SOORJEE 1857. deed, in the argument before us, that the words "the SREEMUTTY share that he has obtained of the immoveables and MONEY DOSSEE moveables of my estate," would reach the income no less than the capital. But, independently of what MULLICK. has been already said, this suggestion cannot, as we v. DENOBUNDOO think, be maintained. The Will of a Testator must, prima facie at least, be taken to refer to that which is the subject of his disposition; the property which he has himself to give; and if he has evinced his intention to give that property, very strong and clear language must be required to countervail that inintention, and subject the property which he has once given to his further disposition. No such intention can, as it appears to us, be collected from this Will; and so far, therefore, as the intention of this Testator is to be gathered from the words which he has used, we think that we are safe in concluding that his intention was, that his sons should, in any event, enjoy, during their lives, the income of their shares of his property. It is satisfactory to find that, in this respect, we agree in opinion with the Court whose judgment we are called upon to review. Such, then, being the intention of the Testator, to be collected from the first and eleventh items of the Will, it is next to be considered whether the other dispositions of the Will evince any different intention, and it does not appear to us that they do. relate only to the mode in which the administered, and to the burthens to be subjected. They seem to estate is to be which it is to If, therefore, we are to impute to this Testator any intention different from that which is to be collected from the words of his Will, it must be upon the ground that there are extrinsic circumstances which 1856. SOORJEEMONEY DOSSEE บ. DENOBUNDOO disprove the expressed intention, and prove the different intention. The expressed intention ought, SREEMUTTY as we conceive, to prevail, unless the different intention be clearly demonstrated. We may doubt whether the Testator really intended what his words MULLICK. import, but a Court of construction must found its conclusions upon just reasoning, and not upon mere speculative doubts. What, then, are the extrinsic circumstances upon the faith of which we are called upon to conclude that it was the intention of this Testator that the income of his sons' shares of his property should not form part of their estates, but should go over with the principal of their shares ? They are two first, that this was a joint family, and that the sons were joint in estate; and secondly, that by the Hindoo law, where parties are joint in estate, the increment follows the principal. principal. As to the first of these grounds, it does not seem to us at all to affect the question we are called upon to decide; for, admitting the family to have been joint, and the sons joint in estate, the right of any one of the co-sharers would not, under the Hindoo law, pass over, upon his death, to the other co-sharers; it would be part of the estate of the deceased cosharer, and would devolve upon his legatees, or his natural heirs. It does not, therefore, seem to us that it would follow from the sons having been joint in estate, that what was given to one was meant upon his death to go over to the others, even if the joint estate had been constituted by the Will; much less so if, as the Court in India has thought, and as we think, the Testator has not by his Will imposed upon his sons the obligation of continuing joint in estate. VOL. VI. R 2 1856. SOORJEE MONEY DOSSEE บ. DENOBUNDOO Then as to the rule of the Hindoo law, that the SREEMUTTY increment follows the principal where the parties are joint in estate. It is not necessary for us to give any opinion upon the extent and limits of this rule, and we MULLICK. desire not to be understood as intimating any opinion upon those points. The question in this case, as we view it, is, whether the rule is properly applicable to the case before us; and we are of opinion that it is not; assuming that the Testator could, if he had thought fit, have attempted to impose upon his sons the obligation to continue joint in estate; a point on which also we give no opinion. He has not, as we think, imposed that obligation, and we do not think that a rule which might well have been applicable had the obligation been validly imposed, can properly be applied in a case where the obligation has not been imposed. It was argued, indeed, at the Bar, that the Testator contemplated that his sons would continue joint in estate, and the learned Judges of the Supreme Court seemed to have so considered, and thence to have deduced the inference that he meant the income of each son's share to go over with the principal. We think, however, that the learned Judges were not justified in applying this assumption to the construction of the Will. The Testator must, of course, have known that his sons were joint in estate, and he has not attempted to interfere with their election whether they would continue so or not. If they had severed in estate, there can be no doubt that the income of each share would have belonged to the owner of that share. Can we say that the Testator did not contemplate that there might be such a severance? and if not, on what ground are we to rest the inference which the Court has deduced? SOORJEE MONEY DOSSER v. DENOBUNDOO Can we say that the Testator intended that if his sons 1856. continued joint in estate, the income of their shares SRELMUTTY should go over with the principal, but that if they severed in estate each should take his share of the income? We think not. Such an intention might MULLICK. have been expressed, but the Testator has not expressed it, nor, so far as we can see, does his Will furnish any sufficient ground for presuming that he so intended. In the absence of express declaration, or of what may be called necessary inference, we are of opinion that such an intention cannot be imported into the Will. The effect of it would be to render the disposition of the property dependent, not upon. the Will of the Testator, but upon the subsequent acts of his legatees. The character and position of a legatee may well form the inducement to the gift in his favour, but we think it is going too far to say that in the absence of express declaration or necessary inference, the extent of the gift can be measured by the legatee's continuing or not continuing to hold that character and position. Such considerations do. not, as we conceive, form legtimate elements in the construction of a Will. We collect from the judgment, that the learned Judges considered that it. was more constant to the principles of the Hindoo law to hold that the increment should go over with the principal than that it should pass to the natural heirs; but the construction which the learned Judges have put upon the Will by enlargement of its terms, seems to us to be at variance, rather than in consonance, with the spirit of the Hindoo law. Equality among the heirs is, as we understand, the spirit of that law. The law does not treat the principal and the increment as undistinguishable in their nature, 1856. SREEMUTTY MONEY DOSSEE v. DENOBUNDO0 for there is no doubt they may be severed, but it treats them as united for the purpose of dividing them equally amongst all the united family, that is, all the heirs; and if that entire equality cannot, as in the present case in consequence of the dispositions of the Will it cannot, be attained, the partial attainment of it seems to us to be more in the spirit of the Hindoo law, than its total rejection. Upon these grounds, we find ourselves unable to agree in the opinion of the Supreme Court, and are of opinion that these demurrers ought to have been overruled; we shall, therefore, humbly recommend to Her Majesty that these Orders be reversed, and the demurrers overruled. The Supreme Court has thought that the cost of the demurrers in that Court ought to be paid out of the estate, and we think that the costs of the appeal ought to be so paid also, and we shall accordingly add this provision to our recommendation. |