Nasim Ali, J.
1. This is an appeal under Clause 15, Letters Patent against the judgment of my learned brother Mukherjea J. It arises out of an execution proceeding. Mukta Sundari the widow of one Jogesh Chandra Mitra, and her co-sharers who are appellants before us in this appeal obtained a decree for the sum of Rs. 480 and odd annas in a rent suit on 29th July 1933. She executed this decree and made the co-decree-holders pro forma parties to the execution proceeding. She died during the pendency of the execution proceeding. Respondent 1 in this appeal thereupon presented an application for execution of the said decree on 25th December 1935 claiming, to be the successor-in-interest of Mukta Sundari under the will of her husband Jogesh Chandra Mitra.
2. The appellants objected to this application of respondent 1 on the ground that the latter had no right to maintain the application for execution as one of the appellants, namely Jitendra Chandra Maitra . was the only person entitled to the estate of Jogesh Chandra Mitra after Mukta Sundari's death. This objection of the co-decree-holders was accepted by the trial Court but was overruled by the learned Subordinate Judge in appeal. The co-decree-holders thereupon appealed to this Court, and my learned brother Mukherjea J. dismissed the appeal and affirmed the order of the lower Appellate Court. Hence this Letters Patent Appeal by the co-decree-holders. The only point for determination in this appeal is whether Hari Kishore, the son of the testator, who adopted respondent 1 as his son got a vested or contingent interest in the estate of the testator under the terms of the will made by him on the death of the testator. The material clauses in the will are:
Clause 2.-If my wife Srimati Mukta Sundari Devi should live in amity and good character at my family dwelling-house or at any holy place or with my son, then on my demise my said wife Srimati Mukta Sundari Devi will enjoy and possess the benefits of all the immovable and moveable properties to be left by me being entitled to and in possession of the life interest therein : she shall not be able to transfer those properties in any way by gift, sale etc. or encumber the same in any manner by mortgages etc. If she does it, the same shall be ineffective. Finis.
Clause 3.-After the death of my wife my son Sreeman Hari Kishore Maitreya will be entitled to the ownership and possession in absolute interest of all the immovable and moveable properties to be left by me. Nobody shall be entitled to object to or lay claim against this. If anybody does so it shall be rejected. If the said Hari Kishore Maitreya dies leaving son or daughter born of his blood, then on the death of my wife if there be living a son of the said Hari Kishore Maitreya he, otherwise if there be a daughter living she with their heirs, will obtain according to the above-mentioned conditions all the immovable and moveable properties to be left by me. Finis.
Clause 5. - God forbid, if in the lifetime of either myself or my wife the said Sreeman Hari Kishore Maitreya dies unmarried then on my demise my wife shall enjoy and possess the life interest in the immovable and moveable properties to be left by me. Thereafter on the death of my wife whoever shall be my heir according to law shall obtain all those properties. Finis.
3. A will takes effect after the death of the testator. It therefore follows that:
Any devise or bequest in favour of a person in esse simply (i.e. without any intimation of a desire to suspend or postpone its operation) confers an immediately vested interest : Jorman on Wills (Edn. 7) Vol. 2 p. 1330.
4. This rule of English law has been embodied in Section 104, Succession Act which applies to Hindus also. But
if words of futurity are introduced into the gift the question arises whether the expressions are inserted for the purpose of protracting the vesting or point merely to the deferred possession or enjoyment : Ibid.
5. The words of futurity in the present case are to be found in part 1 of Clause (3). They are 'after the death of my wife'.
It may be stated as a general rule that where a testator creates a particular estate and then goes on to dispose of the ulterior interest expressly in an event which will determine the priorestate, the words and description of such event occurring in the latter devise will be construed as referring merely to the period of the determination of possession or enjoyment under the prior gift and not as designed to postpone the vesting. Thus where a testator devises lands to A for life and after his decease to B in fee, the respective estates of A and B (between whom the entire fee simple is parcelled out) are both vested at the instant of the death of the testator, the only difference between the devises being that the estate of the one is in possession while that of the other is in remainder: Ibid, page 1381.
6. This rule is applicable to the will of a Hindu in India: [see Section 119, Succession Act particularly, 111. (iii) in the section.] The words ' after the death of my wife' in part 1 of Clause (3) therefore are to be construed as merely referring to the period of the determination of the life-interest of the widow created in her favour by Clause (2) unless there are other terms in the will showing a contrary intention viz. the postponement of the vesting till after the death of the widow. It was contended on behalf of the appellant that the words 'shall become absolutely entitled to ownership' in the vesting clause, the gift over of the remainder to the son or daughter of Hari Kishore or to his natural heirs on the happening of certain events mentioned in part 1 of Clause 3 and in Clause 5 respectively indicate that the testator did not intend that the remainder would vest in Hari Kishore immediately on his death but only on the happening of an uncertain event viz. Hari Kishore being alive after the death of the widow. I am unable to accept this contention. The words ' shall become absolutely entitled to ownership' must be read along with the prior life-interest created by Clause (2). They are of the same import as the words 'in fee simple' in the Illustration quoted above from Jorman on Wills. By operation of Clause (2) and part 1 of Clause (3) the entire interest of the testator was parcelled out between the widow and the son from the time when the will was to come into operation viz. the death of the testator. The words do not negative the vesting of the remainder on the death of the testator. They simply show that the remainder already vested on the death of the testator would become entire and absolute interest after the determination of the prior life-interest by the death of the widow. In other words, by these words what was only a remainder during the life time of the widow was made full and entire after the death of the widow.
7. The conditions mentioned in the last part of Clause 3 and in Clause (5) on the fulfilment of which the gifts over mentioned therein are to come into operation are conditions precedent to the vesting of the estate in the donees of gift over. They cannot be imported in the vesting clause relating to the bequest in favour of Hari Kishore and treated as conditions precedent to the vesting of the estate in Hari Kishore for the simple reason that testator has not said so. The conditions attached to these gifts over must therefore be taken as conditions subsequent which would defeat the estate which would become vested in Hari Kishore on the death of the testator by operation of part 1 of Clause (3). I therefore agree with the conclusion of my learned brother Mukherjea J. that the estate left by the testator vested in Hari Kishore on the death of the testator. The appeal accordingly fails and it is dismissed with costs, hearing fee being assessed as two gold mohurs.
S.K. Ghose, J.
8. I agree.