Full Judgment
Andrew Scoble, J.
1. Hurry Dass Dutt, a Hindu inhabitant of Calcutta, died on the 30th October 1875, leaving a will which was admitted to probate by the High Court on the 20th December in the same year. The will was in the English language, and was probably drawn by an English solicitor, who is one of the attesting witnesses.
2. The only question raised upon this appeal is as to the nature of the estate which, in the events 'which have happened, the testator's daughters take under the terms of the will,
3. The clause of the will relating to the daughters is as follows :
But in case none of such adopted sons survive my said wife or in case of either surviving my said wife and dying under the said age without leaving a son or sons, I desire and direct my executors, after the death of my said wife, or the death of such son after her, but under the age of eighteen years without leaving a son or sons, to make over and divide the whole of my estate, both real and personal, unto and between my daughters in equal shares, to whom and their respective sons I give, devise and bequeath the same, but should either of my said daughters die without leaving any male issue surviving, but leaving my other daughter her surviving, then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter, or in the case of the death of either daughter leaving sons, the share of such daughter is to be paid to such her son or sons, share and share alike.
4. Woodroffe J. by whom the case was heard in the first instance, held that the intention of the testator was 'to benefit the adopted son, and should the provisions (of the will) in this respect in any manner fail, then those who were of his own blood, viz., his daughters; ' that the words ' and their respective sons ' are used as words of limitation and not of purchase; and that upon the true construction of the will, the daughters were ' each entitled to a moiety of the estate of the testator absolutely.' He expressed no opinion, however, as to the right of the parties in, the event of the death of one of the daughters leaving no natural son her surviving. Upon appeal to the High Court his judgment, upon these points, was confirmed.
5. With great respect for the learned Judges in the Courts below, their Lordships are unable to concur with their decision. This is the will of a Hindu, and as observed by this Committee in the case of Mahomed Shumsool v. Shewukram , ' in construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.' In spite of the assistance of his English solicitor, it appears to their Lordships that in this case the testator has clearly succeeded in showing that his daughters, whom he incontestable intended to benefit, were not to have more than that is generally known to be a woman's estate in his property. This is established by the gift to them 'and their respective sons' and by the proviso that in the event of one of the daughters dying ''without leaving any male issue surviving,' then the share of the deceased daughter is to go to the surviving daughter and her sons, to the exclusion in both cases of female issue. Moreover, ' in the case of the death of either daughter leaving sons, the share of such daughter is to be paid to such her son or sons share and share alike.' No language could more clearly show that the intention of the testator was to exclude his daughters' daughters from the succession, to which they would have been entitled under the ordinary Hindu law. if their mother's estate had been absolute; and the reason of this is obvious, as the sons of his daughters would be competent to offer funeral oblations to him the strongest of all possible arguments to an orthodox Hindu.
6. The learned Counsel for the respondents strongly relied on Section 82 of the Indian Succession Act, 1865, which provides that 'where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.' As already pointed out, it is abundantly clear that, under the terms of the will, only a restricted interest was intended to pass to a daughter dying without male issue.
7. In the opinion of their Lordships, according to the true construction of the will, the intention of the testator was to create in favour of his daughters an estate for life with a remainder over to their sons, and the learned Judges of the High Court ought to have held that, in the events that have happened, the daughters of the testator, Ranimoni Dassi and Premmoni Dassi, are entitled to the testator's estate in equal shares for life and with benefit of survivorship between themselves. They will humbly advise His Majesty that this appeal ought to be allowed and the decree of the High Court varied in accordance with this judgment, and that in other respects the decree ought to be affirmed. Under the circumstances, the costs of the appeal, tax as between solicitor and client, must be paid out of the estate.