Skip to content


Krishna Bhabini Vs. TIn Couri Dassee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal15
AppellantKrishna Bhabini
RespondentTIn Couri Dassee
Cases ReferredClavering v. Ellison
Excerpt:
will - duress--forfeiture--condition of residence. - .....and intentional leaving. now, in this case, there are very special circumstances apart from the fact of the girl being still a minor, for it is found by the first court, and as we understand, not questioned, that the girl was removed with the assistance of the police. how or in what manner the assistance of the police came to be granted does not appear; but we are bound to infer that it was properly and legally given. there was therefore a plain case of duress at the time of the leaving, and we see no reason why in this case, having regard to the fact that the girl is an infant, we should not treat it as accounting for the absence of the girl from the house where the testator directed her to live. we may here refer to the judgment of lord campbell in one of the cases cited before us,.....
Judgment:

Pigot and Banerjee, JJ.

1. In this case we think we must affirm the judgment of the Lower Appellate Court, and dismiss the appeal, not upon the first of the grounds stated by the District Judge, as to the ignorance of the plaintiff of the prohibition in the will, but upon the other ground, namely, upon the construction of the will, and upon certain circumstances in this case, which we shall presently advert to. We agree with the learned Judge in thinking that upon a fair construction of paragraph 7 of the will, which provides that 'if any of the members of my family, either from misunderstanding or for any other reason, live in any other than a holy place for more than three months, she will be deprived of all my properties '--it would appear that what was contemplated was a wilful, deliberate, and intentional leaving. Now, in this case, there are very special circumstances apart from the fact of the girl being still a minor, for it is found by the First Court, and as we understand, not questioned, that the girl was removed with the assistance of the police. How or in what manner the assistance of the police came to be granted does not appear; but we are bound to infer that it was properly and legally given. There was therefore a plain case of duress at the time of the leaving, and we see no reason why in this case, having regard to the fact that the girl is an infant, we should not treat it as accounting for the absence of the girl from the house where the testator directed her to live. We may here refer to the judgment of Lord Campbell in one of the cases cited before us, Clavering v. Ellison 7 H.L. Cas. 707 (723), in which is to be found the following passage: 'Had the children been included in the arrest, I conceive that their residence abroad under continued duress would not have worked a forfeiture, and if their residence abroad may be fairly ascribed to the imprisonment of their father by Napoleon, the forfeiture might be saved on this ground, were there a necessity to resort to it.' We think that under the circumstances the absence of the girl, although in contravention of the direction of the testator, ought not to be treated as working the forfeiture, as contended for before us. It is perhaps going a long way, having regard to the fact that the absence was for such a protracted period as nine months, but we think we are at liberty in this case not to treat her as a free agent at the time or subsequently. We are, however, not to be understood to hold as matter of law that mere legal infancy as such would entitle her hereafter to continue to live away from the house where she is bound to live under the will, and we think those interested in her welfare, relatives or others, with whom she has lately been, would be acting very unjustly by her were they, by in any way further delaying her return to the house, to risk the forfeiture by her of the benefits to which she is entitled under the will. The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //