Judgement Appeal from a decree of the above Court (March 6, 1900) modifying a decree of the Subordinate Judge of Partabghur (Dec. 24, 1898), which dismissed the respondents suit with costs. The subject of suit was (inter alia) the right to succeed to a nine-twentieths share in the taluqa of Raepur Bichore, the last male owner of which was Rae Bisheshar Bakhsh Singh, who died on August 31, 1890. After the annexation of the Province of Oudh, the estate of Raepur Bichore was summarily settled with Rae Pirthipal Singh, the father of Rae Bisheshar Bakhsh Singh and the grandfather of the respondent. He was the owner of the estate at the time, and after the confiscation of all proprietary rights in the soil of Oudh, which was effected by the pro clamation of the Viceroy and Governor-General of India in March, 1858, obtained a taluqdari sanad, or title-deed, from Government. On January 22, 1866; Rae Pirthipal Singh devised eleven-twentieths of the said taluqa to the wife of Rae Jagmohan Singh, his eldest son, and half-brother to Bisheshar, for the benefit of Rae Jagmohan Singh, who was suffering from mental infirmity. The remaining nine-twentieths share he devised to Rae Bisheshar Baksh Singh. He made two separate lists of the villages which were to constitute each of the said shares, and in his lifetime obtained the orders of the Revenue authorities to record the names of his sons in regard to these villages in the Revenue registers. In June, 1866, Rae Pirthipal Singh died. On Bisheshar Bakhshs death intestate, his widows, the appellants, and the respondent, who was the son of Jagmohan Singh, claimed to succeed. The Revenue Courts on December 12, 1890, placed the appellants in possession, and thereupon the respondent sued by his next friend to recover the said nine-twentieths share which was specified in List A annexed to the plaint. The other lists contained property which was not taluqdari property. He claimed as next heir to the taluqa under s. 22, clause 6, of Act I. of 1869, and to be next heir to the whole property by virtue of a special family custom of descent according to primogeniture. The Subordinate Judge decided that Rae Bisheshar Bakhsh Singh had obtained his share in the said taluqa as legatee under the will dated January 22, 1866, and not under any family settlement or transfer inter vivos. The Subordinate Judge decided that Rae Bisheshar Bakhsh Singh had obtained his share in the said taluqa as legatee under the will dated January 22, 1866, and not under any family settlement or transfer inter vivos. As to the succession to the taluqa being governed by s. 22, Act I. of 1869, he con sidered that the Act did not apply, being of opinion, on the construction of ss. 14 and 15 of the Act, that Rae Bisheshar Baksh Singh was not the person who would have succeeded Rae Pirthipal Singh if he had died intestate, and was, therefore, not the legatee referred to in s. 14. He said further that, if he had to decide the question, he should hold that the word " brother " in s. 22, clause 6, Act I. of 1869, included half-brother. In appeal the Judicial Commissioners affirmed the finding that Bisheshar was a legatee of Pirthipal Singh within the meaning of Act. I. of 1869. They then held that s. 22 of that Act did not directly apply, inasmuch as Rae Bisheshar Baksh Singh was a legatee under a will which had come into opera tion prior to the passing of Act I. of 1869. They were nevertheless of opinion that on the proper construction of s. 14 the succession would still be governed by the rules laid down in s. 22. They were also of opinion that in clause 6 of the said section the word "brother" included half-brother. In the result they modified the Subordinate Judges decree of dismissal, and passed a decree in favour of the respondent for the villages constituting the nine-twentieths share of taluqa Raepur Bichore, as specified in List A annexed to the plaint, with costs in proportion. With regard to the question whether the succession was governed by s. 14 or s. 15, they said " It is contended for the plaintiff that the words in s. 14, a person who would have succeeded according to the provisions of this Act if the testator had died intestate, mean a person who would, under b. 22, have a right of succession to the estate in the case of an intestacy. It is contended for the defendants that those words mean a person who would succeed to the estate if, at the time at which the bequest was made, the testator had died intestate .... It is contended for the defendants that those words mean a person who would succeed to the estate if, at the time at which the bequest was made, the testator had died intestate .... The plaintiff says that the Court can look at the marginal notes to ss. 14 and 15 as an aid in interpreting them. The defendants say that the Court cannot do so." On this point the judgment, after citing many authorities, proceeded — " I think that there is no doubt that when Act I. of 1869 was passed by the Governor-General of India in Council it was passed with the marginal notes which appear in the Act as published by authority, I believe that it has always been the practice to pass Indian Acts in a printed form, with titles, marginal notes, and punctuation. The marginal notes, therefore, I think form part of the Act. Whether they ever are the subject of discussion in the Legislative Council I cannot say, but they clearly could be so, and so could the punctuation. I am of opinion that the Court can look at the marginal notes to 88. 14 and 15 of Act I. of 1869 for assistance in construing them." Then with regard to the meaning of ss. 14 and 15 of Act I. of 1869 the judgment proceeded — " It seems to me that any person mentioned in s. 22 as a possible heir may be said to be a person who would have succeeded according to the provisions of the Act to the estate if the testator had died intestate within the meaning of s. 14. The disputed words in s. 14 can admit only of such a meaning or of the meaning contended for by the respondents for this reason. The testator ought to be in a position to know whether or not his legatee will hold the estate subject to the same rules of succession as himself, because he may wish that his legatee should hold the estate subject to those rules of succession. He cannot give effect to such wish unless the words refer to a legatee who may possibly succeed to his estate if he were to die intestate, or unless they refer to a legatee who, if he, the testator, were to die at the time of the bequest intestate, would succeed to the estate. He cannot give effect to such wish unless the words refer to a legatee who may possibly succeed to his estate if he were to die intestate, or unless they refer to a legatee who, if he, the testator, were to die at the time of the bequest intestate, would succeed to the estate. The construction contended for by the respondents involves the addition of the words ‘at the time at which the bequest was made. That on which the appellant relies does not necessitate the insertion of any words in the section. That construction is reasonable, while the contention for the respondents is not. Take the case of a taluqdar whose name is entered, say, in the second list mentioned in s. 8, who has two sons, the elder of whom is an idiot, without male issue. The taluqdar desires to make the younger son the legatee of his estate, at the same time desiring that the legatee should hold it subject to the same rules of succession as himself. He cannot give effect to the latter desire on the construction contended for by the defendants, for if he were to die intestate at the time at which he made the bequest the younger son would not succeed to his estate. On the other hand, on the construction contended for by the plaintiff, the younger son is a person who may possibly succeed according to s. 22 in the case of his father dying intestate. The marginal notes to ss. 14 and 15 seem to me to favour the Construction contended for by the plaintiff. The word * heirs in the marginal note to s. 14, I think, refers to the heirs enumerated in s. 22, i.e., persons in the line of succession. The marginal note to s. 15 refers to persons out of the line of succession,1 i.e., persons not enumerated as heirs in s. 22. For these reasons I hold that the succession to hissa 9 is governed by the provisions of s. 14, and not those of s. 15. "Under clause 6, s. 22, read with s. 14, in default of the hirs enumerated in the previous clauses, the plaintiff, as the male lineal descendant of Jagmohan Singh, would, had Jag-mohan Singh and Bisheshar Bakhsh Singh been brothers of the full blood, be the heir to the estate of Bisheshar Bakhsh Singh. "Under clause 6, s. 22, read with s. 14, in default of the hirs enumerated in the previous clauses, the plaintiff, as the male lineal descendant of Jagmohan Singh, would, had Jag-mohan Singh and Bisheshar Bakhsh Singh been brothers of the full blood, be the heir to the estate of Bisheshar Bakhsh Singh. But Jagmohan Singh and Bisheshar Bakhsh Singh were brothers of the half-blood—that is to say, Pirthipal Singh was their father, but they had different mothers. In general, the term brother would include a brother of the half-blood. There appears to be nothing in s. 22 or elsewhere in the Act which indicates that the term brother/ as used in s. 22, only means a brother of the full blood. I therefore think that Jagmohan Singh, as brother of the half-blood of Bisheshar Bakhsh Singh, was his brother within the meaning of clause 6, s. 22." Haldane, K.C., Bonnerjee, and Boss, for the appellants, contended that the Appellate Court was wrong in its interpretation of ss. 14 and 15 of Act I. of 1869. It remarked that in a previous case s. 14 had been construed as the appellants con tend. It relied now on the marginal notes to those sections which it was well settled could not be referred to. They referred to ss. 13, 14, and 15, and contended that the words " would have succeeded " must be construed in the same way in ss. 13 and 14 see Bhaya Tribhawandat Ram v. Bhaiya Sambhadat Ram (( 1892) Oudh Rulings, 1859- 1893, p. 256.) and Itraj Knar v. Bacho Mahadeo Kuar. (( 1902) Oudh Cases, vol. v. pp. 345, 352.) They mean a person who " would have succeeded if the testator had died intestate at the date of the will or bequest. The Act had no retrospective effect, and so did not operate on a will which took effect before the Act was passed see Mohammad Abdussamad v. Kurban Husain. (L. R. 31 Ind. Ap. 30.) The transfer to Bisheshar in 1866 was not such as is contemplated by s. 14. At that date he was neither taluqdar nor grantee, nor a person who would have succeeded to Pirthipals estate or any part of it. (L. R. 31 Ind. Ap. 30.) The transfer to Bisheshar in 1866 was not such as is contemplated by s. 14. At that date he was neither taluqdar nor grantee, nor a person who would have succeeded to Pirthipals estate or any part of it. The Appellate Court was wrong in holding that Bisheshar was a legatee within the meaning of s. 14 of Act I. of 1869, and that succession would be governed by the provisions of s. 22 of that Act. Moreover, even if s. 22 did apply in its entirety, the respondent could not succeed thereunder. He was only a half-brother to Bisheshar, and the term " brother " in clause 6 of that section must be read strictly and does not include half-brother. Reference was made to s. 23 of the Indian Succession Act. Succession to the property in suit was under the circumstances and having regard to s. 15 governed by the ordinary Hindu law, under which the appellants were entitled to succeed. De Gruyther, for the respondent, contended that there were concurrent findings of fact that Bisheshar was a legatee under Pirthipals will; and that the succession was governed by s. 22 of Act I. of 1869. The construction of the Act must be governed by its general object and intention, and regard must be had to the state of the law at the time that it was passed see In re Mew and Thorne. (( 1862) 31 L. J. (Bank .) 87.) The taluqdars were absolute proprietors, the other holders only subordinate see Sykes, pp. 13, 29, and 55 ; letter of October 10, 1859, scheduled to Act I. of 1869, paragraphs 2 and 5; and Government circular of January 18, 1860, Sykes, p. 391. The intention of the Oudh Estates Act was to secure the proprietary right of the taluqdars, and to enact that if they died intestate their nearest male heirs in the line of primogeniture should succeed; and full power of alienation was given to them. It was not the intention to give the taluqdars greater powers than they would have had if there had been no confiscation. Reference was made to Dewan Ran Bijai Bahadur Singh v. Rae Jagatpal Singh (( 1890) L. R. 17 Ind. Ap. 173.); Jagatpal Singh v. Jageshur Baksh Singh (( 1903) L. R. 30 Ind. Ap. It was not the intention to give the taluqdars greater powers than they would have had if there had been no confiscation. Reference was made to Dewan Ran Bijai Bahadur Singh v. Rae Jagatpal Singh (( 1890) L. R. 17 Ind. Ap. 173.); Jagatpal Singh v. Jageshur Baksh Singh (( 1903) L. R. 30 Ind. Ap. 27.); Achal Ram v. Udai Partab Addiya Dat Singh (( 1883) L. R. 11 Ind. Ap, 51.) ; Narindar Bahadur Singh v. Achal Ram. (( 1893) L. R. 20 Ind. Ap. 77.) It was contended that Bisheshar was a legatee of Pirthipal Singh within the meaning of the Act, notwithstanding that Pirthipals death and will were dated before the Act came into force. In s. 13, clause 2 was a mistake, and probably was inserted to please the taluqdars, and may be disregarded. Sect. 15 must be read in connection with ss. 13 and 14. Then with regard to s. 14, it was contended that Bisheshar was a person who could have succeeded under Act I. if Pirthipal had died intestate; and that, therefore, the special rules of succession in s. 22 applied, and the respondent was entitled. It was immaterial whether he was the preferential heir under that section or not; if he were a person who had or might have under any circumstances a heritable right thereunder, he was a person contemplated by the section. It is a reasonable construction which the respondent puts upon the section, for it enables the testator to choose between his sons if for any reason it is desirable to displace one in favour of the other without altering the incidents of taluqdari tenure, which he may wish to preserve. The legatee will most pro bably be some one other than the preferential heir, and it unduly fetters the taluqdars power of alienation, if his exercise of it in favour of any other person designated as competent to succeed removes the fetter of statutory succession on which his own estate is held, and on which he will probably wish that his legatee should hold. It was also submitted that the Court below was right in construing brother to include half-brother in clause 6 of s. 22. Bonnerjee replied. May 14. The judgment of their Lordships was delivered by LORD MACNAGHTEN. It was also submitted that the Court below was right in construing brother to include half-brother in clause 6 of s. 22. Bonnerjee replied. May 14. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This appeal raises a question under the Oudh Estates Act, 1869, as to the succession to property which formerly belonged to Rae Pirthipal Singh, who died in June, 1866, and whose name was entered after his death in List I. and List II. of the lists mentioned in s. 8 of the Act. List I. is a list of all persons who were to be considered taluqdars within the meaning of the Act. List II. is a "list of the taluqdars whose estates, according to the custom of the family on and before the thirteenth day of February, 1856, ordinarily devolved upon a single heir." The property in question was made over by Pirthipal Singh by will (as both the Courts below have held) or by transfer under a family arrangement (as the appellants contend) to his younger son Bisheshar Bakhsh. Bisheshar died in August, 1890, intestate, leaving two widows but no male issue. The rival claimants to the property are—(1.) the son of Bisheshars elder brother, the eldest male lineal descendant of Pirthipal Singh, who was plaintiff in the suit and is respondent to this appeal; and (2.) the two widows of Bisheshar who are appellants. They were defendants in the suit, and succeeded in the Court of the Subordinate Judge. The sections of the Act which have the most direct bearing on the question in dispute are the following— " 13. They were defendants in the suit, and succeeded in the Court of the Subordinate Judge. The sections of the Act which have the most direct bearing on the question in dispute are the following— " 13. No taluqdar or grantee, and no heir or legatee of a taluqdar or grantee, shall have power to give or bequeath his estate, or any portion thereof, or any interest therein, to any person not being either— " (1.) A person who, under the provisions of this Act, or under the ordinary law to which persons of the donors or testator3 tribe and religion are subject, would have succeeded to such estate or to a portion thereof, or to an interest therein, if such taluqdar or grantee, heir or legatee, had died intestate; or " (2.) A younger son of the taluqdar or grantee, heir or legatee, in case the name of such taluqdar or grantee appears in the third or the fifth of the lists mentioned in section eight, except by an instrument of gift or a will executed and attested, not less than three months before the death of the donor or testator, in manner herein provided in the case of a gift or will, as the case may be, and registered within one month from the date of its execution. " V.—Transfers and Bequests. "14. If any taluqdar or grantee shall heretofore have transferred or bequeathed, or if any taluqdar or grantee, or his heir or legatee, shall hereafter transfer or bequeath, the whole or any portion of his estate to another taluqdar or grantee or to such younger son as is referred to in section thirteen, clause two, or to a person who would have succeeded, according to the provisions of this Act, to the estate or to a portion thereof if the transferor or testator had died without having made the transfer and intestate, the transferee or legatee and his heirs and legatees shall have the same rights and powers in regard to the property to which he or they may have become entitled under or by virtue of such transfer or bequest, and shall hold the same subject to the same conditions and to the same rules of succession as the transferor or testator. " 15. " 15. If any taluqdar or grantee shall heretofore have transferred or bequeathed, or if any taluqdar or grantee or his heir or legatee shall hereafter transfer or bequeath to any person not being a taluqdar or grantee the whole or any portion of his estate, and such person would not have succeeded, according to the provisions of this Act, to the estate or to a portion thereof if the transferor or testator had died without having made the transfer and intestate, the transfer of and succession to the property so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee." Besides these sections it is necessary to refer to s. 22, which provides for intestate succession in the case of the death of any taluqdar or grantee whose name is inserted in List II., List III., or List V., or the heir or legatee of such taluqdar or grantee. A number of cases are dealt with separately and in order, beginning with the case where the deceased leaves an eldest son. In that case (clause 1) the estate is to descend "to the eldest son .... and his male lineal descendants, subject to the same conditions and in the same manner as the estate was held by the deceased." Then, after dealing in separate clauses with other cases, including the case of an adopted son, the section provides, in clause 6, that in default of such adopted son the estate is to descend " to the eldest and every other brother of such taluqdar, or grantee, heir or legatee, successively according to their respective seniorities and their respective male lineal descendants subject as aforesaid." Now the contention on the part of the respondent is that on Bisheshars death intestate he came into the property under clause 6 of s. 22. The appellants, on the other hand, maintain that Bisheshar was not legatee of Pirthipal Singh within the meaning of that word in the Act of 1869, and that, whether he was or was not a legatee in the ordinary sense of the word, the case is governed by s. 15, and that accordingly, on the death of Bisheshar intestate, the property devolved as it would have devolved if Bisheshar had bought it from a person not being a taluqdar or grantee. The learned counsel for the respondent argued quite correctly that s. 15 must be read in connection with ss. 13 and 14. His contention was that Bisheshar was a person who would have succeeded, within the meaning of s. 14, if Pirthipal had died without having made a transfer of the property and intestate. The real question is what is the meaning of the words " would have succeeded " in sections 13 and 14. Of course, if Bisheshars case falls within s. 14, s. 15 can have no application to it. Their Lordships think that the learned judges in the Court of the Judicial Commissioner have gone too far in holding as they did " that any person mentioned in s. 22 as a possible heir may be said to be a person who would have succeeded according to the provisions of the Act to the estate if the testator had died intestate within the meaning of s. 14.” They think that the expression " would have succeeded " must be confined to persons in the special line of succession that would have been applicable to the particular case if the transferor or testator had died intestate and the death had occurred at the date of the transfer, or, in the case of a gift by will, at the time when the succession opened. In short, they think that, the expression " a person who would have succeeded according to the provisions of the Act " is equivalent to " the person or one of the persons to whom the estate would have descended according to the provisions of the special clause of s. 22 applicable to the particular case." Their Lordships do not agree with the view of the learned counsel for the respondent that clause 2 of s. 13 was introduced by mistake, and may be disregarded altogether. On the contrary, they think that that clause throws a good deal of light on the words in dispute. A younger son of a taluqdar named in List III. or List V. is no doubt among the possible heirs of his father, but he is not within the prescribed line of succession if the father leaves an eldest son or a male lineal descendant of an eldest son. The construction which commends itself to their Lordships gives a meaning to every part of the sections under consideration. If a transfer or bequest is made to a person in the prescribed line of succession, there is reason for placing the transferee or legatee in the same position with regard to succession to the estate as the transferor or testator, but if the prescribed line of succession is broken by a transfer or bequest of the entailed estate to a person outside the prescribed line, it seems not unreasonable that the fetter of the entail, such as it is, should no longer apply to the estate. There are some minor points which were discussed in the judgment of the Judicial Commissioners, or argued before their Lordships, which ought perhaps to be noticed. Their Lordships have no doubt that Pirthipals eldest son, though born of a different mother, was a brother of Bisheshar within the meaning of the word " brother" in clause 6 of s. 22. It is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of Parliament. In their Lordships opinion it is immaterial to inquire whether Bisheshar took under a will or by transfer. Both the lower Courts have held that the title is derived under a will. The question seems to be one of some difficulty. It is not necessary to decide it. It is enough for their Lordships to say that they are not satisfied that the Courts below are wrong. Their Lordships agree with the Judicial Commissioners in thinking that Bisheshar was not a " legatee" within the definition of that term in the Act of 1869. It is not necessary to decide it. It is enough for their Lordships to say that they are not satisfied that the Courts below are wrong. Their Lordships agree with the Judicial Commissioners in thinking that Bisheshar was not a " legatee" within the definition of that term in the Act of 1869. The bequest in his favour, if it took effect, came into operation before the Act was passed. He cannot, therefore, be considered a person to whom property was bequeathed under the special provisions of the Act. Their Lordships will humbly advise His Majesty that the decree appealed from should be reversed, with costs, and the decree of the Subordinate Judge restored. The respondent will pay the costs of the appeal.