Hobhouse, J.

1. This is a family dispute, arising out of the will of Gurunadha Pillai, which was made on the 19fch October 1864. The plaintiff, who is now represented by the appellants, was the testators elder daughter Pichayi. The principal defendant, now represented by the respondent, was the husband of the testators younger daughter Sinnattal.

2. By his will the testator states that he is dangerously ill, and has no male issue, but has two daughters, Pichayi, aged seven years, and Sinnattal, aged three, born of his fourth wife Sivagangai; and that by means of this will he has given away his estate, which he describes, to the said two daughters. Then occur the following sentences:

3. The aforesaid two daughters after their marriage shall with their husbands remain in this family and enjoy as one family the income of the aforesaid properties without division and without alienating by sale, etc.

4. If in so doing there should be disagreement between them, the income thereof minus the just expenses, shall be enjoyed by them both in equal shares. If both the said daughters have issue, they shall divide the said properties equally. Those who have no issue shall as aforesaid enjoy the income for their lives, and those who have issue shall enjoy the whole property. Till then the miras shall continue in my name. In case your mother and you disagree and live separately you shall pay 21 kalams of paddy and 7 rupees a year for her maintenance.

5. He further provided that if he should recover and get a male child, the entire property should go to that child. He died, however, a few days afterwards, and there has been no male child born.

6. Pichayi married and had issue,, the present appellants, and Sinnattal also married one Subbaraya, and died on the 20th January 1885. Whether or no she had a child is matter of dispute. She had none living at the time of her death.

7. In the year 1872 there was litigation between Pichayis husband purporting to sue as her guardian, and Sivagangai, which was ended by an agreement of the 2nd October of that year. It was agreed that the entire family property should remain, as it had been, in the management of Sivagangai, the family living together as one family. But in case they could not agree to live together, then Pichayi, being entitled under the will to one-half of the property, was to receive from Sivagangai half the net income of the immovables, without making division of them ; and each was to take half the movables and pay half the debts.

8. Disagreements soon arose, and in June 1877 two deeds were executed by which Sivagangai agreed, first with one of her daughters and then with the other, upon a partition of the property.

9. The first dead (marked No. I) bears date the 11th June 1877. It is expressed to be made between Sivagangai, Sinnattal, and Subbaraya. It refers to the will of Gurunadha and states the joint enjoyment of his property by the three parties. Then, stating that disagreement has arisen, it provides a maintenance for Sivagangai, and subject thereto allots a moiety of the estate for the half share of Sinnattal and Subbaraya. The lands so allotted which were then registered in Sivagangais name are to be registered in Subbarayas name. And he and his wife undertake to bear a moiety of the family debts.

10. The second deed marked as Exhibit B bears date the 13th June 1877. It is expressed to be made between Sivagangai and Pichayi. It refers to the will of Gurunadha, and states that the two parties have been living together as one family in conformity with the will and with the agreement of the 2nd October 1872. Then, stating that disagreements had arisen, the deed goes on to provide for Sivagangais maintenance, and to allot to Pichayi her moiety of the property and the charges in a way corresponding in substance to the partition with Sinnattal. This deed, however, differs in expression and arrangement from No. I, and it contains one passage which is not found in No. I, and which has been the subject of a great deal of comment. Immediately after declaring Pichayis reversionary right to a moiety of the lands allotted for Sivagangais maintenance, and her right to a moiety of the lands and other things held in common (apparently a repetition and quite superfluous) the deed proceeds as follows: "In continuing to enjoy (as a foresaid), those who have no issue shall in conformity with the terms of the will left by the said Gurunadha Pillai remain in enjoyment so long as they live and those who have issue shall enjoy the whole property inclusive of the property of those that are issueless."

11. Why the family should have chosen to effect their partition by the circuitous method of treating each daughter in turn as if she and her mother were joint owners, is not explained. There can be no doubt that they intended a partition binding on the two daughters. The stipulated mutations of names were duly effected, and the benefits of the family estate were received in moieties from that time to the institution of this suit. It is not now disputed by either party that the two deeds embodied one family arrangement. The peculiar position taken by Sivagangai does not affect the validity of the transaction as between the others, though it probably accounts for differences of expression in the two deeds.

12. In September 1885 Pichayi brought the present suit. She states the will as providing that "I and my said sister should, till we get issue" enjoy the property in moieties "and that if either of us die without issue" the other shall take the whole." She then states that Sinnattal "died without issue," and she claims the estate accordingly.

13. In his written statement Subbaraya rests his title on the partition of 1877. He introduces the matter thus: "At the time when the two daughters of Gurunadha Pillai mentioned in the plain had issues and were living together as one family it was arranged etc., etc." Sivagangai also put in a written statement to the same effect.

14. Now it is a remarkable thing that if the story of Sinnattal having a child was an invention after her death, it should have been introduced in this casual and indirect way by her husband and her mother, and that the plaintiff should not at once have denounced it as a fraud and claimed to have it tried.

15. But what happened was that directly after the defendants statements were filed, the first hearing for settlement of issues took place, and that there is no issue directed as to the birth of a child. When the parties came to put in their evidence, the plaintiff asserted that Sinnattal never had a child born alive; and she brought an uncle of Sivagangai and some residents in the village to say the same thing. On the other hand, Sivagangai, who was called by the plaintiff, adhered very clearly to her statement that Sinnattal had children. Subbaraya stated that at the time of partition he had a son, and a number of witnesses were called to support them. On that evidence the case came to trial.

16. The Subordinate Judge held that unless the partition had been made in accordance with the will it would not have the effect of barring the plaintiffs right to recover. That view, the correctness of which has not been impugned in the High Court or here, brought the case to turn on the question whether the events had happened in which the will directed a partition; which, as the plaintiffs children were living, was in effect the question whether or no Sinnattal had a child. The Subordinate Judge found that she never had any.

17. His mind was very strongly impressed by the terms of the partition-deeds. If it were true that Sinnattal had a child, it must, lie says, have been mentioned in the deeds as the cause of the partition, whereas disagreement is the cause mentioned; and it is impossible, on the same supposition, to account for the insertion in Exhibit B of the clause above quoted which expresses a contingent gift to the daughter who has issue. In the face of this written evidence he disbelieves the whole of the defendants oral evidence. He does not so much as mention the evidence of Sivagangai or Subbaraya, nor indeed that of the plaintiff, and he hardly discusses the other witnesses.

18. The High Court took a different view. They considered the evidence of Sivagangai to be of paramount importance. She and the plaintiff and Subbaraya are the only persons of whom it may be affirmed with certainty that they knew the truth; and the High Court considered that Sivagangai was free from the bias of pecuniary interest, and, according to all appearance, of all other bias or unfairness. Mr. Justice Wilkinson also points out that her evidence is supported by the statements of other persons who were in a position to know the facts.

19. As to the passages in the partition-deeds which so strongly affected the mind of the Subordinate Judge, the learned Judges discuss them, not with reference to their bearing* on the disputed question of Sinnattals children, but apparently with reference to other arguments as to the effect of the partition which have not been brought before their Lordships. Their conclusion is that the partition-deeds, followed as they were by mutation of names, possession, and continued enjoyment, vested an absolute estate in each of the sisters, such as was contemplated by Gurunadhas will.

20. On the question of fact their Lordships have to express agreement with the High Court. It appears to them that the Subordinate Judge exaggerates the effect due to the partition-deeds. It is fair matter of observation that both deeds are silent about the birth of children to either sister, and mention disagreement as the cause of partition. But it does not go very far. There was disagreement in fact, and it gave a motive for separating at that time. Both the will and the deed of October 1872 mention disagreement as a reason for partition of a less complete kind, viz., of the net income; but not as a reason for that complete partition of the corpus which was actually intended, and actually effected so far as the parties had power. It would have been more obvious, and more workmanlike, to state the birth of children and the directions of the will as the ground of partition; but the omission to do so is hardly a reason for rejecting a body of positive testimony.

21. With respect to the passage in Exhibit B which repeats the will, it is certainly difficult to say why it should be there. Whether it should be entirely connected with the property allotted for Sivagangais maintenance, as Mr. Justice Kern an thinks; whether the plaintiff had a notion that the gift-over turned on the contingency of issue living at the death, as seems to be indicated by her plaint; or some vaguer notion that she might somehow gain some advantage by putting into her deed what is not to be found in No. I; is all guess-work. At best the presence of the clause only raises some probability in her favour.

22. It should also be remembered that there is a probability in the other direction, arising from the proceedings in the suit before observed on, that the plaintiff used language compatible with the birth of children who died in Sinnattals lifetime as well as with the entire childlessness ; that the defendants stated the birth of children incidentally, as they might have stated any undisputed matter; and that the plaintiff did not treat the statement as she would have been likely to treat a falsehood called up to oppose her. It would be easy to make too much of such a matter, just as too much has been made of the statements in the partition-deeds. It seems to their Lordships that the High Court have been right in fixing their attention on the positive testimony to the exclusion of mere conjectural matter.

23. That testimony preponderates largely in favour of the defendants. Their Lordships have referred to the opinion of the High Court upon the evidence of Sivagangai, which they think must be taken with the qualification that she is not wholly free from pecuniary interest, because the amount of her maintenance might be affected by the suit. But their Lordships have the opinion of the High Court as to her apparent fairness, and no adverse opinion from the Subordinate Judge who examined her. She is supported by three household servants of the defendants against whose testimony the Subordinate Judge says nothing except that they are servants. But in such a matter as the birth of a child in the house servants are persons having means of knowledge; and to pass over their evidence not otherwise impeached, as worth nothing, is somewhat too sweeping. The defendants eighth witness, Narayana Pillai, gave his evidence, as the Subordinate Judge states, so as to allow no room for unfavourable observations. He was a neighbour and a friend of the family, and he deposed to having seen Sinnattals child several times at the house of Sivagangai and at the house of one Chidambara Pillai, another neighbour and friend, who was ill and could not attend the Court. The defendants first witness attested Exhibit B and on that occasion he says that Sinnattals child was shown to him by the grandmother. On this witness the Subordinate Judge has no remark to make except that his opportunities for knowledge have not been accounted for. But his opportunity was going to the family house to attest Exhibit B.

24. It has been observed that the Subordinate Judge does not so much as mention the evidence of the plaintiff or that of either of the defendants. Probably he thought that they were all tainted by self-interest. But if they are to be set aside, what remains On the defendants side, several persons, with means of knowledge, affirming a definite fact; on the plaintiffs side, four witnesses who are all outside the household, of whom only one is related to the family, who speak to a negative, and that very loosely, since they take on themselves to deny, not only the birth of a child, but Sinnattals pregnancy, of which they could know nothing. It is evident that the Subordinate Judge has not balanced the oral evidence, but has dismissed it in a summary way by reason of the excessive effect which he has ascribed to the language of the partition-deeds.

25. It remains to construe the will with reference to the fact that both daughters had issue. The High Court have held that on the birth of children to both, the will gave them absolute interests in severalty. The Subordinate Judge apparently acted on the same view, though on his view of the facts, it was not necessary to decide the point. Mr. Doyne contended first that the testators intention was to let the estate devolve as joint family property. That however is manifestly inconsistent with the position assigned to his widow, and with the gift first of the income and afterwards of the property to his daughters in moieties. Then Mr. Doyne contended that the contingency on which the absolute gift is made must be taken to he not the birth of issue, but having issue who survive the parent.

26. Their Lordships must take the will as it stands in the English translation. Indeed it is not suggested, except as an argument ad ignorantiam, that the plaintiffs case would be strengthened if they could have before them, and could be made to understand, the Tamil original. It is clear that great pains have been taken to ensure accuracy, because the sentence releating to joint enjoyment has been re-translated, though it is difficult to perceive any substantial difference between the two translations. And their Lordships observe that the Subordinate Judge, who would know the Tamil language, states the critical terms in a way even less open to the suggested modification than the term "have issue." He says that if both the daughters "beget issues" the property is to be divided; and again that it is not to be divided until they "beget issues."

27. Taking the words "having issue," as the true words, there can be no dispute as to their literal meaning in any of the three contexts in which they occur. In the first two the testator contemplates the continued existence of those who "have issue," and in the second it is almost impossible to construe the words as "leave issue." There is absolutely nothing on the face of the will to suggest any secondary meaning. The words "have issue" are often read as meaning "leave issue," but not without some reason derivable from the will. Here the reason suggested is that their Lordships are construing a Hindu will, and that a Hindu testator could not have meant that if his daughter had a child who lived for a day, she should take the estate as stridhan and pass it to her husband. That is pure conjecture and quite inadmissible to control the clear expressions of the will. Even as conjecture, it fails. How can their Lordships tell that this Hindu gentleman did not feel the simple distinction, which is widely felt, between a barren woman and one who bears a child Or how can they tell that any conjectural emendation would have pleased him better Mr. Doynes suggestion is made to suit the events which have happened; but it would be easy to show that on his hypothesis another set of events would produce consequences just as untoward. Fortunately their Lordships are precluded from all this guessing by the sound principle of construction that where the language of a will is clear and consistent, it shall receive its literal construction unless there is something in the will itself to suggest departure from it. The result is that in their Lordships judgment the view of the High Court is right, and that this appeal should be dismissed with costs. They will humbly advise Her Majesty accordingly. Appeal dismissed.