Cally Nath Naugh Chowdhry vs Chunder Nath Naugh Chowdhry And … on 20 February, 1882

Calcutta High Court
Cally Nath Naugh Chowdhry vs Chunder Nath Naugh Chowdhry And … on 20 February, 1882
Equivalent citations: (1882) ILR 8 Cal 378
Author: Pontifex
Bench: R Garth, Pontifex


Pontifex, J.

1. We are of opinion that the decision of the Court below is a correct decision, and that the testator’s will contains a sufficiently clear gift to his grandsons living at his own decease.

2. It is true that the testator endeavours to postpone the possessory enjoyment of his grandsons to a period of at least five years from his death; and that he directs an accumulation of the profits of his estate for a very, much longer period. But his will containing, as in our opinion it does, sufficiently direct words of present gift, the clauses in it which attempt to postpone the enjoyment in possession, and to direct accumulation, must be rejected or disregarded as inconsistent or repugnant.

3. The fact that the estate is subjected to trusts or charges for partial purposes, such as the raising and payment of Rs. 400 per mensem for the maintenance of certain members of the testator’s family; the substitution at the end of five years of a life-interest in a certain portion of the estate for the claim of one of the testator’s sons to maintenance out of Rs. 400 per mensem, and the charges for marriage expenses of other members of the family;–this fact does not, in our opinion, postpone the vesting in possession, nor would it, even under English law, let in grandsons of the testator born after his death and during the continuance of those trusts or charges–Singleton v. Gilbert 1 Cox. Ch. 68 and Hill v. Chapman 3 Bro. Ch. Cas. 390. And reasonable as it no doubt was for English Courts to relax the general rule, which requires that a class of legatees must be in existence at the death of the testator, by putting such a construction on bequests to a class of kindred, as would admit or let in all born before the period of distribution, it would certainly not be reasonable in the construction of Hindu wills to make such a departure from the general rule, if, as I understand the law, it is not even now possible for a Hindu to make a gift by will to a person unborn at his death, because the result would be that the gift would be invalid ab initio from the possibility of its including persons unborn at the testator’s decease Sowdaminey Dossee v. Jogesh Chunder Butt I.L.R. 2 Cal. 262.

4. And this leads me to offer some observations on the Hindu Wills Act, and the case of Alangamanjori Dabee v. Sonamoni Dabee; Ante p. 157; S. c. 9 C.L.R. 121 decided therein.

5. On the argument of the present appeal before us, that case, and the construction which it put upon the Hindu Wills Act, were relied upon by counsel for the grandsons in aid of their contention that there was a valid gift to the grandsons.

6. In our opinion, as I have already said, the grandsons are entitled irrespective of the Hindu Wills Act and the construction so put upon it. For the decision of the present case therefore it is not necessary for us to express our opinion on the authority of the case cited. But as Counsel addressed a considerable part of their argument to that case, and as I may not again have an opportunity of expressing my individual opinion upon it, I do not like leaving it without remark, though of course any remarks I make must be treated as extra-judicial, and as only the personal opinion of myself.

7. In the first place I agree with the learned Judge that, in construing the Hindu Wills Act, we are not at liberty to go behind it and enquire what were the motives for its introduction; and after the ruling of the learned Judge to that effect, it would perhaps have been better if the extract from the Calcutta Gazette had not been stated in the Report (p. 127 of 9 C.L.R.). But it does not appear whether Section 3 of the Hindu Wills Act was inserted before or after the report of the Select Committee, and it seems to me impossible for us to dive into the mind of each member of the majority who passed the Act; and it may well be that a silent member, differing from the motives expressed by the member who introduced the Act, might have considered, as I myself consider, that Section 3 sufficiently neutralized the view to which he himself might be opposed.

8. I also of course agree with the learned Judge that it is a “settled canon of construction that a Statute ought to be so construed that if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” But can the Hindu Wills Act standing alone be called a Statute within the meaning of that canon? It is not even a skeleton of a Statute, but a mere heap of inarticulate dry bones, which require to be set up and clothed with the flesh of the Succession Act, before the Act itself can give forth any sound. Its preamble gives no intimation that it was expedient to give enlarged powers over their estates to Hindu testators. On the contrary, it was a restricting rather than an enabling Act. It does not apply to Hindus in the Madras and Bombay Presidencies outside the Presidency-towns, or to the inhabitants of the North-Western Provinces or the Punjab. It is scarcely likely therefore that the Legislature could have intended to make any radical alteration in Hindu law. It is not even called “an Act to amend and define the law of Hindu Testamentary Succession,” but simply “an Act to regulate the Wills of Hindus.”

9. It seems to me, therefore, that, in setting up and clothing each dry bone of the inarticulate bundle contained in Section 2 of the Hindu Wills Act, we must add, either at the beginning or end of each section introduced from the Succession Act, the proviso or qualification contained in Section 3 of the Hindu Wills Act.

10. If placed at the end of the exceptions to Sections 98 and 99, or to the end of Sections 100 and 101, it would certainly, according to the Privy Council decision in the Tagore case 9 B.L.R., 377, make them imperative so far as Hindus are concerned. But at the time the Act was passed the Legislature was not instructed as to this, for the legal powers of devise among Hindus were still in doubt, not having been defined by the final Court of appeal.

11. From the state of doubt in which the uninstructed Legislature acted, it seems to me that it would be more reasonable to read the qualification contained in Section 3 at the beginning of each of the exceptions to Sections 98 and 99, and at the beginning of Sections 100 and 101: which would then run thus: “Subject to the qualification that no Hindu is hereby authorised to create in property any interest which he could not have created before the 1st of September 1870, if property is bequeathed to a class of persons, &c.” (exception to Section 98); or in other words (taking Section 100): “If a Hindu can make a bequest to a person not in existence, then where a bequest is so made, &c.” And for all I know this might still leave the sections operative so far as Sikhs or Bhuddists are concerned. And for all the Legislature knew at the time, it might have left the sections operative even with respect to Hindus.

12. Besides, if the intention of the Legislature is to be considered–and in this respect I think it may be considered–regard must be had to the fact that the Legislature has always been careful not to make any alteration in the substantive law of property of Hindus.

13. Moreover, these sections of the Succession Act, taken together, have in that Act, or were at all events intended to have, a seriously restrictive effect, making the law in India with respect to Europeans far more stringent than theretofore. It would certainly be a most singular result of legislation if that which was originally intended to operate as a restriction should, under the very unsatisfactory method of legislation employed in the Hindu Wills Act, not only operate to create a power new and therefore unknown, but also to subvert what is recognized by their Lordships of the Privy Council as a fundamental principle of Hindu law. It surely could never have been the intention of the Legislature to make such a radical change in the law.

14. The difficulty really arises from what I may perhaps call the spasmodic method of legislation. If the Succession Act had, from its commencement, applied to all the inhabitants of British India, but had concluded with Section 3 of the Hindu Wills Act, could it then have been contended that Sections 98 to 101 were applicable to Hindus. These sections would have been operative with respect to Europeans, and there would have been no absurdity in excepting Hindus from their operation. No word in them would then have been superfluous, void or insignificant.

15. And is not this the way in which we ought to regard the legislation under the two Acts? By Section 331 of the Succession Act Hindus were excluded from its operation. The Hindu Wills Act is, so far as our present purpose is concerned, merely a repeal of that section with the super-addition of Section 3 of the Hindu Wills Act. If the Succession Act had not contained Section 331, and had contained Section 3 of the Hindu Wills Act, it would have been necessary to seek for a refined or non-natural interpretation of the words “create in property any interest” contained in Section 3.

16. I repeat that it is in my opinion only the method of legislation which creates the difficulty. It seems to me that the two Acts should be read together as one Act, applicable to all classes–Europeans, Hindus, Sikhs, Buddhists, &c. And then Section 3 of the Hindu Wills Act would receive a natural interpretation corresponding to that which would be placed on Section 149 of Act V of 1881, which last section shows the intention of the Legislature in an Act of similar character.

17. Indeed the very language of the last clause of Section 3 of the Hindu Wills Act betrays an alarmed consciousness in the Legislature, that through oversight or ignorance some provision which they had attempted to enact might be repugnant to Hindu law; and if we are to search for the particular provisions to which such fear may relate, I should, as at present advised, find them in Sections 98 to 101; for, after an examination of all the sections imported into the Hindu Wills Act from the Succession Act, I confess I am unable to find any which purport to create an estate of a character unknown to Hindu law, and to which the remarks, under the second head mentioned at p. 132-3 of 9 Calcutta Law Reports, might relate; and therefore I am unable to agree that the words “create any interest” in Section 3 can be “read in the narrower sense” as referring only to the estate or interest which can be given, without reference to the further question to whom it can be given. For, if so read with respect to this particular Hindu Wills Act, it appears to me that they would have no operation whatever, but would be mere surplusage, and would thus offend against the very canon of construction already referred to.

18. But apart from these remarks upon the Hindu Wills Act and the case cited, which I wish it to be known are remarks of myself alone, we affirm the decree of the lower Court, holding that the grandsons living at the testator’s death are entitled, subject only to such interests and charges created by the will as are legal and capable of taking effect.

19. But we think, in a case of this kind, depending as it does on the construction of an obscurely worded will, the costs both in the Court below and in this Court should be borne by the estate.

20. With this modification we dismiss the appeal, and direct that the costs of all parties in both Courts shall be paid out of the estate.

Richard Garth, C.J.

21. I agree that the appeal must be dismissed, apart from any question arising under the Hindu Wills Act. With respect to the case of Alangamanjori Dabee v. Sonamoni Dabee; Ante p. 157; S.C. 9 C.L.R. 121 I at present express no opinion, as very possibly that case may come up on appeal to this Court.

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