M.M. Dutt, J.
1. This appeal is at the instance of the plaintiffs and it arises outof a suit for declaration and permanent injunction.
2. Kumar Basanta Kumar Roy of Dighapatia died on August 17, 1920 leaving behind him surviving his mother Rani Drabamoyee, three brothers Raja Pramoda Nath Roy, Kumar Sarat Kumar Roy, Kumar Hemendra Kumar Roy and their sons and his sister. Before his death he executed a will in Bengali on August 11, 1920. He appointed his three brothers and his sister's husband Mahendra Kumar Saha Choudhury as executors of his will. Paragraphs 1 to 21 of the will contain provisions for various legacies to different persons including his three brothers and mother. The English translation of paragraphs 22 and 23 of the will is as follows: '22. If excluding the G. P. Notes, War loans. Debentures and foreign bonds mentioned in the different paragraphs of this will which I have arranged to dispose of under the provisions of this will, there be any G. P. Notes, War loans or bonds or Debentures which remain undisposed of, then the executors of this will shall be entitled to spend the same for the supply of water to the people of Rajsahi or for any other work beneficial to the people of Rajsahi. All those works shall be performed with the interest keeping the principal intact.'
'23. Excluding all my G. P. Notes, War loans, Debentures etc. and all kinds of Government Promisory Notes and the expenses for my Sradh and for taking the probate of the will, my third brother Sriman Sarat Kumar will get all other movable and immovable properties including the share of Techno Chemical Laboratory and Works.'
The probate of the will was granted on September 30, 1921 in Probate Case No. 63 of 1920 of the Court of the District Judge, Rajsahi. The case of the appellants is that the bequest made by paragraph 22 of the will is void for vagueness and uncertainty and, as such, the said bequest has fallen into the residue of the estate of the testator. After payment of the specific legacies under the will, the G. P. Notes, Municipal Debentures, War loans, Bonds etc. of the face value of Rupees 1,25,000/- remained. The said Mahendra Kumar Saha Choudhury illegally misappropriated a portion of the same and the balance mentioned in the plaint Schedule 'A' which, after conversion, amounted to Rs. 75,200/-, is still lying in the Bhawanipore Branch of the Central Bank of India Limited, the respondent No. 4. It is contended that Kumar Sarat Kumar Roy, the predecessor-in-interest of the appellants was the residuary legatee and the bequest as made by paragraph 22 of the will being void, it fell into the residue and Kumar Sarat Kumar Roy became entitled to the same. The appellants being the heirs of Kumar Sarat Kumar Roy are entitled to the said amount lying in the said Bank. Alternatively, the appellants have claimed that, if on account of the provisions of paragraph 23 of the will, it is held that the Governmentpapers etc. have been expressly excluded from the residuary legacy and, the same passed on intestacy, the respondents excepting the respondent No. 4, who are the heirs of Kumar Hemendra Kumar Roy and the appellants have become entitled to the same. There is another alternative prayer, namely, that if the provisions in paragraph 22 of the will are held to constitute a valid trust, then on the death of Mahendra Kumar Saha Choudbury, the last trustee and executor, the present heirs of the testator, namely, the appellants and the said respondents are entitled to get possession of the G. P. Notes etc. now lying in the said Bank, as trustees in place of the said Mahendra Kumar Saha Choudhury, who died on December 16, 1931.
3. The appellants' claim has been opposed by the said respondents who are the heirs of Kumar Hemendra Kumar Roy. It is not disputed by them that the bequest under paragraph 22 of the will is void, but it is contended that Kumar Sarat Kumar Roy was not the residuary legatee, and the bequest did not fall into the residue. Their case is that they, along with the appellants, inherited the funds mentioned in paragraph 22 as heirs of late Kumar Sarat Kumar Roy.
4. It has been held by the learned Subordinate Judge, Fourth Court, Alipore that the bequest is void; that Kumar Sarat Kumar Roy was not the residuary legatee in respect of the funds mentioned in paragraph22 of the will; that in respect of the said funds the testator died intestate and that the appellants along with the said respondents are entitled to the same. Upon the said findings, he has decreed the suit allowing the plaintiffs alternative prayer that they, along with the said respondents, are entitled to the funds described in Schedule 'A' to the plaint. Hence, this appeal.
5. Two questions which are involved in this appeal are whether or not Kumar Sarat Kumar Roy was the residuary legatee and whether or not the bequest under paragraph 22 of the will being void fell into the residue of the estate of the testator. In view of the provisions of paragraph 23 of the will, there can be no doubt that Kumar Sarat Kumar Roy was the residuary legatee. It has been already stated that after giving various legacies to different persons and after making provision for the supply of water to the residents of Rajsahi out of the interest of the G. P. Notes, War loans, Debentures etc. which would remain undisposed of after meeting the expenses for his Shradh and for taking the probate of the will, the testafor bequeathed all other movable and immovable properties to his third brother Kumar Sarat Rumar Roy. Paragraph23 clearly shows an intention on the part of the testator that Kumar Sarat Kumar Roy shall take the surplus or residue of his property. No reason has been given by the learned Subordinate Judge why he was not the residuary legatee. In the circumstances,we hold that Kumar Sarat Kumar Roy was the residuary legatee.
6. Section 103 of the Indian Succession Act provides that under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect. The illustration under that section leaves no room for doubt that a lapsed legacy or a void legacy falls into the residue. In Blight v. Hartnoll, (1883) 23 Ch D 218 = (1881 to 1885) All ER 660, it has been observed that the residuary gift carries every lapsed legacy and every legacy which oa any ground fails to take effect; but if a testator has shown some intention with regard to the excepted property inconsistent with its ever falling again into the residue, effect must be given to that intention. It is contended on behalf of the respondents that paragraph 23 of the will having expressly excluded the G. P. Notes, War loans, Debentures etc., the testator intended that the void bequest would not fall into the residue. This contention is without any substance. The G. P. Notes, War loans, Debentures etc. were disposed of by the testator in the earlier paragraphs of the will and, as such, those were specifically excluded in paragraph 23. In our view, it does not follow that the testator never intended that the same should not fall into the residue. In Blight v. Hartnoll referred to above, Sir George Jessel, M. R. observed as follows :--
'It is impossible to suppose that the testator would give a legacy knowing it to be void, and, with the exception of the case of a testator expressing a doubt whether a legacy given by his will was void or not, it would be impossible to hold that he even contemplated what should occur in case the legacy was invalid. We certainly should not presume such an intention on the part of a testator. A testator generally expects the legatees to survive him, though there is a possibility that they may not; but we cannot suppose him to have been such an idiot as wilfully to make a void bequest ........................... It is almostimpossible to suppose that a testator intendedthat a legacy should not, because it is invalid,fall into the residue.'
In the instant case also, there is nothing tosuggest that the testator intended that thelegacy in question should not fall into theresidue.
7. It is contended on behalf of the respondents that by virtue of Section 140 of the Act, the funds mentioned in paragraph 22 of the will remained a part of the estate of the testator and did not fall into the residue. Section 140 is as follows:--
'Where a testator does not absolutely bequeath a fund, so as to sever it from his own estate, but gives it for certain purposes, and part of those purposes cannot be fulfilled, the fund, or so much of it as has not been exhausted upon the objects contemplated bythe will, remains a part of the estate of the testator.
(i) A directs that his trustees shall investa sum of money in a particular way,and shall pay the interest to his sonfor life, and at his death shall dividethe principal among his children.The son dies without having ever hada child. The fund, after the sonsdeath, belongs to the estate of thetestator.
(ii) A bequeaths the residue of his estate, to be divided equally among his daughters, with a direction that they are to have the interest only during their lives, and that at their decease the fund shall go to their children. The daughters have no children. The fund belongs to the estate of the testator.'
Section 140 contemplates bequest of a fund for certain purposes and part of those purposes cannot be fulfilled; consequently, the bequest lapses. Under Section 103, a lapsed bequest falls into the residue. If the contention made on behalf of the respondents is accepted, in that case, it has to be held that Section 140, to some extent, overrides the provision of Section 103 in the case of a bequest of a fund for certain purposes which lapses. The illustration (i) contemplates a case where there is no residuary legatee and the illustration (ii) provides a case of a lapsed residuary bequest of a fund. Under Section 108, where a share which lapses is a part of the general residue bequeathed by the will, that share shall go as undisposed of. The bequest of the residue of the estate under illustration (ii) having lapsed it will form part of the testator's estate and will not go to the other residuary legatees. In that view of the matter, there is no conflict between Section 140 and Section 103 in respect of a case as mentioned in the illustration (ii). On a proper construction of Section 140 in the light of or as clarified by, the two illustrations, we are of the view that Section 140 contemplates a case where there is no residuary legatee and also the case of a bequest of the residuary fund which lapses. In either case, the be best will form part of the estate of the testator. But in the case of a bequest of a fund, where there is a residuary legatee, the fund will fall into the residue in case the bequest fails or lapses. In the absence of any specific provision, it is difficult to hold that Section 140 overrides Section 103 to the extent indicated above. We are, accordingly, of the view that in the instant case, as Kumar Sarat Kumar Roy was the residuary legatee, the funds mentioned in paragraph 22 of the will fell into the residue and did not form part of the estate of the testator.
8. The respondents have also placed reliance on Section 30 of the Act and it is contended that the bequest being void, itshall be deemed that the testator died intestate in respect of the fund mentioned in paragraph 22. There is no substance in this contention. Section 30 which provides that a person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect, contemplates cases where the testator does not make a will or he makes a will but does not dispose of a particular property. It does not contemplate a case where there is a residuary legatee and a bequest other than the residuary bequest is void or lapses. When there is a bequest of the residue of the estate, the case will come under Sections 102 and 103 of the Act. In such a case, neither Section 30 nor Section 140 of the Act will apply.
9. In these circumstances, in our opinion, the learned Subordinate Judge is not right in holding that the bequest under paragraph 22 of the win which is void, should be treated as undisposed of as forming part of the estate of the testator and, as such, the same was inherited by the appellants and the said respondents. We hold that Kumar Sarat Kumar Roy being the residuary legatee became entitled to the fund mentioned in paragraph 22 of the will, a part of which amounting to Rs. 75,200/-, is tying in the said Bank, and the appellant being his heirs inherited the same and are entitled to a decree for the said amount.
10. In the result, in lieu of the decree of the learned Subordinate Judge, the following decree is passed. The suit is decreed without any order as to cost. The appellants are entitled to the sum of Rs. 75,200/- lying in the Bhowanipore Branch of the Central Bank of India Limited. The other prayers of the appellants are disallowed.
11. The appeal is allowed, but in view of the facts and circumstances of the case, there will be no order for costs.
N.C. Mukherji, J.
12. I agree.