Civil Appeal No 626 of 1975 etc
From the Judgment and Order dated 287
1972 of the Calcutta High Court in Civil Rule No 2029 of 1967
PK Mukherjee
DN Mukherjee NR Choudhary
Ranjan Mukherjee
Somnath Mukherjee
for the Appellants
Sukumar Ghosh
DP Mukherjee and GS Chatterjee
for the Respondents
The Judgment of the Court was delivered by RANGANATHAN J
All these cases involve a common point which has been decided by a Full Bench of the Calcutta High Court reported as Madan Mohan Ghosh vs Shishu Bala Atta AIR 1972 Cal
Civil Appeal No 62675 is a direct appeal from the judgment of the Full Bench in one of the batch of cases dealt with therein
In the other cases the High Court has decided the matter by following the Full Bench decision and that is the subject matter of appeal before this Court
Basically the question is whether the right of pre emption conferred on co sharers under the Bengal Tenancy Act 1885 hereinafter referred to as the Tenancy Act  is available to the holders after their interests in the holding have vested in the Government under the West Bengal Estates Acquisition Act 1953 hereinafter referred to as the 1953 Act 
This question has been answered by the Full Bench Coram AK Mukherjea Sabyasachi Mukharji and MM Dutt JJ in the negative and it is the correctness of this conclusion that is assailed in these proceedings
To provide a factual background it may be sufficient to set out the brief facts in CA No 62675
The respondent Smt
Gangamoni Mondal purchased on 29
1963 the suit property being land measuring about 15 acres
She excavated a portion of the land filled up other portions of it constructed a small structure thereon and started living there from 1964
About three years and five months after her purchase Ardhendu Bhusan Halder the predecessor in inter est of the appellants made an application for pre emption under section 26 F of the Tenancy Act
His case was that he was a Co sharer Of the holding which comprised the land purchased by the respondent
The holding was previously a Raiyati Mokarari interest and it had vested in the State under the provisions of the 1953 Act
The case of the re spon 530 dent was that
though the predecessor in interest of the appellant and her vendor were the joint holders of the property in question
the right of pre emption available to the co sharer had ceased with the coming into force of the 1953 Act
The pre emption
application was allowed by the learned Munsif and his order was confirmed by the learned Additional District Judge
The respondent moved the High Court in revision
The matter came up for hearing before the two learned Judges of the Calcutta High Court who referred the matter to the Full Bench
The question
as already stated
was answered by the Full Bench in the negative with the result that the application for preemption stood dis missed
Hence the appeal before us
The other appeals before us also involve the same point but there are some difference
We shall refer to these aspects later to the extent necessary
The question raised lies within a very narrow compass
The relevant statutory provisions may first be set out
As already mentioned the Tenancy Act provides in section 26 F that except in the case of a transfer to a co sharer in the tenancy whose existing interest has accrued otherwise than by purchase one or more cosharer tenants of the hold ing a portion or share of which is transferred
may apply to the Court for the said portion or share to be transferred to himself of themselves
In other words the section con ferred On a co sharer tenant of an occupancy holding a right to compel another co sharer tenant to sell his share in the holding to him instead of to a stranger
The term co sharer envisages that the holding must be under the ownership of more than one person
The holding must be an OCCupanCy holding that is
it must be the holding of raiy ats having occupancy rights
So long as a division of the holding does not take place in accordance with section 88 of the Tenancy Act
the holding remains a joint holding and each co sharer will be entitled to pre empt in case of transfer of a share or portion of the holding by a co sharer to a stranger
The 1953 Act came into force on February 12 1954
Sub section 1 of section 4 of the Act provides that the State Government may from time to time by notification declare that with effect from the dale mentioned in the notifica tion
all estates and the rights of every intermediary in each such estate situate in any district or part of a dis trict specified in the notification shall vest in the State free from all incumbrances
Pursuant to section 41 a notification was published which prescribed the date of vesting as 15th April
The term 531 intermediary was defined in the Act to mean a proprietor tenureholder
under tenure holder or any other intermediary above a raiyat or a non agricultural tenant  
Thus a raiyat was not an intermediary
However Chapter VI of the Act contains provisions for acquisition of interests of raiyats and under raiyats
Under section 49 the provisions of Chapter VI were to come into force on such date and in such district or part of a district as the State Government may by notification in the Official gazette appoint
The notification under section 49 was published on 9th April 1956 by which Chapter VI was brought into force in all the districts of West Bengal with effect from April 10 1956
The effect of such a notification was that the provisions of the earlier Chapters of the Act became operative mutatis mundandis to raiyats and under raiyats as if such raiyats and under raiyats were intermediaries and the land held by them were estates and a person holding under a raiyat or an under raiyat were a raiyat for the purpose of clauses c and d of section 5 Notifications were issued under section 4 by the State Government as a result of which the interests of raiyats and under raiyats vested in the State with effect from April 14 1956
As already mentioned the effect of 1953 Act was to vest the rights of intermediaries an expression subsequently extended to cover raiyats and under raiyats in the State Government
However section 6 confers certain rights on the intermediaries to retain certain lands
The relevant por tions of section 6 can be extracted for purpose of conven ient reference
Right of intermediary to retain certain lands
1 Notwithstanding anything contained in sections 4 and 5 an intermediary shall except in the cases mentioned in the proviso to sub section 2 but subject to the other provi sions of that sub section be entitled to retain with effect from the date of vesting a land comprised in homesteads b land comprised in or appertaining to buildings and structures owned by the intermediary or by any person not being a tenant holding under him by leave or licence
XXX XXX XXX c non agricultural land in his khas possession including land held under him by any person not being a tenant by 532 leave or licence not exceeding fifteen acres in area and excluding any land retained under clause a Provided that the total area of land retained by an interme diary under clauses a and c shall not exceed twenty acres as may be chosen by him Provided further that if the land retained by an intermedi ary under clause c or any part thereof is not utilised for a period of five consecutive years from the date of vesting for a gainful or productive purpose the land or the part thereof may be resumed by the State Government subject to payment of compensation determined in accordance with the principles laid down in section 23 and 24 of the Land Acqui sition Act 1894 Act I of 1894 d agricultural land in his khas possession not exceeding twenty five acres in area
as may be chosen by him Provided that in such portions of the district of Darjeeling as may be declared by notification by the State Government to be hilly portions an intermediary shall be entitled to retain all agricultural land in his khas possession or any part thereof as may be chosen by him In other words
broadly speaking the intermediary was allowed to retain agricultural land upto the extent of twenty five acres and nonagricultural land to the extent of fifteen acres leaving out the special provisions in respect of homesteads lands on which buildings are put up and lands in the hilly areas of Darjeeling
Section 52 while applying these provisions to raiyats and under raiyats states Provided that where raiyat or an under raiyat retains
under section 6 read with this section
any land comprised in a holding then notwithstanding anything to the contrary contained in sub section 2 of section 6 he shall pay  a in cases where he was paying rent for the land comprised in the holding and held by him immediately before the date of vesting hereafter in this proviso referred to as the holding lands i if he retains all the holding lands the same rent as he 533 was paying therefore immediately before the date of vesting and ii if the land retained by him forms part of the holding lands such rent as bears the same proportion to the rent which he was paying for the holding lands immediately before the date of vesting as the area of the land retained by him bears to the area of all the holding lands b in cases where he was liable to pay rent but was not paying any rent for the holding lands immediately before the date of vesting on the ground that the rent payable by him therefore was not assessed such rent as may be assessed mutatis mutandis in accordance with the provisions of section 42 c in cases where he was liable to pay rent wholly in kind or partly in kind and partly in cash then notwithstanding anything contained in clause c of section 5 such rent as may be assessed in accordance with the provisions of section 40 and d in cases where he was liable immediately before the date of vesting to pay for the holding lands a variable cash rent periodically assessed such rent as may be assessed mutatis mutandis in accordance with the provisions of section 42
 By a notification dated 285
1984 the Government of West Bengal framed rules called the West Bengal Estates Acquisition Rules
1954 hereinafter referred to as the rules 
Rule 4 originally provided that every intermediary who retains possession of any land by virtue of the provisions of sub section 1 of section 6 shall subject to the provisions of the Act be deemed to hold such land from the date of vesting a If it is agricultural land on the same terms and condi tions as an occupancy raiyat under the Bengal Tenancy Act 1885 b If it is non agricultural land on the same terms and 534 conditions as a tenant under the West Bengal Non agricultur al Tenancy Act 1949 holding non agricultural land for not less than 12 years without any lease in writing
 The following rule 4 was substituted for the above rule by a notification dated 7th September 1962 4
Any land retained by an intermediary under the provi sions of sub section 1 of section 6 shall subject to the provisions of the Act be held by him from the date of vest ing on the terms and conditions specified below XXX XXX XXX 3 if the land held by the intermediary be agricultural land then 1 he shall hold it mutatis mutandis on the terms and conditions mentioned in sections 23 23A clause a of section 25 sections 26 to 26G   The rule was again amended by a notification dated August 1 1964 by which for the words and figures Sections 26 to 26G 52 to 55 the words sections 26 26B 26C 26G sections 52 to 55 were substituted
In other words the original rule 4 merely provided that in the case of agricul tural land retained by the intermediary he shall hold it on the same terms and conditions as an occupancy raiyat under the Tenancy Act leaving it undefined as to whether these terms and conditions would also include the right of pre emption available under the Act
The amendment of 1962 specifically included the right of preemption available under section 26 F but the reference to section 26 F was omitted by the amendment of 1964
The provisions of these various enactments and the availability of the right of pre emption to the former joint tenants of the holding came up for consideration before a number of Benches of the Calcutta High Court
It is not necessary to refer to the details of these decisions inas much as the matter has been considered at length by the Full Bench
The arguments addressed in support of the survival of the right of pre emption despite these legislative changes were broadly these i The 1953 Act after Chapter VI came into force only vested the holding of the raiyats and under raiyat in the State
The word 535 intermediary  in section 6  includes the plural intermedi aries 
Hence the previous co sharers continue to be co sharers only instead of being tenants under an intermedi ary they become tenants under the State
The vesting is of the holding as a whole its integrity is not impaired
ii The Act the rules and the forms prescribed thereunder provide for the partition demarcation separate determina tion of the rents for the lands so partitioned and demarcat ed and consequent modification of the record of rights until all this is done the holding remains single and the erstwhile co sharers continue to be such
iii Rule 43 as it originally stood preserved the rights of tenants to co sharers
The 1962 amendment made this clear
The 1964 deletion of the reference to section 26 F was not with a view to take away the right of pre emption under section 26 F
It was only consequential to the enactment of the 1955 Act section 8 of which provided for a pre emption right corresponding to section 26 F of the Tenancy Act
The Full Bench however repelled the contentions and held that the right of pre emption did not survive
Its reasons may be summarised thus 1 By virtue of section 52 read with section 6 each raiyat becomes a direct tenant under the State with effect from the date of vesting in respect of the land which he is entitled to retain
The proviso to the section provides for the apportionment of the rent among the various holders making it clear that the land retained by a raiyat of a holding becomes the subject matter of a separate tenancy
It was therefore no longer possible to call them co sharers
Each became entitled to a direct tenancy in respect of a share of the previous holding and in regard to his inter est the previous holders had no manner of right or title
One raiyat could not claim to have any interest in the land comprising the holding which the others are entitled to retain or have retained
Before vesting each of the raiyats of a holding had an interest or share in every part of the land comprised in the holding and each was a co sharer of the other but this is not the position after the vesting when each of the raiyats of the holding becomes a direct tenant under the State in respect of the land of the holding which he is entitled to retain under the provisions of sub section  1  of section 6 536 2 The expression an intermediary in sub section 1 2 and 5 of section 6 cannot be read as including the plural
If the word intermediaries was substituted in the place of an intermediary in sub section 1 of section 6 the result will be that all the intermediaries would be jointly entitled to retain only 25 acres of agricultural land in his khas possession whereas clause d envisages that each intermediary is entitled to retain 25 acres of agricultural land in his khas possession and to exercise his choice of retention of land within such time and in such manner as may be prescribed
The forms prescribed under the schedule in this connection and the foot notes thereto make it clear beyond all doubt that each intermediary separately and not the intermediaries jointly could exercise their choice of retention
This was clear from clauses iii iv v and vi of the foot notes appended to the form
This Was also the only reasonable interpretation for differ ent co sharers of a holding may have other lands in their possession and unless the right of choice and the computa tion of 25 acres is separately read into the provisions it would be impossible to work the same
3 While it is true that on the vesting no partition of any holding is effected and the various records are also not immediately corrected the definition of holding  in the Tenancy Act clearly shows that an undivided share in land can be the subject matter of a separate tenancy and can constitute a holding of a raiyat or a under raiyat
There fore though the land remains undivided till it is demarcat ed by metes and bounds there is nothing wrong in saying that the undivided share for a raiyat becomes the subject matter of a separate tenancy directly under the State as from the date of vesting
Merely because the finally published re cord of rights has not been drawn up under section 47 read with rule 31A it cannot be said that the holding continues to be a joint holding or that the raiyats continue to be the co sharers of each other
4 It is true that the expression terms and condi tions in rule 4 includes the right of pre emption under section 26 F and section 26 F has also been specifically included within the meaning of Rule 43 as amended in 1962
However the exercise of a right of pre emption under sec tion 26 F is conditional on the person claiming to exercise the right being a co sharer of the holding a portion or share of which has been transferred to outsider
In view of the conclusion that the individual co sharers of the holding cease to be co sharers after the vesting there will be no scope for any application under section 26 F This however does not mean that rule 43 as amended in section 537 26 F is redundant
It may be that on the date of vesting there may be no co sharer in a raiyati holding
But where after the date of vesting the individual holder dies and a number of co sharers come into being by devolution of his interest the provisions of section 26 F read with rule 43 will come into play
Similarly if subsequent to the date of vesting one of the erstwhile co sharers transfers a portion of his holding to another that person becomes a co sharer of the holding along with his vendor
If one of these two co sharers transfers a portion of the holding to another person section 26 F will apply
Thus section 26 F has a part to play even in the new scheme of things and is not rendered otiose or redundant by the findings given earlier
5 It is true that sub rule 3 of rule 4 was further amended on 1st August 1964 deleting the reference to section 26 F in that sub rule
This deletion however did not mean that the right of preemption has been taken away
This amendment took place because the West Bengal Land Reforms Act 1955 by section 8 created a right of pre emption similar to the one conferred by section 26 F
This section came into force on 22nd October 1963
Initially there were some differences between section 26 F and section 8 of the West Bengal Land Reforms Act in that under the former the application had to be made to the Court while under the later it had to be made to the Revenue Officer
After the enforcement of section 8 it became wholly unneces sary to allow section 26 F to remain in sub rule 3 of rule 4
It took some time for this amendment to be given effect to
Section 8 will apply regarding transfers taking place after the enforcement of section 8
We have heard arguments on behalf of several counsel in respect of the points at issue in these appeals
The Full Bench judgment of the Calcutta High Court has discussed all the various aspects and it has come to the conclusion for the reasons summarised above and elaborated by it that the right of pre emption could not survive the 1953 Act
Counsel have been unable to persuade us to take a view different from that of the Full Bench
We therefore express complete concurrence with the views of the Full Bench
We would also like to point out that the decision of the Full Bench has been in force in the State of West Bengal since 1972
Interests in land must have been transferred during the past eighteen years on the basis that the princi ples of the Full Bench decision would apply
So even if there were any force in the contention urged on behalf of the appellants and as we have already pointed out no 538 grounds have been urged before us strong enough to persuade us to differ from the Full Bench we would have been very reluctant to alter the legal position as settled for a very long time in the State of West Bengal by the decision of the High Court
By this observation we should not be understood to have expressed any reservations on our part in accepting the Full Bench decision as correct
On the other hand having considered the pros and cons urged before us which had also been urged before the High Court we are in full agreement with the Full Bench decision
We therefore affirm the judgment of the Full Bench
In the light of the above discussion we may now consid er the several appeals before us 1 CA 62675 is a direct appeal from the Full Bench judgment
It stands dismissed
Sri Ghosh for the respondents also urged that the application for pre emption in the present case was made section 26 F of the Tenancy Act which had ceased to be effec tive after 1964 amendment and hence should have been reject ed
He also contended that section 26 F could be availed of only in respect of an occupancy raiyat whereas the interest transferred in the present case was a mokarari interest
These points do not appear to have been raised in the High Court
Anyhow it is unnecessary to go into these conten tions as we have held even otherwise that the application for pre emption is not maintainable
2 CA 291 of 1976 A11 the Courts have concurrently applied the Full Bench decision
The appeal therefore fails and is dismissed
3 CA 244980 1n this matter the land in question is nonagricultural land
The High Court held that the Full Bench decision relates only to agricultural lands and that the interests of non agricultural tenants remains unaffected by the 1955 Act
This point requires a little consideration
So far as non agricultural tenancies are concerned a right of pre emption among co sharers was conferred by section 24 of the West Bengal Non agricultural Tenancy Act 1949
We have earlier seen that the 1953 Act originally provided for vesting only of the interest of intermediaries  in the State and the definition of intermediary  took in only a holder above a raiyat or under raiyats  in respect of agricultural land and above a non agricultural tenant 
The rights of 539 raiyats and under raiyats  were brought within the purview of the vesting provisions when Chapter VI of the 1953 Act was brought into force but there is no statutory provision that brings non agricultural tenants within the scope of the vesting provisions
This has been pointed out by this Court in Shibasankar vs Prabartak Sangha at p 563 which has been followed in a number of decisions of the Calcutta High Court and applied after the Full Bench deci sion in Sastidas Mullick vs JLRO Parrackpore Circle and Ors at p 701 by a Bench comprising of Sabyasachi Mukharji and MM Dutt
The High Court in our view was right in making the distinction and upholding the right of pre emption in this case
The appeal
therefore
fails and is dismissed
4 CA 82581 This is a case for claim of pre emption under section 8 of the 1955 Act
It is necessary to set out a few facts
The lands in RS Khatian No 331 belonged to four brothers Jadhunath Madhusudan
Siddeshwar and Maniklal
Later Madhusudhan died and his interest devolved on his father Ashutosh and his brother Mukti
Siborani purchased plot Nos
1947 2199 and 363 in this khatian by a registered deed dated 28568 from the holders
The second petitioner purchased plot No 2169 in the khatian on 19569 from the holders
The respondent Shravani Ghosh is a stranger who purchased the disputed property from Jadhunath Siddeswar and Maniklal by a deed dated 4571
Subsequently a deed dated 21671 was executed in her favour by Maniklal and Ashutosh purportedly to rectify a defect in the earlier deed
Thereupon the purchasers under the earlier deeds Siborani and another claimed a right of pre emption under section 8 of the 1955 Act
The application was allowed by the Munsif and the District Judge but disallowed on revision by the High Court
Learned counsel for the appellant contended that the present case fell within the exceptions outlined in the Full Bench case under which the right of pre emption sur vives
He relied in support of this contention on sub paras 2 and 3 in the following passage from the Full Bench judgment where the High Court summed up its conclu sions 28
For the reasons aforesaid we hold as follows 1 After the enforcement of Chapter VI of the Act and the vesting of interest of raiyats and under raiyats on and from April 14 1956 corresponding to Baisakh 1 1363 BS the co sharer raiyats of a holding ceased to be coshar ers and each raiyat of the holding became a direct 540 tenant under the State in respect of the land of that hold ing which he is entitled to retain under sub section 1 of section 6
As the co sharer raiyats ceased to be co sharers on and from the date of vesting the question of exercise of the right of pre emption under section 26 F cannot arise for the condition precedent to the exercise of the right of pre emption under Section 26 F being that the person exercising that right must be a co sharer of the person making the transfer
2 When a raiyat having a separate holding or tenancy created by virtue of sub section 2 of section 6 relating to the land retained by him under sub section1 of section 6 dies leaving more than one heir such heirs will become co sharers of such holding and will be entitled to the right of preemption under Section 26 F Similarly when the raiyat of such a holding transfers a portion of the holding to another person that person will become a co sharer of the raiyat and the right of pre emption will also be available in such a case
3 A transfer made by a co sharer raiyat as contemplated by CI
2 above before the enforcement of Section 8 of the West Bengal Land Reforms Act 1955 may be pre empted by another co sharer in the tenancy in accordance with Section 26 F but a transfer made after the enforcement of Section 8 the right of pre emption by a co sharer can only be exercised in the manner laid down in Section 8 of the West Bengal Land Reforms Act
4 The under raiyats have been elevated to the status of raiyats on the enforcement of Chapter VI
There is no dif ference between the position of raiyats and that of under raiyats and our decision on the question as to the effect of the enforcement of Chapter VI on the right of pre emption of raiyats will also apply to under raiyats
5 The decisions in 68 Cal
WN 574 AIR 1964 Cal
460 and Jyotish Chandra Das vs Dhananiay Bag 1964 68 Cal
WN 1055 in so far as they proceeded on the footing that the raiyats of a holding continued to be co sharers even after vesting are erroneous but they have correctly inter preted the expression terms and conditions  in Rule 4 541 Learned counsel for the respondents on the other hand contended that while the first instance given in sub para 2 above by the Full Bench may be correct the second instance and its follow up in subpara 3 are not correct
He pointed out that once each co sharer in the earlier holding is held to become an independent tenant directly under the State any alienee from him acquires his interest pro tanto and cannot become his co sharer
His submission was that the Full Bench has erred in considering them to be co sharers
It is not necessary to express any views on this contention as in our opinion the above observations are not applicable on the facts found in the present case
Here the co owners of the former RS Khatian 313 have sold identifiable plots under different sale deeds to different parties
In this state of affairs the transferees under the 1968 and 1969 deeds have acquired title to identifiable plots and are not co sharers in the original transferors
There is no question of their claiming pre emption as against the transferees under the 1971 documents merely because all the plots at one time formed part of one inte gral holding
We are therefore of opinion that the High Court was correct in holding that no right of pre emption could be exercised by the petitioners
This appeal there fore fails and stands dismissed
5 CA 223182 This appeal has to be dismissed in view of our order upholding the Full Bench decision
We direct accordingly
6 SLP Civil 103774 1n this case the High Court following the Full Bench decision held that the petitioner was not entitled to claim pre emption
The peti tion has therefore to be dismissed
We order accordingly
7 SLP Civil 157774 The High Court disposed of this matter by following the Full Bench decision
The deci sion is affirmed and this petition dismissed
8 SLP Civil 988280 Since the High Court has only followed the Full Bench decision there are no merits in this appeal which is dismissed
All the appeals and SLPs therefore fail and are dis missed
But in the circumstances we make no order as to costs
RSS Appeals and SLPs dismissed


Summary:
The property in the suit belonged to the great grand mother of the plaintiffs and defendant Nos 5 to 14 who executed a registered will
According to the terms of the will her two sons defendant No 1 and plaintiffs  witness No 2 were to remain in possession of the properties without any power of alienation to pay the taxes and conduct regu larly certain religions festivals and their male issues on attaining majority were to get the property in equal por tions and enjoy it absolutely
The main dispute in the suit was about the share which the plaintiffs are entitled to under the terms of the afore said will
The plaintiffs claimed that they being the only grand sons of the younger son of the testatrix were entitled to half share in the properties the remaining half going to the grand sons of defendant No 1 namely defendant Nos 5 to 14
The suit was contested on behalf of the defendants who pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares and that the suit was fit to be dismissed as defendant No 1 defendent No 15 had finally partitioned the properties in 1975 and no question of further partition arises
The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity
The trial Court rejected the plea based on the rule against perpetuity but having regard to the interest of defendant No 1 his brother and defendant No 15 it held that the alleged partition of 1975 was illegal and not binding on the plaintiffs and that so far as the shares of the plaintiffs and defendant Nos 5 to 14 are concerned held that the parties would take the properties as per capita
The suit was however dismissed on the ground that the plain tiffs were still minor
In the appeal to the High Court by the plaintiffs the High Court confirmed the findings of the trial court that the 1975 partition was illegal but held that the division would take place as per stirpes and taking into account the fact that during the pendency of the appeal two of the plaintiffs had attained majority the High Court passed a decree in theft favour for one sixth share each
So far as the third plaintiff was concerned it declared his right without passing a decree for partition
The appellants defendants challenged the decision of the High Court in 508 this Court by special leave contending that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and that the conclusion of the High Court on this aspects was illegal and that reliance by the High Court on Boddu Venkatakrishna Rao  Ors
vs Shrimati Boddu Satyavathi  Ors  was inapplicable to the facts of this case
Allowing the appeal in part and decreeing the suit in favour of all the plaintiffs that the share of the three plaintiffs and defendant Nos 5 to 14 shah be one thirteen each in the suit properties this Court HELD 1
A Court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document but while so doing the surrounding circumstances the position of the testator his family relationship and the probability that he used the words in a particular sense also must be taken into account
They lend a valuable aid in arriving at the correct construction of the will
Since these considerations are changing from person to person it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases
the disputed will approx imates closely
Recourse to precedents therefore should be confined for the purpose of general principles of construc tion only
2There is still another reason as to why the construc tion put on certain expressions in a will should not be applied to a similar expression in the will under question for a will has to be considered and construed as a whole and not piecemeal
It follows that a fair and reasonable construction of the same expression may vary from will to will
Therefore in the matter of construction of a will authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur
In the instant case the High Court has interpreted the crucial part of the will containing the expression SAMABHA GAMAGA ADAINTHU  as directing the plaintiffs on the one hand and the defendants5 to 14 on the other to share equally out of each branch
The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venka takrishna Rao  Ors
vs Shrbnati Boddu Satvavathi  Ors   were more or less similar
It has also been assumed that the properties finally descended on the two branches in equal shares and consequently parties be longing to the two branches inherited the properties as per stripes
While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case
The conclusion of the High Court on the construction of the will was therefore not correct
In the instant case there is no manner of doubt and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate 509 in the properties
It is the agreed case of the parties that as soon as plaintiffs and defendants No 5 to 14 become major they are entitled to get the property absolutely without waiting for the death of their respective fathers or grandfather
The will has therefore to be interpreted with out being influenced by the meaning given to the will in the reported case
The devolution of the property under the will takes place on the plaintiffs and defendants No 5 to 14 for the first time under equal shares 
Since this is the first occasion for the shares in the property to be defined the expression equal shares  must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix
In other words they take the properties as per capita
The third plaintiff has also attained majority during the pendency of the present appeal and has therefore become entitled to a share in the properties
The suit is decreed in favour of all the plaintiffs their share being one thirteenth each
Ramachandra Shenoy and Another vs MrsHilda brite and Others   relied on
Boddu Venkatakrishna Rao  Ors
vs Shrimati Boddu Sat vavathi  Ors
   distinguished
The plea that disposition under the will was hit by the rule against perpetuity was rightly rejected by the trial court on the ground that the sons of the testatrix as also their respective sons were alive