SHER BAHADUR Vs. GANGA BAKHSH SIHGH

JUDGEMENT

(1.) The question in this appeal was as to the construction of a codicil to the will of the Into Maharaja of Balrampur who was a Hindu of the caste, by which he purported to make provision for J. B. his son by a Muhammadan mistress, who, as held by the Courts below, was by birth a Muhammadan, He afterwards, however, became as far as was possible a Hindu. The appellant (plaintiff) was the eldest son of J. B. by a Muhammadan woman, and the second, third and fourth respondents were his brothers, and there were concurrent findings of both Courts in India that there was no valid marriage between J. B. and their mother and that they wore consequently illegitimate. The first respondent was the son of J. B. by a Hindu lady of the caste with whom he had admit tadly gone through a marriage according to the strict Hindu rites; and when that lady died his father got him married to another lady of the same caste. On the death of J. B. in 1899 the first respondent obtained possession of the property in suit, and the appellant sued for it, the question being whether the appellant was an "issue" of J. B. within the meaning of the word "aulad "as used in the codicil, and as such on titled to inherit J. B s property. The first respondent contended that the appellant being illegitimate could not take under the terms of the codicil; that J. B. had been a Hindu from his boyhood to his death, and that he (the first respondent) being the only son o? the first Hindu marriage which was a valid one, was the heir of his father, and, on the true construction of the codicil, on titled to the property in suit. By the codicil, dated the 15th of March, 1873, the testator, after reciting that his son J. B. "being not born of Khas Mahal, was not capable of the gaddinaslnni and the proprietorship of the riasat continued: "But he also being born of my loins it is incumbent on me that such means be provided as would enable him and his issue (aulad) to support themselves well and with respect".... Accordingly the settlement is made as follows: "Rs. 4,000 per mensem, or Rs. 48,000 per annum" (the income derived from certain village named) shall be continued to be paid by the proprietor of the riasat, the locum tenens of the gaddinashin for the time being, and that amount shall be paid to J. B. and his issue (aulad) for generation after generation so long as the family (khandan) of J. B. and his issue (aulad) remain ia existence...(3) for his life-time J. B, has a right to spend their money, but after his death from among his issue (aulad) one person (jisko haq pahunchta hows), to whom the right may go, shall be considered proprietor of this maintenance allowance, without division, as a rais. The other issue of the family of J. B. shall be entitled to get food, raiment and other necessaries out of the monthly allowance. (4) When there remains no descendant of the family of J. B. at any time the monthly allowance of Rs. 4,000 will be resumed and remain in proprietary possession of the proprietor of the riasat, the gaddinashin" The Court of the Judicial Commissioner held that "aulad" prime facie meant legitimate issue, and dismissed the suit.

(2.) Held (upholding that decision) that the case was not one where a gift is made by will of the corpus of a fund or a life interest in a fund to tha " children " of the testator, or of another, as class. There might be good reason in soma such cases for holding that in India the word " children " includes illegitimate children. But here a succession of life interests from generation to generation is intended to be set up, the successor, or proprietor, in each instance being vested with an absolute control of the income subject only to the duty of maintaining the the issue (aulad) of the family (khandan) of the first proprietor J. B. There was nothing on the face of the codicil to suggest that a meaning should be given to the word " aulad " different from its prima facie meaning. To include illegitimate issue would bring into the has of succession not only the testator s illegitimate grand- children, but their illegitimate issue from generation to generation. Such a construction would render condition No. 4 rather unnecessary and would also defeat the whole purpose and object of the testator in establishing the succession of life interests. Nor was there any reason for extending the meaning of the word " khandan," which ordinarily refers to the group of descendants who constitute the family of the proprietor, so as to include illegitimate offspring, who from the necessities of the case cannot share in the family life or its worship or ceremonials.

(3.) Held also, that the fair result of the evidence was that J. B. did his utmost to become an orthodox Hindu, and to pass as such in the society in which he lived, and that his father from the boy s youth upwards aided and encouraged him in those efforts. The testators treated his marriages with the two ladies as lawful marriages, and desired that others should so treat them, and consequently resolved to regard and treat the offspring of those unions as legitimate, and desired that they should be so treated and regarded by others; and that it was in this frame of mind he made the testamentary disposition in dispute. Having regard to all the evidence in the case, and the provisions of the codicil itself the intention of the testator plainly was to treat the marriages of J. B. with the two Women of the caste as valid marriages and the issue of those marriages as legitimate issue.