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Bhupati Charan Basu Vs. Chandi Charan Basu Mallik - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1935Cal154
AppellantBhupati Charan Basu
RespondentChandi Charan Basu Mallik
Cases ReferredIn Narendra Nath Sircar v. Kamal Basinl Dasi
Excerpt:
- .....before us, is a son by the first sister, and bhupati charan bose, who is the applicant for letters of administration, is the son by the last named sister. according to the ordinary law of inheritance the applicant as well as the objector would be entitled to a share in the properties of bhuban after the death of the widow in case of his dying intestate. when the application for letters of administration with the will annexed was made by bhupati on 21st april 1931 a preliminary objection was taken by the objector that the present application was not maintainable as no estate of bhuban remains to be administered and this objection seems to have prevailed with the learned district judge who has held, on the construction of the will, that the applicant for the letters of.....
Judgment:

Mitter, J.

1. Two questions arise in this appeal from the decision of the District Judge of Hooghly refusing letters of administration to the estate of one Bhuban Mohan Roy who died on 23rd November 1930. The proponent, who is now the appellant before us, set up a Will said to have been executed by Bhuban Mohan several years before his death. Bhuban died leaving behind him a widow, Krishna Bhabini Dassi, but no issue. The widow died shortly after on 20th February 1931. The widow had two sisters, Karuna Moyee Dasi and Ayhore Moni Dasi. Chandi Charan Basu Mallik, who is the respondent before us, is a son by the first sister, and Bhupati Charan Bose, who is the applicant for letters of administration, is the son by the last named sister. According to the ordinary law of inheritance the applicant as well as the objector would be entitled to a share in the properties of Bhuban after the death of the widow in case of his dying intestate. When the application for letters of administration with the will annexed was made by Bhupati on 21st April 1931 a preliminary objection was taken by the objector that the present application was not maintainable as no estate of Bhuban remains to be administered and this objection seems to have prevailed with the learned District Judge who has held, on the construction of the will, that the applicant for the letters of administration has no interest in Bhuban's estate and that the gift over to him was inoperative and had no effect. The learned Judge, as has already been said, dismissed the application for letters of administration. It is against this decision that the present appeal has been brought and the two questions indicated in the beginning of our judgment which have been debated before us are: (1) that the probate Court was not competent to deal with the construction of the will and secondly that or the construction of the will the appellant Bhupati has no locus standi to maintain the application. With regard to the first question reliance has been placed by Dr. Mukherji who appears for the appellant to a decision of this Court in Sudhir Chandra Pal v. Uttari Sundari Pal 1933 Cal 571. The passage on which reliance has been placed occurs in the judgment of S.K. Ghose, J., who delivered the judgment of the Court and which runs as follows:

As regards the question of locus standi the learned Judge no doubt refers to Sections 232 and 233, Succession Act. He was entitled to read the will in order to see whether in the circumstances the petitioners could come in as residuary legatees of their representatives.

2. And then the learned Judge quoted a passage from Tristam and Coot's Probate Practice, Edn. 7, p. 5 which is to the following effect:

The function of the Probate Division is to determine what documents are testamentary and who is entitled to be constituted the personal representative of the deceased.

3. The true rule, however, appears from another passage in Tristam and Coot's Probate Practice to which our attention has been drawn by Dr. Sen Gupta who appears for the respondent. What passage occurs at p. 432 of the same edition. The passage is as follows:

After the Court has admitted a document to probate the construction and interpretation of its contents are left to the Chancery Division. But where the question who is entitled to a grant of probate or of administration (with will) depends on the construction of a Will the Probate Division may and should construe it to that extent.

4. In support of this statement the learned author states two cases, Frogley (1905), p. 137 and Lupton (1905), p. 32. We have examined the two cases and it appears to us that for the purpose of determining as to whether a person applying for letters of administration is entitled to such administration it is open to the probate Court to determine as to whether the applicant is a residuary legatee under the will on a construction of the will. Both the applications in the two cases cited were made for the grant of letters of administration with a copy of the will annexed by the person named in the will as the residuary legatee. Notwithstanding that, the Court had to enter into the question of construction of will to see whether the applicant was the residuary legatee under the will and entitled as such, according to the practice, to apply for the grant of letters of administration with a copy of the will annexed. Under the Indian Succession Act having regard to the provisions of Sections 232 and 234 it would appear that before letters of administration can be granted the probate Court should see as to whether the applicant is a universal or a residuary legatee so as to be entitled to apply for the letters of administration with a copy of the will annexed. Some of the observations in the case cited might have stated the law somewhat broadly. As for instance it is said,

the probate Court cannot go into the question whether a gift over in the Will is valid or not.

5. As we understand the judgment of the learned Judge if on the face of the will it appears that the applicant for the letters of administration is either a residuary legatee or a universal legatee it is not open to the Court to decide as to whether such provisions are valid or not. In the earlier part of the judgment the learned Judges however stated this, as we have already said, that the Court is entitled to read the will in order to see whether the applicant is a residuary legatee or his representative. That seems to be the correct statement of the law. In a subsequent passage to which reference has been made the law seems to have been somewhat broadly formulated (p. 5, Tristam and Coot's Probate Practice). We have examined the cases cited in p. 432 and we are of opinion that it is open to a probate Court to consider on the construction of the will as to whether the applicant for the probate is entitled to letters of administration being the residuary legatee or universal legatee. The next question is the question of the construction of the will. The will has been printed in the appendix at the end of the paper book and the material portion of the will runs as follows:

After my death my wife Srimati Krishna Bhabini Dasi, on becoming the sole heir to all the properties moveable or immovable and of all monies whether cash or due from the money-lending business to be left by me, shall hold and enjoy the same and become entitled to make gift and sale, and to that no objection on the part of any one shall be entertained. Whatever properties-shall be loft after the death of my wife Srimati Krsihna Bhabini Dasi, shall vest in our future heir my sister's son Sriman Bhupati Charan Basu who will be the sole heir to the said properties. I absolutely disinherit the other sister's son of mine, Sriman Chandi Charan Basu, who is of very bad character and addicted to excessive drinking and who has treated us badly.

6. Then there is a provision as what is to happen if Bhupati dies before the death of Krishna Bhabini:

In that case Sriman Tara Prosanna Roy, the great-grandson of the elder brother of my father, will get the estate which will be left by Krishna Bhabini.

7. It is contended for the objector that this contention has prevailed with the District Judge that in the first paragraph of the will the gift to the wife is an absolute gift and therefore the subsequent clause, if it refers to the testator's estate, must be held to be inoperative seeing that it is repugnant to the absolute gift in favour of the wife in the first paragraph. We have no doubt read the original will in Bengali as also the translation which appears to us to have been accurately made and it appears to us that the gift to the wife was an absolute gift. The Bengali words are: 'Samasta aurther uttra adhikarinee haiya bhogsarnaya abang dan bickroyaer malick haiben tahate kahars upotty chalibena.' It was distinctly stipulated that she was to hold and enjoy the same i.e. the properties left by the testator and become entitled to make gift and sale and to that no objection on the part of any one shall be entertained. A Hindu widow under the Hindu law has no power to make a gift or sale except for the purposes of what is understood as legal necessity. By giving this power to her the testator was intending to confer on her an absolute estate. That seems to be the dominant intention in the will and in the subsequent cause the testator is careful enough to state,

that whatever properties shall be left after the death of my wife Sm. Krishna Bhabini shall vest in our future heir my sister's son Sriman Bhupati Charan Basu who will be the sole heir to the said properties.

8. The Bengali words are: Aumar patny Srimati Krishna Bhamini Daseer lokantte je kono sampathy thakicey. Aumader bhabee oyarish aumar bhaginiya Sreeman Bhupati Charan Bysu oi sampattier eake matra uttra adhikari haibey,' intending thereby that if Krishna Bhabini did not dispose of all the properties bequeathed to her by the testator in that case those properties shall vest in Bhupati. The testator had clearly in view the legal position which he had indicated in the first paragraph that he was giving absolute estate to the wife. Of course Clauses 2 and 3 are contrary to Hindu law and therefore cannot be given effect to. Several cases have been cited before us, many of them being the decisions of their Lordships of the Judicial Committee of the Privy Council. As for instance, the leading case of Mt. Surajmani v. Rabi Nath Ojha (1908) 30 All 84 and the subsequent cases in which their Lordships approved of the said decision. But the provisions of those wills were different and while occasionally reference may be made to construe one will with reference to the provisions of another will it is always dangerous to rely on the provisions of a different will for the purpose of construing the will which is in controversy before the Court. The proper rule in cases of this kind is laid down by Lord Sargent in Lloyds Hank Ltd. v. Fenwick (1922) 2 Ch D 775):

One Will not be construed with reference to another, but that does not mean that one is debarred from seeking assistance from the reasoning which the Courts have employed in construing bequests of a similar character.

9. In Narendra Nath Sircar v. Kamal Basinl Dasi (1896) 23 Cal 563, it is laid down that,

to contrue one Will by reference to expressions of more or less doubtful import to be found in other Wills is for the most part an unprofitable exercise. Happily that method of interpretation has done out of fashion in this country.

10. We are therefore of opinion that the learned District Judge has arrived at the right conclusion on the question of the will and having regard to this view it appears to us that the plaintiff-appellant has got no locus standi to maintain the application for Letters of Ad-ministration which has rightly been refused. The result is that the appeal fails and is dismissed with cests, hearing fee being assessed at two gold mohurs.

Patterson, J.

11. I agree.


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