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Amrito Lall Dutt Vs. Surnomoye Dassee - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal589
AppellantAmrito Lall Dutt
RespondentSurnomoye Dassee
Cases ReferredMokoondo Lall Shaw v. Gonesh Chunder Shaw I.L.R.
Excerpt:
hindu law - adoption--power to adopt--validity of power to widow and executors to adopt--exercise of such power by widow with consent of the surviving executor--construction of will--direction for accumulation with proper limitation--right of adopted son to the corpus and surplus income during the life-time of the adoptive mother. - jenkins, j.1. as this action was originally framed, it was alleged that various breaches of trust had been committed and consequent relief was claimed. when, however, the matter first came before me as a result of discussion that then took place, the charges of misconduct were withdrawn, and the claim resolved itself into one for construction of the will and administration.2. the testator, whose will gives rise to these proceedings, is one hari das dutt, a wealthy hindu, of the sudra caste, and a resident of calcutta, who died in october 1875, leaving a sole widow, the defendant, sreemutty surnomoyo dassee, and two married daughters, the defendants, sreemutty premmoye dassee and sreemutty banee money dassee. the first named of these daughters at the time of her father's death had three.....
Judgment:

Jenkins, J.

1. As this action was originally framed, it was alleged that various breaches of trust had been committed and consequent relief was claimed. When, however, the matter first came before me as a result of discussion that then took place, the charges of misconduct were withdrawn, and the claim resolved itself into one for construction of the will and administration.

2. The testator, whose will gives rise to these proceedings, is one Hari Das Dutt, a wealthy Hindu, of the Sudra caste, and a resident of Calcutta, who died in October 1875, leaving a sole widow, the defendant, Sreemutty Surnomoyo Dassee, and two married daughters, the defendants, Sreemutty Premmoye Dassee and Sreemutty Banee Money Dassee. The first named of these daughters at the time of her father's death had three sons, the defendants. Radha Prosad Mullick and Kasi Prosad Mullick, and one since deceased; s(sic) also has had two sons born after her father's death, the defendants, Pea(sic) Lal Mullick and Behari Lall Mullick. The other daughter, I am told, has (sic) no children.

2. On the 30th of October 1875, the day of his death, Hari Das Dutt execute his last will, and its contents are set out at length in the second paragraph c the claim. By it he appointed his wife, his father, Babu Madhu Suda(sic) Dutt, and his uncle, Dwarka Nath Dutt, to be his executrix and executors, and of these the testator's wife and uncle alone proved the will. The father apparently never performed any executorial duties or intermeddled in the management of the estate, but at the same time he never expressly renounced probate. On the 9th of August the widow, with the consent of Dwarka Nath Dutt, purported to take a boy of five, named Jatipersaud Mullick, in adoption as the son of the testator in pursuance of a power in the will, to which it will be necessary later to refer at length, but this adopted son died on the 29th of January 1881 when he was only ten years old.

3. On the 1st of April 1877 the testator's father died, and on the 9th of February 1881 the plaintiff's natural father purported to give and the testator' widow purported to take the plaintiff, then a boy of eight, in adoption as the son of the testator, the executor, Dwarka Nath Dutt, being present on the occasion and consenting. This adoption, like the former, was intended (sic) in execution of the power contained in the testator's will, and it is adr(sic) that prior to this action the legality of the adoption had never been cal question: on the contrary the plaintiff has throughout been brough(sic) and treated as the duly adopted son of the testator. It will here be conv(sic) to refer to those portions of the will which are especially relevant to the points raised in this case. In Clause 2 the testator says:

I appoint my wife, Sreemutty Surnomoye Dassee, the executrix, and my father, Babu Madhu Sudan Dutt, of Mullick's street, aforesaid, and my uncle Babu Dwarkanath Dutt of Thuntonneah in Calcutta, aforesaid, the executors and trustees of this my will.

4. Clause 8 provides as follows:

Whereas having no son born to me of my body I am desirous of adopting one in my lifetime, but in case I depart this life before carrying such my desire into effect I hereby authorise and empower my wife and executrix, Sreemutty Surnomoye Dassee, and my executors and trustees to whom I give full permission and liberty to adopt after my decease a son, and in case of his death during his minority or on attaining his full age and without leaving male issue to adopt a second son, and in case of his death during minority or on attaining such age and without leaving male issue to adopt a third son and no more. In any of the above cases of adoption should the adopted son die leaving a son or sons, the power of adoption shall cease or remain in abeyance during the life or livestime of such son or sons of such adopted son, but shall revive on the death of such son or sons during minority.

5. Clause 9 is as follows:

I direct my executors and executrix and trustees to pay out of the income and interest of my estate and effects monthly all necessary household expenses as well as for the worship of our family idol, Sree Sree Radhagovindjee, and to pay my wife monthly during her natural life for her sole and separate use the sum of rupees two hundred, and also the sum of rupees fifty monthly to such adopted son, who shall live and attain his full age of eighteen years, after his so attaining such age of eighteen years during the lifetime of my said wife, provided he remains under her control and bears a good character, and if my said executrix and executors and trustees think fit and are satisfied with his conduct and behaviour, and for the purposes of such monthly expenditure my executrix, executors and trustees shall set apart and retain out of the interest and income of my estate a sum sufficient to meet such expenditure for six months and invest the rest and residue of such income and interest in government Securities in their joint names, but in no case shall such adopted son have or exercise any control, dominion over my estate and effects until the death of my wife, after co(sic)ch event I direct my said executors and trustees to make over the whole of my estate (sic) effects, both real and personal, or immoveable or moveable whatsoever and wheresoever (sic) of what nature or quality soever to such adopted son who shall survive my wife, if he (sic) have attained his age of eighteen years during the lifetime of my wife or on his so attaining such age after her decease to whom and his heirs I give devise and bequeath the same. But in case none of such adopted sons survive my said wife or in case of either surviving my said wife and dying under the said age without leaving a son or sons I desire and direct my executors after the death of my said wife or the death of such son after her, but under such age of eighteen years without leaving a son or sons to make over and divide the whole of my estate, both (sic) and personal unto and between my daughters in equal shares to whom and their respective sons I give devise and bequeath the same, but should either of my said daughters die without leaving any male issue surviving but leaving my other daughter her surviving then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter, or in case of the death of either daughter leaving sons the share of such daughter is to be paid to such her son or sons share and share alike.

6. The 13th clause is in the following terms:

I authorise and empower my said executrix, executors and trustees and the survivor of them and the trustee for the time being of this my will to appoint any other person or persons to succeed them or him in the execution of the trusts of this my will.

7. Clause 14a appears to have been added as an after-thought, and by it the testator provides as follows:

In case of any accident arising to cause my wife to depart her natural life before adoption of a male child my surviving executors are empowered to act with my full consi(sic) and direction to adopt a male issue.

8. It will be seen from these provisions that until the death of the widow the surplus income of the testator's residue, after providing for certain month payments, is directed to be accumulated. In this state of things the plaint has contended before me that as the adoptive son, and consequently the heiress his father, he has an absolute interest in his estate, subject only to be divesti(sic) in certain events, and that as a result he is now entitled to have the who (sic) estate transferred from the trustees to him subject only to adequate provision being made for certain periodical payments and expenses authorized by the will and he next contends that in any case he is entitled to the enjoyment of the surplus income of the estate until the widow's death. This contention is oppose on the part of the defendants, and the grounds of opposition are---first, that they has been no valid adoption of the plaintiff; secondly, that the provision for accumulation is valid; and, thirdly, that even if there is any interest in the estate which has not been disposed of, then in the events which have happened it (sic) on the widow as heiress of the deceased son, and not on the plaintiff that (sic) has devolved.

9. For the purpose of disposing of these points the following issue have been formulated:

1st.---Whether the power of adoption is valid at nil in law ?

2nd.---If so, was it validly exercised ?

3rd.---If so, is the plaintiff on the true construction of the will and as the adopted son of the testator entitled.

(a) to the surplus income of the property until the death of his adoptive mother ?

(b) to the absolute interest in the property subject only to the payments mentioned in the will? And I will deal with these issues in the order in which they have been stated.

10. I. Whether the power of adoption is valid at all at law

11. The clauses of the will particularly bearing on this point are the 8th and the 14th, both of which I have already read, and the argument urged against the validity of the power is shortly this: It is said that though a husband can delegate to his widow a power to adopt, still he can delegate it to no one else; consequently it is argued the present power to adopt is bad, because though it is delegated to the widow, still it is not to her alone, but to her in association with others. Now, it is admitted on the part of the defendants, indeed, it is a part of their argument, that though the widow's discretion under a delegated power is absolute in the sense that she cannot be compelled to act upon it, unless or until she so chooses, still any condition or clog can be imposed upon the exercise by her of this delegated power, and it therefore appears tome that so far as the association of the two executors was a fetter on the absolute discretion and choice which might otherwise have existed it cannot have vitiated the power. It may be that the widow alone is capable of performing the actual ceremony of adoption, that her hand alone can receive the child, but I do not find in the phraseology used by the testator any direction requiring or even justifying the inference that he desired or intended that the executors should take a part in the ceremony, from (sic) are incapacitated by the rules of Hindu law.

12. It is clear from the prefatory recital with which the 8th clause of the will commences that the testator did desire the adoption of a son in accordance with the provisions of the Hindu law, and though it may be unprofitable to speculate as to his motive, I think that he had a purpose beyond the mere designation of a beneficiary to take under his will, and I must decline to put on the language of the will a construction that would render its provisions useless. In my opinion the testator associated the other executors with his wife for the purpose of ensuring a wise exercise of her discretion in the selection of a son for adoption and not with the intention of making it an essential condition of the adoption that they should take a part in the ceremony from which they were precluded, and I therefore hold that the power of adoption is valid.

13. II. The next issue I have to consider is whether the power of adoption was validly exercised.

14. The contention of the defendants in this connection is two-fold: for, first it is argued that the power could not be exercised, inasmuch as the father, one of the executors named by the will, was then dead, and the power is not one that passed to the survivors; and next it has been argued by Sir Griffith Evans that it is evident from the terms of the deed of adoption, and also from the evidence and admissions in the case, that the surviving executor, Dwarka Nath Dutt, did not take such a part in the adoption as was required of him by the power, so that even if there was a survival of the power still its terms were not observed.

15. Now, both these points appear to me to be points of construction, so that it is in the first place necessary to determine what the language of the will means, and in that investigation regard must be had to the circumstances of the testator and to every fact, a knowledge of which may conduce to the right application of the words used. Cases are of little use except so far as they express or illustrate a general rule of construction, for the words and circumstances of one will ate seldom the same as those of another.

16. There is, however, a principle to be drawn from decisions which is of importance in relation to the question in hand, and it is this, that where a power is vested in executors (though it may not be one reposed in them by the law), if on the true construction of the will it appears that the power was coupled with the executorial office, it will survive to the holders for the time being of the office, as though it were a power attached to the office by law.

17. It obviously, therefore, is necessary first to determine whether or not as matter of construction the power of adoption contained in the will was not given to the executors in their official capacity.

18. In my opinion the power of adoption is connected with the office, and in confirmation of that view I may point to the fact that excepting the wife the executors are not named, but are described by reference to their office; and again, though the wife is named, still she is described as executrix in a manner, which points to the conclusion, that the power even in her case was not dissociated from the idea of the office. That is not necessarily decisive of the question whether the power was one that survived; for such inference to that effect that might be deduced from the association of the power with the office might be rebutted by a sufficient indication that the testator desired the selection implied by the power to be entrusted to the three persons named as his executors and to no less a number. But to effect such a result the indication must be one of reasonable clearness drawn from the testator's own words and not merely based on a speculation as to what a man might be imagined to intend in the testator's circumstances. It is suggested that this indication is to be found in the concluding clause of the will, but after the best consideration that I have been able to give to that clause, together with the rest of the document, I am unable to arrive at that conclusion. That clause appears to rue to indicate the testator's strong desire that a son should be adopted; he may be supposed (not merely as a rigid presumption of law but as a matter of notoriety) to have known that a Hindu widow of the Bengal school could, with her husband's assent, adopt; but fearing the contingency of his wife's death he inserted the last clause for what it might be worth.

19. I should also state that I am not led by this last clause to the conclusion that the testator did not intend that the adoption to be effected under Clause 8 should take effect as, and have the results of, an adoption according to Hindu law. In support of the view that the power in question could only be exercised by the three persons appointed as executrix and executors by the will, I have been referred by the learned Advocate-General to two cases. The first is the case of Surendro Keshub Roy v. Durgasoondery Dossee I.L.R. 19 Cal. 513: L. R. 19I. A. 108 which no doubt establishes that the authority delegated to the widow must be followed strictly, so that where the power only authorized the simultaneous adoption of two sons, it was impossible to exercise the power otherwise than in strict compliance with its terms, though he result of an attempted adoption in accordance with the power would be in contravention of the Hindu law and so without any effective result. The second was a case of Beem Churn Sein v. Heeralall Seal 2 Ind. Jur. N. S. 225 in which the consent of another was required as a condition of the adoption, and it was held that the absence of that consent, though due to death, was a bar to the adoption.

20. Now, the argument which would apply these cases to the present is open to the comment that I have held as matter of construction that the power contained in this will did in the circumstances of this case survive to those by whom it was exercised, so that in my view of the case the requirements of the power have been observed.

21. It may, however, be said that the case of Beem Churn Sein v. Heeralall Seal 2 Ind. Jur. N. S. 225 so clearly resembles this, that I ought in this case to put a corresponding interpretation on this will. In the first place I could not assent to the proposition that there is any real similarity between the two cases, and next I must point out, as I have already done in the course of the argument, that in that case an adoption according to Hindu law could not have been contemplated, the delegation of the particular power then under consideration having been made, not to a widow, but to a son's widow; and on a careful perusal of the judgment it will be seen that Sir Barn(sic)s Peacock expressly guards himself from expressing an opinion what would have been the result had the adoption intended been one that could have been effective according to Hindu law.

22. It still remains to notice the argument that the terms of the power have not been complied with, inasmuch as the widow alone, and not in conjunction with the surviving executor, actually took the son in adoption. I have already expressed my view of the meaning of the power, and if that view be right then it follows that this objection cannot prevail; the power does not in so many words say that the ceremony which the law only allows to be performed by the widow must be performed by the others, and I, therefore, hold that the mere fact of the surviving executor not having actually and physically taken in adoption is not a failure to comply with the terms of the power, and I accordingly hold that the power was validly exercised.

23. III. This brings me to the third issue which turns upon the construction to be placed on Clause 9 of the will. The testator thereby directs his executors, executrix and trustees to make out of the income of his estate certain payments, including a monthly payment of Rs. 200 to his wife during her life, and a sum of Rs. 50 monthly to such adopted son who should live and attain the age of eighteen years during the life-time of his wife, provided he remained under her control and bore a good character, and then he proceeds as follows: My executrix, executors and trustees shall * * * * * invest the rest and residue of such income and interest in Government securities in their joint names, but in no case shall such adopted son have or exercise any control, dominion over my estate and effects until the death of my wife.'

24. Now, it will be seen that there is here a direction to accumulate, and the first point to be decided is whether, according to the law applicable to Hindu wills, this direction is in operation or whether effect can be given to it.

25. Mr. Bonnerjee no doubt treated the point in his opening speech as beyond the realm of argument, but the learned Advocate-General declined to accede to that view, and consequently must examine the point.

26. Now, accumulation is, with an exception immaterial for the present purpose, absolutely forbidden by Section 104 of the Indian Succession Act, but on turning to Section 2 of the Hindu Wills Act it will be found that Section 104 is one of the few sections not applicable to Hindu wills such as the one under consideration, and consequently there is no statutory prohibition which forbids accumulation directed in a will made by a Hindu.

27. It becomes, therefore, necessary to examine whether a direction to accumulate is contrary to the provisions of Hindu Law. Probably it would be wrong to attribute much force to the fact that Section 104 is not made applicable to the will of a Hindu, but I certainly cannot accede to the argument that it is a recognition of the fact that accumulation was never allowed in the case of Hindu wills; for a similar train of reasoning would have excluded the application of other clauses of the Succession Act, which do govern Hindu wills. Now, it unquestionably is the case that a direction to accumulate is from (sic) to time to be found in Hindu wills, and the practice of inserting such a direction is of some standing.

28. In Soorjeemoney Dossee v. Denobundo Mullick 6 Moo. I. A. 526 (536) the will of a Hindu testator who died in 1841 was under consideration, and the case was argued on demurrer before the Supreme Court of Calcutta, and in the course of their judgment the following remarks appear:

It was, we apprehend, competent to this testator, if he had been so minded, expressly to provide for the accumulation of the surplus income of his estate within the limits allowed by law, and to make their accumulations subject to the limitation over in the event of any son dying without leaving issue in the male line; but he does not appear to have done so either expressly or by necessary implication.

29. Again in Bissonauth, Chunder v. Bamasoondery Dossee 12 Moo. I. A. 41 (61) the following passage is contained in the judgment of the Privy Council: 'In the first place it is to be observed that the testator has given no direction to accumulate; it remains, therefore, to be seen whether the Court can find from the words of the will, as was argued, an irresistible inference that such was the intention of the testator. This is the more important because in the case of Sonatun Bysack v. Juggut Soondree Dossee 8 Moo. L. 66 which is relied on as governing this case, there is an express direction to accumulate. It was there directed that the surplus was to be added to capital. There is an absence of that in this case. It is admitted that the testator could not dispose of the property of his son, or prevent the heir of the son from inheriting his property; therefore the only question here is whether the testator has directed the accumulations of the property to be added to or made part of his own property, because if be has not, it was the property of the son, and the testato had no power of disposing of it. In this view of the case their Lordship think that this will, on whichever construction it is taken, shows an absence of any direction to accumulate.'

30. It is true these cases do not decide that a direction to accumulate is good, but it is clear from them that the practice of directing accumulation is of long standing, and that at the time it was considered that such a direction would have effective operation. I asked Mr. Bonnerjee, who contends that a direction to accumulate is bad, to refer me to the authorities on which he relied, and I now propose to deal with them. The first case is that of Kumara Asima Krishna Deb v. Kumar a Krishna Deb 2 B. L. R. O. C. 11 the purport of which is set out in the headnote as follows:

31. 'A Hindu, by will, attempted to create a trust for the accumulation, for ninety-nine years, of the surplus income (after certain yearly payments) of his estate in the purchase of zemindaries, &c;, from time to time; and empowered his trustees to continue such trust after the expiration of the ninety-nine years' term.' The will contained no disposition of the beneficial interest in the zemindaries so to be purchased. Held, that such trust was void.

32. Semble.---Perpetuity (save in the case of religious and charitable endowments) is not sanctioned by Hindu law. Goberdhone Bysack v. Shamchand By sack Bourke 282 explained.

33. The contention in that case was that the trusts of the will were invalid and void, not only on the ground of perpetuity, but because there was no disposition of the beneficial interest in the estate. The case in the first instance came before Mr. Justice Norman, who said at page 24 of the report: 'I may add that there is not in the will any disposition whatever of the beneficial interest in the bulk of the testator's property * * * * Even at the end of ninety nine years there is no gift of the beneficial interest to any one. The manager for the time being may go on at his own will and pleasure indefinitely accumulating the estate; no right is given to the heirs of the testator or the persons indicated as such in the will to use the property for their own benefit even at that remote time. The case goes a long way beyond that of Mr. Tbelluson's will' (9 Ves., 22).

34. Then later ha says, page 29:

In the case now before me the trust for perpetual accumulation would deprive the parties of all enjoyment of the profits of the estate. I think it clear that the trust for accumulation must be treated as a condition repugnant to the natural rights of every owner of property to the use and enjoyment of it, inconsistent with the nature of property itself and therefore void.

35. From this decision there was an appeal which came before the Chief Justice, Sir Barnes Peacock and Mr. Justice Markey.

36. Sir Barnes Peacock says (page 32):

There is no doubt that this will, if construed according to English law, would be void under the law relating to perpetuities. The question is, is it valid under Hindu law ?

37. Further on lie proceeds (pages 35, 36):

The will in the present ease gives the residue of the property, which is the subject of dispute, to the grandson and his successors, upon trust that the profits of the estate are not to be beneficially used during a period of ninety-nine years, but are to be laid out in the purchase of fresh estates and the formation of a fund for the payment of Government revenue upon it, and this provision is to be extended, as I understand, in perpetuity, if the Hindu law allows. I am not aware of any rule of the Hindu law by which grants inter vivos or gifts by will in perpetuity are expressly prohibited, but it appears to me to be quite contrary to the whole scope and intention of Hindu law.

38. In the result the decision of Mr. Justice NORMAN was upheld; but it appears to me, looking at the facts of the case and the judgments delivered, that the true ratio decidendi was, that the direction to accumulate was an attempt to create a perpetuity; that thereby it was sought to suspend the enjoyment for a longer period than the absolute vesting could be controlled, and that it consequently was bad. The case did not call for a decision that an accumulation, which did not aim at that which for shortness I may call a perpetuity, is void, and I therefore cannot regard the case as an authority, which even purports to deal with the point before me.

39. I was next referred to a case of Bramamayi Dasi v. Joges Chandra Datt 8 B.L.R. 400 but all that case decides, which can be regarded as material to the present point is, that an attempt to defer the period of payment to or enjoyment by a beneficiary of a vested interest is inoperative.

40. Then reliance was placed on the case of Cally Nath Naugh Chowdhry v. Chunder Nath Naugh Chowdhry I.L.R. 8 Cal. 378 where the will before the Court contained a present gift of the testator's property to his grandsons followed by provisions postponing payment and directing accumulation, and it was there held, in accordance with principles, which are beyond dispute, that an absolute gift could not be qualified by a direction to postpone payment and accumulate. The legality of a direction to accumulate was not in question in the case.

41. (sic) Mr. Justice Pontifex says:

(sic) But his will containing, as in our opinion it does, sufficiently direct words (sic) gift, the clauses in it which attempt to postpone the enjoyment of (sic) and to direct accumulation must be rejected or disregarded as consistent or repugnant.

42. The last case brought to my notice is that of Mokoondo Lall Shaw v. Gonesh Chunder Shaw I.L.R. 1 Cal. 104 which decided, that where a Hindu testator gave all his immoveable property to his sons but postponed their enjoyment thereof by a clause, that they should not make any division for twenty years, the restriction was void as repugnant to the gift.

43. Mr. Justice Phear, in the course of his judgment, says: '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, I 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 key to this and the two previous decisions is obvious, and it simply is the repugnancy and consequent invalidity of a condition which attempts to fetter the enjoyment of an absolute gift---a principle which has no application here.

44. Mr. Bonnerjee, very fairly admits that beyond these cases he is unable to refer to any decision, or even dictum, that a direction to accumulate is necessarily and under all circumstances void so as to entitle the heirs to claim the interest commensurate with the period of directed accumulation as though it were undisposed of, and I must therefore see whether there is any general policy or principle of law which calls for such a conclusion.

45. Is there then any principle of public policy which would discountenance accumulation I take it that for this purpose regard must he had to Hindu and not to English policy, and so far as I am aware such a direction is in accordance with the modes of Hindu life and thought, and agrees in its aims with what is matter of every-day practice and custom. Indeed, had the life estate been given to the widow, then the accumulation, which is directed, would in its practical result be no greater a restraint on the expenditure of income than would have been almost necessarily incident to that situation. Doss it then clash with any principle of law? First, it is necessary to see what the effect of the accumulation in this case is. The direction is during the life of the testator's widow to invest the balance of the income, and after her death the trustees are to hand it over to such adopted son who shall survive the widow and shall answer the description given in the will.

46. It will, therefore, be noticed that apart from any question of legality the accumulations are disposed of so as to vest beneficially on the widow's death. It is true that the object of the testator's bounty is not ascertained at the testator's death, but that in itself is not a necessary indication of illegal remoteness: it is only giving the accumulation to the person who is to take the fund itself, if it could be foreseen who that person is. That person may he the present plaintiff if he survives the widow, or it may be some one adopted in succession to him, hut it is clear in either case that the fund itself will be well given, and why not the accumulation If the testator be permitted to give the fund itself at a future time, it would seem anomalous' he should not be able to give intermediate rents and profits.

47. If the individual to take on the widow's death were now ascertainly surely could not be doubted that his title to the intermediate income (sic) prevail against that of the heir-at-law; and how has the heir a better right by reason of that person being at present unascertained If it be urged that the effect is to create an absolute interest at a future date without limiting an intermediate beneficial interest corresponding and commensurate with the interval, and that therefore the heir-at-law must take the profits to arise during the interval, then this argument, as it appears to me, is met by Mr. Bonnerjee's own concession that trustees might be directed to accumulate a fund for the payment of debts, and by the further fact that the trustees are in this ease directed to hand over the intermediate income to the individual who is to take the fund from which they spring. I may remark incidentally that this is an objection to accumulation which was put forward in the English Courts, hut without success, though the principle on which it is based has as much force in English as in Hindu law. It cannot be said that the adopted son to whom the fund is given on the widow's death is incapable of being a recipient of the bequest, for by Section 99 of the Indian Succession Act it is provided, that, if property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall at such later time go to that person. Seeing, therefore, the fact that the right to accumulate has been recognized if not actually affirmed both by the Supreme Court and the Privy Council, and that a direction to accumulate is no new expedient, and having regard to the various considerations I have discussed, I hold that it is not incompetent for a Hindu with proper limitations to direct an accumulation of the income of property, which under his will vests in his executors or trustees. That, however, is not necessarily conclusive of the present case; for it still remains to consider, whether the particular direction in this ease is bad, as being in excess of what the law permits.

48. Now it appears to me, on principle, that if accumulations are permissible, then in the absence of special provision the limit must be that which determines the period during which the course or devolution of property can be directed and controlled by a testator, and applying that test to the present case I am, of opinion that the accumulation directed in the present case during the widow's lifetime is not in excess of that permitted by law.

49. In the view therefore that I take of the case, I am of opinion that the plaintiff is not presently entitled to the surplus income or profits of the properties until the death of the testator's widow; and that he is not entitled (even after provisions being made for the payments mentioned in the will) to have the corpus of the estate made over to him. The plaintiff asks for an account, and as the Advocate-General does not oppose I am willing to accede to this, inasmuch as when the case first came before me certain charges of breach of trust were waived on the understanding that the plaintiff should be entitled to take such objection to the trustees' conduct as might be open on the taking of the ordinary accounts; but I will only direct accounts at the plaintiff's risk as to costs, and as it has been suggested that the accounts will probably not be required the decree for accounts will be conditional.

50. The decree, therefore, will contain a declaration that the plaintiff has been validly adopted, but that on the true construction of the will he is not entitled during the life of the widow to have the property left by the testator handed over to him, or to receive the rest and residue of the income and interest of the testator's estate by the will directed to be invested; then the decree will direct accounts (at the plaintiff's risk as to costs) of the estate and debts of the testator: but it will be provided that no proceedings are to be taken under this direction without the leave of the Judge in Chambers. There will be an inquiry what is proper to be allowed for all necessary household expenses as well as for the worship of the testator's family Thakoor, Sree Sree Radhagovindjee. Further consideration will be adjourned, and there will be liberty to apply. As it is so desired, the costs of all parties up to and including the trial to be taxed on scale 2 as between solicitor and client will come out of the estate.


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