Sanjeevi Reddy vs Ahilandathammal and Another

Anantanarayanan, J.—A certain Rangaswami Reddiar executed a Will on 13th December 1922, in which he made the following dispositions with regard to the properties concerned in this appeal:

My daughter Tayarammal and her mother Ramachandru Ammal who is my wife shall enjoy the properties mentioned in the ''B '' list after my lifetime. After the lifetime of my aforesaid wife Ramachandru Ammal, my daughter aforesaid Tayarammal and Narayanaswami Reddiar, her husband and my son-in-law who is the son of Kadalangudi Muthuswami Reddiar and adopted son of Veera Reddiar, shall enjoy the properties mentioned in the ''B'' list exclusively with powers of alienation as he pleases....

The other admitted facts, which are essential for an appreciation of the present subject-matter of controversy are as follows: The testator was the husband of Ramachandru Ammal (first Defendant, who died pendente lite) and he had no male issues, but only the daughter Tayarammal referred to in the Will. Tayarammal predeceased the testator. Tayarammal''s husband, Narayanaswami Reddiar referred to in the Will, died in 1946, and the two Plaintiffs below are his daughters by his second wife, who is also dead. The suit was for a declaration that the Plaintiffs were the owners of the properties, upon a true construction of the Will and the devolutions thereunder, and also for possession from the second Defendant who is, as found by the Court below, the'' adopted son of Ramachandru Ammal (first Defendant). The suit was decreed, except with regard to items 4, 5 and 6 which stand upon a different footing. The main appeal is by the second Defendant, and the two Plaintiffs have filed a memorandum of cross-objections concerning items 4, 5 and 6, which relates to an issue of fact within a brief compass. I shall deal with it subsequently, in due course.

It is important to note that the grounds upon which this action was resisted by the first and the second Defendants are somewhat different from the main grounds upon winch the appeal has been argued at some length before me. It is not that learned Counsel for the Appellant (Sri T. M. Krishnaswami Ayyar) has waived or abandoned those grounds, but he has presented the entire case upon a somewhat new footing as his main basis. The grounds of resistance to this action in the Court below were mainly (i) that subsequent to the death of his daughter Tayarammal which rendered these dispositions largely infructuous, the testator (Rangaswami Reddiar) revoked the Will by conduct, as evidenced by various alienations, and other steps and (ii) that the bequest in favour of the father of the Plaintiff''s, the son-in-law Narayana-swami Reddiar, was a contingent one to take effect only after a prior bequest in favour of Tayarammal. Narayanaswami Reddiar did not hence obtain any vested right in the suit properties, and since the first bequest failed by the fact that Tayarammal predeceased the testator, the second bequest in favour of Tayarammal and Narayanaswami Reddiar could not take effect. I shall deal with these grounds latter, after dealing with the new basis upon which the appeal has been mainly pressed by the learned J. Counsel for the Appellant.

That basis can be explained very simply, and it is as follows : Taking the circumstances of the testament into account, and the fact that Rangaswami Reddiar was a Hindu bequeathing properties firstly to his wife and daughter, and after the lifetime of the wife to his daughter and son-in-law, the gift in favour of the wife and daughter can only be interpreted as a gift in severalty, these legatees taking as tenants-in-common. Once this is conceded, the death of Tayarammal prior to the testator would necessarily imply a subsequent devolution in accordance with the principle embodied in Section 107 of Indian Succession Act. Then it logically follows that, after the deaths of Narayanasami Reddiar in 1946 and of Ramachandru Ammal pendente lite, Plaintiffs could only take a fourth of the estate, at the best, for the separate share of the daughter (Tayarammal) would fall into the residue of the estate upon her death during the testator''s lifetime. This is not really in dispute, and if this interpretation of the Will is to be sustained, it is clear that the Plaintiff would be entitled only to a fourth interest in the plaint A schedule properties, unless they are to be on-suited altogether upon the other two grounds of the revocation of the Will by Rangaswami Reddiar. or of the bequest in favour of Narayanaswami Reddiar failing as a contingent one, which could not take effect. Sri Kuppuswami Ayyar for the Plaintiffs Respondents does not dispute this, but he strenuously contends that the gift was really a joint legacy, within the terms of the principle of Section 106 of the Indian Succession Act. That being the case, upon the death of Tayarammal, Ramachandru Animal took the whole in life interest, and Narayanaswami Reddiar, after her absolutely, as provided for in the Will.

Hence, the crux of this appeal, upon this aspect, is whether the gift in favour of Tayarammal and Ramacliandru Animal as also the subsequent gift in favour of Tayarammal and Narayanaswami Reddiar, should be interpreted as a bequest in severalty, the legatees taking as tenants-in-common, or whether it has to be interpreted as a joint bequest involving a joint tenancy. Here I may state that I am indebted to learned Counsel for a very extensive citation of the available authorities, upon this problem of interpretation.

Learned Counsel for the Appellant would argue thus. In Vydinadu v. Nagammal ILR (1888) Mad. 258 this Court was concerned with the interpretation of the Will of a Hindu testator devising properties jointly to his brother''s son and to Nagammal, the wife of that brother''s son whom he had brought up from childhood-This was interpreted as a gift to the two legatees as joint tenants, and the principle of the present Section 106 of the Indian Succession Act was applied. We have an added difficulty or complication in the present case, that the Will by Rangaswami Reddiar was executed in the mofussil on 13th December 1922, that it is by no means clear that either Section 106 of the Indian Succession Act (XXXIX of 1925), or the corresponding provision of the prior enactment would apply: but I am assuming that the section applies, or that its principle can be applied to these facts. But Vydinada v. Nagammal ILR (1888) Mad. 258 was expressly overruled by the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt ILR (1896) Cal. 870 (P.C.). The Privy Council observed:

The learned Judges of the Madras High Court in Vydinada v. Nagammal ILR (1888) Mad. 258 were not justified in importing into the construction of an Hindu Will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between the members of an undivided family.

Subsequently, there has been a catena of decisions of the Privy Council., of this Court and other High Courts, and the broad principle has been affirmed and reaffirmed in words that admit of no doubt. The. result of this is, as summarised by one learned author (P. L. Paruck, Succession Act, fourth edition pages 216-217), that if a Hindu testator makes a bequest even to persons who constitute a Hindu joint family,

The prima facie view is that they take in severalty, and that those who argue in favour of joint tenancy have to show some clear foundation for it in the terms of the Will.

If the bequest is to persons who are incapable of forming a Hindu joint family, the inference is stronger that they must take as tenants-in-common. Learned Counsel has sought to support these propositions by an extensive citation of the case-law. I think that it would be sufficient for our purpose to refer to the following authorities.

In Bahu Rani and Anr. v. Rajendra Baksh Singh ILR (1933) Luck. 121 (P.C.) the Judicial Committee reaffirmed that the principle of joint tenancy was unkown to Hindu law, except in the case of the joint property of an undivided Hindu family governed by the Mitakshara. Hence, the presumption would be that grants by a Hindu testator to two or more persons would create a tenancy-in-common and not a joint tenancy, even if according to the English law the terms of the instrument admitted of such a construction. In Thambireddi Seshureddi v. Mallareddi (1935) 42 L.W. 422 a Bench of this Court (Ramesam and Curgenven JJ.) referred to Jogeswar Narain Deo v. Ram Chandra Dutt ILR (1896) Cal. 670 (P.C.), and observed that even where the donees were already members of an undivided family, a transaction of a gift or Will ought not to be construed as giving the property to the donees or devisees as undivided family property. Hence, the gift in that case was construed as a gift to the donees as tenants-in-common. In Krishnaswami Sastrigal Vs. Avayambal Ammal and Another, Curgenven and Cornish JJ. affirmed the same principle. In Kappal Nadar Vs. Emperor, , where the devise was to a daughter and to a nephew as karthas (heirs entitled), Coutts-Trotter C. J., and Ramesam J., construed it as a gift in severalty, the legatees taking as tenants-in-common. In Jankiram Chetty v. Nagamony Mudadiar (1925) 60 M.L.J. 413, Kumraswami Sastri and Krishnan JJ., observed that if there was nothing in the Will to show clearly that the bequest was to the family as such, the ordinary presumption should prevail that the legatees took as tenants-in-common. This has also been affirmed in Karuppai Nachiar v. Sarikaranarayanan Chetty, etc. ILR (1803) Mad. 800 (F.B.). The learned Judges observed (at page 305)

It would be revolutionary to hold that all property which comes to two or more persons, who happen to be members of an undivided family is taken by them with benefit of survivorship and there is no warrant whatever in the Mitakshara for such a general proposition.

In Muthammal v. Ghandrakasa Udayar (1950) 63 L.W. 378 this Court observed :

It is now well-settled that unless we find some indications in the document itself to show that it is a joint bequest, the prima facie rule of construction is that the parties take it as tenants-in-common.

Of the decisions of the other High Courts to the same effect, it is sufficient to refer to the following. In Mst. Jio v. Mst. Bukman ILR (1926) Lah. 219, a gift or Will in favour of two persons without any definite specification of the extent of their shares, was still interpreted as a gift in severalty rendering the legatees tenants-in-common. In AIR 1931 421 (Oudh) , it was observed that the mere fact that the Will did not make any specification of shares, did not establish any joint tenancy. In the absence of a clear indication to the contrary, the gift must be deemed to render the legatees tenants-in-common. In Gopi v. Musammat Jaldhara ILR (1910) All. 41, the interpretation of the Will proceeded upon the same lines.

Upon the basis of this fairly extensive case-law, Sri T.M. Krishnaswami Ayyar contends that the gift or devise in the present case must undoubtedly be construed as a gift in severalty. The intention of the donor is obvious, to provide for his daughter Tayarammal and his wife Ramanchandru Ammal immediately after him, and, after the lifetime of his wife, to make his daughter and her husband (his son-in-law) his heirs. Under those circumstances, since the bequest was neither of co-parcenary property to a family as such, nor could it be denied that the bequest included legatees who were not members of the joint family, it is impossible to interpret this Will as anything other than a gift in severalty. Sri Krishnaswami Ayyar further contends, it appears to me with great plausibility and force, that Sections 106 and 107 of the Indian Succession Act do not come into the picture at all at this stage. They are not really statutory rules of construction of Hindu Wills, or of testamentary dispositions in general. They are rules which provide for a further devolution of an estate in one contingency, viz., where one of several legatees dies before the testator. Section 106 provides for the devolution where the legacy is a joint legacy; in precisely the same manner, Section 107 provides for the devolution where the legacy is a gift in severalty. But it would lead to absurd results, and it would be logically fantastic, if we apply Section 106 or Section 107, as the case may be, in such a manner as to involve the construction of a Will in different terms from those upon which the Will would be normally otherwise construed. There are many decisions laying down the principles upon which Wills should be construed by Courts, and perhaps the most compendious statement of the criteria will be found in Narasimha v. Parthasarathy ILR (1913) Mad. 199 (P.C.) where the favourate metaphor of the armchair of the testator, has been used by the Judicial Committee. But a Will which is construed as a joint legacy, or as a legacy in severalty, as the circumstances may warrant, cannot be something else because one of the legatees happens to die before the testator. I do not think that this line of reasoning can really be disputed. It is further supported by the marginal titles to Section 106 and Section 107, which are not quite irrelevant in determining the intention of the Legislature. (Woodroffe and Ameer Ali''s Law of Evidence, tenth edition, volume I, page 102). In this context, I must refer to Koppula Surareddy (died) and Others Vs. Koppula Venkata Subbareddi and Others, a decision upon which I shall make more detailed comment later. Here, the pertinent point is that, in the judgment of Chandra Reddi C.J., a reference acurs to Section 106 as a rule to enable Courts in construing Wills. With very great respect, I am not clear that this conveys the precise import of Section 106. It appears to me, per contra, rather that we should first construe the terms of any Will upon the general principles, and then proceed to apply Section 106 or Section 107, as the case may be, to the specific contingency of the death of one of the legatees before the testator, which these sections seek to provide for.

While upon this aspect, and particularly as the illustration to Section 106 has been relied on by the learned Counsel for the Respondents for the contrary view that the Will in this case really created a joint tenancy in favour of the daughter and the wife, I shall immediately extract and set forth below the relevant sections together with their illustrations.

If a legacy, is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole.

Illustration

The legacy is simply to A and B, A dies before the testator, B takes the legacy.

If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator''s property.

Illustration

A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator. B and C will only take so much as they would have had if A had survived the testator.

We shall now turn to the grounds upon which the learned Counsel for the Respondents would seek to contend for a different interpretation of the Will. In the forefront of his arguments Sri Kuppuswami Ayyar seeks to rely upon Koppula Surareddy (died) and Others Vs. Koppula Venkata Subbareddi and Others, , a Bench decision of the Andhra High Court to which I have earlier made reference. But I am unable to see how this decision really helps him. It is clear that, in that case, what was contended before the learned Judges was that it would be contrary to Hindu law to interpret a Will by a Hindu testator to two or more legatees, as ever involving a joint tenancy at all. Obviously, this view of the law is indefensible. A Hindu testator is perfectly at liberty, like any other testator, to create a joint tenancy in favour of two or more legatees, either by explicit language, or by the fact that surrounding circumstances justify that inference alone as his true intention in the Will. This is very clear from the following passage in the decision at page 370 :

It cannot be postulated that whenever a gift is made to two or more persons jointly, they take it only as tenants-in-common irrespective of the intention of the donor. It all depends on the intention of the testator as could be gathered from the language of the instrument and the surrounding circumstances. Such a construction does not in any way violate principles of Hindu Law.

The learned Judges then referred to Narasimha v. Parthasarathy ILR (1913) Mad. 199 (P.C.), and, in the penultimate paragraph of the judgment, to various circumstances which justify the inference in that case that there was a joint legacy. Hence, it is quite unnecessary for me to express any dissent from this decision, nor does it help the argument in the present case that the present Will should he construed as a joint legacy, and not as a gift in severalty. On the contrary, since the testator was a Hindu who clearly intended to provide for his wife and daughter in the first instance, the point seems obvious that he did not intend them to take as joint tenants with the necessary implications of unity of possession, interest and title. Next, Sri Kuppuswami Ayyar relies upon the illustration to Section 106 of the Indian Succession Act, which I have earlier set forth. He argues, upon the strength of the dicta of the Privy Council in Mohamed v. Yeoh (1916) 43 I.A. 256 (P.C.), that it should be a very last resort of construction to reject an illustration to a section, on the gound of its assumed repugnancy to the section itself. But I am quite unable to see how the illustration to Section 106 really helps the learned Counsel. It is an illustration to Section 106 which, in explicit terms, refers to a legacy given to two persons jointly. It would be stretching the illustration beyond its contents and significance altogether, to argue that it implies, merely because it refers to a legacy simply to A and B, an enactment of a rule that every legacy to two persons must be presumed to be a joint legacy. The illustration was designed to deal with the special case of one of such legatees dying before the testator, and it was not limited, in its reference to Hindus or to Hindu Wills. Even under the English law as laid down in Robertson v. Fraser (1871) 6 L.R. Ch. App. 696, equity favours the construction that legatees were to take separate shares, as tenants-in-common and hence the Court would utilise even a very slight indication of such an intention, to draw that inference.

But there is another stream of case-law, seemingly in opposition to the leading case in Jogeswar Narain Deo v. Ram Chandra Dutt ILR (1896) Cal. 670 (P.C.) and of the cases of this Court and of other Courts affirming the same principle, which has now to be noticed. A clue to this somewhat perplexing divergence, is furnished in P.L. Paruck''s Indian Succession Act, fourth edition, pages 216--217, where the author observes :

Despite the Privy Council decision, some Courts in India continued to apply the English principle of joint tenancy to Hindu Wills.

Reference is made to Hemania Kumar Bhaduri v. Sudhansu Gobinda Choudhury (1920) 25 C.W.N. 262, Bhoba Tarini Debya v. Peary Lall Sanyat ILR (1897) Cal. 646 and to Krishnadas Tulsidas v. Dwarkadas Kaliandas ILR (1937) Bom. 679. But it is then observed that the matter was again put beyond doubt or controversy by the Judicial Committee in Bahu Rani and Anr. v. Rajendra Baksh Singh ILR (1933) Luck. 121 (P.C.). I think that this must be the true explanation of the apparently opposite trend of certain decisions; in other oases, they either relate to non-Hindus, or the broad principle itself somehow appears to have been lost sight of. Thus, for instance, in Arakal Joseph Gabriel v. Domingo Inas ILR (1910) Mad 80, a presumption was made that the donees took the properties as joint tenants and not tenants-in-common, where there were no words in the instrument indicating an intention to create a tenancy-in-common. But this was not a case of a Hindu testator or donor. In the important case, Nandi Singh v. Sita Ram ILR (1888) Cal. 80 (P.C.), the gift in favour of the daughter and her husband jointly, was no doubt construed as a joint legacy. The gift being invalid as to the husband, it was held that the daughter took the whole estate on the general principle that in the case of a gift to two persons jointly, and where it failed as to one of them, the gift operated entirely for the benefit of the other. This followed the rule in Humphrey v. Tayleur 1 Amb. Rep. 136. But I am unable to find from this decision what were the precise words of the gift or disposition, and how they were construed; apparently, the fact that the donor was a Hindu and the general presumption flowing therefrom were not discussed. Navroji Manockji Wadia v. Perozbai ILR (1898) 23 Bom. 80 again interpreted a gift to A and B without indicating distinct shares, as a joint gift. Of the decisions of this contrary trend, this alone refers to Jogeswar Narian Deo v. Ram Chandra Dutt ILR (1896) Cal. 670 (P.C.). In Krishnadas Tulsidas v. Dwarkadas Kaliandas ILR (1937) Bom. 679, where a Hindu gave a legaoy to A and his sons and daughter, the gift was interpreted as one for parent and issue concurrently and the principle of Section 106 of the Indian Succession Act applied upon the facts of that particular case. I can come to the only conclusion, after a careful review of the entire field of the case-law, that the leading principle affirmed in Jogeswar Narain Deo v. Ram Chandra Dutt ILR (1896) Cal. 670 (P.C.) and in the many decisions of this Court and other High Courts in consonance with it must be acknowledged to be as valid as ever, and quite unaffected by certain isolated decisions of the opposite trend.

Hence, bearing the principles in mind, as well as the surrounding circumstances and the language of exhibit-Al, the probable intentions of the testator and the fact that he was providing not merely for his wife and daughter but also for a son-in-law, etc., I have no doubt that this testament must be interpreted as a gift in severalty. If that interpretation were to prevail, it would be indisputable that, upon the death of Tayarammal and the subsequent death of the testator, the devolution would follow the principle of Section 107 and not of Section 106 of the Indian Succession Act. The Plaintiffs, as I have observed earlier, would only be entitled to a fourth share upon this analysis. But we are still to notice the most powerful of the arguments urged by Sri Kuppuswami Ayyar for the Respondents for an opposite view. This depends briefly, upon the explicit language of Section 107 of the Indian Succession Act, I have extracted and set forth earlier. Learned Counsel contends that the part of the section, which runs to the effect;

in other words which show that the testator intended to give them distinct shares of it,

must be strictly interpreted. That is, there must be actual expressions in the Will justifying this inference, and it is not a warranted rule of interpretation to draw such an inference either by mere implication, or by the addition of words to the Will which are not there. Both the learned Counsel agree that Sections 106 and 107, between themselves, are exhaustive of the cases of joint gifts or gifts in severalty. Both provide for the contingency of the death of a legatee before the testator, in either kind of gift. There is no medium quid, a third something, which is between the cases provided for. But Sri Kuppuswami Ayyar argues that, even if otherwise the Will is to be interpreted as a gift in severalty, if Section 107 does not apply in specific terms, we have no alternative but to interpret the Will as amounting to a joint gift and to apply section 106. Sri Kuppuswami Ayyar further relies upon certain decisions that have affirmed the limitations of Courts in interpreting the terms of a Will. Thus, in Narasimha v. Parthasarathy ILR (1913) Mad. 199 (P.C.) itself, the Judicial Committee refused to interpret the provisions of a Will in any special way, because of the fact that the testator was a Hindu. In Ramautar Singh Vs. Sm. Ramsundari Kur and Others, , that Court held that the Court has no power to give effect to a hypothetical intention by supplying lacunae in the Will, and thereby making practically a new Will for the testator. In Chunilal Parvatishankar v. Bai Samrath ILR (1914) 38 Bom. 399 (P.C.), the Judicial Committee deprecated the taking of words which had a general meaning, and subjecting them to limitations which the words do not necessarily imply, in the interpretation of a Will Also see Amrito Lal Dutt v. Surnomoye Dasi ILR (1900) Cal. 996 (P.C.), on the principle that speculation is not permitted to the Court in its task of interpretation and Sevugapandia Thevar v. Thyagasundaradas Thevar (1959) 1 M.L.J. 335. But, having due regard to these authorities, and carefully assessing the language employed by the Legislature in Section 107, I am still quite unable to see how the application of the principle of that section to the present facts is precluded by the language of the section. On the contrary, as Sri Krishnaswami Ayyar rightly contends, the language of Section 107 amounts to nothing more than this; where, from the language employed in the Will or gift, the inference is justified that it was a gift in severalty, thereby amounting to a tenancy-in-common and to distinct shares, then the principle applies, where one of the legatees dies before the testator. That is the only permissible interpretation, for, otherwise, we would be driven to conclude that there is a third case, a medium quid, not provided for by these two sections, which is not the contention of either learned Counsel. I do not think it can be seriously disputed that, in interpreting the terms or words of a Will, or even of a statute, the entire text or body of the words has to be taken into consideration, along with every essential implication arising from the particular language employed. For instance, it may be shown that a word was employed with a specific meaning by the testator, or that a certain expression necessarily involves an inference of fact. It has been repeatedly held by Courts that a legacy in severalty can be created by the words of a Will, even though distinct shares are not expressed. Equity leans towards this, and the decision in Robertson v. Fraser (1871) 6 L.R.Ch. App. 696 already referred to by me, is authority for the view that even such a single word as participate would be evidence of an intention to make a gift in severalty. Clearly, the view is unsustainable that Section 107 has imported a new qualification or restriction in the interpretation of Wills, not warranted by the general law upon the subject. I am of the view that Section 107 merely employees language amounting to this, viz., that where having regard to the dispositions and the surrounding circumstances the inference is justified that the legacy was in severalty (which would necessarily be in distinct equal shares unless unequal shares were specified), the principle of the section would apply in the case of death of a legatee before the testator.

Hence. I come to the conclusion that in the present ease the gift was in severalty rendering the various legatees tenants-in-common. Upon this finding the Plaintiffs (Respondents) would only be entitled to suceed to a fourth share or interest in the suit properties.

I propose to deal very briefly with the other grounds which as I earlier observed have not been waived or abandonded. The learned Subordinate Judge has dealt very elaborately with the question of an implied revocation of the Will by Rangaswami Reddiar. because of certain alienations and other conduct on the part of the testator. The lower Court comes to the conclusion after a full review of the facts and probabilities that there was no justification to draw this inference of revocation. I see no grounds for any different conclusion and I accept this finding of the Court below. Similarly with regard to the question of the Will creating only a contingent interest in favour of Narayanaswami Reddiar through whom Plaintiffs claim the Court below has rightly observed that the interest is a vested one because the events contemplated viz., the termination of the life times of Tayarammal and Ramachandru Ammal are certain events and not events which might or might not occur. The learned Subordinate Judge is correct in his view that the fact that Tayarammal happened to be a person in whose favour a life estate was created did not make any essential difference. Upon both these grounds the Court below was correct and the Appellant cannot hope to succeed.

The memorandum of cross-objections may be very briefly dealt with. This relates to items 4, 5 and 6 of the properties which were actually obtained by the testator himself under Exhibits A2 to A4. The contention of the Plaintiff was that these three items were substituted for the original items specified in the Will and that they were hence entitled to recover them also as substituted properties. The learned Subordinate Judge observed that u/s 90 of the Indian Succession Act a description of property contained in a Will shall be deemed to refer to and to comprise the property answering that description at the death of the testator, unless the testament evinced a contrary intention. That is not the case here and these properties hence stand upon the same footing as properties acquired after the date of the Will. The Court below refused to treat items 4, 5 and 6 as items of property forming the subject of the gift and I am unable to see how this conclusion is erroneous.

In result, therefore the appeal is allowed to this extent, viz., that the Plaintiff will obtain a declaration and a preliminary decree for partition only with regard to a fourth interest in the suit properties (except items 4, 5 and 6) together with mesne profits from the relevant date and proportionate costs in the Court below. The Appellant in view of the fact that he has succeeded here to a major extent and that the memorandum of cross-objections fails will have his costs of appeal. The memorandum of cross-objections is dismissed without costs.

(This case having been set down for being mentioned the Court made the following ORDER.)

Upon the broad equity stated in the following decisions of the Privy Council (Indar Kunwar v. Jaipal Kunivar ILR (1888) Cal. 725, 761 (P.C.); Kristoromoni Dasi v. Narendra Krishna Bahadur ILR (1888) Cal. 888, 398 (P.C.); Surendro Keshub Roy v. Doorgasoondery Dossee ILR (1892) Cal. 513, 537-8 (P.C.); Kaikushru Bezonji v. Shirinbai ILR (1918) 43 Bom. 88, 101-2 (P.C.); Putlibai v. Sorabji Naoroji Gamadia (1923) 46 M.L.J. 780, 791 (P.C.); and U.N.I. Association v. Morter AIR 1998 P.C. 119, 122) that where the crux of the difficulty in a litigation has arisen from imprecise and loose language used by a testator in his Will, the costs of both parties should be directed to come from the estate. I hereby direct that both with regard to the suit and the appeal therefrom and the memorandum of cross-objections the parties shall bear their own costs throughout. This is an exemplary case of considerable difficulty in determining the rights of parties, arising almost exclusively for unfortunately vague and cryptic language used by a Hindu testator in making his Will.