R.C. Mitter, J.
1. The subject-matter of the suit and the appeal is eight annas share of a permanent garmukorari tenure called taluk Biswanath Roy. The plaintiffs-appellants are the superior landlords of that tenure to which admittedly the Bengal Tenancy Act applies. Two persons, Abinash Chandra Roy Chowdhury and Kiranbala Chowdhurani were the tenure holders. Abinash executed a will (Ex. 11, II-1) on 10th July 1909 and died shortly thereafter. He had married twice. By his first wife, who predeceased him, he. had a son named Abani. Ananga is the only son of Abani. His second wife who survived him was Rumudini. She was child. less. By his will Abinash disinherited his only son Abani, and made his second wife executrix. He gave the whole of his estate, moveable and immovable including his eight annas share in the tenure taluk Biswanath Roy to her in the first instance and made provisions for the devolution of his whole estate after her death. His grandson, Ananga, was to take that estate, according to the terms of the will, after Kumudini's death. The most important controversy in the suit and the appeal is about the nature of the estate conferred by the will on Kumudini, namely, whether it was a life estate or an absolute estate. The probate of the will was granted to Kumudini on 21st February 1911. Kumudini administered the estate and it is admitted by the parties that in 1921 she was in possession of the eight annas share of the tenure, taluk Biswanath Boy, in her capacity as beneficial owner under the terms of her husband's will. The other eight annas share of the tenure was then vested in Kiranbala. That tenure fell into arrears and the plaintiffs filed a suit to recover the arrears of rent on 1st July 1921. This suit which was numbered as Rent Suit No. 8 of 1921 of the Court of the Subordinate Judge of Tipperah was instituted against Kumudini and Kiranbala. During the pendency of this rent suit Kumudini died on 19th September 1921. On 16th September 1921 she executed a will by which she appointed five persons as executors, namely her step-grandson Ananga, her brothers Lalit Mohan Ghosh, Biraj-Mohan Ghosh, Bhuban Mohan Ghosh and one Jitendra Mohan Bose. The beneficial interest in all her properties was given to a deity named Kumudeswar Mahadev. The probate of this will was granted to Ananga only on 9th May 1924, the other four executors having in the end renounced. On the application of the plaintiffs, Abani and Ananga were substituted in the place of Kumudini in the rent suit on 22nd November 1921. The plaintiffs proceeded upon the footing that Ananga became the tenure-holder of that tenure to the extent of eight annans on Kumudini's' death on the basis of Abinash's will, but for greater caution they brought Abani on the record also. At that time they had no knowledge of Kumudini's will.
2. The four other executors of Kumudini's will however made an application in the rent suit on 12th January 1922. In that application they disclosed Kumudini's will and made a statement that they only were the executors under that will. They claimed to be substituted in the place of Kumudini as her legal representatives, and prayed for such substitution. In the body of the application (Ex. A-II-30) they stated that Abani and Ananga were not necessary parties. The plaintiffs' pleader asked for and obtained time to consider his position in regard to that application. Ultimately that application was lost sight of and the Court granted a decree for rent against the parties then on record, namely Abani, Ananga and Kiranbala on 23rd March 1923. Abani was admittedly not a necessary party. The tenure was sold in execution of this decree under the procedure of Chap, 14, Ben. Ten. Act, and was purchased by the plaintiffs on 5th April 1923. After an unsuccessful application by Abani and Ananga to set aside that sale, the sale was confirmed on 21st July 1924 and the sale certificate was issued to the plaintiffs on 27th September 1924. The decree in the rent suit and the sale in execution thereof was held before the probate of Kumudini's will had been granted. The probate of that will was granted to Ananga on 9th May 1924. 3. The question on which this appeal hinges is whether all the tenure holders of the said tenure were parties to the rent decree and in the execution proceedings. If that was so the entire tenure has passed to the plaintiffs by their purchase at the court sale. If not, that rent decree would not have the effect of a rent decree in terms of the Bengal Tenancy Act, but would have the effect of a money decree, effective only against Kiranbala and the right, title and interest of that judgment-debtor only would pass to them. If the will of Kumudini was operative to pass eight annas share of the tenure to the deity Kumudeswar Mahadev, the plaintiffs would then get by their purchase at the said auction sale only the eight annas interest of Kiranabala. These positions are admitted by the parties and are also in accordance with law. If, however, by the will of Abinash a life-estate only had been conferred on Kumudini she would have then no power to give the tenure to the said idol and her executors would not be necessary parties to that rent suit on her death. On her death the same would vest in Ananga by the terms of Abinash's will and no matter whether Ananga had a life- estate or an absolute estate therein he would represent after Kumudini's death the eight annas share of the tenure which belonged to Abinash. The decree passed in the rent suit would be then effective against the tenure and the court sale held in execution thereof would consequently pass to the purchasers the whole tenure and the plaintiffs would be entitled to succeed in this suit. If however Kumudini had an absolute estate in that tenure under her husband's will further questions would arise. We would therefore take up the question of the construction of Abinash's will.
3. The will consists of 13 paragraphs. Paragraph 5 is subdivided into three parts. We will designate these sub-paragraphs as 5(a), 5(b) and 5(c). Paragraph 6 is subdivided into four sub-paragraphs which we will designate as 6(a), 6(b), 6(c) and 6(d) and para. 12 into two sub-paragraphs which we designate as 12(a) and 12(b). The material paragraphs are Section 5, 6, 7, 11 and 12. In para. 3 the testator expresses his displeasure at the conduct of his son, Abani and purports to disinherit him. By paras. 5(a) and 5(b) he gives all his properties to his wife Kumudini in the first instance. Paragraph 5 (b) defines her interest. There are three expressions used there, each one of which would ordinarily be sufficient to confer an absolute estate on her. If that sub-paragraph stood alone there could not have been any doubt about the estate she took under her husband's will. Sub-paragraph 5(c) states that after the death of his wife his grandson, Ananga would take all his properties, if he did not forsake his religion. In that paragraph words are also used which would confer an absolute estate on him. Paragraph 6 contemplates other sons being born to Abani, In that event those grandsons of the testator would take equally with Ananga, if they did not forsake their religion. Paragraph 6(d) states that his grandsons would have an estate of the same nature as was conferred on his wife. Paragraph 7 confers a power on his widow to take sons in adoption. Paragraph 11 deals with his insurance money and his share separately. His wife is to take first and on her death his grandson. Paragraph 12 contemplates the case of the death during the lifetime of his widow of his grandson or grandsons or of the son that may be adopted to him. In that event his estate is to be divided into eight equal parts, four of which are to be devoted to the worship of the idol established by him at Benares and to such other purposes as would be of spiritual benefit to the soul of his deceased father and mother. One part is to be given to his spiritual guide and the remaining three parts were to be utilized for establishing and maintaining a charitable dispensary in his village. It is quite clear that if the estate conferred on his wife be an absolute estate the provisions made in paras. 5(c) and 6(b) for his grandsons would be invalid, as also the dispositions made in para. 12. On reading the whole of the will the dominant intentions of the testator as expressed therein appear to be two--(1) exclusion of his son, Abani, from his properties which was made effective by the disposition of his entire estate to persons other than his son and (2) that his estate in its entirety was to pass intact to his widow and grandsons in succession and on the happening of the event mentioned in para. 12 to the objects specified therein, namely, 7/8ths of his estate was to be devoted to objects of a permanent nature, the remaining 1/8th being given to his spiritual guide. The first dominant intention is made effective by the disposition of his entire estate to persons other than his son, Abani. The second dominant intention, as Lord Tomlin observed in Nisar Ali Khan v. Mohammad Ali Khan 'is inconsistent with a series of absolute interests and could only be given effect to with such a series if each taker voluntarily denied himself the exercise of all powers of alienation, inter vivos, and disposed of the property testamentary to the next taker in accordance with the testator's scheme.' In that case before the Judicial Committee the testator gave his property first to his nephew Nawab Sir Fateh Ali Khan and used terms which would have been sufficient to confer on him an absolute estate. He further provided that on the death of Nawab Sir Fateh, his (testator's) son Nawab Mohammad Ali Khan and on the latter's death his nephew Nawab Hidayat Ali Khan would take the properties in the same interest in which Nawab Sir Fateh Ali Khan was to take; their Lordships of the Judicial Committee held that each one of these persons, Nawab Sir Fateh Ali Khan, Nawab Mohammad Ali Khan and Nawab Hidayat Ali Khan took successive life estate only, though the words of limitation used by the testator would by themselves have conferred on each one of them an absolute estate. Belying on the principle enunciated in Nisar Ali Khan v. Mohammad Ali Khan we hold that Kumudini had only a life estate notwithstanding the terms of para. 5 (b) of the will. She had therefore no power to make a will in respect of the tenure, Taluk Biswanath Roy or to dedicate it to the deity. On her death Ananga became the owner of eight annas of that tenure by the terms of his grand-father's will. He was therefore rightly brought on the records of the rent suit on the death of Kumudini. As the tenure was fully represented in the rent suit, at the date of the decree, that is to say, as the rent decree was passed against all the tenure holders and the execution proceedings were taken against the tenure holders, the whole tenure passed to the plaintiffs at the rent sale by reason of provisions of Chap. 14, Ben. Ten. Act.
4. Shortly after the plaintiffs' purchase at the rent sale disputes arose as to whether they could get 16 annas rent from the Subordinate tenants. At that time Ananga had obtained probate of Kumudini's will. He backed the tenants who resisted the plaintiffs' claim to 16 annas of the rent. The result was that many rent suits were brought some by the plaintiffs in which they claimed 16 annas rent and some by Ananga in which he claimed 8 annas of the rents from the subordinate tenants. In the plaintiffs' suits they made Ananga also a defendant and in Ananga's suits the plaintiffs were also made defendants. All these rent suits were instituted in the Court of the Munsifs, who would have had no pecuniary jurisdiction to try the suit which we have before us. In some cases appeals were carried from the Munsifs decisions to the Court of the Subordinate Judge and in some cases second appeals were filed in this Court. Two judgments of two Subordinate Judges passed on appeals have been exhibited. They are Exs. K and H (II-156 and 164). Two questions were considered by the said Subordinate Judges namely (1) whether Kumudini got an absolute estate under her husband's will and (2) whether after Kumudini's death the proper legal representative had been brought on the record of Kent Suit No. 8 of 1921. Both the learned Subordinate Judges held that the said will had conferred an absolute estate on Kumudini and that there was no proper substitution in that rent suit on Kumudini's death. Two of the judgments passed by this Court in second appeals (which were not appeals against Exs. H and K, but in other rent suits) are reported. They are : Ananga Mohan Roy v. Khajeh Habibulla : AIR1931Cal673 and Cherag Ali Sarkar v. Nawab Khajeh Habibulla : AIR1931Cal782 . The will of Abinas was not construed by this Court. It was assumed that an absolute estate had been conferred on Kumudini by her husband's will. This Court on the sole finding that proper legal representatives had not been brought on the records of Rent Suit No. 8 of 1921 on the death of Kumudini held that the whole tenure had not passed to the plaintiffs, the Nawab and his cosharers, but only eight annas thereof, namely, the' interest of Kiranbala Choudhurani. There is no decision on the question of construction of Abinash's will which is binding on us. The decision in those two second appeals on the question of representation in the said Rent Suit No. 8 of 1921 after Kumudini's death is not res judicata, on the ground that those rent suits had been instituted in the Courts of Munsifs who would have had no pecuniary jurisdiction to try the suit which we have before us. But the decision in Cherag Ali Sarkar v. Nawab Khajeh Habibulla : AIR1931Cal782 , being by a Division Bench is binding on us as a precedent. On the view we have taken of the interest that had been conferred on Kumudini by her husband's will this appeal must succeed. But as the question of representation in Bent Suit No. 8 of 1921 has been argued before us at length on the hypothesis that Kumudini had got an absolute estate by her husband's will we proceed to express our views on that point on that hypothesis.
5. We have stated before that by her will Kumudini had appointed five executors. While Rent Suit No. 8 of 1921 was pending four of her executors, Jitendra Mohan Bose and the Ghoshes applied for probate and the other executor, Ananga, was at first opposing the grant. The said four executors ultimately renounced, and probate was granted to Ananga only. This was after the decree had been passed in Bent Suit No. 8 of 1921 and the tenure had been sold in execution thereof. At all material stages of that rent suit and the following rent execution none of the executors named in her will had obtained probate. Though in their application filed in the rent suit by the four executors Jatindra Nath Bose and the Ghoshes on 12th January 1922 (Ex. A) they had stated that they were in possession of the estate on Kumudini there was no evidence before the Court in support of that statement, as that application was not supported by an affidavit. The question therefore is whether the executors could at that stage be substituted in that suit as the legal representatives of Kumudini. In our opinion they could not. If they had been substituted and a decree obtained that decree would not have bound the estate of Kumudini as they had not then obtained probate. It is well settled that an executor who has not obtained probate can file a suit as plaintiff, Mayappa Chetty v. Supramanian Chetty ('16) 3 A.I.R. 1916 P.C. 202, but he must obtain probate before the decree or even ear Her if he is called to prove his representative character at an earlier stage (Williams on Executors, Vol, I, p. 192, Edn. 12). But an executor who has not obtained probate can be effectively sued as defendant only when he had intermediated with the estate of the testator: Mohamadin Mohideen Hadjiar v. Pitchey (1894) 1894 A.C. 437, Lal Behari v. Nagendra Nath ('15) 2 A.I.R. 1915 Cal. 599 and Lakhya Dassya v. Uma Kanta ('10) 14 C.W.N. 256. No doubt an executor derives his title from the will and probate is the only effective evidence of his title. He can act before probate and subsequent probate validates these intermediate acts. (Section 227, Succession Act, 39 of 1925.) But the provisions of that section do not apply to cases of representation in suits: Lakhya Dassya v. Uma Kanta ('10) 14 C.W.N. 256 at page 258.
6. For these reasons we cannot agree with the observations in Cherag Ali Sarkar v. Nawab Khajeh Habibulla : AIR1931Cal782 that the four executors who had made the application, Ex. A, in the rent suit ought to have been brought by the plaintiffs on the records of the rent suit on Kumudini's death as her legal representatives. We do hot also feel the force of the observations made therein that the deity Kumudeshwar Mahadev ought to have been made a party. The right of the deity could not be established without probate, and at all material times in the progress of that rent suit probate had not been granted. Besides that, there was no evidence that the executors had given their assent to the legacy in favour of the deity. The deity was therefore out of the picture at that stage. We cannot therefore hold that the estate of Kumudini was not represented in the rent suit simply because the executors named in her will had not been substituted in her place in that suit. On her death her son Abani and her grandson Ananga were substituted in her place. Ananga had no status except in his character as her executor and we have already held that not having obtained probate while the rent suit was pending he could not be substituted in that suit in Kumudini's place. The same reasons apply to his being made a party in the resulting execution proceedings. Abani was Kumudini's heir-at-law and would have been her legal representative if she had died intestate. Could he then have been brought on the record of the rent suit as her legal representative seeing that although she had left a will by which she had appointed other persons as executors, probate of the will had not been granted then. We are of opinion that he could not, and this view of ours is supported by the decision of a Division Bench in Harish Chandra Biswas v. Puridas Das ('10) 12 C.L.J. 561. In these circumstances two courses were open to the plaintiffs in the rent suit when Kumudini died, either to apply for postponement of the case till probate was granted to Kumudini's will and after that event to substitute the executor or executors who obtained probate, or if that was not feasible or desirable, to apply for the appointment of an administrator ad litem under Section 251, Succession Act, (39 of 1925) and to substitute the person so appointed in Kumudini's place. As they did not follow either of these oourses the decree obtained by them would not bind the estate of Kumudini and accordingly 8 annas share in the tenure taluk Biswanath Roy would not have passed to them at the court sale.
7. If we had held that the estate taken by Kumudini under her husband's will was an absolute estate we would have dismissed this appeal, but as on the construction of that will we have held that she took a life-estate only, the appeal must succeed. The plaintiffs must have the costs of this appeal and also the costs of the lower Court for the first party defendant. The result is that the plaintiff's title to 8 annas share in taluk Biswanath Roy as described in Schedule 1 of the plaint is declared and that they do recover possession from the first party defendant. The plaintiffs would also get a decree for mesne profits from the first party defendant from three years prior to the institution of the suit till recovery of possession or restoration of possession or three years from the date of this judgment, whichever occurs earlier. We direct an enquiry by the Court into mesne profits in terms of Order 20, Rule 12, Sub-rule (1), Clause (c), Civil P.C. As prayer No. (6) of the plaint has not been pressed by the learned advocate for the appellants the same is refused.
8. I agree.