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Sonatun Bysack v. Sreemutty Juggutsoondree Dossee (India)
Expert Legal Summary — Judicial Committee Opinion
Factual and Procedural Background
This opinion concerns the construction and effect of the last Will and Testament of Ramdoss Bysack (dated 13 February 1818, in the Bengalee language) and the rights of members of his Hindu family under that Will. The Will purported to vest the testator’s moveable and immoveable property in an idol (Sree Joot Esshore Muddeninohun Thakoor) and provided detailed directions regarding management, accumulations, restrictions on alienation and the distribution of surplus income among the testator’s four sons and their male-line descendants.
The testator left four sons (Krishnomungle, Manikchund, Shanichund and Juggernauth Bysack). Krishnomungle died leaving three sons (among them Hurrymohun), and Hurrymohun later died intestate leaving a widow (the Respondent, Sreemutty Juggutsoondree Dossee) and no issue. The Respondent (then an infant, by next friend) filed a Bill in the Supreme Court at Calcutta seeking declarations about her rights as widow and heiress of Hurrymohun, claiming an interest in the testator’s estate and in accumulations; alternatively, she sought suitable maintenance.
The Defendants (other members of the family, including Manikchund, Shamchund, Juggernauth, and Kistodoss Bysack) answered; they contended the Respondent was entitled only to maintenance and stated details of accumulations and their division. The Supreme Court (decretal order dated 4 August 1857) declared that the Respondent was entitled to a share in the estate and directed extensive accounts and inquiries by the Master, while reserving certain questions as to amount until the Master’s report. An earlier order (28 July 1857) had allowed the Respondent maintenance of Rs.100 per month.
The present appeal was brought from that decretal order to the Judicial Committee of the Privy Council. No appearance having been put in for the Respondent, the appeal was heard ex parte. The Judicial Committee (Lord Justice Turner delivering the opinion) considered the construction of the Will, the extent of testamentary power under Hindu law, and the effect of particular clauses (notably the purported gift to the idol, the restriction on alienation, and the clause limiting succession to the male line). Their Lordships made declarations regarding the legal effect of the Will and reported their opinion to Her Majesty; they also addressed the maintenance order and liberty to apply as to accounts.
Legal Issues Presented
- What is the true construction of Ramdoss Bysack’s Will — specifically, whether the bequest to the idol was an absolute gift or whether the Will intended that, after providing for the idol’s expenses, the surplus be enjoyed by the four sons and their male-line descendants as a joint Hindu family.
- Whether the testamentary power recognized for Hindus can be exercised so as to create a perpetual new course of descent (i.e., to restrict inheritance perpetually to male-line descendants and thus alter the ordinary course of succession), or whether such a direction exceeds the scope of the testamentary power under Hindu law.
- If the clause limiting succession to the male line fails (or is ineffective in law), what are the consequences for the entitlement of the widow (the Respondent) of a childless grandson — in particular, whether she is entitled to a share and, if so, the quantum of that share.
- Whether the Supreme Court’s directions for detailed accounts and inquiries were appropriate, and whether the maintenance order (Rs.100 per month) should be continued or adjusted in light of the ultimate construction of the Will.
Arguments of the Parties
Plaintiff / Respondent (as pleaded in the Bill)
- The Respondent (as widow and legal representative of Hurrymohun) claimed an interest for life in her husband’s estate, equivalent to a third of six annas share of the Testator’s estate (and in the accumulations arising since the Testator’s death).
- She contended that limitations in the Will that restrict succession to males were too remote and void, and in any event a Will cannot deprive a Hindu widow of suitable maintenance out of her husband’s estate under Hindu law.
- The Bill alleged the disposal to the idol was void (or must be construed so as only to require provision sufficient for worship appropriate to the family’s position) and asked that the Court determine and declare the rights of the parties and the idol and to take accounts and, if necessary, effect a partition so that the Plaintiff might hold her share in severalty for life or be awarded proper maintenance.
Defendants / Appellants (as represented in the appeal and answers)
- The Defendants contended that the family continued to be a Hindu joint family and that the Respondent had already received maintenance while residing with the family; she is therefore only entitled to maintenance and not to a share of the corpus or accumulations.
- In the appeal, counsel for the Appellant argued that questions of law must be decided according to Hindu law and usage (the Court below was bound to apply the Hindu law made part of Bengal law by statute 21 Geo. III c. 80). They contended the English doctrine against perpetuities (technical rules) ought not to be applied to restrict testamentary powers under Hindu law.
- Alternatively, if English rules applied, the Appellant urged the Court to construe the Will as giving life estates to the sons (so that the widow’s husband would have had at most a life estate, and on his death his share would pass to surviving brothers to the exclusion of the widow).
- The Appellant also disputed the necessity and scope of the Court’s directions for taking accounts.
Table of Precedents Cited
The opinion explicitly cited multiple authorities (cases and statutory provisions). Each precedent is catalogued below with the purpose for which it was cited and how the Judicial Committee treated or applied it in the analysis.
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 21 Geo. III, c. 80 | Statute making Hindu law part of the law of Bengal; cited to show that questions must be decided with reference to Hindu law and usage. | The Court accepted that Hindu testamentary power is to be regulated by Hindu law as incorporated by statute into Bengal law; this principle framed part of the Court’s approach to construing the Will. |
| Doe dem. Kibchunder Doas v. Sibkitwelt Bannerjes (1 Boulnois, p. 72) | Presented as a prior view of a similar disposition (relating to treating a religious trust as overriding beneficial interest and constituting a prior charge). | The Court noted that a similar disposition had been viewed as creating a religious trust constituting a prior charge; the citation was used to illustrate how far a gift to an idol could be treated as a trust rather than an absolute gift. |
| Muckumchmader Seal v. Kooramoney Dorsee (1 Boulnois) | Decision relied upon concerning the limits of testamentary power and the difficulty of permitting testators to alter the legal course of succession perpetually. | The Judicial Committee stated they were bound by this earlier decision and would not overrule it; it supported the conclusion that a testator cannot in effect create a perpetual new course of descent beyond the testamentary power recognized by law. |
| Monypenny v. Dering (2 De G. Mac. & G. 176) | English rules of construction and cy-pres principles (invoked by counsel regarding possible reinterpretation to save a gift). | The Court considered the authority but expressed reluctance to apply technical English construction rules mechanically to a Hindu Will; it concluded those English rules could not be used to rewrite the Will into a new dispositive form. |
| Leake v. Robinson (2 Mer. 363) | Principle that a gift to a class (including members born after testator’s death) cannot be split into different estates for different class members; used in argument about treating some grandsons as taking only life estates. | The Court observed that, if English rules were applied mechanically, Leake v. Robinson would preclude splitting the class and giving different estates to different members; the opinion reiterated reluctance to force such English technicalities on a Hindu Will. |
| Shelley’s Case (doctrine mentioned) | English rule historically used to convert certain contingent remainders and to construe limitations. | The rule was adverted to as part of the English-law-based arguments; the Court declined to rely on such technical English rules to alter the plain terms of the Hindu Will. |
| Mullick v. Mullick (1 Knapp’s P.C. Cases, 245) | Example of cases recognizing the validity of Hindu religious endowments and testamentary dispositions in Indian courts. | Cited by Appellant’s counsel as authority for the validity of religious endowments and to support arguments about the proper construction of a bequest to an idol; the Judicial Committee engaged with such authorities in determining whether the gift to the idol was absolute or limited. |
| Bahoo Janokey Doss v. Binabun Doss (3 Moore’s Ind. App. Cases, 197) | Indian appellate authority touching testamentary dispositions under Hindu law. | Cited by Appellant’s counsel among other Indian authorities to show the courts have recognized aspects of Hindu testamentary practice; the Judicial Committee considered such Indian authorities in the contextual analysis. |
| Sreernutty Soorjeemolzey Dossee v. Denobzmdoo Maullick (6 Moore’s Ind. App. Cases, 526) | Case bearing on widow’s entitlement to profits of estate accumulated during husband’s life. | The Appellant sought to distinguish that case; the Judicial Committee treated it as distinguishable on its facts (in that case accumulations were not to be added to corpus and family was not to remain joint), and thus did not permit the Appellant to prevail on that basis. |
| Elder widow of Raja Chutter Sein v. The younger widow of Raja Chutter Sein (1 Ben. Sud. Dew. Rep. 180) | Authority cited for the validity of religious endowments under Hindu law to be recognized by Courts in India. | Used by Appellant’s counsel to support the proposition that an endowment for religious objects can be valid under Hindu law; the Judicial Committee considered such precedents in construing the nature of the gift to the idol. |
| Radita Bullubh Chund v. Jugpt Chiurrtder Chowdree (4 Ben. Sud. Dew. Rep. 151) | Another Bengal decision cited in support of validity of religious endowments and related principles. | Part of the body of Indian authorities the parties relied upon; the Court viewed these authorities as relevant background in considering how far a gift to an idol might be treated as an overriding religious trust rather than an absolute gift. |
| Bhowanee Purshad Chowdree v. Ranee Juguderumbha (4 Ben. Sud. Dew. Rep. 343) | Indian decisions on similar matters (religious endowments and testamentary dispositions under Hindu law). | Referenced among precedents that demonstrate Indian courts’ approaches to religious trusts and testamentary powers; the Judicial Committee took the Indian authorities into account when interpreting the Will. |
| Ram Sunder Ray v. Heirs of Raja (5 Ben. Sud. Dew. Rep. 210) | Indian authority cited for analogous doctrinal points. | Considered in the Court’s wider survey of Indian case law relevant to testamentary and religious-trust issues. |
| SibcJmnder Mullik v. Sreemutty Zreepowl, Soondry Dossee (1 Fulton, 98) | Another cited Indian authority addressing testamentary/dispositive issues under Hindu law. | Included among Indian precedents informing the Court’s view that religious endowments and testamentary dispositions must be construed with deference to Hindu law and practice. |
| Mohunt Gopal Dass v. Mohunt Kerssaram Dav (10 Ren. Sud. Dew. Rep. 250) | Indian decision relevant to the validity and construction of wills and endowments under Hindu law. | One more of the cases relied upon to show the ways Indian courts had previously treated similar questions; the Judicial Committee considered such authorities in its contextual analysis. |
Court's Reasoning and Analysis
The Judicial Committee’s reasoning (opinion delivered by Lord Justice Turner) proceeded step-by-step from principles to specific construction:
- Testamentary power for Hindus: The Court began by reaffirming that Hindus possess a testamentary power of disposition, but stressed that the extent of that power is regulated by Hindu law. The Committee treated the governing legal framework as Hindu law (as incorporated into Bengal law) rather than permitting the unqualified imposition of English technical doctrines.
- Construction of the gift to the idol: A close reading of clauses 2, 3 and 5 of the Will led the Court to conclude the Will did not intend an absolute gift to the idol. The Will contemplated the payment of the idol’s expenses and the accumulation of surplus, and therefore the “gift” to the idol operated subject to directions that the surplus should be applied for the family’s benefit. Consequently, the purported absolute transfer to the idol was to be understood as a disposition that allowed the family to enjoy the property (subject to performance of religious duties and maintenance provisions), with the idol’s interest effectively amounting to a prior charge for worship.
- Joint family / division: The Will anticipated two states of affairs — the family remaining joint and undivided, or becoming divided. The Committee found that, on the facts, the family had continued joint and undivided (the mere division of income in some years did not amount to a partition of the family estate). Therefore the provisions applicable to a joint family state governed the present rights.
- Restriction to male line and testamentary limits: The Will’s clause seeking to limit descent perpetually in the male line and to prevent alienation was aimed at creating a new course of descent for the testator’s property. The Committee considered whether such a direction lay within the testamentary power acknowledged under Hindu law. While willing to avoid mechanical application of English rules, the Court felt bound by prior authority (Muckumchmader Seal v. Kooramoney Dorsee) and concluded that creating in perpetuity a new course of descent beyond legal succession exceeded the testamentary power. Accordingly, the attempt to make the shares descend perpetually in the male line failed.
- Effect of failure of that clause: Because the male-line-perpetuity clause failed, the Court examined what would happen to the share of one grandson (Hurrymohun) who died without male issue. The share was a portion of the joint family estate and, in the absence of a valid testamentary disposition governing that contingency, it must pass according to the legal course of descent. Their Lordships concluded that, subject to the widow’s rights under Hindu law, the one-third of one-fourth share to which Hurrymohun was entitled passed, on his death without male issue, to his heir (the widow as widow and heir so far as she was entitled to a widow’s estate).
- Quantum of widow’s entitlement: The Committee resolved that the Respondent (Hurrymohun’s widow) was entitled, as widow and heir, to one-third of one-fourth of the testator’s estate and accumulations (i.e., one-third of the fourth part that Hurrymohun had taken upon the death of Krishnomungle), subject to the appropriate accounting and to deductions for prior maintenance she had received under the temporary order.
- Relief and procedure: The Judicial Committee preferred not to direct a detailed mode of taking accounts as the Court below had done; instead the Committee proposed to declare the legal rights (as above), continue the earlier maintenance order (Rs.100 per month) and give liberty to the Respondent to apply to the Supreme Court at Calcutta as to accounts or otherwise. The Committee also reported their opinion to Her Majesty and observed that any declarations should be without prejudice to future questions as to rights should the joint family be separated.
Holding and Implications
Holding:
THE JUDICIAL COMMITTEE DECLARED that, properly construed, the Will vested the testator’s moveable and immoveable property for the benefit of the testator’s four sons named in the Will and their offspring in the male line as a joint Hindu family so long as the family remains joint; that the surplus income after providing for the idol’s expenses was likewise given for the benefit of the four sons and their male-line descendants as a joint family; that Krishnomungle’s three sons each became entitled to a third of one-fourth of the property and accumulations; and that upon the death of Hurrymohun (one of those three) leaving no male issue his third of the fourth part passed to his widow, Sreemutty Juggutsoondree Dossee, who is entitled, as widow and heir, to one-third of one-fourth of the property and accumulations.
Practical consequences and implications:
- The Court’s declaration affords the Respondent a substantive legal entitlement (quantified as one-third of one-fourth) in the testator’s estate and its accumulations, subject to accounting and in conformity with Hindu law respecting widow’s estate.
- The earlier order permitting maintenance of Rs.100 per month to the Respondent was to be continued; the Respondent must account for amounts she has received under that order against what may be due upon the final accounting.
- The Judicial Committee preferred to leave procedural details (mode of taking accounts and the precise quantum) to the Supreme Court at Calcutta and gave liberty to apply, allowing parties to reach arrangements as appropriate; the decree and liberty to apply were reported to Her Majesty for confirmation.
- The decision reiterates that the testamentary power of Hindus is recognized but limited by Hindu law — the Court will not give effect to testamentary devices that attempt to create a perpetual new course of descent beyond the limits recognized by the governing law. The Committee declined to rewrite the Will or force upon it technical English rules of construction where those would alter the testator’s expressed terms.
- The order left open any question as to rights should the joint family be separated in the future — i.e., the declarations were made subject to future disposition if the family status changes.
- The Judicial Committee expressed that costs of the appeal could properly be paid out of the estate (this was addressed in the Court’s procedural directions).
Note on precedent and novelty: The Judicial Committee confined itself to construing the Will and applying established principles of Hindu testamentary law and relevant precedents; it expressly avoided expressing any broad equitable views beyond the legal rights declared and did not purport to create a new rule of general application beyond the particular construction and declarations made in this case.
SONATUN RYSACK ‘U. SREEMUTTY J. DOSSEE [I8591 VI11 MOORE IND. APP., 66
be payable yearly, it could be nothing less than a freehold. and a freehold which
would not end with Muttyloll Seal’s life, because, as he was a Hindoo, no words of
inheritance were requisite to continue his interest to his heirs. The consequence
would be, that his death not determining it, i t would enure to their benefit, and
have an indefinite duration till determined by a notice on the occurrence of the
event contemplated. Now, an interest of this nature could not be created by parol,
or by a mere writing, such as the instrument of the 11th of October, 1852, which,
therefore, could operate only as an agreement. Muttyloll Seal having been ad-
mitted, or holding, under this agreement, and the same sort of possession being
[65] continued by the Appellants, he and they after him could not be treated as
trespassers, but were in as tenants-at-mill; of course, such a tenancy u a s deter-
iiiinahle by the mere bringing of an ejectment.
This appears to be the correct construction of the agreement, so fa r as the
legal rights of the parties flowing out of i t are concerned. It passed no legal in-
terest out of the East India Company to Muttyloll Seal. The Conipaiiy did not graiit,
nor did they intend to grant, as Hindoos ; if they had so intended, they must have
failed in their intention, for they could only grant according to law. Yet the
instrument was binding upon them as an agreement, and a Court of equity would
have protected the Appellants against any attempt to dispossess them contrary to
its .tipulations. Wotwithstanding the provision which i t contains for a iiionth’s
notice, the East India Company might have maintained an ejectnient the day
after the agreement was entered into, because it passed no legal interest, 1)ut they
could have been instantly restrained froin proceeding by a Court of equity.
Their Lordships, in determining this case, have confined themselves strictly to
the legal rights of the parties, arid have purposely abstained from expressing any
opinion upon the equitable considerations which niay be involved in it. They
decide only that the ejectment was maintainable, and that the Appellants had 110
defence to it at law ; and this decision is made without prejudice to any equitable
rights of the Appellants, which must be understood to be fully reserved to them.
Their Lordships will, therefore, humbly recommend to Her Majesty that the
judgment of the Supreme Court of Judicature he affirmed, and this appeal dismissed,
n i th costs.
[S.C. 13 Moo. P.C. 162.1
E661 SONATUN BYSdCK,-Az~z~elZnnt; SREEMUTTY JUGGUTSOONDREE
DOSSEE,--Respondent * [Nov. 30, Dec. 2, 18591.
O n Appeal fi*orn the S u p r e m e Court at Calcutfa.
Although the Courts in India recognize the pomer of a Hindoo to make a Will, *
yet the extent of the power of disposition by a Testator is to be regulated by
the Hindoo law, and cannot interfere with a widow’s right to a proper
niaintenance.
A Hindoo by Will, gave all his moveable and immoveable property to his family
idol; and after stating that he had four sons, he directed that his property
should never be divided by them, ,their sons, or grandsons in succession, but
that they should enjoy “the surplus proceeds only” ; and the Will, after appoiilt-
ing one of the sons manager to the estate, to attend to the festivals and cere-
monies of the idol and maintain the family, further directed, that whatever
might be the surplus, after deducting the whole of the expenditure. the same
should be added to the corpus, and in the event of a disagreemeiit between
the sons and family, the Testator directed, that after the expenses attending
* Present : Members of the Judicial Committee,-The Right Hon. Lord Chelnis-
ford, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward
Ryan, and the Right Hon. the Lord Justice Turner. Assessor,-The Right Hon.
Sir Lawrence Peel.
~ - _ _ _ _ - - - - - .~ ~~ ~~~ -
455
VI11 HOORE IND. APP., 67 SONATTiN BYSACK V. SREEMUTTY
the estate, the idol, and niaintenance of the menlbers of the faniily, whaterer
nett produce and surplus there niight be, should be divided annually in
eertairi proportions among the members of the family. At the date of the
Will the family were joint in estate, food, and worship. The a c c ~ I ~ n u ~ a t ~ o I 1 ~
of the income were divided as directed by the Will.
First, that the bequest to the idol was not an absolute gift, but was to he con-
strued as a gift to the Testator’s four sons and their offspring in the male line,
as a joint family, so long as the family remained joint, and that the four
sons were entitled to the S L I ~ ~ ~ U S of the property, after providing for the
performance of the ceremonies and festivals of the idol, and the provisions
in the Will for niaintenance [8 Moo. lnd. App. 85-88].
Second, that the fact of the division of the income arising out of the Testator‘s
estate nniorig the nienibers of the familg after the Testator’s death did not
constitute a division of the faniily [8 Moo. Ind. App. 861.
One of the sons of the Testator died, leaving three sons, one of whorn aiso died
without issue, leaving a widow.
Weld further, that the direct~on conta~ned in the Will that the property should
go in the male line did not exclude the widow of the grandson of the Testator,
and that the widow was entitled to a third share of 11. fourth par t of the pro-
perty and accumulation, without prejudice to her r;ights as a Hindoo widov
vlien the property should be divided [ 8 Moo. Ind. App. 871.
~arndoss Bysack, a Hindoo i n ~ ~ a ~ i t a n ~ of Decca, in Bengal, died in the year
1818, leasing large self-acquired estate, c o ~ s i s t ~ n ~ of moveable and im-~6~]-niovea~~le
property, situate in that, Province, having, on the 13th of February, 18-18, made a
TIJill in the Rengalee Language, of wlricli tho fo l lo~~ ing i p a translation:--
“’Being now far advanced in age, and lieing about making preparations to proceed
to the holy place of Esshor Sree ~ r i ~ i d a b u n , I have (of my own free will i n sound
health and settled mind) with the view of making a Will of the whole of nhateser
properties I possese and the same being in future brought into operation specified
below the d ~ s t r i ~ u t i o x ~ of all my properties which will accordin~ly be carried into
effect. ~ i ~ ~ t . - I x ~ d e p e I ~ d e ~ t ~ y of my paternal concerns I haPing by niy OM-n earn-
ings acquired in this district of Dacca and in the town of Calcutta etc. hrick-built
houses Zeniindary and Talooks or landed estates and rent-free lands and Coniparig‘$
promissory notes and divers otlicr mercantile transactions and cloth merchandize
and gold and silver and precious stones and shawls and roornals etc. various &elf-
acquired properties in my own name and in tlie nanies of niy o v a sons and also irt
tlie fictitious names of other persons have been passing my time wherein none of iiiy
paternal property or money etc. was concerned the whole of tlie said properties I
have o~)taiiied by niy owii exertions. Whaterer has been ~ r o d u c e d and iiiereased
(through the means of iny [68] funds) by thc labours of niy two sons naniely Sree
~ r i s ~ ~ n o ~ u n ~ l e and Sre ~ ~ a I i i ~ c ~ ~ u i i d Rpsack the whole of that too heinp blendvd
together has been applied to the anki king and inercantile transactions etc. and tlre
purchase of lands and teiiures, The acquisitions of even the sons are not lieid
separate. Second.--The xhole of my aforcsaid moveable and in~moveal~le pro-
perties 1 lua~e granted to Sree Sree Joot Esshore ~ u d d u n i i i ~ l ~ u n Thakoor (the idtd
so called) v;hich I hare established in the house of which he i s the Malik or pro-
prietor. I have four sons. that is
Sree Kridinomungle and Sree Manikchund, and Sree Shanichund and 8ree Juggur-
iiautli Bysack are in existence. Among these my above-mentioned properties shall
never be divided and partitioned and the said sons or their offspring etc., that i h
to sayI their sons and grandsons, heirs in succession. shall not have the potvrr of
d i e n a t h g any oiie o f my aforesaid propertics bp gift o r safe, etc. If they do bn
the same shall be ~nadni i ss i~~le before the adniinistrator af justice and neither the
whole of the above-nient ion~ properties nor any par t thereof shall be liable to
sequestrat~o~i or auction sale for the debh of the heirs and successors. After n1-y
demise, my sons, grandsoi~s, et cetera, heirs, shali have the power of e n ~ o ~ i n ~ the
surplus proceeds only. Third.--From the time present my eldest son, Sree Krish-
nomungle Bysack shall as a servant of the Esshore Thakoor control over and manage
rhe entire estate and m a ~ n t a i n the members of tlie family and whenever and what-
456
Held,--
I am riot indebted to any person at present.
JUGGUTSOONDREE DOSSEE [I 8591 VI11 MOORE IND. UP., 69
soever acts and business and the ceremonies and festivals etc. of the Thakoors or
the deities [69] shall occur he shall perform some according to his own discretion.
Whatever may be the overplus after the deduction of the whole of the expenditures
the same shall be added to my said estates and other properties, or Company's papers
shall be purchased, or any mercantile speculation which may be advantageous shall
be entered into therewith. Fourth.-After the death of Sree Krishnomungle, in
accordance with the provisions specified in the 3rd clause, Sree Manikchund Bysack
being director and performer of the divine services and manager shall exercise his
control over all. In the like manner in the event of Manikchund's departing this
life, amongst my heirs, whoever may exist and be the oldest in age he shall exercise
similar control and shall perform the whole of the affairs. Fifth.-Should no agree-
ment and unanimity a t all exist among my heirs then the profits of the mercantile
transactions and traffics and banking and of the landed estates and rents of houses
and on account of various interests of description etc. whatever money shall be r e
ceived belonging to my estate from tha t first of all the public revenue and the
charges of the interior and the expenses of the repairs of the houses being deducted
whatever surplus may remain out of that the expenses of the idols and of the
established and contingent affairs of the family and occasional acts and ceremonies
and the expenses on account of the maintenance of the members of the family and
connection etc. being deducted whatever nett-produce and overplus there may be the
same being adjusted annually six annas portion of the said overplus money Sree
Krishnomungle Bysack and his children and six annas share Sree Manikchund
Bysack and his [70] children and two annas share Sree Shamchund Bysack and his
children and two annas share Sree Juggernauth Bysack and his children shall be
entitled to receive having the same apportioned. With the exception of these none
of my children shall have (upon any plea) the power of claiming any increased
bhare. I n consideration of the
increase of the capital fortune which has been effected by the labors of Krishno-
mungle and Manikchund somewhat increased shares have been given to them. None
shall have any power of raising any objection thereto. And after the demise of my
sons their respective male issues down to sons and sons' sons etc. heirs in succession,
shall be entitled to the share of the aforesaid amount of the surplus profits belonging
to their respective fathers. And whatever portion of the father's share shall (accord-
ing to the Shastra or Hindoo law) be lawfully due to whomsoever of the heirs he
shall receive such portion of the profits. Should (owing to the non-existence rJf
heirs in the lineage of male issue) a daughter or daughter's son be empowered to
receive any share then such person shall receive a stipend which may be merely
enough for food clothes and shall have no power of claiming the share of the
profits. Sixth.-To whomsoever whatever streedhan has been given and to whom-
soever whatever may in future be given that woman is the rightful owner of the
same none else have any power of laying the hands of an heir thereupon. With
the exception thereof all other whatever personal properties of gold and silver etc.
there are, all the children shall have the power of using them with discretion
[71] and as occasion may require and when should they be compelled to be separato
then they shall receive them according to the abovamentioned proportions.
Seventh.-In the event of any property out of the whole of my properties abovo
enumerated (by becoming old or damaged have the appearance of being injured or
otherwise owing to any irresistible lause) be likely to become deteriorated then the
clauses above specified shall not be a bar against making a sale or exchange of such
property ."
Should they ever do so they shall be inadmissible.
Probate was granted to this Will by the Supreme Court a t Calcutta.
The tecitator left four sons ; Krishnomuiigle Bysilck, Manikchund Bysack, Shanl-
chund Bysack and Juggurnauth Bysack, and one widow, him surviving, and con-
stituted a joint and undivided Hindoo family.
Krishnomungle Bysack died intestate in dune, 1850, leaving three sons, the Ap-
pellant, Sonatun Bysack, Hurrymohun Bysack and Kistodoss Bysack, and a widow.
In the year 1849, Hurrymohun Bysack, one of the grandsons of the Testator,
married the Respondent, and afterwards died, intestate and childless, leaving the
Respondent his widow and heir him surviving.
The Respondent, then an infant, by her next friend, filed a Bill in the Supreme
P.C. VIII. 457 1 Fia
VI11 MOOBE IND. APP., 72 SONATIJN BYSACK ‘U. SREEMUTTY
Court a t Calcutta, against Manikchund Bysack, Shamchund Bysack, Juggurnauth
Bysack, the Appellant, and Kistodoss Bysack. The Bill set forth the principal
facts above stated, and charged that the Respondent, as the widow and legal repre-
sentative of Hurrymohun Bysack, deceased, was entitled to an interest for life in
his estate, and that such interest extended to a third of six annas of [721 the estate
of the Testator under the Will, and to a third of the estate of Krishnomungle Bysack,
that might have accrued since the death of the Testator ; and the Bill charged tha t
the limitation and restriction in the Will as to none but males inheriting was too
remote, and, therefore, void, and that her father-in-law, Krishnomungle Bysack,
was upon a true construction of the Will entitled to an absolute six annas share in
the estate of Ramdoss Bysack, and that Krishnomungle Bysack and his son were
in like manner entitled t o a six annas share of the accumulations thereof since the
death of Ramdoss Bysack. That, even if the Court should be of opinion that the
estate to which the Plaintiff’s husband was entitled became divested, by his dying
without male issue, still the limitations in the Will of Ramdoss Bysack could not
in any way control or alter any of the accumulations made since his death; that
under no circumstances whatsoever could a Will operate so as to deprive a Hindoo
widow of such a maintenance out of the estate of her husband as would be suitable
to his means; and the Plaintiff submitted, that although the Company’s Courts, as
well as the Supreme Court, had declared the power of Hindoos to make Wills, yet that
such Wills must not be in derogation of any rights of parties entitled to maintenance
or otherwise under the Hindoo law. And the Bill further charged that the de-
scendants of Ramdoss Bysack were a Hindoo family, joint in estate, food and
wordiip. and that no partition had ever been made of the same ; and that the disposal
of the Testator’s moveable and immoveable property to the idol, Sree Joot Esshore
Muddeninohun Thakoor, was [73] void ; and that the restriction upon alienation
contained also in the second clause was void, as tending to create a perpetuity; and,
laRtly, that having regard to the whole of the Will, the trust, if any, in favour of the
idol could only be construed as a trust to the extent of what is sufficient to keep up
the worship of the idol in a proper and becoming manner, having regard to the
position of the Testator’s family; and the Bill prayed, first, that the Will of Ramdoss
Bysack might be carried out under the Order and direction of the Court, and that
the rights of the Plaintiff and Defendants, the parties interested therein, also of the
idol, might be ascertained and declared ; secondly, that an account might be taken
of the estate of Ramdoss Bysack, a t the time of his death; thirdly, that a n account
also might be taken of the estate of Krishnomungle Bysack; fourthly, tha t as fa r
as the Plaintiff was concerned, a partition might take place, and that she might lie
decreed to be entitled to hold her share, whatever that may be, in severalty for her
l ife; fifthly, that if the Court should be of opinion that the husband of the Plaintiff
was not entitled to any interest either in the estate of Ramdoss Bysack, or of the
accumulation since his death, then that she might be declared entitled to a suitable
maintenance out of the estate of Ramdoss Bysack and the accumulations thereof.
And lastly, for an account of what amount of property was requisite to be set aside
and appropriated for the due performance of the worship of the idol.
The Defendant, Munickchund Bysack, and the Appellant, filed a joint answer to
the Bill. The answer stated, that some accumulations were made of the income of
the property left by the Testator, first by his two eldest [74] sons, and subsequently
to the death of Krislnomungle by Manickchund alone ; and that such accumulations,
up to the death of Hurrymohun, in the year 1258, B.E., from the death of the Testator,
amounted to a nett sun1 of Rs. 21,512 2, and that further accumulations had been
made since the death of Hurrymohun up to the end of the year 1261, B.E., amounting
to the nett sum of Rs. 54,401 3. 6, and that tha accumulations made up to the year
1259, B.E., estimated a t Rs. 47,792 2. 6, had been divided among the whole of the
Defendants, the Respondent having resided with them up to the last-mentioned date,
and accordingly received her maintenance from them; and that the remainder of
such accumulations had been received, and were then in the possession of the
Defendant, Manickchund, as manager and executor under the Will; and that the
descendants of the Testator had always been and still were a Hindoo faniily, joint in
ehtate, food, and worship, excepting as to the Defendants, Shamchund Bysack and
Juggernaut11 Bysack, nlio had become separate in food only from the other members
458
.J UGGUTSOONDREE DOSYEE [ 18591 VI11 MOORE IND. APP., 76
of the joint family, and that no partition had ever been made aniorig tlie descendants
of the Testator of the joint estate, except so fa r as such accumulations up to the end
of tlie Bengalee year 1259, which had been divided among them as aforesaid, could
be called a partition; and the answer submitted to the Court the points of law raised
and charged by the Bill in regard to the rights of the Respondent, as widow and heir-
"at-law of Hurryniohun Bysack, in respect to the joint estate of the Testator, and the"
accumulations aforesaid: and it was by the answer contended, that slie was only
entitled to maintenance, which the Respondent had received [75] from the Defen-
dants, as long as she had remained in their house ; and that they had all along been
ready aiid willing and had offered to maintain the Respondent. The answer of the
Defendant, Shamchmd Bysack, was similar in its statements to the above ansmer.
The other two Defendants, Juggurnauth Bysack and Ristodoss Bysack, infants, bv
their guardian, filed the usual infants' answer.
An Order was made by the Supreme Court on the 28th of July, 1857, with the
consent of the Defendants, that the Plaintiff should be allowed Rs. 100 p e r / )mz.scm
for her maintenance.
The cause was heard on the 4th of Augwt, 1857, and the Court by a decretal
Order of that date declared and decreed, that the Respondent, as the widow and
heiress of Hurrymohun Bysack, was entitled to a share in the estate formerly belong-
ing to the Testator, but the Court reserved the question as to what should be tlie
amount of such share until the Master had made his report upon the inquiries therein
directed ; and the decretal Order then directed accounts to be taken of the moveable
and immoveable estate of the Testator, and of the rents and profits of the iriiinoveable
estate, and of the accumulations of the moveable and immoveable estate ; and the
decretal Order directed the Master to inquire and report d i a t parts of the estate were
outstanding and undisposed of, and whether any division of the accumulations, or
of the surplus income of the estate, had taken place; and between whom and in what
shares and pioportions, and what portion of the income of the Testator's estate had
been applied in or towards tha support of the family idol, or for the performance of
the religious and other ceremonies connected with the worship of [76] such idol ; and
what prcvision should be made, and what part of tlie estate should be set apar t for
the future maintenance of such family worship. All further directions and thQ
costs of the suit were reserved until after the Master had made his report.
The judgment pronounced by the Court, consisting of the Chief Justice, S i r
James W. Colvile, Sir Arthur Buller, and Sir Charles R. M. Jackson, Puisne Judges,
in making the above decretal Order was as follows :-" The question in this cause is,
how fa r the rights of the Plaintiff, as the widow and heiress of Hurrymohun Bysack,
in the ancestral estate which was left by Ramdoss Bysack, her husband's grandfather,
a re affected or varied by the document which is admitted to be the last Will and
Testament of Ramdoss Bysack. The effect of the earlier dispositive clauses is to
give nominally the whole of the Testator's property to his family Thakoor, but not
by way of a religious endowment, properly so called. On the contrary, the Testator's
plain intention is, that, subject to a proper provision for the performance of the
ceremonies in favour of this idol, the amount of which seems to be left to the
discretion of the managing member, his family should, as a joint Hindoo family,
continue to enjoy his property, not only drawing the income from land and other
fixed investments, bu t continuing to carry on his banking business, or embarking
his capital in other mercantile speculations. It is, therefore, almost conceded, that
no effect can be given to the last sentence in the second clause, which denies to the
sons and other remoter descendants the power of alienation, and seeks to withdraw
the property from liability to their debts, even though incurred in carrying on the
trade authorized, if not enjoined, by the Testator. Such [77] provisions are
obviously inconsistent with the nature of the interest in the property given, and with
the use to be made of it. It would be strange if under colour of a bequest in favour
of an idol, a man could not only enjoy property, but trade with it, without subjecting
his beneficial interest in it to the just demands of his creditors. The utmost effect
that can be given to such a disposition, is to treat the religious trust as over-riding
the beneficial interest of the party in possession, and constituting a prior charge
upon the property. Such was the view taken of a similar disposition by the late
Chief Justice in his judgment in Doe dem. JCibchunder Doas v. Sibkitwelt Bnnnerjes
1.59
VI11 MOORE IND. APP., 78 RONATUN BYSACK ‘U. SREEMUTTY
(1 Boulnois, p. 72). In the fifth clause of the Will, the Testator provides for a
different stste of things, namely, that i n which ‘ no agreement and unanimity a t
all exist among my heirs.’ We are inclined to think that he meant the provisions in
restraint of alienation to over-ride this clause, but contemplated a state of things in
which his heirs would be unable to agree in the application of the’surplus income,
and would cease to enjoy it as an undivided Hindoo family. To meet that state of
things, he provides that his two eldest sons by whose personal exertions the fortune
had, in part, been made, and their respective children, shall each have a six annas
share ; whilst the two younger sons and their respective descendants shall each take
only a two annas share. And this provision is followed by the clause upon which
the present contention arises; the effect of which seems to us to be, that the shares
SO given are to pass not in the course of legal succession, but perpetually in the male
line, daughters and daughter’s sons being excluded and declared entitled to main-
tenance only. It seems to [78] be agreed that this disposition, if effectual in law,
would by implication, though it does not SO expressly, exclude the Plaintiff who
claims as widow and heiress of a childless grandson. If the question were un-
touched by authority, we should be of opinion that the testamentary power, engrafted
upon the general Hindoo law by the custom of Bengal, which has been recognised
and established by repeated decisions, must be taken to exist, subject to those
restraints which the general policy of the law imposes on the exercise of testamentary
power in general; and in particular that i t cannot enable a Hindoo Testator to
alter peipetually the legal course of succession to his property by making it pass
for all time to those who, taking not as a legal but as subslituted heirs, would, ac-
cordiiig to our phrase, take not by descent but by purchase. But, in t ru th we are
bound t o hold this, unlesa we are prepared to overrule the decision of the Court
when presided over by the late Chief Justice in iiuckumchmader Seal v. Kooramoney
Dorsee (1 Boulnois). In that case, the Court, in the first instance, dismissed the
Bill of the Plaintiffs, who claimed by virtue of a disposition very similar in its terms
to the present; and ultimately and on a re-hearing, upheld the disposition only in
respect of the property which was to be governed by the law of the Testator’s
domicile; it having been proved that he died domiciled a t Cliinsurah whilst Chinsurah
was still a Dutch Factory, and that the Roman-Dutch law which had been introduced
into the settlement recognised the validity of such a disposition. It is, however,
contended, that we can mould the clause so as to give effect to the Testator’s intentions
within the limits in which, without trenching on the rule agaiiist per-[79]-petuities,
he might alter the course of succession ; and that we ought to do so by construing
the clause as one giving estates for life only to his son, Krishnomungul, and after him
to his three sons, of ahom all, including the Plaintiffs husband, are admitted to
have been born in the lifetime of the Testator. But this would be a very arbitrary
proceeding, and tantainouiit to making a new Will for the Testator. Nor do we see
how it could be done according to the doctrine of Cy-pres, or any of the other
English rules of construction which are so much discussed in the case of Alomypen?cy
V. D e r k g , supposing that authority to be applicable to the construction of a
Hind00 Will. There is nothing here which in terms cuts down the interest to be taken
by the grandsons to a life-estate; and the observations of Lord St. Leonards in the
report of ;Monypenny v. Dering ( 2 De G. Mac. and Gor. 176), upon the third point
submitted to him are very applicable to the argument addressed to us. Again, it
is to be observed, that the gift to grandsons is a gift not to the son’s, Krishnomongul’s,
nomination, )jut to a class of which many members might have been born after the
Testator’s death ; and to such a gift, if we are to decide this case by English rules
of c,onstruction, the principle established by Leake v. Robinson ( 2 Mer. 363), would
:tpl’ly. We could not split iiito portions the bequest to the class, and say that those
members of it who were born in the Testator’s lifetime should take for life only,
and that other members of the same class should take a different estate. We are,
however, always exceedingly unwilling to apply the technical rules of construction
derived from the English law to a Hindoo Will. We would embarrass ourselves
neither with those invoked for the De-CSOI-fendants and supposed to be supported I)y
the case of Monypenmy V. Bering; nor with the rule in Shelley’s case which \\,as
called in aid by the learned Counsel for the Plaintiff. We would endeavour to col !wt
tile Testator’s intention from the terms used by h im; and then consider, whether it is
460
JUGGUTHOONUREE DOSSEE 8591 VIII MOORE IND. APP., 81
within the testamentary power, limited, as we think that must be by the general
policy of the law. We cannot see tha t the Testator has made any distiiiction
bctween his grandsons, his great-grandsons, or the remoter descendants so iqr i sed
in the terms, ‘ et cetera heirs.’ All are to inherit their ancestor’s share accord;r,g
to the Shasters, or Hindoo law, modified only by the exclusion of the fem;iles or the
descendants of females. Therefore, the object which he has in view is to create for
his own property as long as he has any descendants in the strict male line, a new
course of descent. That object is, we think, beyond the scope of the testamentary
power recognized by law, and must, therefore, fail. The only other admissible con-
struction would be one which would confine the operation of the provision in
question to the demise of the sons (the first takers). But on that, as upon the former
construction of the Will, Hurrymohun would take an interest in his grandfather’s
estate which is descendable to the Plaintiff as his widow and heiress. The reriiairiing
question is, what is the amount of her share? On her part it is contended that she
is entitled tc one-third of six-tenths. On the other side it is contended that i f the
disposition contained in the fifth clause fails in part, it must fail altogether, and that
she can c l a m only one-third of one-fourth. It appears to us that the disposition in
favour of the two elder sons may well take effect, [all although the attempt to make
the shares descend otherwise than according to the course of legal descent has failed.
The inequality of the share8 is altogether independent of the manner in q-hich they
are limited to descend. The iiitentioii which dictated the one disposition is wholly
distinct from the intention which dictated the other. We have had more doubt
whether this division was to take effect, except in the case in which no agreement
and unanimity should exist among his heirs ; and, therefore, whether, if it appeared
that his sons and grandsons had continued in all respects a joint and undivided
Hindoo family, the widow of a grandson could come in and insist, under this clause,
upon having a larger share than that which the law would have given her had the
Testator left his estate to descend to his sons in equal shares. It is, however, sug-
gested in the answer, though not proved, that there has been a partial division of
the accumulations, and that the statu6 of the family is not eiactly that of an un-
divided Hindoo family. We think i t desirable before we finally decide to mliat
share the Plaintiff is entitled, to ascertain by the inquiries which we shall direct,
what, if anything, has been done under the clause in question.”
Some time after this decree, Manickchund Bysack died intestate, and, by ari
Order of the Supreme Court, the suit was revived against Koonjobeharry Bysack,
Goverdhone Bysack, Choytundoss Bysack, Shadoochurn Bysack, and Goliind Doss
Bysack, his sons and heirs.
The present appeal was brought from the deuetal Order of the Supreme Court
of the 4th of August, 1857.
No appearance having been put in for the Respondent, the appeal was heard
ex parte.
[82] Mr. It. Palmer, Q.C., and Mr. Leith, for the Appellant.-As the parties to the
suit are Hindoos, the Court below was bound to decide the questions of law raised
according to the principles of Hindoo law and usage in force in Bengal. By
Statute, 21st Geo. III., c. SO, the Hindoo law is made a part of the law of Bengal.
This proposition is admitted by the Court in their judgment in establishing the
power of a Hindoo in Bengal to make a Testamentary disposition of real and
personal estate, ancestral or self-acquired, a fact which cannot now, whatever doubt
formerly existed, be questioned, as the Courts in India and this Tribunal have
recognized such a power. F. Macnaghten’s “ Cons. on the Hindoo Law,” pp. 77, 316,
331 and 361. Strange’s “ Hindoo Law,” vol. i. p. 254, vol. ii. p. 438 (Edit. 1830).
W. H. Macnaghten’s “ Princ. of Hindoo Law,” p. 34. Jugyonwhun R a y v. Sreemutty
(Clarke’s Rules and Orders of Sup. Court of Calcutta, p. 105), Reiwum Persad v.
Mussumat Radha Beeby (4 Moore’s Ind. App. Cases, 137), Muilick v. Mullzck (1
Knapp’s P.C. Cases, 245), Bahoo Janokey Doss v. Binabun Do6s (3 Moore’s Ind. App.
Cases, 197), Sreernutty Soorjeemolzey Dossee v. Denobu,ndoo Il4uJlick (6 Moore’s Ind.
App. Cases, 526). It is t rue this proposition was admitted by the Court in their
judgment, yet the Court in establishing the Will i n fact, though perhaps inadver-
tently, indirectly applied to i t the peculiar doctrines of the English law against
perpetuities; doctrines of a technical character, and not founded on any principle
461
VI11 MOORE IND. APP., 83 HONATUN BYSACK W. SREEMUTTY
of general jurisprudence. But, we insist such a doctrine is unknown to tlie Hindoo
law, as it is, reasoning by analogy to the Civil law prevailing in Holland or Scot-
[83]-land. No rule of English law, which is jus p s i t i w i , is to be applied for con-
venience’ sake, to restrict or restrain the operation of the Hindoo law. It cannot
be urged that, because the English law in Bengal is administered to British-born
subjects, there is any reason to apply its technical rules to Hindoos. As the
Supreme Court was dealing with the Will of a Hindoo, the limitations contained in
that instrument ought to have been considered by the Court without reference to the
doctrine of the English lam against perpetuities. But, assuming that the Will is
to be construed with reference to the particular doctrines of English law regarding
perpetuities in a limitation under a Will, the devise, we submit, is not too remote,
and the Court ought to have construed the Will as giving estates for life t o Krishno-
rnungle Bysack, and after him to his other three sons, who were all, including the
Respondent’s husband, born in the Testator’s lifetime. Now, i f the sons took only
a life estate, how could the Respondent’s husband take more than a life estate?
The true question really is, whether it was a good bequest to the idol. The Testator’s
moveable and immoveable estates are by the Will settled on the family idol by way of
religious trust. An endowment for religious objects is valid by the Hindoo law, and
will be carried into effect by the Courts in India. Elder widow of Raja Chutter Sein.
v. T h e younger u~idow of Raja Chutter Se in (1 Ben. Sud. Dew. Rep. 180), Radita
Bullubh Chund v. J u g p t Chiurrtder Cholwdree (4 Ben. Sud. Dew. Rep. 151), Bho-
wanee Purshad Cltowdree v. Ranee Juguderumbha (4 Ben. Sud. Dew. Rep. 343), Ram
Sunder Ray v. Heirs of Raja r’dtcant Singh (5 Ben. Sud. Dew. Rep. 210), [84]
Mullick IT. MuJlick (1 Knapp’s P.C. Cases, 2-15), iSibcJmnder M u l l i ~ k v. Sreemutty
Z’reepowl, Soondry Dossee (1 Fulton, 98), Mohunt Gopal Dass v. Mohunt Kerssaram
D a ~ v (10 Ren. Sud. Dew. Rep. 250). If the question is to be decided by English law,
it would be hardly possible, reading the fifth clause in connection with the other
clauses in the Will, to doubt, that the Testator gave estates for life in ter se to his
sons with cross remainders to the survivors, if any one died without male issue;
therefore, on the death of the Respondent’s hubband his share would go to his
surviving brothers to the exclusion of the Respondent as his heir. The Respondent,
as widow of Hurrymohun, one of the Testator’s grandchildren, is not entitled under
the Will to any share of the estate of the Testator, either in the corpus as i t stood
a t the time of her husband’s decease, or to any par t of the accumulations or surplua
income thereof; and the declaration of the Court to that effect was erroneous, as
she was only entitled to maintenance. ,SI eemutty 1400rjeemoney Dosae v. Denobzmdoo
2l4UJZi1-k (6 Moore’s Ind. App. Cases, 526) is distinguishable from the present case.
There the widow was held entitled to the profits of an estate which had accumulated
during the life of her husband ; but in that case there was no direction in the Will
that the family was to remain joint in estate, and, therefore, nothing to imply that
the accunrulatioiis should become increment to the corpus. Here, on the contrary,
the surplus profits are to be added to the corpus, and the Testator provides that in
case of disagreement the surplus profits should be divided, [sa] which state of things
did not exist in that case. Lastly, we contend that directions as to taking the
accounts were improper.
Their Lordships’ judgnient was delivered, as folloa s, by
The Lord Justice Turner.-The question in this case ultimately resolves itself,
as their Lordships think, into a question of the construction to be put upon a Hindoo
Will; and i t may not be improper to observe that, with reference to the testamentary
power of disposition by Hindoos, that the extent of this power must be regulated by
!be Hindoo law.
The first point which arises on the construction of this Will, is, whether, accord-
ing to the true intent of the Will, the idol for whom the property is granted was in-
tended to take absolutely.
Now, a reference to the second, third, and fifth clauses of the Will lead us to the
conclusion, that although the Will purports to begin with an absolute gift in favour
of the idol, i t is plain that the Testator contemplated that there was to be some dis-
tribution of the property according as events might t u rn out ; and that he did not
intend to give this property absolutely to the idol seems to their Lordships to be
462
JUGBUTSOONDBEE DOSSEE [1859] VIII MOORE IND. UP., 86
clear from the directions which are contained in the third clause, that after the ex-
penses of the idol are paid, the surplus shall be accumulated; and still more so from
the fifth clause, by which the Testator has provided for whatever surplus should
remain out of the interest of the property, the expenses of the idol being first de-
ducted. It is plain, that the Testator, looking a t the expenses of the idol, was not con-
[86]-templating an absolute and entire gift in favour of the idol.
The rights, therefore, of the idol being thus disposed of, the question then arises,
what was to become of the property, subject to the payments which were to be made
for the expenses of the idol. The Tes-
tator evidently contemplated two events; one, in which the family was to continue
joint and undivided, and the other, in the event of the family becoming divided.
NOW, with reference to the second branch of this Will, the event of the family be-
coming divided, that state of circumstances does not appear to have arisen. There
has been no division a t all of this family, unless the division of the income during
the few years which followed upon the death of the Testator up to a short period after
the death of Hurrymohun Bysack constituted a division of the family, and their
Lordships are very clearly of opinion, that the mere division of income, for the con-
venience probably of the different members of the family, did not amount to the
division of the family.
In considering the case, therefore, we may for the present (whatever questions
may hereafter arise upon it) consider this family as an undivided family; and the
point for determination is, what are the rights of these parties in the property?
Considering the family as a joint and undivided family. Now, in that case, it is
plain, that the Testfator contemplated that the property was to go in the male line.
He says, that he has four sons, that his property shall never be divided and parti-
tioned amongst them, and that the sons and their offspring, that is to say, their
“sons and grandsons, heirs in succession,” shall not have the power of [87]
alienating any of the property by deed or gift, nor shall the property be liable to
sequestration for their debts. The Testator, then, having intended that the property
should pass from the four sons to their sons and to their grandsons, the event which
has happened is this, one of the sons died leaving three sons, who accordingly came
into his share, and one of those three sons afterwards died leaving no male issue.
There are directions in the Will that the
property is to go in the male line to the sons and their descendants, but one of them
dies leaving no issue in the male line, and the Will is silent as to what the disposition
of the property is to be in that event. It is a share of the property of the joint
family, descendable, therefore, to the heir to whom that property would go in the
absence of any provision made by the Will. The consequence, therefore, as i t ap-
pears to their Lordships, must be, that upon the death of Hurrymohun, this property
must have descended, and that the one-third of one-fourth passed to Hurrymohun’s
heir, his widow, so fa r as she is entitled to her widow’s estate.
What their Lordships propose to do is, to declare that, according to the true con-
struction of the Will, the property granted to the idol is effectually granted for the
benefit of the Testator’s four sons and their offspring in the male line as a joint
family, subject to the performance of acts, business, ceremonies, and festivals, and
to the provisions for maintenance in the Will contained, and that the surplus in-
come, after answering the performance of such provisions, is i n like manner well
and effectually given for the benefit of the four sons and their offspring in the [88]
male line, as a joint family. It appearing that Krishnomungle, one of the sons,
died, leaving three sons, and that Hurrymohun died leaving no male offspring, the
family continuing joint up to the death of Hurrymohun ; their Lordships also pro-
pose to declare, that upon the death of Hurrymohun, his share of the joint estate,
subject as aforesaid, passed to the Respondent, his widow and heir, and she is en-
titled to one-third of one-fourth as widow and heir. Their Lordships think that,
under the circumstances of this case, i t would be better not t o direct the accounts to
be taken in the mode in which the Court has done, but simply to give liberty to apply,
i n order that the parties may, as they probably will do if they are well advised, coinc
to some arrangement upon the subject of the amount. There will be liberty to apIJly
as t o the amount, o r otherwise as the lbarties may be advised. And, it appearing.
that there has already been an Order made for the maintenance of this lady c i f
463
And here we have two divisions of the Will.
Now, what is the consequence of t ha t ?
VI11 HOORE IND. UP., 89 RAJMOHUN GOSSAEN V. ~ O U R ~ O H ~ ~ GOYSAIN f 18 5 91
Rs. 100, a month, that Order must be continued, and she will account for what she
has received under that Order as against what may be coming to her upon the account
to be taken. The better course would be, to discharge the Order which has been
made by the Court below, and simply to make the declarations which X have sug-
gested with a limit and a direction to continue the ~ a i n t e n a n ~ e , and that she shall
account for what she may have received under it.
Their Lordships think that the costs of the appeal may very p r o ~ e r i y be given
out of the estate.
The following report was made by the Judicial Committee, and confirmed by Her
Majesty's Order [89] in Council. '' Their Lordships are of opinion that i t ought to
be declared that, according to the true construction of the Will of the Testator, the
whole of the Testator's moveable and imnioveable property was, and is, well and
effectually given for the benefit of the Testator's four sons in his Will named, and
their offspring in the male line, as a joint family, so long as the family continues
joint, subject, however, to the p e r f o r ~ a n c e of the acts, business, ceremonies and festi-
vals, and to the provisions for ~ a i n t e n a n c e in the Will contained, and that the
surpIus income of the property after answering such performance and provision was
and is, in like manner, well and effectually given €or the benefit of the four sons and
their offspring in the male line, as a joint family, so long as the family continues
joint. And, it appearing, that Krishnomungle Bysack, one of the four sons, died
leaving three sons$ their Lordships report as their opinion, that it ought to be de-
clared by Your ~ a j e s t y , that each of the three sons became entitled to a third par t
of one-fourth par t of the property, and of the accumulation thereof. And, i t ap-
pearing, that Hurrymohun Bysack, one of the three sons of Krishnomungle Bysack,
died leaving no male offspring, and that the family continued joint up to the tinie
of his death and still continues joint; their Lordships do further report as their
opEnion, that it ought to be declared by Pour Majesty, that upoa the death of Hurry-
muhun Bysack, the third par t of the fourth par t of the property and accumulations
to which he became entitled as aforesaid passed to the Respondent, S r e e ~ ~ i t t y Jug-
~utsoondree Dossee, as his widow and heir, and ~ r e e m u t t y Jug~utsoondree Dossee
accordingly became and is entitled as such widow and [Wf heir, to the third part of
the fourth part of the property and accumulations. And their Lordships are
further of opinion, that Sreemutty J u ~ ~ u t s o o n d r e e Dossee ought to be a t liberty to
apply to the Supreme Court a t Calcutta a8 to the accounts and otherwise as she may
be advised; and their Lordships are of opinion, that the Order made in this cause
by the Supreme Court of Calcutta, bearing date the 28th of July, 1857, ought to be
cnntinued until further order. And their ~~ordsh ips do further report, that in case
Pour Majesty should be pleased to approve of thiR report and to Order accordingly,
such Order ought to be without prejudice to any question as to the rights of Sree-
mutty cJuggutsoondree Dossee of and when the joint; family shall be separated."
'[See Bai Mo&ivahoo v. Bai ' ~ a ~ ~ ~ ~ ~ a ~ , 1897, L.R. 24 Ind. App. 104.1
[SI] R A J ~ O ~ U N GOSSAIN and J ~ ~ ~ ~ ~ H U ~ ~ O S S ~ I ~ , - ~ ~ ~ ~ ~ ~ ~ ~ ~ , ~ : GOCR-
MOIWN GOSSAIN,--Eespolur'ent * [Rec. 2 and 3, 18591.
O m ~~~~~~ from tPIe S'ttdder ~~~~a~~~ Aduwtrrf, ~ ~ ~ c u ~ ~ ~ .
In a Ruffanamah, or deed of compromise of a suit between three sons, members
of a Hindoo family, respecting the distribution of their father's estate, it was
stipulated, that all " ancestral ') property should be equally divided into four
shares, Held, that the sense in which the word " ancestral " was employed
* Present : Members of the Judicial Committee,-The Right Hon. Lord Chelms-
ford, the Right Hon. the Lord Justice Knight Bruce, the Right Non. S i r Edward Ryan,
and the Right Hon. The Lord Justice Turner. Assessor,--The Right Hon. S i r James
Pi. Colvile.
1--1 -I" II___ ~ __ - ii
464
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