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Kumud Krishna Mandal and ors. Vs. Jogendra Nath Sircar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.511
AppellantKumud Krishna Mandal and ors.
RespondentJogendra Nath Sircar
Cases ReferredBhoba Tarini Debya v. Peary Lall Sanyal
Excerpt:
execution sale - purchaser, rights of--hindu, law--gift to woman--presumption--will, construction of--probate, whether necessary before dealing with interest expectant on death of legatee--'santan,' meaning of. - .....the first court of the twenty-four pergannahs. the case comes back to this court after remand. the learned judge in the lower court decreed the plaintiff's suit. the plaintiff brought the suit to establish his title to one-third of a particular piece of land, the whole of which was purchased in the year 1886 by the ancestor of the defendants in execution of a money-decree in which, at any rate according to the plaintiff's own case, he himself was one, if not, the sole judgment-debtor. the plaintiff had one brother and a step-brother. the brother's name was upendra nath sircar. upendra made a will and died on the 19th june 1882. he left him surviving his widow kumudini with whom, it is quite clear from the terms of his will, he was not on good terms and an only child, a daughter sarmistha.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendants from a judgment of the learned Subordinate Judge of the first Court of the Twenty-four Pergannahs. The case comes back to this Court after remand. The learned Judge in the lower Court decreed the plaintiff's suit. The plaintiff brought the suit to establish his title to one-third of a particular piece of land, the whole of which was purchased in the year 1886 by the ancestor of the defendants in execution of a money-decree in which, at any rate according to the plaintiff's own case, he himself was one, if not, the sole judgment-debtor. The plaintiff had one brother and a step-brother. The brother's name was Upendra Nath Sircar. Upendra made a Will and died on the 19th June 1882. He left him surviving his widow Kumudini with whom, it is quite clear from the terms of his Will, he was not on good terms and an only child, a daughter Sarmistha Dasi. The case set up by the plaintiff is this: That the property in suit formed a portion of his ancestral estate of which he, his brother Upendra and his half brother Lalit Mohan were each entitled to one-third. The defendants purchased, as I have already said, in execution of a money-decree. That money decree is not forthcoming. But according to the plaintiff's own case, he was liable for the whole amount recoverable under that decree. In execution of that decree, the property was put up to sale on the 6th April 1886 and purchased by the defendants' ancestor. The case put forward by the plaintiff and which has been assented to by the learned Judge of the Court below seems to me to be an extraordinary case. The plaintiff says that he took under the Will of his brother Upendra, in the events that had happened, which I shall refer to presently, a reversionary interest which became absolute on the death of the only child of Upendra, namely Sarmistha, without any issue. The property that was sold in execution was the whole of the piece of land and the case set up by the plaintiff Jogendra is that although he admits that the original share that he inherited from his father passed under the sale in execution, the one-third share that he acquired under the Will of his brother in the event of the death of the only child of Upendra without issue did not pass. Of course, that is a very strong case to set up, because the Court sold the property to the predecessor of the defendants and ordinarily any right, title and interest which the judgment-debtor had in possession, in reversion, in remainder or in expectancy would pass to the purchaser. That the Court meant to limit in any sense the operation of the conveyance cannot, I think, for one moment be suggested. But apart from that, I think in this case it is extremely doubtful whether the contention put forward by the plaintiff is right. The words on which the plaintiff says that he acquired the interest under the Will of his brother Upendra are these. Under Clause (7) of the Will of Upendra the executor was, in the first instance, directed to keep accounts of the income and expenditure of the moveable and immoveable properties left by the testator and then the Will proceeded as follows: 'and on my said daughter attaining her majority he,' that is the executor Jogendra, will give her my estate and make over the accounts. If he should fail in that, he will be responsible in accordance with law. God forbid it, if my daughter should die childless, then my full brother Jogendra Nath Sarkar will get the properties in my share.' The daughter Sarmistha survived her father, attained majority but died without issue. It is argued, therefore, that the property passed to the brother, the plaintiff Jogendra. Under the Hindu Wills Act in which are incorporated some of the provisions of the Indian Succession Act, I do not think that that is so. The first Section that is referred to is Section 82 of the Indian Succession Act, which provides that where property is bequeathed to any person he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended to be given. Then, under Section 111, which is a statutory enactment of one of the rules in the well-known case of Edwards v. Edwards(4) it is provided that where a legacy is given if a specified uncertained event shall happen and no time is mentioned in the Will for the occurrence of that event, the legacy cannot take effect unless such event happens before the period when the fund bequeathed is payable or distributable. The Rule in Edwards v. Edwards (4) has received judicial comment not favourably on many occasions; but, in this country, that Rule as enacted in Section 111 of the Indian Succession Act is a part of the statutory law of the land and it is not open to the Courts here like the Courts in England to re-consider the judgment in the case of Edwards v. Edwards (1852) 15 Beav. 357 : 21 L. J. Ch. 324 : 16 Jur. 259 : 51 E. R. 576 : 92 R. R. 464. We have got to take Section 111 as the law in India and in which full effect has got to be given to the ordinary meaning of the words. First of all, there is a dispute between the parties as to the word that has been translated as 'childless' in the translation of the Will of Upendra in the 7th Clause. It is said that in the case of Buddha Singh v. Laltu Singh (3)****; Mr. Ameer Ali in delivering the judgment of the Judicial Committee of the Privy Council has laid down that the word santan...which is a Bengalee word, means not issue or descendants as is given in the books and in Wilson's Glossary but male issue. On the other hand, we have got two decisions of this Court in the cases of Kisto Rishore Bhuttacharjee v. Seetamonee Bhuttacharjee 7 W. R. 320. and Hurish Chunder Chowdhry v. Chunder Monee Debia 24 W. R. 268. [the latter of which was affirmed by the Judicial Committee, the judgment of the Judicial Committee being reported as Bhoobun Muhini Debia v. Hurrish Chunder Chowdhry 5 I. A. 138 : 4 C. 23 : 3 C. L. R. 339 : 3 Sar. P. C. J. 815 : 3 Suth. P. C. J. 537 : 2 Ind. Jur. 430 : 1 Shome L. R. 241 : 2 Ind. Doc. (N. S.) 16. in which it is held that the word santana means issue generally and is not limited to a male descendant. I do not think that Mr. Ameer Ali meant in any way to cast any doubt upon the two decisions I have referred to What we find in the judgment is that Mr. Ameer Ali in expressing the opinion of the Judicial Committee as to the meaning of the word santan as used by the author Vijnaneswara in the Sanscrit book Mitakshara stated that the word santan as used by that particular author in a portion of his work meant a male descendant. He did not purport to lay down what the ordinary meaning of the word santan was as used in the Bengalee documents at the end of the 19th or the beginning of the 20th century. There seems to be no doubt that issue generally is the meaning of the word santan. Then, the daughter of Upendra, having survived her father and having attained majority, ought to have the property transferred to her as is provided by the 7th Clause of the Will together with the accounts as kept by the executor. It is said that under Section 111 of the Indian Succession Act this gift over in favour of the plaintiff could take effect, because under Section 111 the period of distribution was not until the death of the daughter Sarmistha. I think it is quite impossible to say that the period of distribution in this case would be the death of Sarmistha, unless it can be held that Sarmistha took less than an absolute interest because if Sarmistha on the terms of Clause (7) of the Will took, as she would have taken if she had been a person governed by, the provisions of the Indian Succession Act, an absolute interest, it is impossible to say that the period of distribution under the terms of the Will could be postponed later than either the date of the death of the testator or the date when Sarmistha attained full age, whichever event happened later. The case that has been made by the learned Vakil, for the plaintiff-respondent is that there is a presumption that every gift made by a Will to a Hindu woman is of a limited interest. There is nothing to support that proposition. In fact, the proposition is the other way. The statement of the Rule of Hindu Law is contained in the judgment of a learned Hindu Judge of this Court, which is reported as Bhoba Tarini Debya v. Peary Lall Sanyal 24 C. 646 : I C. W. N. 578 : 12 Ind. Doc. (N. S.) 1100. and the Rule laid down by the learned Judge is this: That the presumption applies only in the case of a gift by a husband to his wife. It will also apply in the case where the gift is a maintenance grant, because the very nature of the grant shows that it is not to be a grant of an absolute interest, although the words used in the deed would otherwise be sufficient to convey an absolute interest. There will also be a restriction when any words used in the Will are sufficient to show that the testator did not intend to give an absolute interest. But apart from the case of a husband to his wife, in all other cases there must be something to show that the interest taken by a Hindu woman is not to be an absolute interest. In the present case, there is absolutely nothing except that the legatee is a woman. First of all, it is said that if it be held to be an absolute interest, the testator's wife with whom obviously he was on bad terms might1 have been in certain events entitled to the property. On the other hand, that argument that the interest was not an absolute one given to the daughter would exclude the daughter's daughter in favour of the plaintiff. I do not think that that is what was intended by the testator. At any rate, there is nothing to show one way or the other whether the testator had any such intention. We must take the words of the Will as they are and see what the testator meant and whether there are any words used in the deed to show that the testator meant to give his daughter Sarmistha less than an absolute interest. I do not think that there is anything which cuts down the clear term of the gift to my daughter on attaining majority.' If that is so, then, under Section 111 of the Indian Succession Act, the gift in favour of the brother must take place before the estate is distributable, that is, before the daughter receives the estate by transfer from the executor under Clause (7). I think this is a perfectly clear case that the daughter did take an absolute interest liable to he defeated either by death during her father's lifetime or by her own death during minority. But subject to that the interest is an absolute interest.

2. Then, there is the other head of the case, namely, that the interest of the plaintiff did not pass by the sale in execution. The plaintiff seems to have persuaded the learned Judge of the Court below that he was the only person liable under the decree in execution of which the property was sold in 1886. I think there is grave doubt as to the learned Judge being correct in that. It is said that the decree has disappeared and there is no evidence as to what the decree stated. But we have got the terms of the decree stated in the judgment of the case in which the testator's daughter Sarmistha was the plaintiff and there it is stated that all the three brothers were jointly liable under the decree. We have also got the statement of the present plaintiff in the application by which he applied to the Court for leave to sell a portion of the estate of Upendra for the purpose of paying off the debts. The present plaintiff states that that application was made to the learned District Judge to authorize him (Jogendra) to sell a portion of his own property for the payment of his own debts. That is an idle explanation. There cannot be any doubt as to what the application was, namely, that it was an application under Section 90 of the Probate and Administration Act for the purpose of enabling Jogendra as the executor of his brother Upendra's Will to sell a portion of Upendra's estate for the purpose of satisfying the decree that had been passed against Jogendra and his brothers. I must confess that I am at a loss to understand how the learned Judge, on the evidence before him, could have come to the conclusion that it had not been established that Upendra's portion of the property was liable under the decree, But, in my opinion, it makes little difference, because obviously Jogendra was liable on his own statement for the whole of the decretal amount. His statement was that the suit was brought on a promissory note and that he alone was sued and judgment was passed for the whole amount against him. It is said that the sale could not affect Upendra's share in the property, because although Upendra's Will had been proved prior to the sale in execution of that decree, the Probate had not issued out of the Court of the learned District Judge. I am not prepared to pay much attention to that contention. Even if it has any force, there is nothing in it at all. Jogendra, according to his own statement, was the person solely liable under the decree. He had an interest inherited from his father. According to his own case, he had a reversionary interest expectant on the death of his niece Sarmistha to one-third of the property under the Will of his brother Upendra. That interest could be sold, dealt with, taken in execution, without the Will of Upendra being proved. As a matter of fact, the Will had been proved, although Probate had not issued to the plaintiff, because apparently there was some dispute probably as regards the stamp duty payable on the grant, which had not been settled in the Court of the learned District Judge. But the Court having sold all the right, title and interest of Jogendra in the whole of this property to the defendant's ancestor, Jogendra cannot now say that that sale did not pass any interest, which he says was on the date of the sale in reversion but which on the death of Sarmistha without issue would fall into possession. It is a case which I am clearly of opinion he cannot put forward. The case seems to me to be a perfectly simple one. In my opinion, first of all, Jogendra took no interest in the events that had happened in the one-third of the property under the Will of his brother Upendra. If he did, it was a reversionary interest---an interest then in reversion but now in possession---which was sold under the sale in execution in 1886 and that interest passed by the sale in execution to the ancestor of the present defendants. In either view, the present suit cannot succeed. J, therefore, think that we ought to set aside the judgment and decree passed by the learned Subordinate Judge of the Court below in favour of the plaintiff and instead thereof we ought to allow the present appeal and dismiss the plaintiff's suit with costs both in this Court as well as in the Court below. The defendants-appellants will be entitled to two sets of hearing fees for the two hearings in this Court.

Newbould, J.

3. I agree.


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