1870 JOSEPH EZEKIEL JUDAH v. estate, and which they claim under the following clause in the testator's will:-" And what may remain, after payment of the above mentioned sums as well as all the debts, shall remain AARON HYE under the control of my brother, Sassoon Ezekiel Judah, and my brother Joseph Ezekiel Judah, for the purpose of defraying therewith the expenses for the year, and making charitable distributions as commanded, and giving alms for my spiritual benefit according to their judgment." NUSSEEM I divide this bequest into two parts. I think that down to the word "commanded" the testator is speaking of the expenses and charitable distributions which the witnesses say are considered necessary according to the tenets of their religion, and which are confined to the first year after the testator's death. In the remainder of the sentence he is, in my opinion, speaking of such giving of alms after the year has expired as (though not necessary) is beneficial to the soul of the testator. The defendants all contend that the bequest fails. They are not agreed as to what becomes of the residue if this be so held, but that question is not now before me. It has been held here, and for the purposes of this case I adopt that holding, that the English rule of law which prohibits the bequest of money to superstitious uses has no application in this country. It has also been assumed, on all hands, in the course of this argument, and for the purposes of this case I assume it also, that because the English Court of Chancery departs from its ordinary rules where charitable bequests are concerned, and undertakes to see them carried into execution however indefinite they may be, this Court should do the same under similar circumstances. Notwithstanding these wide assumptions however in favor of the bequest, I still think that part of it which appropriates the residue to giving alms for the testator's spiritual benefit ought not to be considered valid. This is not a purely charitable bequest. The ultimate object of the bequest is the testator's own spiritual benefit. If, therefore, the bequest were to be held valid, this Court, in performing its duty of superintending the administration of the trust, would have to try every appli 1870 JOSEPH EZEKIEL JUDAH v. NUSSEEM JUDAH. cation or proposed application of the funds by two distinct tests. It would have to ascertain, first, whether it was "a giving of alms," and secondly, if it was such a giving of alms as would be for the testator's spiritual benefit in accordance with the doc- AARON HYE trines of the Jewish religion. We have, therefore, a vague bequest, with a vague restriction upon it. Whether or no, if this Court were to make the attempt, it could ascertain what giving of alms would, and what giving of alms would not, be for the testator's spiritual benefit, I am hardly in a condition to say. But as I understand the English cases, that is not the kind of inquiry which even the English Court of Chancery will undertake, and if it would not be undertaken there, I should certainly say it ought not to be undertaken here. Whether or no the bequest is valid, so far as it relates to the expenses and charitable distributions within the year which, under the Jewish religion, are said to be considered necessary, is a point which does not arise in this case; and I wish it to be clearly understood that I express no opinion upon it. I think that, for the decision of that point, other principles would have to be taken into consideration than those which are involved in the case before me. All I now hold is that, so far as the bequest to the plaintiffs relates to giving of alms for the testator's spiritual benefit, it is void for uncertainty; that so far as it relates to other matters, they were all to be performed within the year of his, the testator's, death, which year has expired. The plaintiffs, therefore, cannot claim the fund now in the hands of the Administrator General, and the suit will be dismissed. The costs of all parties as between attorney and client will be paid out of the fund on scale No. 2. Judgment for defendants. Attorney for the plaintiffs: Mr. Carapiet. Attorney for Ongshooprokash Gangooly, guardian for the infant defendants, A. H. N. E. Judah and F. N. Judah: Baboo W. C. Bonnerjee. Attorney for the Administrator General: Mr. Dover. Attorney for Sarah Belilios: Mr. Moses. 1870 July 12. [APPELLATE CIVIL.] Before Sir Richard Couch, Kt., Chief Justice, Mr. Justice L. S. Jackson, and THAKUR JIBNATH SING (Plaintiff) v. THE COURT OF WARDS THE COURT OF WARDS (one of the DefendanTS) v. THAKUR Hindu Law-Inheritance-Mitakshara-Great-Grandson-Sapinda Gentile-Bandhu-Cognate-Father's Sister's Son. The great-grandson of the great-great-great-grandfather of the deceased is, according to the Mitakshara, a nearer heir to the deceased than his father's sister's son. THIS was a suit for recovery of possession of the Raj and immoveable property in Pergunnas Ramghar, &c., on the ground of title by inheritance. The following pedigree will show the state of the parties and the relation in which they stood to the deceased Raja Trilokenath Sing: The defence set up was (inter alia) that, according to the family usage, the plaintiff was not entitled to the possession of the disputed Raj in the presence of the defendant, who was the heir and the rightful proprietor. The Deputy Commissioner held that, according to the Mitakshara, a sapinda had a right to inherit before the bandhus; and * Regular Appeals, Nos. 82 and 120 of 1869, from the decree of the Deputy Commissioner of Lohardagga, dated the 24th February 1869. that as the plaintiff was a bandhu, and the defendant a sapinda to Trilokenath, the plaintiff was not entitled to succeed. He, accordingly, dismissed the plaintiff's suit. The plaintiff appealed to the High Court. Mr. Mackenzie (Baboos Kaliprasanna Dutt, Shamlal Mitter, and Mahendralal Seal with him), for the appellant, contended that, according to the Mitakshara, the plaintiff was entitled to succeed to the property in preference to the defendant, and cited Mitakshara, Chapter II, Section 2, verse 1; Chapter II, Section 10, verse 3; Chapter I, Section 1, verse 5; Sheo Sahai Sing v. Omed Koonwur (1); Chapter II, Section 10, verse 2. The judgment of the lower Court proceeded upon the hypothesis that all gentiles take before bandhus; but a greatgrandson has no place in the line of succession-Mitakshara, Chapter II, Section 2, verses 1, 2; Vivada Chintamani, paragraph 9; Mitakshara, Chapter II, Section 5; Rutcheputty Dutt Jha v. Rajundernarain Rae (2); Smriti Chandrika, 209, verse 7. Baboo Kaliprasanna Dutt on the same side.-The Mitakshara does not go beyond son and grandson-Chapter II, Section 5, verses 2, 4, 5. Sons do not mean all descendants, for then "their issue" would be a tautology. The word in the original for issue is Sunava. Reading these Sections together it would appear that a complete enumeration has been given, for the law was promulgated by the sages to avoid dispute. Gotroja does not mean every one born in the family. It is explained in Chapter II, Section 2, verses 4, 5. The commentary of Subhadini on the words of verse 1, Section 6, Chapter II, Mitakshara, distinctly gives the enumeration. This is quoted by Colebrooke and West and Buhler. The interpretation of Putra in Rutcheputty Dutt Jha v. Rajundernarain Rae (2) is not correct. He cited Laksmibai v. Jayaram Hari (3), Chowtreea Run Murdun Sein v. Sahib Purlad Sing (4), Collector of Tirhoot v. Huro Pershad Mohunt (5). 1870 THAKUR JIBNATH SING V. THE COURT OF 1870 JIBNATH SING v. THE COURT OF Baboo Annada Prasad Banerjee (Baboos Mahesh Chandra THAKUR Chowdry and Ramesh Chandra Mitter with him), for the respondent, contended that Gotroja means "sprung from the same family." The Mitakshara lays down only certain principles to regulate succession, but does not give an exhaustive list of heirs. Mitakshara,Chapter II, Section 3, verse 3: "To the nearest sapinda, the inheritance next belongs." Gentiles sprung from the same family are divided into two classes-those connected by pinda (funeral cake), and those connected by libation. Chapter II, Section 5, verse 5 gives the manner of the succession of those connected only by libation of water; the great-grandson is not mentioned in the list. There, the meaning of son is plain; the author was dealing only with the "nearest sapinda." But a great-grandson is a remote sapinda, for he offers only pindas to two of the ancestors of the deceased, whereas a grandson offers pindas to three ancestors of the deceased conferring greater benefit. Keeping in mind that the sapindas would succeed, the author enumerates only two in descent of each sapinda. The great-grandson comes in after exhausting the ascending line to the seventh degree-Grady's Hindu Law, page 227. The father, grandfather, and great-grandfather are the nearest sapindas. The other ancestors are partakers of the lape (or wipings of the kusa grass). The grandfather's son can offer pinda to his grandfather, greatgrandfather, and great-great-grandfather. The great-grandfather's son offers pinda to his great-great-great grandfather. But the great-grandson of the grandfather would offer lape to the great great-grandfather. In Amrita Kumari Debi v. Lakhinarayan Chuckerbutty (1), it has been held that the list of bandhus is not exhaustive-citing Parasara Madhava. This shows that only the principle had been laid down. Yajnavalkya himself declared that the gentiles would take before cognates. Chapter II, Section 3, verse 3, Mitakshara, adopts the principles of Menu. The brother of the whole blood takes before the brother of the half blood. Whether the word pinda means "funeral cake" or "body," the principle is not altered. First the gentiles would take, then the cognates. The plaintiff is only a cognate, whereas the defendant (1) 2 B. L. R., F. B., 28. |