Judgement

Appeal (No. 98 of 1931) from a decree of the High Court in its appellate jurisdiction (April 2, 1931) reversing a decree of that Court in its original jurisdiction (December 22, 1930),

The appellant was the widow of Sidheshwar Ghose, who died intestate and without male issue on February 13, 1930. Sidheshwar Ghose and the respondent, Akhoy Kumar Ghose, were respectively the elder and younger sons of Romanath Ghose who died in 1904. The appellant instituted a suit against the respondent (since deceased) claiming a declaration that upon the true construction of the will of Romanath Ghose her husband was absolutely entitled to a moiety of the residuary estate of the testator, and that upon his death she succeeded thereto. The respondent, who was in posses sion, contended that in the events which had happened the moiety in question passed to him upon the true construction of the will.

The material terms of the will appear from the judgment of the Judicial Committee.

At the hearing it was agreed that the respondent had attained twenty-five years of age before the death of Sidheshwar Ghose.

The trial judge (Buckland J.), applying s. 124 of the Indian Succession Act, 1925 (which reproduces s. Ill of the Act of 1865), and the decision of the Board in Norendra Nath Sircar v. Kamalbasini Dassi (( 1896) L. R. 23 I. A. 18.), made a decree substantially as prayed.

An appeal was heard by C. C. Ghose and Pearson JJ. and was allowed. The learned judges were of opinion that s. 124 did not apply, and that under s. 131 of the Act (which repro duces s. 118 of the Act of 1865) there was a gift over to the respondent upon the death of his brother without male issue. The case was remanded for adjudication upon an alternative claim to certain accumulations.

1932. July 7, 8, 11. W. A. Greene K.C. (with him W. Wallach and V. 8. Laha) for the appellant.

De Gruyther K.C. (with him Sir Dawson Miller K.C. and P. R. Das) for the respondent.

The arguments appear sufficiently from the judgment. In addition to cases there mentioned reference was made to OMahoney v. Burdett(( 1874) L. R. 7 H. L. 388, 406.); Monohur Mukerjee v. Kasiswar Mukerjee (( 1878) 3 C. W. N. 478.) ; Chunilal Parvatishankar v. Bai Samrath (( 1914)1. L.R.38B.399.(P.C).) (not under the Indian Succession Act) ; Bhupendra Krishna Ghose v. Amarendra Nath Dey (( 1915) I. L. R. 43 C. 432; L. R. 43 I. A. 12.), particularly to observations of the Board during argument reported in I. L. R.

Oct. 13. The judgment of their Lordships was delivered by LORD BLANESBURGH. 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 he 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 July 26, 1904. He was survived by his widow and by two sons, Sidheshwar 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 te