1. This case came before me for settlement of issues.
2. Several issues, which I will afterwards mention, were raised, but before referring to them I must decide the question whether Mr. Bonnerjee is entitled to raise in this suit the following issue, proposed by him, namely, 'Did Nobocoomar Mullick leave a will or did he die intestate?'
3. Nobocoomar Mullick died on the 16th of March 1856.
4. On the 29bh of March 1856, the late Supreme Court in the exercise of its ecclesiastical jurisdiction granted to Shama Churn Mullick and Badamcoomary Dossee, the widow of the deceased, probate of an alleged will of Nobocoomar Mullick, dated the 15th of March 1856.
5. This probate has never been revoked. The present suit is brought for the administration of trusts which were established by Bidamcoomary out of monies received by her under the provisions of the will of Nobocoomar. Mr. Bonnerjee for a defendant, an heir of Nobocoomar, suggests the issue I have mentioned, but Counsel for the plaintiff contends that, unless and until the probate be revoked by the Court which granted it, the question of the factum of the will cannot be entered into.
6. This question depends upon the applicability of Section 41 of the Indian Evidence Act of 1872.
7. That section is as follows:
A final judgment, order or decree of a competent Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person a legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person, but absolutely, is relevant, when the existence of any such legal character or the title of any such person to any such thing is relevant. Such judgment, order or decree is conclusive proof--
That any legal character which it confers accrued at the time when such judgment, order or decree came into operation.
That any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person.
That any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease.
And that anything, to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
8. Mr. Bonnerjee contends that as the testator died before the Hindu Wills Act came into force, and as the executor of the will of a Hindu dying before that Act came into force was a mere manager having no title to the estate, the probate neither conferred a legal character nor declared the executor to be entitled to any legal character.
9. I have examined the cases which have been cited, but 1 am of opinion that Section 41 of the Evidence Act applies to this case. Is is quite true that a Hindu executor was, at any rate until the passing of the Hindu Wills Act, only a manager, but as such manager he had certain powers over the estate, and for many purposes he represented the testator. It may be that the probate did not confer upon the executor any legal character, but I think that the effect of probate is to declare the person to whom probate is granted to be entitled to the powers of an. executor, whatever his powers as such may be. The words 'legal character' is not anywhere defined, but I think that it is quite clear that it is intended to include the case of an executor. The fact that this section has been frequently applied to cases of persons dying after the Hindu Wills Act came into force shows this.
10. The only legal character which the Probate Court declares a person to be entitled to is that of executor. It confers the character of administrator. It does not declare it. So the section would be meaningless unless 'legal character' included the office of an executor. I do not think that the circumstance that in the particular case the powers of the executor may be limited makes any difference in the construction of the section. I must decline to allow Mr. Bonnerjee to raise the issue I have mentioned.
11. The other issues raised were as follows: (Here followed the issues as set out above.)
12. It was agreed by counsel that the 5th issue should now be decided. by me upon the materials before me. The 6th issue is an issue of law, and I must, therefore, decide that also. So far as material on the present questions, the facts of this case are as follows:
Nobocoomar Mullick died on the 16th of March 1856, leaving him surviving his widow Badamcoomary and four daughters. He left a will, of which he appointed his widow and his brother Shama Churn executrix, and executor.
13. The only portions of the will which are material to the present question, are the 5th and 9th clauses.
14. In the beginning of the 5th clause the testator says: 'My wife Sreemutty Badamooomary Dossee shall receive for her food and clothing, and for expenses of religious acts and the appointed voluntary religious observances, onelac of rupees.'
15. The 9th clause of the will is as follows : 'Should my executor Sree-man Shama Churn Mullick, my younger brother, have more than two sons within eight years from this date, in that case such son shall be made my adopted son ; should such adopted son die within the said appointed period of eight years, in that case should there be other sons of my brother within, the specified time of eight years, power is reserved for adopting up to the extent of a third time; should my brother have no more than two sons, or the adopted sons should die one after the other, in that case the share belonging to me of Company's paper and lands and houses and gardens and so forth, the whole real and personal estate will be received by my younger brother Sreernan Shama Churn Mullick-finis.'
16. Shama Churn Mullick had not more than two sons within eight years from the date of the testator's death, so the residuary estate became his. The testator made no provision for the disposal of the rents and profits for the eight years during which the succession to the property remained in suspense, and therefore his widow as his heiress became entitled to them, but during such eight years she did not receive these rents and profits. They seem to have accumulated in the hands of Shama Churn Mullick, her co-executor.
17. Disputes arose between Badamcoomary and Sbama Churn Mullick regarding their respective rights to the eight years' income. In settlement of these disputes Shama Churn, on or about the 13th of August 1866, paid Badamcoomary a sum of Rs. 2,89,000.
18. On receipt of this money Badamcoomary gave Shama Churn a release in the form of a deed-poll, the terms of which are important. This deed, after reciting the will and death of Nobocoomar, and that as there was only one son born to Shama Churn Mullick, the direction to adopt had become inoperative, and the whole of the estate of Nobocoomar became vested absolutely in Shama Cburn by virtue of the will of Nobocoomar, recites as follows:
And whereas the whole of my stridhan property, estate and effects of whatever nature and description the same did or doth consist has been fully and entirely separated, and is in my absolute and sole possession, custody and control, as I, the said Sreemutty Badameoomary Dossee, do hereby admit and acknowledge. And whereas a question has arisen between myself and the said Shama Churn Mullick as to whether or not under the form of words used by the said Nobocoomar Mullick in his said will the whole of the estate, property and effects left by the said Nobocoomar Mullick, together with the accumulations thereon from the time of his death after payment of the specific legacies therein given and bequeathed, passed to and became vested in the said Shama Chum Mullick as a residuary legatee, or whether the corpus only of the said estate and effects of the said Nobocoomar Mullick at the time of his death after the lapse of time specified in the above recited clause of the said will passed to and become vested in the said Shama Churn Mullick, leaving the accumulations of the said estates from the said death down to the expiration of the said eight years next succeeding his death undisposed of to pass to the next heir or representatives of the said Nobocoomar Mullick as residuary estate of the said deceased; and I the said Sreemutty Badameoomary Dossee as the sole widow, heiress and legal personal representative of the said Nobocoomar Mullick, deceased, claim to have the accumulations of the said estate from the time of his death, the same as I contend and am advised being residuary estate undisposed of by the said will of the said Nobocoomar Mullick. And whereas the said Shama Churn Mullick has consented and agreed to concede the point in question and to give up to me as such heiress of the said deceased the accumulations of the said estate from the death of the said deceased for the period of eight years, the time within which the contingency of a son being born to the said Shama Churn Mullick to be adopted by me was limited and fixed. And whereas to avoid the expense, delay and trouble of taking an account of the said accumulations of the said estate, it has been by mutual consent agreed between me and the said Shama Churn Mullick that I should take and receive the sum of Rs. 2,89,000 in full payment, discharge and satisfaction of all claims I have or had on my said deceased husband's estate in respect of the said accumulations thereof; and I the said Badameoomary Dossee have accordingly agreed of my own free will to accept and take that sum in full payment, discharge and satisfaction of all claims on the estate of my said deceased husband in respect of such accumulations, and in consideration thereof to waive ali rights and claims I had or may have to an account of the estate of my said deceased husband in respect thereof. And whereas since the death of my said husband I have up to the present time continued to live and still am living and residing with the said Shama Churn Mullick and his family. And whereas domestic disagreements and dissensions have arisen between myself and the other female members of the family, and with a view to terminate and end the said family feuds and dissensions I have consented and agreed to live separately and absolutely several and distinct from the said family of the said Shama Churn Mullick, and with that view I have agreed to accept from the said Shama Churn Mullick a sum of Rs. 24,000 in lieu and as for and by way of compensation, and in consideration of and for my absolutely releasing and relinquishing my right to live and reside in the family dwelling or other the house or houses of my said late husband and the said Shama Churn Mullick And whereas I have also agreed that on payment to ma of the said legacy or sum of Rs. 1,00,000, and the further sum of Rs. 62,480 being interest thereon from the 17th of March 1856 to 13th August 1866, and on payment to me of the said sum of Rs. 2,89,000 as and for and in full of all claims on my deceased husband's estate in respect of such accumulations thereof as aforesaid, and on payment to me of the said sum of Rs. 24,000 as and for and by way of compensation for my relinquishing my right of residence in the said family houses as aforesaid, I would execute to the said Shama Churn Mullick such release of all claims, accounts, reckonings and demands whatsoever : the payment of the monies is then recited.
19. The operative part after declaring the receipt of the monies states that in consideration therefor--
I, the said Sreemutty Badamcoomary Dossee, do hereby remise, release and for ever quit claim unto the said Shama Churn Mullick, both in his capacity of exeoutor of the last will and testament of the said Nobocoomar Mullick deceased and as such co-trustee with myself under the said will of the said estate and effects of the said deceased, and also as such legatee taking, receiving, and possessing the whole of the estate, real and personal, of the said Nobocoomar Mullick doceased under his said recited will as aforesaid, and the heirs, executors, administrators, representatives, and assigns of the said Shama ChurnMullick and the estate and effects of the said Nobocoomar Mullick my said deceased husband, of and from all and all manner of action and actions, cause and causes of action and actions, suits, enquiries, investigations and proceedings whatsoever touching or concerning, or on account or in respect of or in any way relating to the premises or any question, matter or thing relating or appertaining thereto, and of and from all and all manner of actions, suits, debts, duties, legacies, estates, trusts, accounts, reckonings, sum and sums of money, and all other claims and demands whatsoever both legal and equitable which I, the said Sreemutty Badamcoomary Dossee, or my heirs, executors, administrators or representatives now have, or at any time or times heretofore ever had, or at any time or times hereafter may have, claim, challenge or demand against the said Shama Churn Mullick as such executor of the said last will and testament of the said Nobocoomar Mullick as aforesaid, or as such legatee, taking the whole of his said estate as aforesaid, or to, against, on, or upon, arising out of, or in any way respecting the said estate of my said deceased husband, the said Nobocoomar Mullick deceased, and of, and from, all manner of other claims and demands whatsoever from the beginning of the world to the day of the date hereof. And these presents further witness that I the said Sreemutty Badamcoomary Dossee do hereby acknowledge, declare and testify that I have also actually had and received before the sealing and delivery of these presents of and from the said Shama Churn Mullick the further sum of Rs. 24,000 paid to me by the said Shama Churn Mullick as consideration and compensation for my relinquishing, giving up, and releasing, and in lieu of my right to live and reside in the said family dwelling-house of my said deceased husband, or any other the said house or houses of his or his estate, and in consideration of the said last-mentioned sum so paid to me as aforesaid, I the said Sreemutty Badamcoomary Dossee have bargained, sold, assigned, surrendered, yielded up, and released and by these presents do bargain, sell, assign, surrender, yield up, and release unto the said Shama Churn Mullick, his heirs, executors, administrators, representatives, and assigns all and every the estate and interest, right, title, claim, and demand whatsoever of me the said Sreemutty Badamcoomary Dossee to, for, in respect or on account of all and every or any my right or rights to a residence in the family dwelling-house and premises No. 66, Chitpore Boad in Calcutta, and in all and every or any messuages or messuage, houses or house, hereditaments and premises of my said deceased husband in any right, title, or capacity whatsoever.
20. Out of a portion of the money, which she received on account of her legacy, Badamcoomary purchased a house No. 59, Chitpore Boad, and out of the Rs. 2,89,000 she bought Government paper to the extent of Rs. 2,69,500, the interest of which she from time to time invested in the purchase of other Government paper. On the 12tb of July 1886, this accumulated interest was represented by Government paper for Rs. 10,500.
21. On that day she endorsed over both the Government notes for the Rs. 2,69,500, and those for the Bs. 10,500, to Mr. Broughton, one of the defendants in the present suit, and by a deed of the same date, of which she constituted him the trustee, she provided for the application of these funds.
22. This deed, which it may be convenient hereafter to describe as the deed of settlement, after reciting the way in which Badamcoomary had obtained the Government paper and her purchase of the house No. 59, Chitpore Road, recites that it had for several years been her desire to bringupsome one of her grand-children or more remote issue as her own child, and so in a manner to preserve and maintain a separate family branch represented by herself as the origin and present head.
23. It also recites the intention of the settlor to bring up her grandchild, the present plaintiff, as her own child. This deed provided that Mr. Broughton 'or other the trustees or trustee for the time being should stand possessed of the said Government Securities upon trust during the lifetime of the, settlor to pay her the interest and dividends, and after her death as well principal as interest upon trust for the plaintiff, his heirs, executors, administrators and assigns for his and their own absolute use and benefit.' This deed declared that it was intended that the interest of the plaintiff in the Government Securities should vest in him upon the execution thereof, and it was thereby further provided that in case the plaintiff' should die in the lifetime of the settlor without leaving male issue surviving him, or in case be should die without having attained his majority and without leaving male issue, and in case he should within the lifetime of the settlor, or at any time after her death and before the 'expiration of a period of 24 years from the date of the deed, cease to reside permanently in, or to occupy as his family dwelling-house the house No. 59, Chitpore Boad, then his interest in the Government Securities should cease.
24. The deed provided for the application of the interest of the Government Securities on the cessor of the plaintiff's interest.
25. There was also a provision that after the death of the settlor, and during the minority of any person for the time being entitled to the trust funds, the trustees should out of the interest pay to the natural or other guardian of such person during his or her minority such monthly or other sums for the maintenance and necessary expenses of such person as the trustees should in their discretion deem fit. After purchasing No. 59, Chitpore Road, Badamcoomary invested the balance of her legacy and its interest in Government paper, which on the same 12th of July 1886 she endorsed over to Mr. Broughton, to be held on the trust of another deed of the same date, which I shall call the deed of dedication. By this deed Badamcoomary conveyed to Mr. Broughton the house No. 59, Chitpore Road, and certain jewellery, household furniture and effects upon trust to permit her as shebait of the idols Sri Sri Issur Sreedhurjee and Sri Sri Luckey Thakooranee during her lifetime, and after her death the shebait or shebaits for the time being of the said idols, to use and employ the house and other property respectively for the worship and service of' the idols, and subject as to the house, land and premises and the household furniture and effects therein and thereon to such right of residence and use and occupation of the said shebaits and their families respectively as therein provided.
26. This deed also provided that Badamcoomary as the shebait of these Thakoors and other the shebaits for the time being should be entitled to reside in No. 59, Chitpore Road, with the members of her, his or their families, and that the Government Securities which were subject to the trusts of this deed should be held upon trust to set apart there out Government Securities for the sum of Rs. 10,000 for the purpose of extending the premises and upon trust with or out of the interest or income of the residue of such Government Securities to discharge revenue, rent, rates, taxes and outgoings in respect of No. 59, Chitpore Road, and in the necessary repairs thereof, and to pay the residue to Badamcoomary as shebait of the said Thakoors during her life, and after her death to the shebait or shebaits for the time being of these Thakoors. This deed declared that Bad amcoomary should during her lifetime be the shebait, and that from and after her death until the trust funds settled by the deed of settlement should under the trusts thereof be indefeasibly vested in some person, the person for the time being entitled under the deed of trust to the funds settled thereby should be the shebait, and when the funds should become indefeasibly vested, the person in whom they should be so indefeasibly vested, and his or her heirs, should thenceforth be and continue fetish shebait or shebaits for ever.
27. This deed of dedication also contained a provision that, if the shebait for the time being should happen to be a minor, the payments directed to be made to him for the purposes of the trust should be made to his or her natural guardian. It was also provided that subject to the use thereof for the service of the Thakoors, the shebait and shebaits for the time being should be entitled to the use of the jewellery, &c.;
28. Badamcoomary died on the 8th of September 1886. In consequence of two of the daughters of the settler asserting rights to the property subject to these deeds, this suit has been brought. This suit seek the administration of the trusts of the two deeds.
29. I have now to consider the 5th issue.
30. It is contended that the oases establish the following propositions:
In the first place.-That a widow may use for her own purposes and may alienate the income of her husband's estate which has accumulated in her hands. It is said that she is not confined to the current income;
Secondly.-That should she invest the income and make a distinction between those investments and the original estate, she can at any time thereafter deal with such investments;
Thirdly.-That should she invest the savings in such a way as to show that she intended to increase the original estate by such investment, she cannot afterwards deal with such investments except for reasons which would justify her dealing with the original estate; and
Fourthly.-That should she invest the savings in property held by her without making any distinction between the original estate and the after purchases, the prima facie presumption is that it has been her intention to keep the estate one and entire, and that the after purchases are an increment to the original estate.
31. The whole question is, I think, one of intention. If she has once shown her intention to augment her husband's estate she cannot alter, but if she evinced no such intention she can, at any time during her life, deal with the profits. The fourth proposition is established by the recent case of Sheolochun Singh v. Saheb Singh 14 C. 387.
32. The third proposition is laid down in the case of Ishri Dutt Koer v. Hansbutti Koerain 10 C. 324 : 10 I.A. 150. At page 337 of the report in the Indian Law Reports, their Lordships of the Privy Council, after pointing out that no distinction was then made between the original estate and the after-purchases, say: 'These are circumstances which in their Lordships' opinion clearly establish accretion to the original estate, and make the after-purchases inalienable by the widows for any purpose.'
33. For the first proposition there is, I think, ample authority. Soorjeemony Dossee v. Denobundoo Mullich 9 M.I.A. 123 decides the absolute right of the widow in her own right to the accumulations since the death of her husband, and in that case, as in the present, the income had not accumulated in the hands of the widow herself, but in the hands of the person from whom she was seeking to recover.
34. That case shows that her right to them is not affected by the fact that she may receive them in a lump. Whether she receives them as they fall due, or whether she receives them after they have accumulated in the hands of others, her right is the same.
35. In Grose v. Amirtamayi Dasi 4 B.L.R. O.C. 1 Mr. Justice Macpherson held that the accumulations followed the corpus, but as pointed out by the Privy Council in Ishri Dutt Koer v. Hansbutti Koerain the opinion expressed by Mr. Justice Macpherson seems to be at variance with the case of Soorjee-mony Dossee v. Denobundoo Mullick. Much reliance was placed by Mr. Pugh on the case of Rabutty Dossee v. Shib Ghunder Mullich 6 M.I. A. 1, but on a careful consideration of that case I do not think it 1885] has in reality any bearing on the present. There what the widow was receiving, or at any rate the greater part of it, represented the corpus of the husband's estate. The result of the compromise was that a sum of money was allotted to her as compensation for her husband's share. In the present case the money received by the widow was in respect of her right to the profits after her husband's death. At page 25 of the report tihe'learned Judge, delivering the judgment of the Privy Council, shows that the present question was to some extent considered by the Board but that they did not think it necessary to decide it,
36. In Ishri Dutt Koer v. Hansbutti Koerain 10 C. 334 the Privy Council say:
It is impossible to read Mr. Justice Ainslie's forcible argument without feeling that it is difficult to specify the point of time at which the widow loses her control over the unexpended portion of her income from her husband's estate. If she may spend or give away the whole, may she not put some by? If she saves one year or month, may she not spend those: savings the next year or month? If she may save and spend again, may she not place her savings so as to get some income from them; and so on through all the steps of the sorites.
37. About the first proposition there is, I think, no doubt. 'With regard to the second proposition, I thick I must hold that if a Hindu widow in vests the income of her husband's property in the purchase of other pro party as a permanent investment, she cannot afterwrrds alienate it. Judging from expressions which have been used by the Privy Council, I think it possible that if the matter were again considered the power of the widow over the property might be established ; but I am bound by what the Privy Council say in Ishri Butt Eoer v. Hansbutti Koerain. * * * * After exa mining the authorities on this very question they there say: 'This is the state of the authorities, and their Lordships, differing from the learned Judges below, think it must be taken as adverse to the claim made on be half of the widow.' The question has never been expressly decided either by the Privy Council or by a Full Bench of this Court, but as a Judge of an Original Court I must act upon what has been held to be the state of the authorities.
38. The question here is really on the facts. Has there been an investment of a permanent nature such as to add to the corpus of the husband's estate, or rather, as in this case the residue of the estate went to Shama Churn Mullick, such as to render it available to the heirs of the husband. All the cases in which property bought by the widow out of the profits of her husband's estate has been held to belong to that estate are cases where immoveable property has been bought. In no one of the cases that have been cited, except in the case of Bhagbutti Daee Chowdhry Bholanath Thakoor 2 I.A. 256 (260, 261), where the expressions used have been held only to apply to the particular ease (see I.L.R., 10 Calc, 337), has it been held that a widow cannot purchase jewellery or other moveable property for her own absolute use out of the profits of her husband's estate? Were she to advance to any person any portion of the profits by way of loan, does she by doing so make the money advanced by her a portion of her husband's estate? I think not. If it were so, having once lent any money, she would never lend it again. I do not know that there is any real difference between the ease of lending money to a private individual, on a promissory note and purchasing a Government promissory note.
39. The notes are purchased more as a convenient and safe mode of keeping the money than as an investment of a permanent nature. Putting tbe case in another way, does a widow by using them only alter her rights in it? Were she to accumulate it in her house or in a bank, she would retain her absolute right. I do not think that the fact that she lends it out at interest to Government alters her right. There might be a case where a widow in buying Government paper showed that she intended to augment her husband's estate, but there is no evidence which can suggest this here. There is everything to the contrary here. There was no estate of her husband's in her bands for her to augment.
40. I do not think that the law intends the husband's estate to benefit by any investment which is not of a permanent nature and I do not think that the widow here intended the money to remain permanently in Government paper.
41. I find as a fact that the widow by purchasing the Government paper did not intend to augment her husband's estate, and that she kept it distinct from her husband's estate. On the 5th issue, J find that Badamcoomary bad power to dispose of the Government paper which she made over to Mr. Broughton on the trusts of the deed of settlement.
42. As to the 6th issue I think it clear beyond argument that she was entitled to the legacy of a lac of rupees, and not merely to the income of that legacy. The terms of the will are perfectly clear.
43. The other issues are issues, of fact, and will have to be tried. It remains to deal with the application for maintenance. I think there must; be a reference to the Begistrar to enquire and report what should be allowed for the maintenance of the plaintiff. Costs of this hearing and of the motion to be costs in the cause.