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Jagat Bijoy Bhattacharjee and anr. Vs. Tomijuddi Howladar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.228
AppellantJagat Bijoy Bhattacharjee and anr.
RespondentTomijuddi Howladar and ors.
Cases ReferredTripurari Pal v. Jagat Tarini Dasi
Excerpt:
succession act (x of 1865), section 111, applicability of - will, construction of--hindu testator. - 1. there can be no doubt that the testator in this case intended that his wife and daughter and daughter's daughter should each have an absolute interest in the property, and that, as far as possible, so long as anybody descended from himself was in existence, gouribijoy or his descendants should have no interest in the property.2. there is, however, a provision of law, namely, section 111 of the succession act, which has been applied to the wills of hindus and which seems to be contravened in giving full force to the intention of the testator. that section provides: 'where a legacy is given if a specified uncertain 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.....
Judgment:

1. There can be no doubt that the testator in this case intended that his wife and daughter and daughter's daughter should each have an absolute interest in the property, and that, as far as possible, so long as anybody descended from himself was in existence, Gouribijoy or his descendants should have no interest in the property.

2. There is, however, a provision of law, namely, Section 111 of the Succession Act, which has been applied to the Wills of Hindus and which seems to be contravened in giving full force to the intention of the testator. That section provides: 'Where a legacy is given if a specified uncertain 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. ' Now, if this section applies, the respondent is out of Court.

3. The respondent, however, contends that this section does not apply, because it speaks of the happening of a specified uncertain event, and death is a certain event to which every human being is subject. So far, that is a correct proposition of law; but what is uncertain is the period when death comes. The provision in the Will is: 'If my wife die before, my daughter Gangamoni Debya shall get the said property,' etc. There is, therefore, an 'if' in the Will, and there is an 'if' in Section 111. Whether the wife would die in the lifetime of the testator or after him, is an uncertain event, and the daughter is allowed the interest that is given to her by the Will only in case the wife die in the lifetime of the testator. That is an uncertain event. These circumstances seem to point to the application of Section 111; and if Section 111 applies, the respondent has no case.

4. Reference has been made by the learned Vakil for the respondent to the case of Lallu v. Jagmohan 22 B. 402 ; 11 Ind. Dec. (N.S.) 855, in which a somewhat similar provision in a Hindu Will was interpreted. Their Lordships, however, in construing the Will held that the interest given to the wife was a life-interest. That being so, it would not contravene Section 111, which was not at all referred to before their Lordships. Then there are cases in our Court which do seem to have laid down a somewhat contrary proposition. We may refer to the cases of Mahendra Lal Nandy v. Rakhal Das Bishai 16 Ind. Cas. 809 ; 17 C.L.J. 630, Tripurari Pal v. Jagat Tarini Dasi 17 Ind. Cas. 696 ; 40 C. 274 (P.C.) ; 17 C.W.N. 145 ; 13 M.L.T. 1 ; 17 C.L.J. 159 ; (1913) M.W.N. 34 ; 15 Bom. L.R. 72 ; 40 I.A. 37 and Sures Chandra Palit V. Lalit Mohan Dutta 31 Ind. Cas. 405 ; 20 C.W.N. 463 ; 22 C.L.J. 316. These cases support the contention of the appellant that this is a case which is within the mischief of Section 111 of the Succession Act.

5. It may, however, be stated in this case that the event in respect of which the testator had a fear, that is, the survivor of any of his descendants being at the mercy of his nephew and his heirs, has no application; because all of them have died, except Soudamini's son, who has compromised with the plaintiff. That being so, there is no conflict in the result with the intentions of the testator.

6. In this view of the case we think that the judgment of the learned Subordinate Judge should be set aside, and that of the Munsif restored with costs.


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