1. For the purposes of the question which falls for determination in this appeal it would be sufficient to state the following facts: On 13th September 1916 two ladies, Surobala Dasi and Sarajubala Dasi, who were sisters, dedicated by a deed of settlement a piece of land with a temple and a house standing thereon to a deity whom they had installed and consecrated there in and appointed themselves shebaits and conveyed to themselves the said properties upon trust for the management and performance of the worship of the said deity, It was provided in the deed that the expenses of the worship were to be defrayed out of the moneys to be paid to them by the trustees of the temple, derived from properties to be settled thereafter for the maintenance thereof and that the shebaits shall have no proprietary interest in the temple and house and the land appertaining thereto and shall have no power to sell, mortgage, alienate, encumber or in any way deal therewith but shall merely be managers for the protection and repairs of the premises and performance of the worship according to a scheduled scheme. Then followed Clause 5 of the deed which is the clause of importance in this case. It ran in these words:
That the said settlors shall during their natural lives act as such shebaits as aforesaid with power to each of them to nominate or appoint by deed or will her successor in office. In default of such appointment by the said Sm. Surobala Dasi her spiritual guide, Babu Mohendra Nath Chatterji of Salkia, or in case of default his eldest male heir, and in like default by the said Sm. Sarajubala Dasi her spiritual guide Babu Hari Mohan Gossain, or in the 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 descendants of the said Mohendra Nath Chatterji and the said Hira Mohan Gossain, provided always that every future shebait of the said deities shall have like power to nominate and appoint by deed or will his successor in office.
2. Sarajubala acted as shebait until she died in April 1917 without appointing her successor. Thereupon the said Hari Mohan Gossain acted as shebait. Surobala never acted as shebait. On 19th July 1921 Harimohan Gossain died without appointing any successor, and thereupon the plaintiff Kandarpa Mohan Gossain, who is the only son of Harimohan, acted as shebait in his place, On 20th April 1931 Surobala died appointing her successor. The present suit was instituted while she was alive and with her as a defendant. The question to be determined is whether the plaintiff was entitled to succeed his father Harimohan as shebait. Lort Williams, J., has held upon the authority of Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) IA Sup Vol 47 and Monohar Mukherjee v. Bhupendra Nath Mukherjee AIR 1932 Cal 791, that the provision in the deed that the succession is to be held by certain heirs of Harimohan to the exclusion of others in a line contrary to the Hindu law of inheritance was invalid, and so the plaintiff, who can succeed only under that provision had no title. He has held that upon the terms of the deed the only question was whether the plaintiff can be said to have taken by way of gift over upon the death of his father Harimohan, or whether he could only take by way of inheritance under a provision which was invalid. He has held that the intention of the deed was not to provide for a gift over after Harimohan's death in favour of the plaintiff, in which case only the plaintiff could succeed. In the above view, he has dismissed the suit, which rests on the foundation of the plaintiff's title as shebait. The plaintiff has appealed.
3. Before dealing with the appeal it would be convenient to notice a contention which Mr. Banerji has put forward on behalf of the defendant, now respondent. He has urged that even on the assumption that the provision referred to above is a valid one, it gives no place to the plaintiff. He has contended that the plaintiff could come in on the death of Sarajubala, if Harimohan was not then alive, under the words,
in like default by the said Sm. Sarajubala Dasi har spiritual guide Babu Hari Mohan Gossain, or in case of his death his eldest male heir.
4. And that opportunity not having occured, it has been contended, the plaintiff's next opportunity to come in would be after the death of both the settlors, under the words
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 heirs.
5. Surabala, as already stated, died after the institution of the suit. It is said accordingly that for the period antecedent to the suit, which is the relevant period for which plaintiff's title is in dispute, the plaintiff had no title. In our opinion such a construction should not be favoured because in that case after Harimohan's death and till Surabala died there would be notody competent to take as shebait in the place of Sarajubala, but that could never be the intention of the Settlors; for the settlors in Clause (6) of the deed have expressly declared,
it being the intention of the said settlors that at no time hereafter there shall be less then two shebaits of the said deities.
6. Mr. Hazra's first contention in the appeal is that it should have been held that in favour of the plaintiff there was a gift over of the shebaitship after Harimohan's death, and such gift should take effect. Considerable reliance has been placed in this behalf upon the following passage in the judgment of their Lordships of the Judicial Committee in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) IA Sup Vol 47
If, on the other hand, the gift were to a man and his heirs, to be selected from a line other then that specified by law, expressly excluding the legal course of inheritance, as, for instance, if an estate were granted to a man and his eldest nephew, and the eldest nephew of such eldest nephew, and so forth for ever, to take as his heirs, to the exclusion of all other heirs, and without any of the persons so taking, having the power to dispose of the estate during his lifetime, here, inasmuch as the inheritance so described is not legal such a gift can not take effect, except in favour of such persona as could take under a gift to the extent to which the gift is consistent with the law. The first taker would in this case take for his lifetime, because the giver had at least that intention. He could not take more because the language is inconsistent with his having any different inheritance from that which the gift attempts to confer, and that estate of inheritance which it confers is void.
7. Reliance is placed upon the word person' used in the plural, and the words 'first taker', and it is argued that these words indicate that such of the persons namely 'eldest nephew', 'eldest nephew of such eldest; nephew' and so forth were also regarded by their Lordships as persons in whose favour there was a gift over and could be takers of the gift to the extent that the gift was consistent with law. From this it is argued that the plaintiff is also to be regarded as a person in whose favour there was a gift over, and if it is possible to hold that he could take the gift as it is possible because he is the only son of Harimohan and was alive at the date of the deed, it should be held that the plaintiff did on Harimohan's death acquire a title under the gift. This argument overlooks a fact, which in our opinion is the most important fact namely that in the hypothatical case which their Lordships were dealing with in the passage quoted above there was a reservation in these words,
and without any of the persons so taking having the power to dispose of the estate during his life-time.
8. In the present case Harimohan was competent, under the terms of the deed, to appoint his successor. That being the position the deed cannot be read as providing for a gift over in favour of the plaintiff.
9. We shall refer now to some of the cases upon which Mr. Hazra has relied. While not disputing the correcthess of the Full Bench decision Mr. Hazra has contended that that decision does not touch the present case because in the Order of Reference in that case it was said that
successive life estates are no part of the Hindu law of inheritance, but a man can be appointed to an office for life and save as regards after-born persons no difficulty has ever been suggested.
10. And he has contended that as the plaintiff was not an after-born he is not hit by Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) IA Sup Vol 47. This, of course, cannot be disputed provided it may be held that there was an effective gift over in plaintiff's favour. If it can be so held then there can be no question that if the gift over is a gift to a class the rule of construction in Leake v. Robinson 2 Mer 363, is not to be applied but that if the plan be to give' a gift to persons capable of taking, that gift is effectual, even though it was also intended that the other persons, incapable of taking should come in afterwards and share in the gift. This latter rule of construction was well expressed by Wilson, J., at the end of his illuminating judgment in the case of Ramlal Sett v. Kanai Lal Sett (1886) 12 Cal 663, in the words that he should be
prepared to hold as a general rule that where there is a gift to a class some of whom are or may be incapacitated from taking because not born at the date of the gift or the death of the testator as the case may be and where there is no other objection to the gift, it should enure for the benefit of those members of the class who are capable of taking.
11. Some of the cases cited by Mr. Hazra are cases illustrative of this rule of construction: Kumar Tarakeswar Roy v. Soshi Sikhaseswar (1834) 9 Cal 952 and BhagabatiBarmanya v. Kate Charan Singh (1911) 38 Cal 468. Another decision relied upon was Kamini v. Dasi Asutosh (1889) 16 Cal 103 and the argument based on it was that upon a clause in the Will concerned in that case, which has now been found to be invalid: see Pramathe v. Anukul Chandra : AIR1925Cal225 , approved in Monohar Mukerji v. Bhupendra Nath Mukerji AIR 1932 Cal 791, Ashutosh who came within that clause was allowed to succeed. In our opinion however that case cannot be used as an authority for such a purpose, because no such question was decided in it. Lastly, the case of Gopal Chunder Bose v. Kartick Chunder Dey (1902) 29 Cal 716 (PC) has been cited. In that case there was a Will containing a clause that a shebaitship should be held by the testator's wife, and after her death by his son and after his death 'by my daughter and her husband Nando Doolal Bose and their male children successively,
12. The clause was construed as meaning the daughter, the daughter's husband and their male children for their respective lives and in that sense 'successively,' and not that the word 'successively' should be read as meaning son and son's sons in succession: and this construction was upheld by the Judicial Committee. We do not see that this case assists the plaintiff.
13. We have examined the terms of the deed to which we have referred above as closely as possible and we think we must agree with Lort-Williams, J., in holding that it is not possible to read it as making an independent gift over in favour of the plaintiff, but that if the plaintiff was to come in at all he must come in as the eldest male descendant of Hari Mohan, and to the exclusion of Harimohan's other heirs, and that in that way the case in Madhav Rao v. Balabhai AIR 1928 PC 33 is distinguishable and should be distinguished.
14. The appellant's first contention based upon the position that there was a gift over and that the same should take effect so far as the plaintiff is concerned, for he was not an after taker but was a person alive at the date of the gift, must in our judgment fail.
15. Mr. Hazra has next contended that the plaintiff was entitled to succeed as heir to his father Harimohan. This contention, it is apparent, can only succeed if there was an appointment of him by Harimohan as provided for in the deed or if Harimohan had an absolute estate conferred on him by the deed. As regards appointment, it is notody's case. The other matter has to be carefully examined. In construing gifts of this character the observations of the Judicial Committee in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) IA Sup Vol 47 should be borne in mind:
Another general principle applicable to transfer by gift (more liberally applied in the law of England then to gifts intra vivos) is that a benignant construction is to be used; and if the real meaning of the document can be reasonably ascertained from the language used, though that language may be ungrammatical or untechnical, or mistaken as to name or description, or in any manner incorrect, provided it sufficiently indicates what was meant, that meaning shall be enforced to the extent and in the form which the law allows. Accordingly, if the gift confers an estate upon a man with words imperfectly describing the kind of inheritance, but showing that it was intended that he should have an estate of inheritance, the language would be read as conferring an estate inheritable as the law directs. If an estate were given to a man simply without express words of inheritance, it would, in the absence of a conflicting context, carry by Hindu law (as under the present state of law it does by will in England) an estate of inheritance. If there were added to such a gift an imperfect description of it as a gift of inheritance, not excluding the inheritance imposed by the law, an estate of inheritance would pass. If again, the gift were in terms of an estate inheritable in Jaw, with superadded words, restricting the power of transfer which the law annexes to that estate the restriction would be rejected as being repugnant, or, rather, as being an attempt to take away the power of transfer which the law attaches to the estate which the giver has sufficiently shown his intention to create, though he adds a qualification which the law does not recognize.
16. And from the observations which their Lordships of the Judicial Committee, have made in different decisions from time to time, it is clear that the Court, in construing the intentions of a Hindu donor or a Hindu testator, must bear in mind that the form of expression, or the literal sense is not to be so much regarded as the real meaning of the parties: see Hanooman Pershad v. Babooee Munraj (1854-1857) 6 MIA 892 and that notions present to the mind of a Hindu donor or Hindu testator are often very different from those which are present to the minds of an English testator or an English donor even though much the same form of words are used by both: see Rai Bishen Chand v. Asmaida Koer (1883) 6 All 560.
17. Now, what is the gift of an absolute estate? A gift is absolute, when by such gift an interest or ownership is created, entitling the donee to deal with the subject of the gift according to his pleasure, and conferring upon him an uncontrollable power of alienation, either by deed, gift or will. In other words, the powers of a donee under such a gift are not confined to any particular mode or modes of dealing with the things owned but are of indefinite extent, both as regards possession, use or enjoyment and alienation thereof. The word 'absolute' implies both unlimited in estate and unfettered in respect of any condition or trust: Per James, V.C. In Irvine v. Sullivan (1869) 8 Eq. 678. While the word 'absolute' itself, generally speaking, is sufficient to create an absolute estate there may be cases in which it does not; and words of inheritance also do not necessarily always confer such an estate. The question is always a question of intention to be gathered from the entire context taken together. If 'shebaitship is property, what was granted to Harimohan was that property not fettered by any condition or limitation, as regards its possession, use or mode of enjoyment. The question to be considered is: Was any power to dispose of the shebaitship given to Harimohan? There may be various kinds of restraint imposed on the power of alienation: You may prohibit alienation; absolutely; you may restrict it by prohibiting a particular class of alienation; you may restrict it by prohibiting it to a particular class of individuals or you may restrict alienation by restricting it to a particular time: see Jessel M.R. in In re Mao. leay (1875) 20 Eq 186. Apart from such restrictions as there must be by reason of the character of the property itself, i.e., the shebaitship, there was no restriction of any of the above descriptions in this case. There are no words indicating 'for life' used in connexion with the gift to Harimohan. The power of nomination and appointment of a successor by deed or will was given ; indicating that even during Harimohan's lifetime, somebody else nominated and appointed by him could take as shebait. In Jarman on Wills, 7th Edn., Vol. 2, p. 766, it is said:
Whenever a testator gives property to A and then provides for the case of A's dying without having disposed of it, the question arises whether the original gift is an absolute one, in which case the gift over is repugnant and void; or whether A takes an estate for life, with a general power of appointment followed by a gift over in default of appointment.
18. It has been point out by the learned author that the distinction is difficult to draw, but the cases referred to by him in connexion with this matter do, in our opinion, lend support to the proposition that where there is a gift not limited in any way but equally capable of being construed as a gift for life or an absolute gift, and it is followed by a general power of appointment and a gift over in default of appointment, the first gift should be treated as an absolute gift unless the whole frame of the will suggests otherwise. In our judgment, the true intention of the deed in the present case was to confer the shebaitship in absolute right to Harimohan, with power to him to appoint his successor at any time he pleased, and should he not exercise that power to leave the shebaitship to be inherited by his heirs, but with a condition restricting such inheritance to the eldest descendant to the exclusion of others. The condition, it is true, is invalid. But that does not, in our judgment, affect the gift in favour of Harimohan which was an absolute gift of the shebait in his favour, descendible on his heirs in the line of inheritance as under the Hindu law. We hold therefore that the plaintiff on Harimohan's death came to be entitled to the shebaitship.
19. We accordingly allow the appeal with costs against the respondent, and, finding the question of title in plaintiff's favour, send back the case for the determination of those questions which have not yet been determined.