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Abinash Chandra and ors. Vs. Shree Sree Iswar Dharamraj Thakur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 797 of 1948
Judge
Reported inAIR1953Cal194
ActsHindu Law
AppellantAbinash Chandra and ors.
RespondentShree Sree Iswar Dharamraj Thakur and anr.
Appellant AdvocateJ. Mazumdar, Adv.
Respondent AdvocateSudhansu Bhusan Sen and ;Sachindra Nath Chakravarty, Advs.
DispositionAppeal dismissed
Cases ReferredBipradas Goswami v. Sadhan Chandra
Excerpt:
- .....committee, ordinarily, a hindu will will be construed as giving only a limited interest to a hindu widow unless there is anything in the will to show that there was an enlargement of that interest. the enlargement may be shown by such words as 'malik', 'generation to generation', 'to so and so and sons etc.', but the words of enlargement must be present. the case of -- 'bipradas goswami v. sadhan chandra', 56 cal 790, which deals with the case of a daughter, contains the words 'to her sons' etc., showing that the estate of inheritance which was given conferred an absolute estate. therefore, that decision has no application to the present case. the words 'bhogdakhal' would ordinarily mean in the case of a hindu widow that she has been given a limited interest, or a life interest, or.....
Judgment:

K.C. Chunder, J.

1. This is an appeal against an appellate decree of the Subordinate Judge, Burdwan, reversing that of the Munsif, Additional Court of the same place. The plaintiffs-are the appellants.

2. It is not disputed that the plaintiffs who were substituted in place of the step-brother of one Becharam, were the reversioners of Becharam. Becharam died leaving him surviving his widow Jugal Bala and his brother whose heirs are now the appellants before me. He executed a Will in which he made these provisions for his wife. He gave the property to his wife using only the words 'Bhogdakhal' that is, enjoy and possess. He then proceeded to say that his wife shall have the power to give away the property on her death to any one in the family of his father or of his wife who would tend or nurse her. The testator, it seems, did not contemplate a case in which there may be no such exercise of the power. He made provision that in case his wife proved unchaste or did not live in his own house, then the property would be taken away from her and that the respectable villagers would have the power to make it over to anybody else they considered fit.

3. The Munsif construed the will as giving the widow a life estate. The widow during her life time made a debuttar of the property appointing an absolute stranger as shebait. It is, therefore, clear that she did not exercise the power given to her under the Will in the manner laid down in the Will.

4. First of all, the Will did not entitle her to make a debuttar at all. A deity is not one of the persons in whose favour under the Will the appointment can be made. Further the stranger, who is appointed shebait, if he was intended to be the person in whose favour the power had been exercised, did not belong either to the testator's family or to his wife's family, though he might have nursed or tended her. The Bengali expression is 'Shushusha'. (It really means nursing and not tending in her old age. In any case it has been translated as nursing and tending). The trial court construed the words 'Bhogdakhal Karibar Janya', as giving only a life interest. The appellate court, holding that there was no gift over after the lady's death in case she failed to exercise the power of appointment, came to the conclusion that the lady had an absolute interest. The ordinary rule of law is that if an estate is undisposed of after a particular limited interest then it reverts to the estate of the testator and his heir at that time inherits under the ordinary rule of Hindu law. Therefore no question of gift over, as learnedly but irrelevantly discussed by the Subordinate Judge, arises in the present case. Both the courts failed to see the real point in this case.

5. The real point is that since the decisions of the Judicial Committee, ordinarily, a Hindu Will will be construed as giving only a limited interest to a Hindu widow unless there is anything in the Will to show that there was an enlargement of that interest. The enlargement may be shown by such words as 'malik', 'generation to generation', 'to so and so and sons etc.', but the words of enlargement must be present. The case of -- 'Bipradas Goswami v. Sadhan Chandra', 56 Cal 790, which deals with the case of a daughter, contains the words 'to her sons' etc., showing that the estate of inheritance which was given conferred an absolute estate. Therefore, that decision has no application to the present case. The words 'Bhogdakhal' would ordinarily mean in the case of a Hindu widow that she has been given a limited interest, or a life interest, or a Hindu widow's estate. The subsequent words in this Will are in favour of a limited interest than of any enlargement of it. The power to appoint would ordinarily go to show that an absolute estate was not intended and the estate given was a limited one; otherwise there will be no question of appointing an heir. Then again the defeasance clause, by which the right to the property would be defeated by unchastity or leaving the house, in the present case are words which go more to limit than to enlarge any interest she possessed. In the circumstances, as there are no words of enlargement the ordinarily construction of a Will in case of gift by a Hindu to his wife will naturally prevail and the Will has to be interpreted as conferring only a limited interest. As she had only a limited interest, and as she had not exercised the power of appointment, there was intestacy after her death and the appellants are entitled to succeed.

6. The result, therefore, is that the decreeof the Subordinate Judge is set aside and thatof the Munsif restored with costs in both thecourts.


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