B.B. Ghose, J.
1. This is an appeal by the plaintiffs against the judgment and decree of the Subordinate Judge, Fifth Court, Dacca, dated the 7th of June, 1926, dismissing their suit. The suit was for recovery of possession of a taluk on the allegation that the plaintiffs were the heirs under the Hindu Law of Raja Kali Narayan Roy who was the original owner of the property. The allegations of the plaintiffs were that the Raja granted a sub-lease of the taluk to his daughter Kripamoyee Devi on cerlain conditions. The Raja died in 1878, Kripamoyee died on the 27th of April, 1920, without leaving any issue. Under the terms of the lease Kripamoyee got only a life-interest and on her death without issue the lease-hold interest lapsed and the property has reverted to the estate of Kali Narayau and the plaintiffs are entitled to recover possession of it as his heirs. The defendants claim the property under a Will said to have been executed by Kripamoyee and they allege that Kripamoyee had an absolute interest in the property in question and the provisions in the lease on which the plaintiffs purport to base their claim are void. They also raised other questions in defence which it is not necessary to relate now.
2. It is admitted that the plaintiffs can succeed only if after the death of Kripamoyee the disputed lease-hold property reverted to and became part of the estate left by Raja Kali Narayan. The Subordinate Judge, therefore, took up that question only for decision first and decided it against the plaintiffs. If the conclusion of the learned Subordinate Judge is right then the suit will stand dismissed, otherwise the case must be remitted for decision of the other questions raised in the suit.
3. The question in controversy depends entirely upon the true construction of the patta granted to Kripamoyee and the validity or otherwise of certain provisions contained in it. There were three documents executed by Kali Narayan in her favour. They are more or less on the same terms. Id will be sufficient to take into consideration the last of them dated the 5th of March, 1877. The deed is described as a miras talukdari patta. The relevant portion of it runs thus: 'I give you patni talukdari patty in respectof my purchased taluk...total annual sadar jama being fixed at Rs. 4,840, without any selami on account of my affection for you. You and your sons born of your womb and sons born of their loins in succession, and the daughters born of your womb, shall continue to possess (the same)...being malik in possession by right of miras talukdari in all the lands and the jamas relating to the whole taluk written in the patta by cutting and filling up, by making homestead and orchards, and by being entitled to the right of transfer by sale and gift. Excepting the above, the descendants of your daughters, and the adopted sons, etc, in your family, your husband or his wife or the descendants born, of her womb or your daughter's husband, etc., or any other heir of any kind will have no right or title to this taluk...God forbid, if you or your heirs aforesaid be ever under the necessity of making a sale or giving in mortgage by way of conditional sale or of giving ijara of kaimi miras patta, etc, or of making transfer in any way of the whole or any portion of this taluk then you or they will have to sell the same to me or my heirs at the value of ten times the amount of the realisable rent that may remain after deducting the sadar rent or grant kaimi miras patta in respect thereof and if it be necessary, to give in mortgage by way of conditional sale or grant ijara patta, you will have to do it according to rule; but you will not be able to sell or transfer, as aforesaid, in any way, or mortgage by way of conditional sale or grant ijara or kaimi miras patta, to any other persons; if you or they door give, the same will be rejected. If I or my heir on being requested, fail to purchase, etc., as aforesaid, or do not take in mortgage by way of conditional sale or ijara or kaimi miras lease then you or your heirs, as aforesaid, will be able to put in a petition in Court, by mentioning the terms of this patta, and on the expiry of three months from the date of that petition, to sell or give in mortgage by conditional sale or grant ijara or kaimi miras patta, or transfer in any other way; to that no objection on my part or on the part of my heirs will avail. Further, if you or your heirs, as aforesaid, ever willingly give up your residence in Joydevpur, and, God forbid, if the particular heirs of you, whose rights hays been mentioned in the lands of this patta, cease to exist then the terms written in this patta will become inoperative and the taluk will revert to the right of me and my heirs. Finis. Dated the 23rd Falgoon 1283, B.S.'
4. It is argued on behalf of the appellants that the effect of the words in this document is that at best an absolute estate was given to Kripamoyee defeasible in the event of her dying without issue and in that event the property was to revert to the donor and his heirs. Reliance is placed in support of this contention on the case of Bhoobun Mohini Debia v. Hurrish Chunder Chowdhry 5 I.A. 138 : 4 C. 23 : 3 C.L.R. 339 : 3 Sar. P.C.J. 815 : 3 Suth. P.C.J. 537 : 2 Ind. Jur. 430 : 1 Shome. L.R. 241 : 2 Ind. Dec. (N.S.) 16 (P.C.), and it is contended that the words in the patta in the present case bear a close resemblance to the words in the sanad in the above case and the present patta should be construed in the same manner. I am always reluctant to construe a document with reference to authorities as to how a similar document was construed. The well known remarks of Sir G. Jeesel, M.R., may be referred to in this connection. Says the Matter of the Rolls--'I think it is the duty of a Judge to ascertain the construction of the instrument before him, and not to refer to the construction put by another Judge upon an instrument, perhaps similar, but not the same, The only result of referring to authorities for that purpose is confusion and error, in this way, that if you look at a similar instrument, and say that a certain construction was put upon it, and that it differs only to such a slight degree from the document before you, that you do not think the difference sufficient to alter the construction you miss the real point of the case, which is to ascertain the meaning of the instrument before you. It may be quite true that in your opinion the difference between the two instruments is not sufficient to alter the construction, but at the same time the Judge who decided on that other instrument may have thought that that very difference would be sufficient to talter the interpretation of that instrument. You have, in fact, no guide whatever; and the result especially in some cases of Wills, has been remarkable.' Aspden v. Seddon (1875) 10 Ch. 394 at p. 397n. : 44 L.J. Ch. 359 : 32 : L.T. 415 : 23 W.R. 580. I shall, therefore, endeavour to interpret the patta according to my own judgment.
5. Although by the use of the word 'patni' there was no grant in. this case of a patni taluk property so called there is no doubt that the donor meant to grant a permanent heritable lease at a fixed rent to Kripamoyee, and the use of the words 'patni talukdari palta, miras taluqdari patta, miras taluk, miras talukdari' in various portions of the document are quite apt to convey such a right. The grant of the interest was to her as malik and not to any other person designated after her death. It is not necessary to consider at present whether the restrictions on the right of alienation are valid or not. Nor is it necessary to consider whether the stipulation giving the right to purchase the lease-hold interest on cartain terms by the donor and his heirs offends against the rule against perpetuity. It may, however, be noticed that on the refusal of the donor or his heirs to purchase, the lessee and her heirs were entitled to transfer their interest to any person whatsoever. Evidently an estate of inheritance was conferred on Kripamoyee subject to certain restrictions as to the persons who would be entitled to inherit. The words 'your sons born of your womb, etc.', refer to succession to the property as also the prohibition clause commencing with 'Excepting the above, etc.' It seems to me clear that on a true construction of the grant the donor desired to give a permanent heritable right to his daughter Kripamoyee subject to certain restrictions on the course of succession which he desired should follow in a particular manner, with which I shall deal next.
6. The question then is whether the provisions as to succession are valid or not. The question depends on the true meaning of the clause relating to succession, whether the donor intended an indefinite failure of issue or failure of issue at the time of the death of Kripamoyee. If the words relate only to the time of the death of Kripamoyee then their effect would be to make the absolute estate defeasible in the event of failure of issue at that time The case would then fall under Soorjeemoney Dossee v. Denobundoo Mullik 9 M.I.A. 123 at p. 134 : 1 Sar. P.C.J. 837 : 19 E.R. 688, where the Will was held not to point to an indefinite failure of male issue. See also Bhooban Mohini Debia v. Hurrish Chunder Chowdhry 5 I.A. 138 : 4 C. 23 : 3 C.L.R. 339 : 3 Sar. P.C.J. 815 : 3 Suth. P.C.J. 537 : 2 Ind. Jur. 430 : 1 Shome. L.R. 241 : 2 Ind. Dec. (N.S.) 16 (P.C.). If the intention of the donor was to control the succession to the property for all time, then the question must be decided according to the observations of their Lordships in Jotendramohun Tagore v. Ganendromohun Tagore 1 A. Sup. Vol. 47 at p. 65 : 18 W.R. 359 : 9 B.L.R. 377 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.), Their Lordships say: 'A private individual, who attempts by gift or Will to make property inheritable otherwise than the law directs, is assuming to legislate, and that the gift must fail, and the inheritance take place as the law directs. This was well expressed by Lord Justice Turner in Soorjeemoney Dossee v. Denobundoo Mullick 6 M.I.A. 526 at p. 555 : 1 Ind. Jur. (N.S.) 37 : 4 W.R. P.C. 114 : 1 Boulr. Rep. 288 : 1 Suth. P.C.J. 291 : 1 Sar. P.C.J. 583 : 19 E.R. 198: 'A man cannot create a new form of estate or alter the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy'
7. 'Another general principle applicable to transfers by gift (more liberally applied in the Law of England to Wills than to gifts inter vivos) 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 t@ name or description, or in any other 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.
8. '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.'
9. In my opinion, the donor in this case desired to grant an estate of inheritance to Kripamoyee but directed that, the succession should take place in a specified manner. It was not limited to what should happen at the death of Kripamoyee but gave directions for an indefinite period of time, or, in other words, he intended to alter the rule of succession under the Hindu Law, This, the donor had no power to do, and those provisions are, therefore, void. As their Lordships observed in Purna Sashi Battacharji v. Kalidhan Rai 11 Ind. Cas. 412 : 38 I.A. 112 at p. 120 : 15 C.W.N. 693 : 8 A.L.J. 681 : 13 Bom. L.R. 451 : 14 C.L.J. 1 : (1911) 2 M.W.N. 403 : 38 C. 603 : 10 M.L.T. 361 : 21 M.L.J. 1119 (P.C.). 'If the attempt to interfere with the course of descent according to law is to be regarded as a condition of defeasance, it was applicable not merely to the case of Ananda, but to the case of every male descendant who happened to leave no male issue; and its application might have been postponed for an indefinite period. Their Lordships are not aware of any authority to warrant such a provision.'
10. In my judgment the limitation as to the right of succession to the property is void but the grant to Kripamoyee being one of inheritance she got an absolute title as a permanent tenure-holder and was entitled to deal with the property as she liked. The estate did not revert to the dunor or his heirs after Kriparnoyee's death and, therefore, assuming that the plaintiffs are heirs of Raja Kali Narayan they are not entitled to the property. In the view I have taken it is not necessary to express an opinion on the question whether a defeasance clause and a right off re-entry of the lessor provided in a lease may or may not be void for remoteness, as in this case I think the defeasance clause is void being contrary to the general law of inheritance.
11. The result is that this appeal will stand dismissed with costs, to be divided equally among the different sets of respondents appearing in this Court.
12. I agree.