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Haradhone Ghose Vs. Dasarathi Mukherji and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal38
AppellantHaradhone Ghose
RespondentDasarathi Mukherji and anr.
Cases ReferredSurendra Chandra v. Lalit Mohan
Excerpt:
- .....absolute gift in favour of bibhuti in the first place. it is only if bibhuti should not be living at the time when the fund was to be distributed that the other clause in favour, of the grandsons was to take effect. there, is no doubt that the provision was, that if in future the daughters should find it inconvenient, bibhuti would allow, them to live at either of the two premises. this contemplates a remote contingency and it cannot be held to operate either; as detracting from an absolute bequest in favour of bibhuti or as indicating that the. testator did not intend to make such an absolute bequest. where the, terms indicate that a bequest is an absolute one and further interests are given merely after or on the termination of that donee's interest and not in defeasance of it the.....
Judgment:

S.K. Ghose, J.

1. This second appeal Raises a question of interpretation of a will. The appellant was the plaintiff in the suit. The will was executed by one Bihari Lai Ghose on 15th January 1921. He died on 24th March 1924. His widow Binodini died in 1927. He left two sons and three daughters of whom the eldest is Bonwari whose two sons Haradhan and Jibandhan (since dead) instituted the suit. The second son Bibhuti is named as executor in the will and is defendant 2. The present defendant 1 obtained a money decree against Bibhuti and in execution of that decree attached premises Nos. 37 and 39 Kalidas Patitundi Lane which belonged to Behari Lal Ghose and are mentioned in the will. Bonwari's two sons filed a claim case but it was dismissed for default. Thereupon 'they brought the present suit. Their case 'was that by the will, absolute interest in these two properties was bequeathed to them, that the interest that was bequeathed to Bibhuti was not absolutes and that therefore these properties could not be attached and sold in execution of a personal decree against Bibhuti. The Courts below have agreed in holding that by the will absolute interest was bequeathed to Bibhuti in respect of the two properties in question. In that view they have agreed in dismissing the suit. Hence this second appeal by the plaintiff.

2. The question is whether the bequest in 'favour of Bibhuti in respect of the afore, said two properties was absolute or only for life. The terms of the will are as follows : The eldest son Bonwari is disinherited but some provision is made for his maintenance out of certain other properties. The wife Benodini and Bonwari's wife Sudhamoni are given the life-interest half and half in the income of the properties Nos. 37 and 39 Kalidas Patitundi Lane. The second son Bibhuti and daughter Sohagini are named as executor and executrix respectively. Then it is provided that on the death of Benodini and of Sudhamoni, Bibhuti will get the aforesaid two properties in absolute interest. Certain other provisions follow with regard to the maintenance of the wife and the daughter-in-law out of these properties. It is also provided that in case of these properties being acquired by Government compensation money would be spent in a certain way including the providing of accommodation for the afore, said two ladies. Then there are provisions for the maintenance of the other members of the family out of the income of other properties. It is further provided that if in future the three married daughters should be inconvenienced Bibhuti would find accommodation for them in the two Calcutta properties. Then the testator goes on to say that at the time of the will there was no grandson Hying but, if any grandson should be born, then failing his own sons and failing those in whose favour provisions had already been made the grandsons would get the properties absolutely Failing that the daughter's sons would get them.

3. The Courts below have agreed in interpreting the above terms as meaning that the bequest in favour of Bibhuti taking place on the death of the wife and the daughter-in-law was an absolute one and that the latter bequest in favour of the grandchildren would, only take place if Bibhuti should not be living at the time of the testator's death, in other words, when the fund bequeathed should become payable or distributable as laid down in Section 124, Succession Act. There has been some controversy as to the meaning of the word. It means death or absence which in the same thing but the question is as to the point of time of death of the testator's sons; it clearly means, if the son Bibhuti should not be living at the time when the will should come into operation. Bibhuti is living still, the two ladies are dead, the grandsons were born after the death of the testator. For the appellant great stress has been laid on Section 88, Succession Act, and it was contended that the clause in favour of Bibhuti and the clause in favour of the grandsons are irreconcilable and therefore the latter clause in favour of the grandsons should prevail. But I do not think that the two clauses are irreconcilable. It is clear that the intention of the testator was to make an absolute gift in favour of Bibhuti in the first place. It is only if Bibhuti should not be living at the time when the fund was to be distributed that the other clause in favour, of the grandsons was to take effect. There, is no doubt that the provision was, that if in future the daughters should find it inconvenient, Bibhuti would allow, them to live at either of the two premises. This contemplates a remote contingency and it cannot be held to operate either; as detracting from an absolute bequest in favour of Bibhuti or as indicating that the. testator did not intend to make such an absolute bequest. Where the, terms indicate that a bequest is an absolute one and further interests are given merely after or on the termination of that donee's interest and not in defeasance of it the absolute interest is not cut down and the further interests fail : Surendra Chandra v. Lalit Mohan (1916) 3 A.I.R. Cal. 775. Taking the will as a whole and reading all its terms, I consider that the Courts below were right in their interpretation of the material clauses of the will. The decision is therefore right. The appeal is dismissed with costs.

Edgley, J.

4. I agree.


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