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Sures Chandra Palit and anr. Vs. Lalit Mohan Dutta Chaudhuri and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.405
AppellantSures Chandra Palit and anr.
RespondentLalit Mohan Dutta Chaudhuri and ors.
Cases ReferredMartin v. Holgate
Excerpt:
hindu law - will, construction of--'malik'--'nirbuyadha malik'--will by husband in favour of his wife--absolute interest given--gift over, provision for, validity of--construction of will--plain meaning--language clear and unequivocal--rules of law, harsh consequences of. - 1. the subject-matter of the litigation, which has culminated in this appeal, originally formed the estate of one sarat chandra datta chaudhuri, who made a testamentary disposition on the 2nd april 1899, and died on the 7th november 1901. he left a childless widow, girija sundari chaudhri, who died on the 21st november 1903. after the death of the widow, a dispute arose as to the devolution of the estate of her husband which had vested in her. the sons of the sister of the widow contended that the estate had vested in her absolutely and on her death, had devolved upon them as her heirs. the son of the sister of the testator contended, on the other hand, that the widow took nothing beyond a life-interest and that upon her death, the estate had devolved upon him as the reversionary heir to.....
Judgment:

1. The subject-matter of the litigation, which has culminated in this appeal, originally formed the estate of one Sarat Chandra Datta Chaudhuri, who made a testamentary disposition on the 2nd April 1899, and died on the 7th November 1901. He left a childless widow, Girija Sundari Chaudhri, who died on the 21st November 1903. After the death of the widow, a dispute arose as to the devolution of the estate of her husband which had vested in her. The sons of the sister of the widow contended that the estate had vested in her absolutely and on her death, had devolved upon them as her heirs. The son of the sister of the testator contended, on the other hand, that the widow took nothing beyond a life-interest and that upon her death, the estate had devolved upon him as the reversionary heir to the estate of her husband. The result was that on the 11th September 1911, the sons of the sister of the widow instituted this suit against the son of the sister of the testator for construction of his Will and for recovery of possession of his estate on declaration of title thereto. Three other persons, with whom we are not now concerned, were also joined as defendants. The Subordinate Judge dismissed the suit, on the ground that the widow took only a life-interest and that upon her death, the estate vested in the first defendant as reversionary heir. The plaintiffs have now appealed to this Court and have contended, first, that the widow took an absolute estate under the 'Will of her husband, and-, secondly, that the gift over of what might remain undisposed of by her, was repugnant and void.

2. The rights of the litigants depend upon a true construction of the Will of the testator and the determination of the legal effect of the disposition made by him. The material clauses of the Will, after the usual prefatory words, are as follows:

2. If, at the time of my death, no son is born of my loins or no son exists, and I die childless, then in respect of my aforesaid moveable and immoveable properties which shall be rightfully owned by me, at the time of my death, by virtue of purchase, gift, inheritance or by any other right, I. appoint my wife, Srimati Girija Sundari Chowdhury, to be the achhi or executrix after my death.

3. Immediately after my death, my executrix, i.e., achhi, shall defray the expenses, etc., of my cremation ceremony with the income of my property and shall pay my just debts, etc., if there be any, and shall meet other necessary expenses. If the expenses cannot be met with the income of the aforesaid properties, the said achhi, i.e., executrix, if necessary, shall be competent to sell some portion of my aforesaid properties.

4. After the performance of what should be done, according to the purport of the foregoing paragraph, my widow, Srimati Girija Sundari Chowdhury, shall obtain whatever moveable and immoveable properties shall be left by me and she shall be the absolute owner, with the rights of gift, sale and all other kinds of transfer.

5. If no son is born of my loins, or there be no son, my widow, Srimati Girija Sundari Chowdhury, if she wishes, shall be competent to adopt a son; if she wishes, she shall be competent to adopt three sons in succession, but she shall not be competent to adopt another son during the life-time of one, or if such son does not forsake his adoptive mother, or if any of them dies leaving a male child, then during the life-time of such male child.

6. If I adopt a son, during my life-time or after my death, my widow adopts a son, in that case, after her, i.e., my widow's death, the said adopted son shall get such properties as shall remain after sale or gift by my widow; and he shall be the absolute owner, with the rights of gift, sale and all other kinds of transfer; but the said adopted son shall not be competent to go away to the house of his natural father and mother, that is, he shall dwell in ray own house or in a separate house erected by him in our own village. If he does not do so, he shall be fully deprived of the said properties. During the life-time of my widow, the said adopted son shall not have any right over the aforesaid properties.

7. If the said adopted son shall have no son or if he dies before a son is born to him, his widow shall be in enjoyment and possession of the said properties, provided my widow or her husband has not conferred on her any special right in respect of the said properties. But if she does not live in my own house, or in the house erected by her husband or that erected by her in my own village, she shall be deprived of the right of enjoyment and possession of the said properties.

8. If, at the time of death of my widow, there be no adopted son or if no son or wife of the adopted son be alive, then, my heir, according to the Hindu Shastras, who shall be alive at the time, shall get the properties which shall remain after disposal by my wife by way of gift or sale of the same.

3. The second Clause appoints the widow as executrix. The third Clause authorises her to meet the expenses and pay the debts by sale, if necessary, of a portion of the estate. The fourth Clause vests in her, whatever might remain after the payment of debts and expenses, absolutely and with complete power of alienation. It cannot be disputed that the effect of this clause, taken by itself, is to constitute the widow the absolute proprietor of the estate. Her status is described, not merely as that of malik, but as that of nirbuyadha malik. The use of the term malik may not by itself necessarily create an absolute interest, as explained in the cases of Surajmani v. Rabi Nath 30 A. 84 : 7 C.L.J. 131 : 35 I.A. 17 : 18 M.L.J. 7 : 5 A.L.J. 67 12 C.W.N. 231 (P.C.) : 10 Bom. L.R. 59 : 3 M.L.T. 144; Punchoo Money v. Troylucko Mohiney 10 C. 342; Shib Lakshan Bhakat v. Srimati Tarangini 8 C.L.J 20; Padam Lal v. Tek Singh 29 A. 217 A.W.N. (907) 19 : 4 A.L.J. 68. But, in the case before us, the term malik is qualified by the word nirbuyadha which, as is clear from the Sanskrit lexicons of Wilson, Bohtlingk and Roth and Monier Williams , signifies 'completed' or 'finished'. In fact, the well-known expression nirbuyadha malik is the strongest and most unequivocal phrase employed in the vernacular to indicate absolute ownership. In addition to this, we have two important facts; first, that as, pointed out in Kollany Kooer v. Luchmee Pershad (24) W.R. 395; Lalit Mohun Singh Roy v. Chukkun Lal Roy 24 I.A. 76 : 24 C. 834 : 1 C.W.N. 387 and Rajnarain Bhaduri v. Katyayani Dabee 27 c. 649 : 4 C.W.N. 337, affirming Rajnarain Bhadury v. Ashutosh Chuckerbutty 27 C. 44, the, effect of the word malik is to confer on the donee a heritable and alienable estate; and secondly, that the fourth Clause itself expressly confers on the widow full power of alienation of all kinds. As explained in Toolsi Dass Kurmokar v. Madan Gopal Dey 28 C. 499; Amarendra Nath Bose v. Shuradhany Dasi 5 Ind. Cas. 73 : 14 C.W.N. 458; Seth Mulchand Badharsha v. Bai Mancha 7 B. 491 and Jogeswar Narain v. Ram Chandra Dutt 23 I.A. 37 : 23 C. 670, when a power of absolute disposition is conferred on the donee, the provision indicates that the testator intended to create, an absolute interest in favour of the donee. No doubt, there may be cases where, as in Hara Kumari Dasi v. Mohim Chandra Sarkar 7 C.L.J. 540 : 12 C.W.N. 412 and possibly in Saroda Sundari v. Kristo Jiban Pal 5 C.W.N. 300, all the provisions of a Will taken together may indicate that the widow took only a life-interest coupled with a power of appointment to alienate by gift or sale the property passing by the will; but this doctrine cannot be applied if there is in so many, words a clear and absolute gift to the widow, as in the case before us. We thus start with the fundamental position that by the fourth Clause the widow took an absolute interest in the estate devised. Is there, then, any provision in the Will which restricts the clear and unambigous effect of this clause. The Subordinate Judge, in support of his view, relied upon the clauses which authorise the widow to adopt and prescribe the devolution of the estate in the event of such adoption. In our opinion, these provisions do not qualify the effect of the fourth Clause. In fact, even the later clauses explicitly provide that the widow would have absolute interest notwithstanding the adoption, that the adopted son would not have any right over the estate during her life-time and that after her death, he should get only such properties as might remain after sale or gift by the widow, so that it is conceivable that the widow might alienate the entire estate and leave nothing for the adopted son to take. The case is thus very different from that before the House of Lords in Comiskey v. Bowring-Hanbury (1905) A.C. 84 : 74 L.J. Ch. 263 : 92 L.T. 241 : 53 W.R. 402 : 21 T.L.R. 252, where, although an absolute gift was made to the widow, there was clear indication that the estate was to be kept intact by her for transmission to the nieces of the testator, in whose favour, there was an executory gift to take effect on her death. The Subordinate Judge also relied upon the decision of the Judicial Committee in Mahomed Shamsool Huda v. Shewukram 2 I.A. 7 : 14 B.L.R. 226 : 22 W.R. 409 in support of the view that 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, namely, that a Hindu generally desires that an estate, specially an ancestral estate, shall be retained in his family, and also that a Hindu knows that as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate. This is indisputable and has been re-affirmed by the Judicial Committee in Radha Prasad Mullick v. Ranimani Dassee 35 I.A. 118 : 35 C. 896 : 8 C.L.J. 48 : 12 C.W.N. 729 : 10 Bom. L.R. 604 : 5 A.L.J. 460 : 18 M.L.J. 287 : 4 M.L.T. 23; but where, as here, the terms are perfectly clear, we cannot assume, contrary to the plain meaning thereof, that the testator intended to create estates of a particular description and then bend and twist the language in favour of the assumption so made. In bur opinion, there is nothing in any of the later clauses of the Will which cuts down the absolute estate created in favour of the widow in the fourth clause in the most unequivocal terms conceivable. It is possible that the testator has, in the later clauses of the Will, made provisions repugnant to what is contained in the fourth Clause, but that cannot affect the meaning of what is contained therein. As was observed by the Judicial Committee in Tripurari Pal v. Jagat Tarini Dasi 17 Ind. Cas. 696 : 40 I.A. 37 : 40 C. 274 : 17 C.L.J. 159 : 17 C.W.N. 145 : 13 M.L.T. 1 : (1913) M.W.N. 34 : 15 Bom. L.R. 72, where an absolute interest is given, the Court will not cat it down by subsequent words, unless they clearly have an effect to restrict it. To the same effect is the principle repeatedly recognised by the House of Lords as a settled rule of construction, namely, that if there is a clear gift, it is not to be cut down by anything subsequent in the Will, which does not, with reasonable certainty, indicate the intention of the testator to cut it down: Thornhill v. Hall (1834) 2 Cl. & F. 22 at p. 36 : 8 Bligh (N.S.) 88 : 6 E.R. 1065 : 37 R.R. 72; Featherston v. Featherston (1835) 3 Cl. & F. 67 at p. 73, 75 : 6 E.R. 1363 : 39 R.R. 1; Abbott v. Middleton (1858) 7 H.L.C. 68 at p. 84 : 28 L.J. Ch. 110 : 5 Jur. (N.S.) 717 : 11 E.R. 1; Randfield v. Randfield (1860) 8 H.L.C. 225 at pp. 235, 238 : 30 L.J. Ch. 177 : 6 Jur. (N.S.) 901 : 9 W.R. 1 : 125 R.R. 124 : 11 E.R. 414; In re Freeman Hope v. Freeman (1910) 1 Ch. 681 at p. 691 : 79 L.J. Ch. 678 : 102 L.T. 516 : 54 S.J. 443. Thus, if an estate is given in terms which confer an absolute estate to a named donee, and, then, further interests are given merely after, or on the termination of that donee's interest, and not in defeasance of it, his absolute interest is not cut down, and the further interests fail: Hoare v. Byng (1844) 10 Cl. & F. 508 : 8 Jur. 563 : 8 E.R. 835 : 59 R.R. 122; Hyndman v. Hyndman (1895) 11 Ir. R. 179 : 1 Irish Law Reports 697.

4. The question next arises, is the gift over contained in the eighth Clause valid and operative in law? The appellants have contended that as an absolute interest was conferred on the widow, the gift over was void for repugnancy. This argument is supported by the well-settled rule of English Law that a gift over, if a devisee or legatee to whom an absolute interest is given does not dispose of his interest or dies intestate or dies before selling his interest, is void both as regards realty and personality. This is clear from a long line of authorities: Lightburne v. Gill (1764) 3 Brown. P.C. 250; Ross v. Ross (1819) 1 J. & W. 154 : 20 R.R. 263 : 37 E.R. 334; Green v. Harvey (1842) 1 J. & W. 154 : 20 R.R. 263 : 37 E.R. 334; Yalden, In re (1851) 1 DeG. M. & G. 53 : 42 E.R. 471 : 91 R.R. 24; In re Mortlock's Trust (1856) 3 K. & J. 456 : 26 L.J. Ch. 671 : 5 W.R. 748 : 69 E.R. 1189 : 112 R.R. 230; Bowes v. Goslett (1857) 27 L.J. ch. 249 : 4 Jur. (N.S.) 17 : 6 W.R. 8; Henderson v. Gross (1861) 29 Beav. 216 : 7 Jur. (N.S.) 177 : 9 W.R. 263 : 54 E.R. 610 : 131 R.R. 532; Gulliver v. Vaux (1746) 8 DeG.M. & G. 167n. : 44 E.R. 253 : 114 R.R. 83; Holmes v. Godson (1856) 8 DeG.M. & G 152: 25 L.J. Ch. 317 : 2 Jur. (N.S.) 383 : 4 W.R. 415 : 44 E.R. 347 : 114 R.R. 73; Barton v. Barton (1857) 3 K. & J. 512 : 3 Jur. (N.S.) 808 : 69 E.R. 1212 : 112 R.R. 266; Perry v. Merritt (1874) 18 Eq. 152 : 43 L.J. Ch. 608 : 22 W.R. 600; Wilcock's Settlement, In re (1876) 1 Ch. D. 229 : 45 L.J. Ch. 163; Percy, In re (1883) 24 Ch. D 616 : 53 L.J. Ch. 143 : 49 L.T. 554; In re Dixon Dixon v. Charlesworth (1903) 2 Ch. 458 : 72 L.J. Ch. 642 : 88 L.t. 862 : 51 W.R. 652; Jones, In re Richards v. Jones (1898) 1 Ch. 438 at p. 441 : 67 L.J. Ch. 211 : 78 L.T. 74 : 46 W.R. 313; Comiskey v. Bowring Hanbury (1905) A.C. 84 : 74 L.J. Ch. 263 : 92 L.T. 241 : 53 W.R. 402 : 21 T.L.R. 252; Bull v. Kingston (1816) 1 Mer. 314 : 35 E.R. 690; Cuthbert v. Purrier (1822) Jac. 415 : 23 R.R. 104; Bourn v. Gibbs (1831) 1 Rus. & My. 614 : Tam. 414 : 8 L.R. (o.s.) Ch. 151 : 39 E.R. 236 32 R.R. 300; Phillips v. Eastwood (1835) L. & G. Temp. Sugden 270 at p. 297 : 46 R.R. 226; Watkins v. Williams (1851) 3 Mac. & G. 622 at p. 629 : 87 R.R. 228 : 21 L.J. Ch. 601 : 16 Jur. 181 : 42 E.R. 400; Weale v. Ollive (1863) 32 Beav. 421 : 55 E.R. 165 : 138 R.R. 796; Shaw v. Ford (1877) 7 Ch. D. 669 at p. 674, 47 L.J. Ch. 531 : 37 L.T. 749 : 26 W.R. 235; In re Jenkins's Trusts (1889) 23 L.R. Ir. 162; Stretton v. Fitz Gerald (1889) 23 L.R. Ir. 310, 466; Parnell v. Boyd (1896) 2 Ir R. 571 : 2 Irish Law Reports 923; In re Walker Lloyd v. Tweedy (1898) 1 Ir. R. 5 : 3 Irish Law Reports 580.

5. The decisions in Upwell v. Halsey (1720) 1 P. Wms. 651 : 10 Mod. 44 : 24 E.R. 554 : 2 Eq. Cas. Ab. 325 Pl. 28 and Doe. d. Stevenson v. Glover (1845) 1 C.B. 448 : 14 L.J.C.P. 169 : 135 E.R. 615 to the contrary effect cannot be treated as good law; the first of these cases was treated as overruled by Loughborough, L.C. in Malim v. Keighley (1795) 2 Ves. 529 at p. 532 : 2 R.R. 229 : 30 E.R. 760 and by Sugden, L.C., in Phillips v. Eastwood (1835) L. & G. Temp. Sugden 270 at p. 297 : 46 R.R. 226; the second case was decided in ignorance of the decision in Gulliver v. Vaux (1746) 8 DeG. M. & G. 167n : 44 E.R. 353 : 114 R.R. 83, which, though decided in the Common Pleas in 1746, was brought to light in 1856, after a century's repose; it was with reference to this case that Holmes, J., observed in Parnell v. Boyd (1896) 2 Ir R. 571 : 2 Irish Law Reports 923: 'It will be recorded for a precedent. And many an error, by the same example, will rush into the State.' The rule thus steadily applied in England and Ireland is, however, different from that recognised by the Law of Scotland, for, as pointed out by the House of Lords in Barstow v. Black (1868) 1 Sc. & Div. 392 the position of an absolute unlimited owner subject to a conditional gift over, though unknown to the law of England, is well known to the Scotch Law.

6. The rule of English Law has been adopted almost universally in the Courts of the United States, and is thus formulated by Chancellor Kent in his Commentaries (Vol. IV, 270): if there be an absolute power of disposition given by the Will to the first taker, as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same, in all such cases, the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given or necessarily implied by the Will:' Jackson v. Bull (1813) 10 Johnson; Jackson v. Robins (1819) 16 Johnson 537 Ide v. Ide (1809) 5 Mass. 500 : Attorney General v. Hall (1731) fitz. 314 : W. Kel. 13 : 2 Eq. Cas. Abr. 93 Pl. 21 : 94 E.R. 772. The rule formulated by Kent has been twice approved by the Supreme Court of the United States, Smith v. Bell (1832) 6 Peter 68 : 8 Law. Ed. U.S. 322; Howard v. Carusi (1883) 109 U.S. 725 : 27 Law. Ed. 725.

7. The rule enunciated above has been recently adopted by the Judicial Committee of the Privy Council without discussion in Tripurari Pal v. Jagat Tarini Dasi 17 Ind. Cas. 696 : 40 I.A. 37 : 40 C. 274 : 17 C.L.J. 159 : 17 C.W.N. 145 : 13 M.L.T. 1 : (1913) M.W.N. 34 : 15 Bom. L.R. 72. There the testator directed, with regard to a debuttar estate, which he had dedicated and religious ceremonies which he had established during his life-time, that his son, Mukunda Murari, would be the shebait. He appointed the mother of the boy to be shebait as guardian during his minority. He next proceeded to provide that, if during his life-time or after his death the said Mukunda Murari died, his widow would be shebait, and after her death her two daughters would be shebaiti. After the death of the testator, the widow, during the minority of the boy acted as shabait and conducted the worship. Mukunda, on attainment of his majority, took possession and acted as shebait; he died in 1900, leaving a minor son and widow. His mother then resumed possession under the gift over in her favour. The infant son of Mukunda, through his mother, sued the widow and daughters of the testator for a declaration that he had the sole right to the debuttar estate of his grandfather as the heir of his father, in whom it had previously vested absolutely on his attaining majority. The Subordinate Judge decreed the suit. this Court on appeal reversed that decision and held that the shebaitship devolved, upon the death of Mukunda, upon his mother, and that upon the death of the latter, it devolved on her daughters. The plaintiff appealed to the Privy Council and contended before the Judicial Committee that his father Murari, took an absolute estate in the shebaitship, which on his death devolved on the plaintiff by right of inheritance; the contention was that the gift over was contrary to law, and reference was made to Section 111 of the Indian Succession Act and the decision of the Judicial Committee in Norendra Nath Sirkar v. Kamalbasini Dasi 23 I.A. 18 : 23 C. 563. The Judicial Committee accepted the contention and held that, as there was an absolute gift to Mukunda on his attaining his majority, the plaintiff was entitled to succeed. This fits in exactly with the rule enunciated by Sir Arthur Hobhouse in Mussoorie Bank v. Raynor 7 A.C. 321 : 51 L.J.P.C. 72 : 46 L.T. 633 : 31 W.R. 17 Mussoorie Bank Limited v. Baynor 4 A. 500 : 9 A. 70 : 4 Saraswati's P.C.J. 346 namely, that when an absolute interest has been given to the first taker, followed by a gift over of what may not be required by him, the gift over, though couched in the most direct and precise words, is void for uncertainty, according to a very well-known and well established class of cases. Much stress has been laid in this Court on the, decision of the Judicial Committee in Bhoobun Mohini Debia v. Hurrish Chunder Chowdhry 5 I.A. 138 : 4 C. 23 : 3 C.L.R. 339 : 3 Suth. P.C.J. 537 : 2 Ind. Jur. 430 : 1 Shome L.R. 241. That case is in our opinion, clearly distinguishable and its precise effect was stated by Lord Hobhouse in Kristoromoni Dasi v. Narendro Krishna Bahadur 16 I.A. 29 : 16 C. 383 : 13 Ind. Jur. 90 : 5 Sar. P.C.J. 285; there was no gift over in that case: Bhooban Mohini Debia v. Hurrish Chunder Chowdhry 5 I.A. 138 : 4 C. 23 : 3 C.L.R. 339 : 3 Suth. P.C.J. 537 : 2 Ind. Jur. 430 : 1 Shome L.R. 241. The donor made a gift to his sister, Kasiswari, in vernacular terms, which, though peculiar and referring only to lineal heirs, this Committee held to be identical in effect with other terms well known and often used by Hindu donors who intend to pass the whole inheritance, though they mention only children or issue. Then he said, 'no other heir shall be entitled'. This was held to mean that if Kasiswari died leaving no issue then living, her interest was to cease. In effect, the construction was that if Kasiswari left issue, the absolute interest given to her in the first instance was to remain unaffected, but if she left none, it was cut down to a life-interest. In the latter case, nothing had passed from the donor but the life-interest, and when that was spent, he or his heir would lawfully reenter.' This principle clearly does not avail the respondents, nor can they derive any assistance from the rule laid down in Sreemuity Soorjeemoney Dossee v. Denobundoo Mullick 6 M.I.A. 526 1 Ind. Jur. (N.S.) 37 : 4 W.R.P.C. 114 : 1 Boulr. Rep. 228 : 1 Suth. P.C.J. 291 : 1 Sar. P.C.J. 583 : 19 E.R. 198, Sreemutty Soorjumoney Dossee v. Denobundo Mullick 9 M.I.A. 123 : 1 Sar. C.J. 837 : 19 E.R. 688 as to the defeasance of a prior absolute interest by a subsequent event. That rule has no application where, as here, there is an absolute gift of property to a person, followed by a gift over in the event of his dying intestate or not disposing of it. There is, in our opinion, no substantial answer to the contention that where a devisee takes an absolute interest, a gift over, on his failure to dispose of the property or of whatever part of the property he does not dispose of, is void.

8. An ingenious attempt has been made to criticise the rule enunciated and recognised in the law of England, and we are not unmindful that the rule has been the subject of unfavourable comment by text writers see, for instance, Gray on Restraints on the Alienation of Property, Sections 57--74. For all practical purposes, however, it is fruitless to seek the logical justification of a principle which has been recognised or approved twice by the House of Lords Lightburne v. Gill (1764) 3 Brown. P.C. 250 Comiskey v. Bowring-Hanbury (1905) A.C. 84 : 74 L.J. Ch. 263 : 92 L.T. 241 : 53 W.R. 402 : 21 T.L.R. 252, twice by the Judicial Committee Tripurari Pal v. Jagat Tarim Dasi 17 Ind. Cas. 696 : 40 I.A. 37 : 40 C. 274 : 17 C.L.J. 159 : 17 C.W.N. 145 : 13 M.L.T. 1 : (1913) M.W.N. 34 : 15 Bom. L.R. 72; Mussoorie Bank v. Raynor 7 A.C. 321 : 51 L.J.P.C. 72 : 46 L.T. 633 : 31 W.R. 17 and twice by the Supreme Court of the United States Smith v. Bell (1832) 6 Peter 68 : 8 Law. Ed. U.S. 322; Howard v. Carusi (1883) 109 U.S. 725 : 27 Law. Ed. 725. Reference may be made, however, to the judgments of Grant, M.R., in Bull v. Kingston (1816) 1 Mer. 314 : 35 E.R. 690 of Truro, L.C, in Watkins v. Williams (1851) 3 Mac. & G. 622 at p. 629 : 87 R.R. 228 : 21 L.J. Ch. 601 : 16 Jur. 181 : 42 E.R. 400, of Burnett, J., in Gulliver v. Vaux (1746) 8 DeG. M. & G. 167n : 44 E.R. 353 : 114 R.R. 83, of Turner, L. J., in Holmes v. Godson (1856) 8 DeG. M. & G. 152 : 25 L.J. Ch. 317 : 2 Jur. (N.S.) 383 : 4 W.R. 415 : 44 E.R. 347 : 114 R.R. 73, of Fry, J., in Shaw v. Ford (1877) 7 Ch. D. 669 at p. 674, 47 L.J. Ch. 531 : 37 L.T. 749 : 26 W.R. 235 and of Kent, C., in Jackson v. Robins (1819) 16 Johnson 537, where the rule is defended on the grounds of uncertainty, repugnancy to the prior gift, and of public policy. As Turner, L.J., said in Holmes v. Godson (1856) 8 DeG. M. & G. 152 : 25 L.J. Ch. 317 : 2 Jur. (N.S.) 383 : 4 W.R. 415 : 44 E.R. 347 : 114 R.R. 73, the law has said that if a man dies intestate, the real estate shall go to the heir and the personal estate to the next of kin, and any disposition which tends to contravene that disposition which the law would make, is against the policy of law and, therefore, void. Lord Machnaghten emphasised this when he said in Attorney General v. Ailesbury (1887) 12 A.C. 672 at p. 694 : 57 L.J.Q.B. 83 : 58 L.T. 192 : 36 W.R. 737: Real estate must descend according to the ordinary rules of real property. You cannot give real estate in fee, and say that on the death of the owner intestate it shall go to his next of kin.' We may add that in cases of this description, the rule of construction formulated by Tindal, C.J., in Scarborough v. Savile (1836) 3 A. & E. 897 at p. 962 : 111 E.R. 653 : 42 R.R. 306 at p. 313 applies: 'not only ought we to look to the words of the Will alone, to determine the operation and effect of the devise, but that we ought to disregard altogether the legal consequences which may follow from the nature and qualities of the estate, when such estate is once collected from the words of the Will itself.' The instrument must receive a construction according to the plain meaning of the words and sentences therein contained; that is, the words are to be first read in their grammatical and ordinary sense, unless the context shows otherwise: Hamilton v. Ritchie (1894) A.C. 310 at p. 313; Gordon v. Gordon (1871) 5 H.L. 254 at p 271; Seale-Hayne v. Jodrell (1891) A.C. 304 at p. 306 : 61 L.J. Ch. 70 : 65 L.T. 57. As Knight Bruce, L.J., points out in Lowe v. Thomas (1854) 5 DeG.M & G. 315 at p. 317 : 2 Eq. R. 742 : 23 L.J. Ch. 616 : 18 Jur. 563 : 2 W.R. 499 : 43 E.R. 891 : 104 R.R. 141, this rule comes from the Digest (lib. 32, tit. 1, Section 69) where Marcellus says: 'Non aliter a signification. verborum recedi oportet quam cum manifestum est aliud sensisse testatorem,' (a departure from the literal meaning of the words used is not justifiable, unless it be clear that the testator himself intended something different therefrom). But as Halsbury, L.C. said in Leader v. Duffey (1888) 13 A.C. 294 at p. 301 : 58 L.J.P.C. 13 : 59 L.T. 9, we shall be arguing in a vicious circle if, apart from the language of the instrument, we start with the assumption that the testator intended to create such estates only as the law allows, and then read into his words a meaning they will not legitimately bear. To the same effect are the observations of Cairns, L.C. in Coltsmann v. Coltsmann (1868) 3 H.L. 121 at p. 130 : 10 W.R. 943. As Buller, J., said in Hodgson v. Ambrose (1780) 1 Douglas 337 at p. 342 : 3 Bro. P.C. 416 : 99 E.R. 216 the question whether the intention is consistent with the rules of law or not, can never arise till it is settled what the intention was. Where there is no obscurity or ambiguity, there is no room for application of the doctrine that it is better to effectuate than to destroy the intention, for as Lord Coke quaintly puts it, 'whensoever the words of a deed or of the parties without deed may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken': 1 Co. Lit., 42 a, b, Christie v. Gosling (1866) 1 H.L. 279 at p. 290 : 35 L.J. Ch. 667 : 15 L.T. 40. Where, however, the language is clear and unequivocal, the construction cannot be altered or wrested to something different from the plain meaning for the purpose of escaping from what may seem to be the harsh consequences of rules of law: Dungannon v Smith (1846) 12 Cl & F. 546 at 599 : 10 Jur. 721 : 8 E.R. 1523 : 69 R.R. 137, Pearks v. Mosley (1880) 5 A.C. 714 at pp. 719, 733 : 50 L.J. Ch. 57 : 433 L.T. 449 : 29 W.R. 1 DeBeauvoir v. DeBeauvoir (1852) 3 H.L.C. 524 at p. 545 : 16 Jur. 1147 : 10 E.R. 206 : 88 R.R. 191 Abbott v. Middleton (1858) 7 H.L.C. 68 at p. 84 : 28 L.J. Ch. 110 : 5 Jur. (N.S.) 717 : 11 E.R. 28 : 115 R.R. 38 Bathurst v. Errington (1877)2 A.C. 698 at p. 709 : 46 L.J. Ch. 748 : 37 L.T. 338 : 25 W.R. 908 Martin v. Holgate (1866) L.R. 1 H.L. 175 at p. 189 : 35 L.J. Ch. 789 : 15 W.R. 135. We are of opinion that upon a true construction of the Will before us, the following positions are incontestable, namely, first, that the testator gave an absolute interest in his estate to his widow with full powers of alienation; and, secondly, that the gift over of what might remain undisposed of by her, was void and inoperative in law. There is thus no escape from the position that after the death of the widow, the estate has devolved upon the plaintiffs as her heirs, and not upon the first defendant as the reversionary heir to the testator.

9. The result is that this appeal is allowed and the decree of the Subordinate Judge set aside. The plaintiffs will have a decree for possession of the properties in suit, exclusive of the properties mentioned in the two schedules attached to the written statement of the third defendant dated the 20th February 1912, but inclusive of one half of property 14 of the second schedule of that written statement. The plaintiff will also be entitled to costs in both the Courts and to mesne profits from the first defendant.


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