1. This is an application by five minors, three sons and two daughters, through their next friend against one Hrishikesh Sanyal. The main prayer is under Section 301, Succession Act, that Hrishikesh Sanyal should be removed and discharged from the office of executor of a will executed by the applicants' grandfather Sarnath Sanyal, in the year 1931. It is admitted that Hrishikesh Sanyal, has not taken out probate and letters of administration and an objection was raised that this Court had no jurisdiction to pass an order against him under Section 801, Succession Act. I have already decided by my order dated 13th December 1940 that the Court had jurisdiction. There are certain other questions, however, which have arisen with which I have now to deal. Among the issues were the following:
(a) Are the minors entitled to the maintenance allowance of Rs. 50 per month as provided for in the last will of Sarnath Sanyal dated 13th September 1931? (b) Are the minors entitled to the right of residence as provided for in the said will? and (c) What is the effect of the death of Sukumari Devi on the rights of the minors to claim the benefit under the will?
2. As it has not been necessary to take any evidence in order to decide these issues, I am deciding them now without going into the other issues which have been raised. Sarnath Sanyal left him surviving two sons Hrishikesh Sanyal and Satyendra Nath Sanyal and three daughters Sarjoo Bala Devi, Sukumari Devi and Lalana Bala Devi. In his will he made certain provisions for each of these. He stated that Satyendra Nath Sanyal, his younger son, was living apart from him, was not married and had been wasteful and extravagant of his father's money and consequently that he disinherited him, but he went on to say that he would be entitled to live in his father's house after his father's death if he chose to do so and that he would receive an annuity of Rs. 15 a month so long as he lived in the house. There were similar provisions for Sarjoo Bala Devi and Lalana Bala Devi. They were both apparently living with their husbands or fathers-in-law but the will stated that they could live in their father's house if they wished to do so and while they lived in the house they would receive an allowance of Rs. 15 a month. Sukumari Devi was already living in the house with her five minor children who are the present applicants. The will said that she should continue to live in the house and that she would be paid an allowance of Rs. 50 a month till such time as her sons attained majority and her daughters were married. After that time she might continue to live in the house and if she did so, she was to get an allowance of Rs. 15 a month. The property, subject to these allowances and restrictions, was to be held by Hrishikesh, the eldest son, who could utilize it as he wished. He was, however, not to alienate the property either by mortgage or by sale. If he had a son, the property would devolve unconditionally upon that son. If he i had no son, then he could dispose of the property as he chose either by giving it in charity or by giving it to the present applicants or whomsoever he chose. It is also mentioned in the will that Satyendra Nath Sanyal's son, if he had one, would have a right in the property, but this provision is inconsistent with the later provision that Hrishikesh might dispose of the property unless he had a son of his own. The discrepancy is of no importance in connexion with the matter with which I am dealing.
3. On an examination of the whole will, it seems to me perfectly clear that Sarnath Sanyal really intended that his property should continue to be held after his death by Hrishikesh somewhat in the manner of a trustee. Hrishikesh was to allow Sarnath e Sanyal's other sons and daughters to live in the house if they chose to do so and was to pay them certain allowances while they were living in the house. I have no doubt that Sarnath Sanyal contemplated that the other sons and daughters, if they lived in the house, would provide for their own food and clothing and the allowances were intended to enable them to do so. The dispute has arisen because Sukumari Devi died on 24th December 1939 and one of the questions is whether the allowance of Rs. 50 a month, which was to be paid to her, is to cease on her death or is to be continued to be paid to her representatives J till such time as the minor sons attain majority and the minor daughters are married.
4. Learned Counsel for the applicants has quoted a large number of English rulings in order to show that the general rule of construction is that an annuity will continue after the death of the legatee if it is to be paid for a particular time, that is, up to a certain date or during the lifetime of some other person for some period described in some other way such as the period with which we have to deal, namely, the period till Sukumari's sons attain majority and her daughters are married. Some of the cases quoted are as follows : In re Yates; Yates v. Wyatt (1901) 2 Ch. D. 438, Smith v. Havens (1591) Cro. Eliz 252, St. Nicholas v. Harris (1941) 21 E.R. 534, Rawlinson v. Duchess of Montague (1710) 23 E.R. 1035, Dickinson v. Duchess of Montague (1710) 23 E.R. 1035 and In re Cannon (1915) 114 L.T. 231.
5. On the other hand, learned Counsel for the executor has argued that it has been held by their Lordships of the Privy Council that it is unwise to apply English rules of construction to wills drawn in India by Indians. He has referred to the following cases, namely : Norendra Nath Sircar v. Kamalbasini Dasi ('96) 23 Cal. 563, Barmanya v. Kali Charan Singh ('11) 38 Cal. 468 and Dinbai v. Nusserwanji Rustomji ('22) 9 A.I.R. 1922 P.C. 311.
6. It seems to me that there can be no doubt, apart from the expression of opinion by their Lordships of the Privy Council, that it would be illogical and misleading to apply English rules of construction to Indian conditions. The Indian Succession Act is the statute which governs matters of this kind in India; and there are certain rules of construction contained in the Act which must he followed. In particular I may refer to the provisions of Section 173 of the Act, which says:
Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the will....
7. It is doubtless true that in a number of English cases, where an annuity was to be paid under a will and it was directed that it should be paid for a certain period, it was held that the annuity did not cease with the death of the legatee, but each case must be decided upon its merits; and the question here is whether it can be inferred from the will under the provisions of Section 173 that there was a definite intention on the part of the testator that the annuity should continue to be paid after the death of the legatee, Sukumari Devi, until such time as the sons attained majority and the daughters were married. I have already explained what the intention of the testator appears to me to have been. I think it is perfectly clear from the provisions in respect of Sarjoo Bala Devi, Lalana Bala Devi and Satyendra Nath Sanyal, that allowances were to be paid to the sons and daughters of Sarnath Sanyal only so long as they chose to live in his house. Learned Counsel for the applicants has argued that there was a different intention in case of Sukumari Devi, but I do not believe that it can be so. I have no doubt that Sarnath Sanyal intended that his sons and daughters should be able to shelter in his house if they wished to do so and while they were there they should be provided with sufficient means to feed and clothe themselves; but I do not think that he had any intention that they should be paid allowances if they chose to live away from his house. As a Hindu he would regard his daughters and his daughter's children as members of the families of their husbands and the primary duty of supporting the daughters and their children would be with those husbands. I do not think that Sarnath Sanyal ever intended that his estate should pay allowances to his daughters if they continued to live with the families of their husbands. It is clear enough in the case of Sarjoo Bala Devi and Lalana Bala Devi that they were to receive no allowances unless they chose to live in their father's house at some time or other. I can see no reason why there should have been a different intention in the case of Sukumari Devi. It has been urged that Sarnath Sanyal could not have intended that this woman's minor children should be turned out of the house and left destitute after their mother died. I have no doubt that he had no such intention, but doubtless, if he contemplated his daughter's death at all, he looked to the matter in a practical way. If Sukumari Devi died, her minor children would not be able themselves to make arrangements for their food and clothing. These would have to be obtained for them by some responsible person. Sarnath Sanyal would contemplate, if they continued to live in the house, that Hrishikesh would provide for them, and, in that case, it was not necessary for him to set apart an allowance for them, because the whole property was in the hands of Hrishikesh. I have no doubt that Sarnath Sanyal would not have expected any allowance to be paid to these children if they left the house and went under the guardianship of some relation of their father's or some other person.
8. Taking the will as a whole, I am satisfied that there is no reason for thinking that there was any intention on the part of Sarnath Sanyal contrary to the intention that Sukumari Devi would receive the annuity or allowance only during her lifetime; and that being so, I must hold that the minors are not entitled to the maintenance allowance of Rs. 50 per month, which was bequeathed to their mother. A similar argument applies to the right of residence in the family house. Learned Counsel for Hrishikesh Sanyal assures me that he is perfectly willing to receive the minors into the house and provide for them, if necessary, but that he is not willing to concede that they or anybody on their behalf have or has a legal right to compel him to do so. I am satisfied that the intention was merely to give a right to Sukumari Devi and not separate rights to the minors. The death of Sukumari Devi has brought an end to any interest which the minors might possibly have claimed in the estate of the deceased. The result of my findings on these issues is that the minors have no interest in the estate sufficient to justify me in passing an order for the removal of Hrishikesh Sanyal from the position of executor under the provisions of Section 801, Succession Act. I, there, fore, dismiss the application with costs.