mohun Tagore ('72) IA Sup Vol. 47 at p. 65. There are no express words in any of the four clauses prescribing the course of succession to the estate given to Rashbehari or limiting it to the male line as was the case in Kumar Tarakeswar Roy v. Kumar Shoshi Shikhoreswar ('83) 10 I A 51. The words in Clauses 2 and 3 relied on by the plaintiffs by implication do not prescribe the course of succession. They occur in clauses where the testator was not prescribing the course of succession but was laying down the contingencies on the happening of which the property would go to other persons. The construction proposed by the plaintiffs would create an English estate tail male which was prohibited by the decision in Tagore case. 2 It must be assumed that when the testator was making his will seven years later he must have had regard to the effect which the law of the country had attached to a disposition similar to an English estate tail male : Sreemuty Soorjeemoney Dossee v. Denobundoo Mullick (1854-1857) 6 MIA 526 at p. 550. There being no conflicting context to cut down the estate of general inheritance created in favour of Rashbehari the words in Clause 4 forbidding alienation must be rejected as being repugnant or rather as an attempt to take away the right of transfer which the law attaches to the estate which the testator has sufficiently shown his intention to create though he has added a qualification which the law does not recognize: Tagore case Mohun Tagore v. Juttendro Mohun Tagore ('72) IA Sup Vol. 47 at p. 65. I therefore hold that the estate given to Rashbehari is not an English estate tail male.
7. The testator has not stated expressly the time when the uncertain event specified in Clause 2 is to occur. In view of the provisions contained in Section 111, Succession Act, 1865, it may be contended that this time is the time of the death of the testator and the gift to Shib Narayan did not at all take effect. I express, however, no opinion on this question as it is an admitted fact in this case that after the happening of the contingency mentioned in Clause 2, Shib Narayan entered into possession of the disputed property to the exclusion of Rashbehari's daughter. What was then the nature of Shib Narayan's interest in the disputed property? In Clause 2 the testator has added the word 'Purusanukromah, to the words 'Shatyaban Oh Dokholikar' while describing the nature of the interest given to Shib Narayan or his eldest son. The object of adding the word 'purusanukromah' was to prescribe expressly the course of succession to the estate created in favour of Shib Narayan or his eldest son. This word has not acquired any technical meaning. It is used in two senses: (1) from male to male and (2) from generation to generation. If the word was used by the testator in the first sense he would be creating an estate of inheritance which will be hit by the decision in the Tagore case Mohun Tagore v. Juttendro Mohun Tagore ('72) IA Sup Vol. 47. If he used the word in the second sense an estate of inheritance which would be valid in law. The contention of the plaintiffs is that the second construction would be inconsistent with the words 'if any male child of their (two grandsons') family be not in existence' in Clause 3 and the words forbidding alienation in Clause & while the first construction would not.'
8. This argument assumes that the aforesaid words in Clause 3 lay down the course of succession. There is no foundation however for such assumption as the testator has already prescribed the course of succession by the word 'purusanukromah' in Clause 2. In Clause 3 he was simply stating that on the death of his two grandsons or the failure of the male child of their family (at the time of his death the time of the occurrence of this uncertain event not being stated either expressly or by implication) the property would go to Peary Mohan or his eldest son. Where a clause or a word is susceptible of two meanings it must be interpreted according to that sense to which the law will give effect: Section 71, Succession Act of 1865; Bhooban Mohini Debya v. Hurrish Chudner ('79) 5. IA 138 at p. 147. If the word 'purusanukromah' be interpreted in the second sense it would not be inconsistent with the provisions contained in Clause 3. The law will give effect to this disposition as creating an absolute estate of general inheritance in favour of Shib Narayan and the words in Clause i. prohibiting alienation would be rejected as repugnant to this estate. I see no reason, therefore, why I should not. interpret the word 'purusanukromah' as meaning 'generation after generation.' .1' accordingly hold that Shib Narayan got an estate of general inheritance and that the prohibition against alienation of this estate is void in law. The contingency mentioned in Clause 3 has not happened. Shib Narayan, therefore, acquired an absolute interest in the disputed property by Joy Kissen's will. After his death this interest has devolved on defendant 1 by inheritance. The Courts below were, therefore, wrong in holding that the defendant 1 has got only a life-interest in the disputed property. In view of my decision on the second question, the third question must be answered in the affirmative, i. e., in favour of the appellants. The result, therefore, is that this appeal succeeds. The judgments and decrees of the Courts below are set aside and the suit is dismissed with cost throughout to defendants 1 and 2.
Narsing Rau, J.
9. The main source of the difficulty in this case is the expression 'purusanukromah' in para. 12 of the will. It is a Bengali expression though derived from Sanskrit, and the interpretation put upon it by the learned subordinate Judge who tried the suit and the learned Additional District Judge who heard the first appeal-both of them officers whose mother-tongue is Bengali -is entitled to great weight. The subordinate Judge, after referring to the English translation of paras. 12 to 16 of the will given in the plaint and to the fact that the defendants challenge the correctness of the translation, proceeds to give his own translation of the relevant portion of para. 12 of the will thus:
Within this land of 3 bighas 2 kottas I have built a two-storeyed pucca building, in the lower storey of which a public library has been established and a baithakkhana in the upper storey...My eldest son Haramohan who was malik of this building having died, his son Rashbehari has become the owner and possessor (Sattwadhikari O Dakhalkar) thereof according to previous arrangement; in case Rashbehari dies without male issue, then his brother Shib Narayan and on his death his eldest son will become owner and possessor thereof, generation after generation .... In the absence of male issue in their line my son Peary Mohan or his eldest son will become the owner and possessor thereof.... and none of my heirs shall have any right to alienate the aforesaid land and building.
10. Thus the subordinate Judge's rendering of 'purusanukrame' is 'generation after generation.' He repeats this rendering in another part of the judgment; but in stating his conclusion, after considering certain other clauses of the will, he says that the testator has used the word 'purushanukrame' in its 'plain sense of succession by heirs male only of the body of the donees.' The Additional District Judge's translation of this part of para. 12 of the will runs:
Upon the death of my eldest son Haramohan Mukhopadhaya, who was the malik of the said land and structure, his son Rashbehari Mukhopadhaya has become owner and occupant of the same. God forbid, if at the time of his death he does not leave behind any son, then his brother Shib Narayan Mukhopadhaya and in his absence his eldest son will become owner and occupant in the male line. God forbid, if my aforesaid two grandsons or any male descendant in their line does not survive, then my living son Peary Mohan Mukhopadhaya or his eldest sop will become owner and occupant and will continue to be so, but none of my heirs or anybody else is vested with any power to abolish the library from the lower storey or to transfer the aforesaid land and pucca structures.
11. Thus the Additional District Judge's rendering of 'purushanukrame' is in the male line. But in the very next sentence he says:
12. All controversies have been centred round the words 'Sattwaban O dakhalikar,' 'Purushanukrame' and 'Uttaradhikai' (owner and possessor, for generation and heir).
13. Here, therefore, his rendering of the word 'purushanukrame' is for generations. In a later part of the judgment he states that the words 'putrapautradikrame', 'purushanukrame,' &c;, 'are very catching at first sight and they are often taken to imply estates of inheritance.' He repeats this observation on the next page. Still later he says that the undisputed case of both parties -was, inter alia, that if Rashbehari died without leaving any male issue, then the property would pass to Shib Narayan and in his absence to his eldest son from generation to generation in the male line. (This translation is no longer undisputed.) Again in a succeeding passage he says:
The expressions 'Sattwadhikari' 'Sattwabon O Dakhalkar', and 'Purushanukrame' are often used in testamentary dispositions and gifts where an absolute estate of inheritance is intended in favour of the legatee or donee.
14. Further down he says, speaking of the testator:
He first stated that the property belonged to his eldest son Haramohan and that he having died, passed to his eldest son Rashbehari. The next provision was that if Rashbehari died leaving (sic) any male issue it would pass to the testator's second grandson Sibnarain or in his absence to his eldest son from generation to generation.
15. His final conclusion, however, after considering certain other clauses of the will is put thus:
So there can remain no doubt about the fact that the expression 'purushanukrame' in this particular case was not used in the sense including the females also, but was totally exclusive of them.
16. It is not easy to gather from these judgments what the Courts below considered to be the meaning of the expression 'purushanukrame' standing by itself and apart from the other clauses of the will. The general effect of the judgments appears to be this: The plain or primary sense of the expression is in the male line, but it has also acquired in Bengali documents, a secondary meaning, generation after generation, and is often used to convey an absolute estate of general inheritance; but having regard to the other clauses of the will, it appears that in this particular provision the testator has used the word in its plain or primary sense of in the male line. In Wilson's Glossary (1855) the expression 'purushanukrame' is translated as 'by or in course of succession in the direct or male line.' Our attention has also been invited to certain Bengali dictionaries, but as the definitions in those dictionaries repeat the word 'punish' which is the source of the ambiguity, meaning either 'man' or 'generation' they do not seem to be of much assistance.
17. The net result is that the plain or primary sense of the expression is in the male line, (as stated in Wilson's Glossary and by the subordinate Judge in his conclusion and as appears from the Additional District Judge's translation of para. 12), but that the expression is often used in Bengali documents in a more general sense to mean generation after generation and to convey an absolute estate of general inheritance (as stated more than once by the Additional District Judge in his judgment and as appears also from the subordinate Judge's translation of paragraph 12).
18. The question now is: In which of these two senses has it been used in this particular provision? On this point, both the Courts below have found that it has been used in the plain or primary sense and not in the more general sense. The main argument on behalf of the appellants before us is this : Even assuming that the expression is ambiguous, Section 84, Succession Act, 1925, which by virtue of Section 57 and Schedule 3 to the Act, applies to all wills made by Hindus after 1st September 1870 and which therefore applies to the present will, requires that where a clause is susceptible of two meanings according to one of which it has some effect and according to the other of which it can have none, the former shall be preferred. If 'purushanukrame' is interpreted as meaning in the male line the effect would be to create an estate in tail male. Such an estate cannot be created by a Hindu testator, so that this interpretation completely destroys the effect of the words; an estate of special inheritance is created, only to be instantly avoided as repugnant to Hindu law. On the other hand, if the expression is given the more general meaning of which it is capable, namely generation after generation, and is construed as conveying an absolute estate of general inheritance, the clause will have effect according to its tenor subject to any other valid provision of the will. In these circumstances, the Court ought not to adopt the former construction and create an intestacy when another construction not leading to an intestacy is possible.
19. In my view, this argument must succeed. We have here an expression which is equally capable, when standing by itself in a Bengali document, of meaning either in the male line of succession or generation after generation. Is there anything in the context which compels us to adopt the former meaning and create an intestacy?
20. The provisions of the will relied upon for this purpose by the trial Court are : First, that in case Rashbehari leaves no male issue at the time of his death, the property is to go to his brother Sibnarain or his eldest son. Secondly, that in case Rashbehari and Sibnarain and their male descendants are not in existence, the property is to go to Peary Mohan or to his eldest son. Thirdly, that none of the testator's heirs or successors shall have any right to alienate the property. And fourthly, that the testator's heirs and the members of their families would all have a right to use the baithakkhana for dances, etc., in connexion with any marriage etc. The first three clauses, are taken from para 12 of the will and the fourth from para 16. It is said that these clauses clearly show that the testator's intention was not to give an absolute estate either to Rashbehari or to Sibnarain or Sibnarain's son Abani.
21. The argument is hardly convincing. Undoubtedly the testator meant to qualify his gift in certain ways: but this does not show that he did not intend to give an absolute estate subject to those qualifications. In fact, we may look upon the several clauses as so many provisos or exceptions to the disposition indicated in the previous part of the will. Let us, however, examine the clauses more closely. The first clause restricts the estate given to Rashbehari and has no direct bearing on the interpretation of the expression 'purushanukrame' which occurs in the will only in connexion with the estate given to Sibnarain and his eldest son. The clause may, however, have an indirect bearing on the question, as showing the character of the estate given to Rashbehari and as suggesting by analogy the nature of the gift to those coming after him. Prom this point of view it is relevant to observe that the gift to Rashbehari was not of an estate descending entirely in the male line. For example, if Rashbehari had died leaving a son and that son had predeceased Sibnarain leaving a daughter, there would have been nothing in the will to prevent the daughter inheriting. For, Rashbehari's son would have excluded Sibnarain, and upon that son's death, the estate would have passed to his daughter, because the presence of Sibnarain would have excluded Peary Mohan or Peary Mohan's eldest son. It is thus clear that the estate given by the will to Rashbehari was not an estate restricted to the male line of succession. It may be noticed further that if by any combination of events the estate had passed to Peary Mohan's eldest son under the relevant clause of the will, the estate in his hands would have been an absolute one and would not have descended only to his male heirs, there being no such restriction in the will. Briefly, therefore, the estate given by the will was not, necessarily and always, an estate descending only to male holders whether in Rashbehari's line or in Peary Mohan's line. There is, therefore, no ground for crediting the testator with an intention to restrict the estate to male holders in Sibnarain's line alone, and as we shall see presently he has not in fact done so. Let us now turn to the second clause which, literally translated, runs:
God forbid, if my aforesaid two grand-sons or the male descendants of their families are not in existence, then my existing son Peary Mohan Mukhopadhaya or his eldest son will become and remain owner and possessor.
22. It may be mentioned here that Rashbehari, Sibnarain, Peary Mohan and Peary Mohan's eldest son Rajendra were all in existence at date of the will and Sibnarain's eldest son Abani (defendant-appellant 1) had either been born or was en ventre sa mere; they were all in existence at the date of the testator's death. Now the clause in question merely says: 'If my aforesaid two grandsons, etc., are not in existence' without mentioning any point of time. The testator could not have meant that if the contingency happened at any time, however remote, the estate was to go over to Peary Mohan or his eldest son; for, Peary Mohan or his eldest son could not live for ever so as to be able to take the estate whenever the contingency happened. The testator had obviously some point of time in mind, although he has not mentioned it in the will. In these circumstances, we may well presume that the point of time intended was the date of the testator's death, and such a construction, besides being in consonance with the principle of Section 124, Succession Act, 1925 (which is one of the sections applicable to Hindu wills made after 1st September 1870), would accord quite well with the other provisions of the will. The testator first makes a gift to Rashbehari; he then provides that if Rashbehari should die without leaving any sons, the estate is to go over to Sibnarain or his eldest son. He then sees that he has made no provision for the contingency of Rashbehari and Sibnarain and their male descendants, all predeceasing himself (the testator). He therefore makes the provision now under consideration. This is at least one possible reading of the will. On this view all that the clause provides or implies is that one or other of certain male holders shall take the estate upon the testator's death, but it imposes no restriction upon the nature of the estate in that holder's hands, once he has taken it. In other words, he takes the whole of the testator's estate without qualification. On the other hand, even if we presume no particular point of time for the happening of the contingency upon which the estate was to pass to Peary Mohan or his eldest son except, of course, that the contingency must happen during the lifetime of Peary Mohan or his son, the clause being otherwise meaningless - the words of the clause do not warrant the assumption of a gift of an estate in tail male. For suppose, as has actually happened, Rashbehari died without leaving a son and thereafter Sibnarain died leaving a son who survives both Peary Mohan and Peary Mohan's eldest son. Sup. pose later Sibnarain's son leaves a daughter, how can she be excluded from the succession by this clause? Peary Mohan and his eldest son both being dead the gift to either of them can no longer take effect so that the clause cannot operate to exclude Sibnarain's son's daughter in the case put.
23. As regards the clause restraining alienation, it is well known that such a clause often occurs in Indian wills even where the testator has by a previous disposition given,.. in unambiguous terms, an absolute estate.. The mere presence of such a clause is therefore no indication that an absolute gift was not intended by the previous disposition. The clause is, of course, of no legal effect. The clause giving a right of use of the baithakkhana to all the heirs of the testator and the members of their families on. certain special occasions appears to be no more inconsistent with an absolute gift than with an estate in tail male. It follows therefore that none of the clauses relied upon are sufficient to negative the construction of the expression 'purushanukrame' as meaning generation after generation and as conveying an absolute gift subject to any other valid provisions of the will. It has been contended on behalf of the respondents that in certain other paragraphs of the will, where the testator was beyond controversy making an absolute gift, he has not used the expression 'purushanukrame.' It maybe that in view of the qualifications or restrictions which he was inserting in the will in respect of the baithakkhana, he desired to emphasize the fact that subject to those qualifications or restrictions the estate was to be enjoyed generation after generation. There is nothing in the will which compels us first to cut down the estate to an estate in tail male and then to say in consequence that such an estate, being repugnant to Hindu law, must be further cut down to a series of life estates, with a resulting intestacy in respect of the remainder. I agree-that the appeal must be allowed as directed by my learned brother.