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Mokoondo Lall Shaw and anr. Vs. Gonesh Chunder Shaw and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1876)ILR1Cal104
AppellantMokoondo Lall Shaw and anr.
RespondentGonesh Chunder Shaw and anr.
Excerpt:
hindu law - will--clause restraining partition or enjoyment. - .....of the disposition is that the testator gives all his property in these businesses to his sons in the shares which are specified in paragraph 5; but postpones their enjoyment of this property for twenty years subject only to the monthly gift of rs. 200 to the sons jointly for household expenses, or in the shares i have already mentioned in the event of their living separate. now, without saying that a hindu testator might not give the current profits or income of the property to the trustees and direct them to apply this to the payment of debts throughout a specified period, as twenty years, 1 do not think it is competent to him to give the corpus of the property to an adult person and at the same time to forbid that person from enjoying the property in the way which the law.....
Judgment:

Phear, J.

1. The testator directs his eldest son to pay out of the profits of his business Rs. 200 a month for the family expenses of his sons, if they remain living in commensality, or Rs. 70 a month to himself, Gonesh Chunder and Rs. 43 and odd annas to each of the three other sons if they separate. This is to go on for twenty years, Gonesh Chunder managing the property meanwhile, if he dies, the next son in succession is to be manager and so on, and the rest of the profits over and above the Rs. 200 per month are directed to be invested and accumulated. Then the testator declares reads portion of 1st paragraph set out, q. v. supra I.L.R. 1 Cal. 105. Afterwards in the 5th paragraph of the will he says reads 5th paragraph, q. v. supra I.L.R. 1 Cal. 105.

2. I entertained some doubts at first whether the passages which I have read amounted to any disposition of the property other than the Rs. 200 a month during the period of twenty years, The words 'neither he nor any of my other sons shall acquire any rights therein' seemed to exclude the supposition that they were intended to have any interest in the business during that time, and some of the words of paragraph 5 to 'some extent confirmed that view. On the other hand, the substance of paragraph 5 seems to contemplate that the property is given at once in specified shares to the sons; and there would be a very considerable inconvenience on the body of the will on any other interpretation. I have come therefore to think that the words 'neither he nor any of my other sons shall acquire any rights therein' mean rights of immediate enjoyment. The accumulations which are directed to be made and invested are ultimately given to the sons in the same shares as the original property; and on the whole, I think, the true construction of the disposition is that the testator gives all his property in these businesses to his sons in the shares which are specified in paragraph 5; but postpones their enjoyment of this property for twenty years subject only to the monthly gift of Rs. 200 to the sons jointly for household expenses, or in the shares I have already mentioned in the event of their living separate. Now, without saying that a Hindu testator might not give the current profits or income of the property to the trustees and direct them to apply this to the payment of debts throughout a specified period, as twenty years, 1 do not think it is competent to him to give the corpus of the property to an adult person and at the same time to forbid that person from enjoying the property in the way which the law allows. The prohibition against receiving and enjoying the income for twenty years appears to me simply to be a condition imposed on the property which is repugnant to the gift. It is not merely the giving of one portion of the property to one person or purpose, and the remaining portion to another person or purpose; but it is giving the entire property to one person and coupling this gift with a prohibition against his enjoyment. The attempt to do this is, I think, void in law. The result is that, on this will as I construe it, the parties to the suit are immediately entitled to the businesses subject only to the direction with regard to the application of Rs. 200 per month for household expenses. I think, therefore, they are entitled to the partition.


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