(1.) The question at issue on this appeal is concerned with the ultimate destination of the share of his residuary estate given by a Hindu testator to the elder of two sons who survived him. Did the share, on the death of that elder son without male issue, pass under a gift over to the younger son, or has it, as the absolute property of the deceased under the original gift to him in the will, devolved upon his widow, the appellant, sole heiress in his intestacy? The question is one of construction upon which the two Courts in India are not in accord, and when regard is had to the looseness of the phraseology adopted passim in the will by the testator or his draftsman it must be felt that its true meaning raises issues upon which there is ample room for divergence of view. It is comparatively easy to determine what this Indian testator meant to say. The difficulty is to be satisfied judicially that in his English language has succeeded in saying it. The testator, one Romanath Ghose was a Calcutta Hindu, governed by the Bengal School of Hindu law. He died on 26 July 1904. He was survived by his widow and by two sons, Sidishwar Ghose and Akhoy Kumar Ghose, both of them, at his death, infants of tender years. It is not clear on the record whether or not he was actually survived by a daughter. But the true position in that matter, whatever it may have been would not affect construction, and it is not otherwise here important. The testator had certainly a daughter at some time. One of his executors is described as his son-in-law. And in his will, as we shall see, he clearly contemplates the possibility that both daughters and granddaughters may survive him. But apart from a small sum for her marriage ceremony, the testator makes no testamentary provision for any daughter or granddaughter-a circumstance indicative of an attitude to female descendants which, as will be seen, is characteristic.
(2.) The will is dated 30 October 1903. By it the testator appoints as his executors and trustees, his widow and her brother, his own son-in-law, another named person and such and so many of his sons attaining the age of 23 years as shall be orthodox Hindus of good repute. He defines in Cl.2 the conditions which qualify for that description when it is used in his will, as it quite frequently is. He directs and authorizes his executors and trustees to expend upon his first and subsequently remaining annual shradhs and upon the funeral and subsequently remaining annual shradhs of his wife sums of prescribed amounts without in this instance indicating the source from which these sums are to come. He directs his executors and trustees "from and out of the income of (his) estate" to pay to his wife if she continues to be an orthodox Hindu of good repute an annuity for her life and also to defray the sums not exceeding a prescribed amount required for her pilgrimages and religious expenses and ceremonies from time to time. He directs and authorizes his executors and trustees "out of the income of (his) estate" to pay an annuity to his mother for the term of her natural life. She is also to be entitled to reside in his dwelling house at Benares whenever she wishes to do so. He directs and authorises his executors and trustees "from. and out of (his) estate" to expend the sum of Rs.10,000 on the occasion of the marriage of each of his sons and daughters unmarried at the time of his death. And by Cl.12 he directs and authorizes his executors and trustees to pay a large number of pecuniary legacies and annuities" out of (his) estate," two of which are now transcribed because reference will later be made to their phraseology: " (i) A sum of rupees two thousand to each of my grandsons by daughter, namely, rupees one thousand at the time of their marriage. " (j) A sum of rupees one thousand to each of my granddaughters by daughter at the time of their marriage." Clause 14 is the clause of the will directly relevant to the question at issue. It is convenient to set it forth textually, together with Cls. 10 and 11, which are also in point, if less immediately so. 10. My estate shall not be partitioned until the youngest of my sons shall attain the age of twenty-five years, but my said sons shall be properly maintained and educated out of the income of my estate. If any of my sons try to effect a partition before the time aforesaid he shall forfeit a fourth part of his legal share. "11. In case I die without any son or grandson by son my widow shall be entitled to adopt three sons in succession, and I do hereby grant her the requisite permission to do so. "14. Subject to the payments of the legacies and annuities aforesaid (the latter unless otherwise expressly provided being payable during the terms of the natural lives of the annuitants) as well as to the provisions hereinbefore mentioned. I devise and bequeath the whole of my estate real or personal of any kind or description whatsoever and wheresoever situated to my said executors and trustees in trust for such of my sons as shall be living at my death or come into existence within twelve months after my death and also for the son or sons of such of my sons as shall then be dead (such son or sons taking the share their or his father would have taken hereunder had they or he been then alive) provided the said sons or son's sons shall be orthodox Hindus of good repute equally as tenants-in-common and the said sons or sons of my sons taking equally per stirpes as tenants in-common, but nevertheless in the event of any sons or son's sons dying without leaving lineal male issue him surviving the other of my son or sons or son's sons living at the time shall be equally entitled to his or their share of the property as he or they would inherit under the Hindu law, but should I die without lineal male descendants the son or sons to be adopted by my wife small inherit the whole of my residuary estate, but he shall not be put in possession until he attains the age of 21 years, and should any of my heirs or residuary legatees cause to be orthodox Hindus of good repute he shall forfeit a moiety of his share, which shall go to my other qualified heirs according to their respective shares."
(3.) The will very plainly is the work of a draftsman whose knowledge of the niceties of English is imperfect. In not a few instances a strictly literal construction of the words used would lead to a result possibly of zero, certainly incomplete and that, although the meaning intended is not obscure. For instance, the use of the word "namely" in Cl. 12 (i) produces a result unintelligible, were construction there not assisted by contrasting the sub-section with sub.S. (j) which immediately follows it. More particularly however is the lapse from accuracy of statement or reference to be found in Cl.14, and almost from the beginning to the end of that clause. Three things however may be said of the will, reading it as a whole.