1. The plaintiff in the suit in which the appeal has arisen, a minor represented by his mother and guardian as his next friend, prayed for administration of the estate of his grandfather Ganga Charan Das, claiming through his deceased father, Harendra Chandra Das, a legatee under the will of Ganga Charan Das, upon construction of the said will. The will of Ganga Charan Das was proved after contest, and the defendant Dayamoyi Dassya had taken out probate of the same; the suit was mainly directed against Dayamoyi Dassya, as executrix and prayer was made for rendition of accounts by Dayamoyi Dassya and for partition after she has made over the estate to the legatees under the will. It would appear that probate of the will of Ganga Charan Das was granted to Dayamoyi Dassya on 14th May 1929, and the suit giving rise to this appeal was instituted on 17th September 1930. The claim in suit was resisted by the defendant Dayamoyi Dassya against whom it was directed; and on the pleadings of the parties concerned, four issues mentioned below were raised on the merits of the case before the Court. Has the plaintiff any right, title or interest in the properties in suit? (Issue 4). Is the plaintiff a legatee under the will of Ganga Charan Das? Has the plaintiff any right to sue under the provisions of the will? (Issue 6). Are the contents of the will and the codicil ambiguous and require legal interpretations and construction? (Issue 10). Has defendant 1, the executrix, wasted and misappropriated the testator's properties as alleged in the plaint? (Issue 8). The decision of the learned Subordinate Judge in the trial Court on the question raised in the issues mentioned above was in favour of the plaintiff. Hence this appeal by defendant 1.
2. The controversy in the case before us, centered round matters referred in Issues 4, 6 and 10 mentioned above, although it was incumbent upon the plaintiff to establish waste and misappropriation as alleged by him and on which allegations of fact, Issue 8 was raised before the Court before any relief could be granted to the plaintiff. The case of the plaintiff, a minor suing through his mother, his uncles (father's brothers) being defendants in the suit, was that executrix appointed by the will of Ganga Charan Das, defendant 1, was not competent to administer the estate, and was entirely under the control of her sons, the step-brothers of the plaintiff's father; the plaintiff apprehended that unless the executrix was removed, the whole estate might be wasted. There was allegation made by the plaintiff that money belonging to the estate was being misappropriated by the executrix. On the materials on record, the conclusion has been arrived at by the Subordinate Judge in the trial Court that the plaintiff could not bring to the notice of the Court any instance of waste or misappropriation of the testator's estate by the executrix. The definite finding in evidence was that there was 'neither wasting nor misappropriation,' but the Judge in the Court below observed that whether any waste or misappropriation has been made by the executrix could be ascertained only after she has rendered accounts. The final decision on the question was to await the result of rendition of accounts by defendant 1, as directed by the trial Court. The procedure followed on this part of the case appears to us to be somewhat unusual, as in our opinion, direction for rendering accounts could only follow on a decision by the Court, that the plaintiff had established a case of waste and misappropriation as alleged by him, which must be the foundation of the relief granted to him, in the matter of rendering accounts, so far as the executrix was concerned. The position indicated before us in the course of argument on behalf of the plaintiff-respondent, claiming to be a legatee under the will, that in an administration suit of the present description a decree was to be passed against an executor for rendering accounts, even though no case of waste or misappropriation as alleged by the plaintiff was established at the initial stage of the litigation, cannot in our judgment, be supported either on principle or authority; and no authority for the adoption of such a course was placed before us for consideration.
3. The plaintiff claimed relief in the suit as a legatee under the will of Ganga Charan Das. Was he a legatee under the will? And the will of Ganga Charan Das had to be construed for the purpose of determining the question raised in Issues 4, 6 and 10 raised in the suit. The contents of the codicil executed by Ganga Charan Das were not of any importance for the purpose of construing his will, and with reference to the contents of the will, it had to be decided whether the plaintiff, claiming through his father, Harendra Chandra Das, had any right, title or interest in the properties in suit. The Judge in the trial Court decided the question raised specifically in Issues 4, 6 and 10 in favour of the plaintiff.
4. The clause in the will of Ganga Charan Das which called for special attention for the purpose of construing the document was Clause 14, and the intention of the testator had to be gathered, from the words used in that clause, taking the same along with other part of the will, which throw light on that intention. Clauses 1, 7, 13 and 14 of the will have to be taken together for the purpose of determining the real nature of the interest created by the will, so far as the bequest in favour of the plaintiff's father Harendra Chandra Das was concerned; and these four clauses of the will are set out below:
1. My wife by the first marriage is not alive. But my son, Sreeman Harendra Chandra Das, and my daughter, Sreemati Purnashashi Dassi born in her womb, are alive. There was another daughter by the first marriage, but she is dead. My eldest son, Sreeman Harendra Das, is married and is at present staying with his wife and children in my family dwelling house, but in separate mess. Out of the money he has so long been earning by service, he has not contributed a single farthing towards maintenance of my family, nor does he attend to any of my household duties. With his wife and children he forms a family which he is separately maintaining. Further after the death of my first wife, Sreeman Harendra has taken the whole of the amount in her Tahabil. And Sreeman Harendra has also taken the ornaments, etc., and the money lending business left by my said wife. I have got performed at considerable expense the marriage ceremony of Sreeman Upendra, eldest son of Sreeman Harendra, and I have also been bearing the expenses of education, clothes and shoes, etc., of Harendra's. sons.
7. Some amounts of gold and silver and trays and utensils, etc., of copper, brass, bellmetal, etc., and various other moveable properties of: mine worth about Rs. 900, are in the custody and possession of Sreeman Harendra.. The said ornaments of gold and silver, and trays and utensils, etc., and moveable properties are described in schedule marked (ka) below. The same are my properties and will be listed as properties left by me.
13. I have got performed the marriage ceremony of Sreeman Upendra, the eldest son of Sreeman Harendra Chandra Das, my son by my first marriage, at enormous expense, and I have also been defraying the expenses of education and shoes and clothes, etc., of Sreeman Harendra's sons. Neither Harendra nor his son has contributed or does contribute to my family a single pice of the money which they earned or earn by service. They are most disobedient to me and always use harsh words towards me and do not do any work of my household or look after it. They are not of the least assistance to me. Narendra and Debendra, my sons by my second wife, are helping me very much in my household and it was to enable him to assist me in performing my household duties that I was forced to withdraw Narendra from his studies. My other two minor, sons, too are objects of great affection to me and are most obedient and devoted to me. I have up to now spent enough money for the said Harendra and his sons, but I have not done much for my sons and daughters by the second marriage. In all the aforesaid circumstances, it is but proper to give my sons by the second wife some property in excess of that given to Harendra. Accordingly, I lay down that Sreeman Narendra, Debendra, Surendra, and Dhirendra, my four sons by my second wife, will get absolutely, in equal shares and with power to enjoy and dispose from heirs to heirs the one storeyed building and the one storeyed Habeli-two blocks in all with corrugated iron roof together with the bhiti lands, well, premises, etc. and all rights appertaining at holding No. 8, Sha Shaheb's Lane at Narainda, within the Municipality and Town Dacca, under Thana Sutrapur and owned and possessed by me. My eldest son Sreeman Harendra or any of his heirs will not be competent to make any claim thereto and they will have no right to or possession in the same. The aforesaid holding No. 8 has become holding No. 7.
14. All the properties, moveable or immoveable, left by me and standing in my own name or Benami in the names of others will be obtained in accordance with the terms and incidents set out in the aforesaid paras. 9, 10, 11, 12 and 13, that is to say, the properties which will remain after settlements and arrangements for the expenses set out in the said paras. 9 to 13 out of those properties will be obtained by Sreeman Harendra Chandra Das, my son born of my first wife, under the following condition and by Sreemans Narendra Chandra Das, Debendra Chandra Das, Surendra Chandra Das and Dhirendra Chandra Das, sons born of my second wife, (i. e.) by these five sons born of the two wives in equal shares, i. e., each will get 3 annas 4 gandas share, of the sixteen annas in indefeasible rights with power to transfer in every way, such as by gift, sale, etc., and to enjoy and dispose of, down to their sons and grandsons. My first son, Sreeman Harendra Chandra Das, will not get any share in the properties left by me, unless he makes over to satisfaction my properties in his possession, as stated in para. 7, to the executor or executors. In that contingency, my other four sons will equally get his said 3 annas 4 gandas share. But if my said son does good to and looks after, to the satisfaction of the executors, my second wife and the sons born of her womb, he will get that share.
5. The relation as between the testator and his son Harendra Chandra Das was anything but good, and there was not any intention present in the testator to show any consideration to the son, unless he strictly complied with the terms of the will. The bequest or the legacy in favour of the son was definitely and specifically burdened with the condition precedent of the son's making over to satisfaction of the executors, appointed by the will, the properties belonging to the testator in the son's possession; in default, the intention of the testator was clear that four sons other than Harendra Chandra Das were to get his (Harendra's) three annas four gandas share. There was the further condition precedent imposed by the terms of the will that if Harendra Chandra Das. did good to and looked after to the satisfaction of the executors, the second wife (defendant 1) and the sons born of her womb, then he will get the share specified above.
6. In the case before us there can be no doubt, on the plain reading of the contents of the will of Ganga Charan Das, and regard being had to the clear and definite intention expressed by the testator in the matter of making a bequest in favour of Harendra Chandra Das, that the bequest was a conditional bequest. The condition imposed by the will was a condition precedent to the vesting of the legacy: the condition had to be fulfilled before the bequest could take effect and the legatee could take a vested interest. The condition imposed by the will could not on the plain words used by the testator be considered to be a condition subsequent, in which the estate was in the devisee, but he was liable to be divested of it, by reason of non-fulfillment of the condition as in Charles Wynne v. Julius Wynne (1840) 2 M & G 8; and, in our judgment, there was no ambiguity whatsoever in the words used by the testator Ganga Charan Das, in Clause 14 of the Will, which in clear terms indicate conditions precedent, and not conditions subsequent to the vesting of the legacy in Harendra Chandra Das. In the case of use of ambiguous words, which do not clearly indicate whether a condition precedent or a condition subsequent is intended, the Court will no doubt lean towards the latter In re Greenwood (1903) 1 Ch 749. In the case before us, on the conclusion arrived at by the trial Court, which is fully supported by evidence on record, Harendra Chandra. Das who survived his father did not fulfil any of the conditions imposed by the father in his will, as conditions precedent to the vesting of the legacy in his favour; and the bequest therefore could not take effect as an interest which had vested in Harendra Chandra Das. In the above view of the case, the plaintiff, the son of Harendra Chandra Das had no right, title or interest in the properties claimed by him as a legatee claiming through his father, and had therefore no right to sue under the will of Ganga Das, and pray for any of the reliefs mentioned in the plaint in the suit. Issues 4, 6 and 10 are decided against the plaintiff.
7. The result of our conclusions arrived at, on the construction of the will of Ganga Charan Das, and on the materials before us establishing the position that Harendra Chandra Das, a legatee under the said will had not fulfilled the conditions imposed by the will, which were conditions precedent, to the vesting of the legacy, is that the plaintiff's suit must be dismissed. The appeal is allowed. The decision and decree passed by the Court below, against which this appeal is directed, are set aside and the plaintiff's suit is dismissed with costs throughout, including costs in this Court. Defendant 1, appellant is the party entitled to realize these costs from the plaintiff-respondent. Hearing-fee in this Court is assessed at 5 gold mohurs.