1. This is an appeal from a decision of Panckridge, J., upon an originating summons concerning the validity of certain dispositions in the will of Luckey Narain Dhur dated 18th November 1923. The testator died on 26th March 1927, leaving three sons, Ram Chunder, Kartick and Ganesh. Kara died on 17th October 1928, and Kartick on 2nd May 1927.
2. Ram left four sons, Lal Behary, Bon Behary, Rash Behary and Banku Behary, and Kartick left one son Netye. All these are alive, and Ganesh has one son, Madan. On 25th April 1929 letters of administration de bonis non Were granted to the Administrator-General, Bengal, who wishes to know who are the persons now entitled to act as Shebaits of a religious endowment created by Clauses 9 and 10 of the will. Clause 11 provides as follows:
I appoint my sons Kartick Chunder Dhur and Ram Chunder Dhur to be the Shebaits of the Thacoors and I direct that upon the death, retirement or refusal to act of any of them or any of the future Shebaits the then next eldest male lineal descendant of Kartick Chunder Dhur or Ram Chunder Dhur shall act as a Shebait in place of the deceased or retiring Shebait or Shebait refusing to act as such-it being my intention that the eldest for the time being in the male line of my said sons Kartick Chunder Dhur and Ram Chunder Dhur shall always remain as joint Shebaits,, and in the event of the death or refusal to act of any Shebait, the than next male member of the branch to which the Shebait dying or refusing belonged shall act as a Shebait in his place and stead.
3. The intentions of the testator are reasonably clear. He wished to provide that Kartiek and Ram should be the first Shebaits, and that upon the death, retirement or refusal to act of either of them, or of any of the future Shebaits, the then next eldest male lineal descendants of Kartick and of Ram should be the joint Shebaits representing Kartick's and Ram's branches of the family respectively-and that there should be only two Shebaits at any time.
4. Bat it has been decided by a Full Bench of this Court in Monohar Mukherjee v. Bhupendra Nath Mukerjee 1932 Cal 791 that Shebaitship is a kind of property in the eye of Hindu law and not merely a right to an office. That a person succeeding to the Shebaitship is a grantee or donee of property, and his right to succeed to the office is subject to the rule of law laid down by the Privy Council in IA Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) IA Sup Vol 47 that all estates of inheritance created by gift or will, so far as they are inconsistent with the general Hindu law of inheritance are void.;as such.
5. According to Hindu law no person can succeed, under a gift or will as heir to estates described in the terms which in English law would designate, estates tail, and it follows that rules, laid down by the founder of a Hindu debutter for succession to the office of shebait are invalid, if they provide for the office to be held by some one among the heirs of the founder to the exclusion of others, in a succession differing from the line of Hindu inheritance. The result is that the provision in this will for the succession of the eldest in the male line is invalid, because it excludes some of the founder's heirs according to Hindu law. Further it is clear that the testator did not intend to give to either Kartick or Ram an estate of inheritance or an absolute state, but at most only a life interest, because he provided for the succession on their death, retirement or refusal, of persons who were not their heirs according to Hindu law: IA Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) IA Sup Vol 47 at pp. 66 and 76-7.8: see also Sreemutty Kristoromoney Dossee v. Maharajah Norendro Krishna Bahadoor (1889) 16 Cal 933.
6. This disposes of the contention raised on behalf of Bonbehary, Rashbehary and Bankubehary, that they ought to succeed along with Lalbehary and Netye, as the immediate heirs of Ram and Kartick. The old rule of Hindu law that a bequest cannot be made to an unborn person is not relevant to the present case, firstly because all persons claiming under the will were born during the life of the testator and secondly because, in any case,: the Hindu Disposition of Property Act, l916 would have applied. There remains to be decided the question whether the whole of the provision's of the clause fail, after the life interests given to Ram, and Kartick, in which case Ganesh would succeed along with the heirs of Earn and Kartick, as joint heirs of the testator; or whether the clause can be construed as providing for independent gifts of life interests to Lalbehary and Netye, who happen to be the eldest male lineal descendants of Ram and Kartick. That is to say, whether the words eldest male lineal descendant can be construed so far as they affect Lalbehary and Netye, as words of description only, and not of inheritance. This question was discussed but, not decided in, 2 IA Sup Vol 47(2), where their Lordships said:
It remains however to be considered whether the persons described as heirs in tail or heirs of inheritance not recognised by law are sufficiently designed to take successively by way of gift that which the will incorrectly assumes to give them as heirs, so that they may be regarded as a succession of donees for life, having the power and subject to the restrictions sought to be imposed by the will upon the successive heirs in tail.
7. In that case the bequests were (1) to Juttendro Mohun Tagore for life, then (2) to his eldest son born in the testator's lifetime for lite, then (3) in strict settlement on his heirs in tail male, then (4) similar limitations for life and in tail male on the other sons of Juttendro Mohun Tagore, born in the testator's lifetime, then (5) limitation in tail male on the sons of Juttendro Mohun Tagore born after the testator's death, then (6) 'after the failure or determination of the uses and estates hereinbefore limited' to Shooshendro Mohun Tagore for life, (7) like limitations for his sons and their sons, and (8) like limitations for the sons of Lullit Mohun Tagore, who was deceased at the date of the will, and their sons in tail male. Juttendro Mohun Tagore had no son born in the testator's lifetime, and in any case the subsequent limitations of inheritance were invalid because they offended against the rule of the Hindu law of succession to which I have already referred. The gift to Sourendro Mohun Tagore for life was invalid because the testator only intended it to he operative after the failure or determination of the prior estate created, and this must he construed as failure in fact, and not by reason of invalidity in law, On p. 78 their Lordships observed that:
There is however another point of: view in which the estates in tail male may be regarded namely, us intended, at all events, to,.confer an estate for 'life upon the first taker in existence when the will took effect. The intention of the testator to give at least a life estate to the first taker is clear, and if an estate in tail male stood first in the will, effect might perhaps he given to that intention There was however no person in existence to take an estate in tail male at the 'testator s death except Suttendro Mohum Tagore. (who was the grandson of Lallit Mohun Tagore) and the validity of his claim to a life 'interest in succession Stands upon the same ground as that of Sourendra Mohun Tagore.
8. Their Lordships decided that a life interest, was created in Juttendro Mohun Tagore, and that the estates of inheritance and subsequent estates or interest attempted to be created by the will failed. It will be observed that the facts in 2 I.A. Sup. Vol.47(2) which made it unnecessary for their Lordships to decide the question now in issue, are not to he found in the present case, which must therefore be distinguished. It becomes necessary therefore to attempt to apply to the facts of this case the observations of their Lordships to which I have referred, and to construe this will in such a way as to give effect, so far as is legally possible, to the wishes and intention of the testator. The attitude to he adopted in construing a Hindu will is set out at pp. 64-70 of 2 1. A. Sup. Vol. 47(2) and one general principle is that a benignant construction is to be used, and that if the real meaning of the document can be reasonably ascertained from the language used, though that language be ungrammatical or untechnical, or mistaken as to name or description or in any otter manner incorrect, provided it sufficiently indicate what was meant, that meaning shall be enforced to the extent and in the form which the law allows.
9. Moreover Section 87, Succession Act, provides that the intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it, as far as possible.
10. The decided cases are not of much assistance, In Marthavrao Ganpatrao v. Balabhai Raghunath 1928 PC 33, the bequest was of the income of certain property to K, and after her death in trust for the male heirs of the said K, share and share alike.
11. It was decided that this was an absolute gift of the property to K's sons which took effect after the determination of her life interest. The words 'male heirs' did not connote a descendible quality of estate. In an Indian settlement they are not to be construed primarily as words of inheritance, denoting the character of an estate. K's sons took not by way of inheritance from her, but by virtue of a wholly independent gift to such persons as answered the description of male heirs at the date of her death. They took an absolute estate because there was nothing to suggest that such estate was limited to their life, and no descent was marked out after their death. In the present case, on the one hand the words 'it being my intention that the eldest for the time being in the male line of my said sons Kartick Chunder Dhur and Ram Chander Dhur shall always remain as joint shebaits' seem to indicate that the testator intended to create an estate of inheritance in tail male, but on the other hand the words I appoint my sons Kartick Chander Dhur and Ram Chunder Dhur to be the Shebaits of the said Thacoors and I direct that upon the death, retirement or refusal to act of any of them or any of the future Shebails the then eldest male lineal descendant of Kartick Chunder Dhur or Rant Chunder Dhur shall act, as a shebait in place of the deceased or retiring shebait or shebait refusing to act as such are not altogether appropriate to the creation of such an estate, and are capable of being construed as an intention to make an independent gift of the office for life to such person as happened to answer the description of eldest male lineal descendant'at the date of the death retirement, or refusal to act of Kartick or Ram. In Kandarpa Mohan Gossain v. Akhoy Chandra Bose 1984 Cal 879, the words of bequest were:
In default of such appointment by the said Sm. Surabala Dassi her spiritual guide Mahendra Nath Chatterji or in case of his death his eldest male heir, and in like default by the said Sarajubala, her spiritual guide Hari Mohan Gossain, or in case of his death his eldest male heir, jointly with the survivor of the said settlors, and after the death of both of the said settlors and in default of such appointment as aforesaid the said two spiritual guides or their or his eldest male heir shall act as joint shebaits of the said deities, and thenceforth the future shebaits shall consist of the eldest male descendant of the said Mahendra Nath Chatterji and the said Hari Mohan Gossain, provided always that every shebait of the said deity shall have like power to nominate and appoint by deed or will his successor in office.
12. This was construed as providing for gifts to Mahendra Nath Chatterjee and Hari Mohan Gossain or alternatively, should they happen to be dead at the time when the gifts took effect, then to such persons as happened to he their eldest male heirs, by way of gift, and not by way of inheritance, and that if either Mahendra Nath Chatterji or Hari Mohan Gossain or their eldest male heirs has taken thus by way of gift, then subsequently the eldest male descendant of any of them could take only by way of inheritance.
13. This decision turned upon the particular words of the settlement in question, and is distinguishable from the present case. The gift to the eldest male heir was made dependent upon the question whether his predecessor happened to be dead at the time when the gift took effect. It was a gift to the predecessor and his eldest male heir in the alternative only, and not gifts to each of them in succession. In 16 Cal 383(3) the words of bequest ran as follows:
I give, devise and bequest the residue of my real and personal estate both joint and self-acquired unto my executors, in trust to pay the rents, issues, profits and income thereof unto my said daughter during her lifetime, and after her death in trust to pay, assign and convey the residue of my estate real and personal to my half-brothers Rajas Nreependro Khrishna Bahadur and Norendro Krishna Bahadur in equal moieties and to the heir or heirs male of their or either of their body, in failure of which in trust to give the same to the son or sons of my said daughter.
14. Their Lordships decided that these words could not mean that an absolute gift was intended to be made to the half-brothers, because 'heirs male' obviously negatived an intention to give an estate descendible to heirs generally:
The words must mean either that the estate of inheritance given to the brothers is a qualified one, or that the heirs male are to take somehow by way of direct gift from the testator.
15. Their Lordships further decided that the first of these two alternative constructions was the only possible one, because the plain and obvious sense of the words used indicated an intention to confer on them an estate of inheritance resembling an English estate in tail male. They rejected the first alternative because the words were 'and' and not 'or' heirs male. But they observed at p. 41 that if words of limitation had, been attached to the words 'heirs male', they would have tended to show that the 'heirs' were objects of direct gift, because it would have been inappropriate to attach such words of limitation to the words 'heirs male', if these were to be regarded themselves as words of limitation. On the whole I have come to the conclusion that Clause 11 can be construed as providing inter alia for independent gifts for life to Lalbehary and Netye as the persons who happened to answer the description of eldest male lineal descendants of Ram and Kartick at the times of their respective deaths, and they are the persons at present entitled to act as shebaits. Therefore the appeal is allowed and the cross-objections are dismissed. Costs of all parties will come out of the estate. The costs of the Administrator-General will be as between attorney and client.
16. I agree.