Lancelot Sanderson, J.
1. This is a second appeal from the appellate judgment and decree of Mr. Roy, the District Judge of Hooghly, affirming the judgment and decree of the Subordinate Judge, Babu Hem Chandra Bose.
2. The question arises on the construction of the Will, dated the 2nd February 1894, of the late Bejoy Krishna Mukherjee. The Will is in Bengali and we have been furnished with a translation.
3. It appears that the testator left him surviving seven sons and several daughters. With the daughters we are not concerned. As regards the sons, by his Will the testator divided his estate into seven shares or portions of unequal value and allotted one portion to each of his sons. Among the properties allotted to the two eldest sons was a property known as Lot Darbasini, bearing Touzi No. 6 in the Revenue Roll of the District. The two eldest sons each obtained a moiety of that property.
4. Clause 2 of the Will recites that 'the profits from the Lot Darbasini are much larger than those from the mahals allotted to my other sons, and out of the mahals allotted to my other sons certain portions of the mahuls (naming them) are under water.' Then the testator continues:--'So in regard to the profits of the aforesaid Lot Darbasini, I make this provision that my eldest son Norendra Nath Mukherji shall, year after year, go on paying to my third son Nogendra Nath Mukherji the sum of Rs. 500 per annum out of the income from the mahals' allotted to him. Similarly, further on, the clause provides that the second son Surendra Nath Mukherji shall, after the testator's death, pay from the profits of the mahals allotted to him within Lot Darbasini, a sum of Rs. 1,000 per annum in equal moieties to the fourth and fifth sons. The same clause also provides that after the testator's death the first and second sons were to execute agreements, in favour of the sons to whom the annual payments were given, to make the payments as directed by the Will.
5. Then in the third clause the properties allotted or devised to the third and fourth sons are specified. As to the fourth son the testator says:--'I also allot to my fourth son Satyendra Nath Mukherji certain Mouzahs comprised within the said lot (referring to a lot named Pandre) and Rs. 500 per annum out of the profits of Lot Darbasini as well as certain other properties specified in Schedule No 4 and the said Satyendra Nath Mukherji shall obtain the same after my death.'
6. The second son Surendra and the fourth son Satyendra are both dead. The plaintiff in the suit, Saraj Nath Mukherji, is the son of Satyendra and the three defendants are the sons of Surendra. The plaintiff, it appears, is a minor suing by his mother and guardian as his next friend.
7. The suit was brought for arrears of what the plaintiff claims as the annuity devised by the testator to the plaintiff's father on the footing that the annuity was perpetual and heritable. Both the Courts below found in the plaintiff's favour and this appeal is preferred by defendants Nos. 1 and 3. The defendant No. 2 for some reason or other has not appealed.
8. Mr. Dwarka Nath Chakravarty, arguing the case for the defendants, contends that the Courts below are wrong, and he founded him-self in the main on the provisions of Section 160 of the Indian Succession Act which is made applicable to Hindu Wills by the Hindu Wills Act and runs as follows:--'Where an annuity is created by Will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the Will. And this rule shall not be varied by the circumstance that the annuity is directed to be paid out of the property generally or that a sum of money is bequeathed to be invested in the purchase of it.'
9. The provisions of this section were present to the minds of the learned Judges in the Courts below. The District Judge, on appeal, dealt with the matter in this way. As to the law he says: 'The argument is that the annuity must be considered to be a grant only for the life of the legatee, because it is not expressly stated that it was given in perpetuity. I do not think, however, the law really imposes such a limitation. The intentions of the testator must be judged from the context,' So far, in my opinion, the learned Judge is perfectly right and has correctly stated the law. Section 160 does not require that the contrary intention of the testator to which it refers should be indicated by express words. It is sufficient if the contrary intention appears sufficiently from the language of the Will read as a whole.
10. Then the learned Judge in the course of this judgment gives several reasons for the conclusion at which he arrived. He refers in the first place to the distribution of the property made by the testator. Then he goes on: 'The testator then stated that as the distribution was unequal, the first and second sons were to pay certain annuities to the other three sens out of the profits of the properties allotted to them,' Then further down he makes a second point, as follows:--'In paragraph 3 of the Will, the testator enumerates the properties given to the third and fourth sons. He mentions first the immoveable properties allotted to them and then the annuities and then again other immoveable properties. There is no differentiation made as regards the immoveable properties and the annuity.' The same point was put in a slightly different way a little later, where the learned Judge says: 'He did not use any words of inheritance, when he was giving away absolute interest in the lands be allotted to the different sons.' And finally, the learned Judge says; 'The word annuity is English. The testator did not contemplate an annuity as is understood by the English word. His direction was that the second son was to give Rs. 500 per annum to the fourth son out of the profits of the moiety of Darbasini demised to the former. The grant was made a charge on these properties. There was a direction that the second son was to execute an agreement to pay the charge.' For these various reasons the learned Judge states that be is in accord with the decision arrived at by the Court of first instance.
11. The reasons which the learned Judge gives for finding that the intention of the Will is contrary to what I may call the prima facie statutory intention is, firstly, that he found in the language of Clause 2 an intention on the part of the testator to level up the shares given to the third, fourth and fifth sons and to equalize them to some extent with the larger shares given to the first and the second sons. Then he says that in devising the immoveable properties, the testator uses no words of inheritance, and the annuities are not given separately but they are given in the same breath with the immoveable properties; and, thirdly, the learned Judge does rely in soma measure on the fact that the annuities were charged on the immoveable properties devised to the first and second sons and that those sons were directed to execute an agreement to pay the annuities. No doubt, Section 160 does say that the mere circumstance that the annuity is directed to be paid out of the property generally is not to vary the rule which the section lays down; and this further may be said perhaps that the direction that the first and the second sons should execute agreements for annuities does not carry the case much further one way or the other, because if any dispute had arisen about the execution of the agreements the same question of construction would have arisen which arises now in this appeal. But remembering all that, I still think that the language of the clause and the language in which the annuities were, in fact, devised makes the interpretation put upon this Will by the Courts below not an unreasonable interpretation. I ought to say here that I am dealing with this case on the footing that these annual payments charged upon the immoveable properties given to the first and second sons are annuities within the meaning of Section 160. I deal with the ease on that footing, and in regard to the interpretation of the Will the question does not stop where I have just left it. Precisely the same question with regard to this very Will has already come before the High Court and has already been considered in the case of Panchergopal Mookerjee v Kalidas Mukherjee 54 Ind. Cas. 140 : 24 C.W.N. 592 by two learned Judges of this Court, Mr. Justice Chatterjea and Mr. Justice Duval. The judgment in that case, which related to the annuity devised to the third son, was delivered by Mr. Justice Chatterjea and the learned Judges confirmed, as I gather, the concurrent decisions of the Courts below that the annuity was perpetual. The case was decided after the District Judge gave his decision in the present case. So we have this that every Hindu Judge who has dealt with this Will, the Will of a Hindu written in the Bengali language, has construed it in the same way. In the present case, we have the concurrent opinion of the District Judge and the Subordinate Judge, both Hindus. In the former case we are informed that the two Judges in the Trial Court and the lower Appellate Court were both Hindus and their decision was confirmed by two Judges of this Court of whom one was a Hindu. In my opinion, the case referred to is binding on us as a precedent but apart from that, in face of this consensus of authority, I, for my part, should not be disposed to say that the conclusion arrived at in this ease by the Court below is wrong and ought to be set aside. I would, therefore, dismiss this appeal with costs.
12. I agree and I have nothing to add.