1. This is an appeal by two of the defendants in a suit for partitionof joint property. The property originally belonged to one Ramlochan Ganguly,who made a Testamentary disposition on the 5th November 1850. He left threesons--Tarini, Guru Charan and Ishan, and a grandson by a daughter, namedNilmoney. Tarini left two sons--Sasi Kumar and Basanta. Theplaintiffs-respondents are the legal representatives of Sasi Kumar. The eighthand ninth defendants are the representatives of Basanta. Thedefendants-appellants have acquired the interest of Nilmoney in the portion ofthe property in dispute. The substantial question in controversy between theparties was, whether Nilmoney took a life-interest in the estate of hismaternal grandfather, which terminated upon his death, or whether he took anabsolute interest (subject to a condition which was fulfilled by him) which,upon his death, passed to his representatives. The Court of first instancedecided in favour of the present appellants. That decree was assailed in appealby the plaintiffs who claim by right of inheritance a half share of theinterest which was vested in.Nilmoney during his life-time. The eighth andninth defendants, who set up a precisely similar claim in the primary Court,were not joined as respondents, nor did they prefer an appeal on their ownaccount. Upon the appeal of the plaintiffs, the District Judge has reversed thedecision of the Subordinate Judge and has made a decree, not only in favour ofthe appellants before him, but also in favour of the two defendants who werenot parties to that appeal. On the present appeal, the decree of the DistrictJudge has been assailed on two grounds, namely, first, that it was notcompetent to him to vary the decree of the Court of first instance in favour ofpersons who were neither appellants nor respondents before him; and, secondly,that upon a true construction of the Will of the original proprietor, he shouldhave affirmed the decision of the Subordinate Judge.

2. As regards the first ground, it is plain that neitherRule 4 nor Rule 20 of Order XLI of the Code is of any assistance to therespondents. Rule 4 is in these terms: Where there are more plaintiffs or moredefendants than one in a suit, and the decree appealed from proceeds onany-ground common to all the plaintiffs or to all the defendants, any one ofthe plaintiffs or of the defendants, may appeal from the whole decree, andthereupon the Appellate Court may reverse or vary the decree in favour of allthe plaintiffs or defendants, as the case may be. Consequently, to justify theapplication of this rule, it is essential that the appeal should have beenpreferred against the whole decree. In the case before us, the decree of theCourt of first instance was assailed by the plaintiffs alone, and only to theextent that they were prejudicially affected thereby. Rule 20 is in theseterms: "Where it appears to the Court at the hearing that any person whowas a party to the suit in the Court from whose decree the appeal is preferred,but who has not been made a party to the appeal, is interested in the result ofthe appeal, the Court may adjourn the hearing to a future date to be fixed bythe Court and direct that such person be made a respondent.

3. This rule has obviously no application to this case, andthe District Judge did not take action under it.

4. Rule 33, however, is expressed in much wider terms asfollows: "The Appellate Court shall have power to pass any decree and makeany order which ought to have been passed or made and to pass or make suchfarther or other decree or order as the case may require, and this power may beexercised by the Court notwithstanding that the appeal is as to part only ofthe decree and may be exercised in favour of all or any of the respondents orparties, although such respondents or parties may not have filed any appeal orobjection." For the application of this rule, consequently, it is notessential that the appeal should be directed against the entire decree; norneed the order be made in favour of persons who are parties to the appeal orhave filed objections in the Court below. In the case before us, plaintiffs asthe representatives of Sasi Kumar and the eighth and ninth defendants as therepresentatives of Basanta were in an identical position with regard to theestate of Nilmoney; in other words, if the contention prevailed that Nilmoneyhad an interest terminable with his life, that interest would vest, after hisdeath, equally in the representatives of Sasi Kumar and Basanta. Consequently,if upon the appeal of the plaintiffs, the Court was satisfied that the decreeof the primary Court was erroneous and was based upon an incorrectinterpretation of the Will of the original proprietor, the ends of justicerequired that the benefit of such decision should accrue not merely to theplaintiffs-appellants before the lower Appellate Court, but also to therepresentatives of Basanta, although the latter were neither partiesrespondents to the appeal nor appellants in an appeal preferred by themselves.The first ground upon which the decree of the District Judge is assailed cannotconsequently be supported.

5. As regards the second ground, the validity of therespective contentions of the parties must be tested with reference to theterms of the Will. On behalf of the representatives of Basanta, it has beenargued that Nilmoney had nothing beyond a right of residence in a portion ofthe property of his maternal grandfather. On behalf of theplaintiffs-respondents a higher status has been conceded to him; and it hasbeen contended that he took a life-interest in the estate of his maternalgrandfather, which terminated on his death. In opposition to these contentions,the appellants have argued that Nilmoney was given an absolute interest subjectto a condition, namely, that he should have an interest so long as he resided inthe house of his maternal grandfather. Under Section 82 of the IndianSuccession Act, it is plain that where property is bequeathed to any person, heis entitled to the whole interest of the testator therein, unless it appearsfrom the Will that only a restricted interest was intended for him. Primafacie, Nilmoney had an absolute interest. The question is, whether he took, asis argued by the appellants, an absolute interest subject to a condition, orwhether, as is argued by the plaintiffs-respondents, he took a life-interest.The terms of the Will are by no means free from ambiguity, as is indicated bythe fact that the Courts below have taken divergent views upon this the mostmaterial point in the case. After anxious consideration of the arguments addressedto us on both sides, we have arrived at the conclusion that the view taken bythe Subordinate Judge is correct. In our opinion, the intention of the testatorwas to give an absolute interest to Nilmoney, his grandson by daughter, wholived with him and was brought up by him. It is plain that he intended to makea provision for him; but he insisted, as was not unnatural, that his grandsonshould reside in his house. This was imposed as a condition, and not as anindication that the interest created was a life-estate. It would further be anunreasonable interpretation of all the provisions of the Will to hold that thetestator intended to enforce the condition of residence even after the death ofNilmoney. The condition was perfectly legal under Section 121 of the IndianSuccession Act Ganendro Mohun Tagore v. Rajah Juttendro Mohun Tagore 1 I.A. 387: 14 B.L.R. 60 [LQ/PC/1874/14] : 22 W.R. 377, Bhoba Tarini Debya v. Peary Loll Sanyal 24 C. 646: 1 C.W.N. 578 Shyama Charan v. Naba Chandra 14 Ind. Cas. 708 [LQ/CalHC/1912/159] : 17 C.W.N. 39and it was fulfilled by Nilmoney because there is no dispute that, during hislife-time, he continued to reside in the dwelling house of his maternalgrandfather. The result was that, upon his death, his interest passed to hisrepresentatives and has now vested, not in the respondents, but in theappellants.

6. Reference has finally been made to the observations oftheir Lordships of the Judicial Committee in the case of Mohamed Shumscol Hoodav. Shewukram 2 I.A. 7 : 14 B.L.R. 226 [LQ/PC/1874/13] : 22 W.R. 409; and it has been arguedthat as there is a presumption that a Hindu does not desire that any portion ofhis property should pass beyond his own family, every effort should be made toavoid a contrary result. That, however, is not an inflexible guiding principleof universal application, as is made manifest by contrasting the decisions inSurajmani v. Rabi Nath Ojha : 35 C.W.N. 231 : 10 BL.R. 59 : 7C.L.J. 131 : 3 M.L.T. 144 and Radha Prasad v. Ranee Mani Dassee 35 I.A. 118 :35 C. 836 : 10 B.L.R. 604 (P.C.) : : 12 C.W.N. 729 : 8 C.L.J.48 : 5 A.L.J. 460 : 18 M.L.J. 287 : 4 M.L.J. 287 : 4 M.L.T. 23. Where, as here,the terms of the Will indicate that an absolute interest, subject to acondition, was intended to be granted to a grandson by a daughter, it would bewrong to interpret its provisions so as to restrict that interest and thusdefeat the intention of the testator.

7. The result is that this appeal is allowed, the decree ofthe District Judge set aside and that of the Court of first instance restored.In view, however, of the obscurity in the terms of the Will, which justifies acontest, we direct that each party pay his costs both here and in the Court ofAppeal below.

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Ambika Charan Chakrabarti and Ors. vs. Sasitara Debi andOrs. (07.04.1915 - CALHC)