JUDGMENT
Jackson, J.
1. Before disposing seriatim of the several appeals, it may be convenient to state our opinion of what the testator intended by his will to effect.
2. When Behari Lall made the will in question, he was a man scarcely past the prime of life, quite capable of having further issue, but for the moment having no living child, nor any living descendant except a daughter’s daughter of very tender years.
3. If he then died intestate, his estate would go to his widow, and on her death, his daughter’s daughter would not take, but his brother Roop Lall if then living would be the heir. This he was determined to prevent by the exercise of testamentary power.
4. In carrying out this purpose, he provided firstly for the possible case of issue being born to himself.
5. In that event, he directed that such sons, sons’s sons, or son’s grandsons surviving him, should take according to Hindu law (cls. 2 and 4).
6. On failure of them, he directed that his wife should take according to Hindu law and enjoy the profits for life (cl. 5).
7. If daughters should be born, they, or on their death, their sons were to take, after the death of the widow, according to Hindu law (cl. 6).
8. Here on failure of the heirs above-mentioned, the brother, if he survived, would have come in, had the testator so willed, according to Hindu law, the daughter’s daughter being no heir but a stranger.
9. But at this point the testator interposes his will, and directs that the estate., shall go especially to his daughter’s daughter Hori Dasi Dabi, the disposition being literally in these terms:
10. Sreemutty Hori Dasi Dabi shall be owner of my property, and without dispute shall enjoy and possess the same to her sons and son’s sons in succession” (cl. 7).
11. If, however (at the death of the widow), Hori Dasi should be barren, or a widow with no living son (avira), or otherwise disqualified (referring evidently to the circumstances in which a daughter would not take by the Hindu law) she was not to become the owner, but was to receive Rs. 300 per mensem for her life (cl 9).
12. In the event of the failure of heirs previously mentioned, and of the disqualification of Hori Dasi, the whole of the property was to pass to the Government for charitable purposes (cl. 20).
13. The District Judge, upon the 7th clause above referred to, says, that he finds “no difficulty in giving effect to the succession of Hori Dasi under ‘the will’ (page 31)”; and a little lower down he says: “it seems, however, to have been the intention of the testator that Hori Dasi should have only a life-interest in his estate, for he sets forth in his will that she shall at her death transmit the estate to her descendants, puttro poutradi being the expression used. This term, in my opinion, refers to male descendants, and in thus attempting to regulate the succession, it appears to me that the will is bad, and opposed to the rule laid down in the Tagore case. This provision is, therefore, of no effect and void”.
14. Having decided as to that point, he proceeds to consider the effect of Clause 20, and having set out the terms of it, he says: “That is to say, that in the event of failure of any male heir to whom Hori is to transmit the estate at her death, the Government is to become the trustee for certain charitable purposes. Inasmuch, however, as it has been held that the will so far as it goes beyond the gift of the life-interest to Hori Dasi is bad, this further provision is also null and void”.
15. Now, in the first place, the Government was not to take only or at all, in the event of failure of any male heir of Hori, but in certain circumstances, was to take instead of her. There is no direction whatever that the Government should take on failure of Hori Dasi’s line, but only that the estate should go to Government in the event of her being disqualified. The words of the original literally mean, as we understand them: “If no son or daughter be born to me, and, if my daughter’s daughter’s (i.e., Hori Dasi’s) decease occurs before she brings forth a son, or she be (when the succession falls in) barren (avira), or otherwise disqualified, then my whole estate shall go to the Government”. The words in parenthesis are not in the original, but we consider them to be meant, because this view harmonizes with the 9th clause; the word become, which the translation in the paper book contains, is not used, and we see no reason to suppose that Behari Lall, who in general desired to follow the law, would have departed from the established rule as to a daughter, that an inheritance once vested would not be afterwards divested by reason of her becoming avira, or otherwise.
16. The only case not clearly provided for in the will seems to be this–If Hori Dasi had a son who survived her, but herself died before the widow, was it intended that the Government should take, or was that son to take. On the one hand, neither of the further events contemplated in the 20th clause would have arisen, i. e., Hori Dasi would not have died without giving birth to a son, nor would she be disqualified at the death of the widow, unless we say that death itself is included in disqualification: nor, on the other hand, could Hori Dasi’s son easily succeed, being a stranger, and not provided for in the will.
17. But we need not occupy ourselves with a case not before us.
18. We have stated our impression as to what Behari Lall intended, and we proceed to consider whether effect can be given to his intentions, and whether the Court below has decided correctly.
19. We dissent entirely from the learned Judge when he holds that the words puttro poutradi krame denote an attempt to limit the succession to Hori Dasi’s male descendants in any manner opposed to the decision in the Tagore Will case [Tagore v. Tagore (9 B.L.R., 377)]; the devise and bequest to her are contained in the words adhikarini hoibek, and the words added are merely usual words implying an absolute and heritable estate. If these words are to be interpreted in the sense applied to them by the Judge, very few grants in the Bengali language could stand, because the formula is one constantly used to show that the estate is to go beyond the life, and in this particular case, the significance of it appears on comparison between the devise to Hori Dasi with that to the wife. Of the latter it is said: She shall become owner according to the shastras, and shall enjoy the profits for her life. Of Hori Dasi, it is said she shall become the owner and shall enjoy it to her latest posterity, i.e., for ever.
20. Puttro and poutro, no doubt, mean son and son’s son, but these two persons are always the first in the category of heirs, and, therefore, puttro poutradi may well be taken to mean heirs generally. Indeed the Judge’s construction was not supported in this Court by Mr. Montriou.
21. The facts of the Tagore case, well summarized by Mr. Mayne in his exceedingly valuable work–“Hindu Law and Usage”–were as different from those of the present case as it is possible to conceive. In that case the testator contemplated not merely the disinheriting of his son, but the creation of a highly complex and artificial system of succession, embracing a number of persons not in being and who very probably might never exist. In fact, he sought to create a “kind of estate-tail” wholly unknown and repugnant to Hindu law.
22. In the case before us, the testator after giving the widow’s (or life) estate to his wife, gave the reversion to another person then in being, though not in the line of succession. Thus far it is clear he could go. The Judicial Committee in Sreemutty Soorjeemonee Dossee v. Denobundoo Mullick (9 Moo. I.A., 135), say, “whatever may have formerly been considered the state of that law as to the testamentary power of Hindus over their property, that power has now long been recognized, and must be considered as completely established. This being so, we are to say whether there is anything against public convenience, anything generally mischievous, or anything against the general principles of Hindu law in allowing a testator to give property, whether by way of remainder or by way of executory bequest (to borrow terms from the law of England), upon an event which is to happen, if at all, immediately on the close of a life in being. Their Lordships think that there is not, that there would be great general inconvenience and public mischief in denying such a power, and that it is their duty to advise Her Majesty that such a power does exist”. Mr. Montriou, however, contends that this bequest is bad, not by reason of the alleged limitation to male heirs, but because it is imperfect and invalid as a gift, and is not in truth a gift at all, but an ineffectual attempt to alter the rule of succession and convert a stranger into an heir.
23. There was some discussion at the bar as to whether this was a gift subject to be divested or a gift burthened with conditions. We have already intimated our opinion that it was not Behari Lall’s intention that the estate once vesting should afterwards be divested. Is the gift then subject to conditions, or in other words, subject to the donee having fulfilled, or being in a condition to fulfil, certain qualifications repugnant to Hindu law? We think not.
24. Mr. Montriou with the assent of opposing counsel put in, as part of his argument, a printed paper said to be the composition of a native gentleman learned in the shastras.
25. I confess that it seems to me to be among the advantages for which the people of this country have in these days to be thankful, that their legal controversies, the determination of their rights, and their status have passed into the domain of lawyers, instead of pundits and casuists, and in my opinion the case before us may very well be decided on the authority of cases, without following Sreenath, Achyutanund, and others through the mazes of their speculations on the origin and theory of gift.
26. But viewed merely as a case of gift interpreted by such light as those commentators afford, it seems to me that Hori Dasi’s position may be perfectly well supported.
27. The owner Behari Lall having to dispose of the ownership of this property for all time, bestowed it in two parts–on his widow for her own life and on Hori Dasi thereafter, provided that she answered certain stipulations, and if not, on the Government. Now, it might be uncertain, during the continuance of the widow’s life-estate, whether Hori Dasi would answer the conditions or not, but the uncertainty would be unimportant, because the ownership would be for the time in the widow. At her death, the ownership would have to vest in some one, but at that moment there need be no uncertainty whether Hori Dasi was within the prescribed conditions; if she was, she would take; if not, then the other person indicated, namely, the Government of whom there is never a failure, would take. But, moreover, the conditions themselves, far from being repugnant to Hindu law, are in entire accord with it, being in fact those which that law itself expressly imposes on a daughter, and which are not laid down as to the daughter’s daughter only because the law does not make her an heir. But now that the power of disposing of property by will, founded on established custom, recognized first by judicial authority and since by legislation, enables a Hindu to bequeath his property to a person whom the shastras would not have made his heir, surely the bequest cannot be the worse because the testator in elevating the taker to the position which her mother would have occupied, if she had lived, imposes the same qualifications as the shastras would have imposed on the mother.
28. This view of the matter coincides with the rule as laid down in Mr. Manye’s work already referred to (page 340, Section 350), and seems to us reasonable and right. The conditions imposed are neither in violation of the fundamental principles of the Hindu law, nor inconsistent with the nature of the estate given.
29. We see no indication of a desire to introduce a new principle or rule of succession, but, on the contrary, the testator’s desire being to benefit a particular person, depriving another, he sought to assimilate the position of the person preferred as closely as possible to that of the person through whom, if she had survived, the desired object would have been effected.
30. We think, therefore, that Behari Lall’s intention was to confer on Hori Dasi, if she lived and was qualified, an absolute estate, and that this object has been effectuated; and we also think that the gift over to the Government in case of Hori Dasi not surviving or being disqualified, is perfectly good and valid.
31. We have next to consider the Judge’s order touching the trust fund, and we find that the District Judge, without assigning any reason for it, has directed the Collector to be trustee for the carrying out of the charitable purposes specified in the 13th and following clauses of the will. On the other hand, he has refused to frame any scheme for the administration of the trust. This is simply to deprive the persons who may be supposed to have a personal interest in carrying out the wishes of the testator, without any misconduct imputed to them, and to place the trust in the hands of a public servant who can have little leisure to attend to it without the protection of any rules framed for his guidance. We can see nothing in the conduct of the widow which proves her to be undeserving of confidence, and with reference to any supposed general want of capacity for such business on the part of females, we observe that provision has been made by the husband, who has associated with her two persons whom he considered capable.
32. We think this part of the Judge’s order should be set aside, that a scheme should be framed for the administration of the trust, that the management should be entrusted to the widow assisted by the persons named and with a power of inspection reserved to the Collector.
33. It was contended by Mr. Montriou, that making a declaration as to the rights of parties in such a case as the present was in the discretion of the Court, and that we should not make such declaration where the obvious intention of the testator was to defeat the rules of succession. We see, however, nothing in the will beyond a simple and valid exercise of testamentary power, and we think the case a proper one for a declaratory decree.
34. Finally as to costs, one or two questions have arisen, first as to the costs of Roop Lall, which, together with all the other costs, the Court below has ordered to be paid out of the estate.
35. The attitude of Roop Lall has been hostile throughout. He has not merely impugned the validity, but even affirmed the spuriousness of the will, and this on two distinct occasions, in the Court below.
36. It is said on his behalf that he was entitled to have the will which disinherited him proved “in solemn form”, and that it was right his costs should come out of the estate.
37. Now, although the objector could not in any view of the case have been, entitled to inherit immediately, although the widow’s life was probably at least as good as his, and he might, therefore, have never been entitled at all, yet as he and his brother were not on good terms, and he might have no knowledge of the facts, he would be quite justified in having evidence gone into as to the factum of the will. But this was actually done in the certificate proceedings. The will was keenly contested there, and the Judge decided in favour of its authenticity. The evidence showed the will to have been deposited in the Burdwan Registry office by Behari Lall in person. It is impossible to believe that after this Roop Lall can have doubted in good faith whether the will was his brother’s. Assuming then that he knew it was really his brother’s will, he chose to come into Court and attempted to upset the will on the ground of its being in officious and contrary to Hindu law. In doing this, he took his chance like any ordinary litigant, and we cannot see that he can expect any other fortune.
38. Oddly enough in the certificate case the petitioner (widow) recovered costs from him, the pleader’s fee being fixed at Rs. 80. In these proceedings, where so far as these two properties are concerned, precisely the same question is raised, and his position very little improved, he is allowed his costs including a vakil’s fee of Rs. 2,800.
39. We think that he should be left to pay his own costs of opposition. But that the costs of other parties should, as ordered by the Court below, come out of the estate.
40. The Advocate-General has applied for the costs of employing counsel (Mr. Ingram) to watch the case in the Hooghly Court on the ground, as we understand, that Roop Lall having insisted that the Advocate-General should be a party, as the Attorney-General would be in England, it was necessary to employ some person who could argue that part of the case. We think there is some force in this. The contention on the part of Roop Lall seems to us to have been an extraordinary one, for we may confidently say that the appearance of the Advocate-General as a party has been unknown in the mofussil Courts. The application was one with which a mofussil pleader could hardly have been qualified to deal, and we think that a fee not exceeding Rs. 1,000 might have been allowed for instructing and retaining Mr. Ingram.
41. We shall, therefore, vary the decree of the Court below by making a declaration as to the rights of parties in conformity with what has been said. We shall set aside the appointment of the Collector as trustee, and we shall refer it; to the District Court to frame a proper scheme for the administration of the trusts by the widow for her life, subject of course to removal in case of misconduct or negligence, and subject to inspection by the Collector. We shall also reverse so much of the decree as enables Roop Lall to recover his costs out of the estate.
42. We are unable to understand why precisely equal costs are allowed to the widow and Moni Lall (guardian of the minor), on whom the brunt of the suit fell, and to Rakhal Dass and Seetanath, who were added as parties, but had no interest in the matter, and who took care to tell the Court so. But there is no appeal before us on this point.
