1. This is a suit principally for a declaration of the plaintiff's title to certain lands and for other ancillary reliefs. One Girish Chandra Ghose, a Hindu governed by the Dayabhaga School of Hindu law, died in March 1908, leaving him surviving his widow Bhutomoyee Dassi, his three sons Anukul, Charu and Jatindra by a predeceased wife, the three wives of the aforesaid three sons, viz. Nababala, Sailabala and Prafulla Sundari, respectively, Khelat a son by his second wife Bhutomoyee and Khelat's wife Parulbala Dassi. The genealogy so far is admitted by all parties. The plaintiff's further case is that at the time of Girish's death Khelat and Parul had a daughter, Padma, living, that she was born in July 1907, and died on 24th May 1908. Some of the defendants deny the existence of Padma. I give below a genealogical table in accordance with the plaintiff's case for easy reference:
1st wife, Hemangini = GIRISH CHANDRA GHOSH = 2nd wife Bhutomoyee
(Predeceased testator) (died March 1908) (deft. 7)
| | |
Anukul (died 25-9-23) Charu (died 27-11-35) Jatindra (deft. 5)
married Nababala married Sailabal married
(died 7-9-20) (living) Parulbala
| (deft. 4) (died 1935)
----------------- | |
| | | |
Bhupendra Nripendra Sanjib (deft. 3) |
(deft. 1) (deft. 2) |
Pandma (born 1907. Daughter (born after
(died 24-5-1908) testator's death and
and now dead)
2. On 22nd September 1905, Girish Chandra Ghosh executed a will in the Bengali language, an English translation of which has been filed with the plaint. By this will the testator inter alia bequeathed certain property to Parulbala, wife of Khelat, for life and thereafter to the heirs or successors of Khelat. The terms of this bequest are to be found in Clauses 9,10,11 and 12 of the will. There is no dispute regarding the validity of this will of which probate has been granted, nor is there any dispute as to the fact that the bequest was to Parulbala for life and on her demise to the heirs or successors of Khelat. The Bengali words used are 'uttaradhieari' and 'warrish,' which, all parties are agreed, mean heirs or successors. Probate was taken of the will on 21st August 1909 from this Court. In 1912 Parulbala instituted a suit against Anukul, Charu and Jatindra for partition. A consent decree was passed. Thereafter in 1920 an arbitrator was appointed by consent of parties to divide and allot certain premises which were among the subject-matter of the will. Eventually Parulbala was allotted the properties mentioned in paras. 10 and 11 of the plaint as being the properties bequeathed by the will of Girish to her for life and on her demise to the heirs of her husband Khelat. These facts are now admitted by all the parties. On 26th September 1935, Parulbala diedileaving her surviving, her husband Khelat and the plaintiffs who are her three brothers. She left no issue. On 20th Agust 1936 Khelat purporting to be the full owner of the properties mentioned in paras. 10 and 11 of the plaint transferred the same, together with certain other properties, to the plaintiffs by a deed. The plaintiffs now sue for a declaration of their title to the properties mentioned in paras. 10 and 11 of the plaint, i.e. to the properties bequeathed by Girish to Parulbala for life and on her demise to the heirs of Khelat.
3. This claim is based on two alternative grounds : Firstly, the plaintiffs' case is that by the bequest Parulbala got not only a life-interest in the properties but also a vested remainder as the heir presumptive of Khelat on the date of the testator's death. This vested remainder was her 'stridhana' and on her death without issue her brothers who are the heirs of her stridhana property acquired absolute title thereto. Secondly, it is contended that if it be held that by the terms of the will Parulbala could not get a vested remainder in the property, the plaintiffs acquired title in the following manner : On the death of Girish, Parulbala got a life-interest and Khelat's daughter Padma who was alive on the date of Girish's death got a vested remainder. On Padma's death, the vested remainder which was Padma's stridhana devolved upon Parulbala as a Hindu mother, i.e. Parulbala got the limited estate which a Hindu mother gets in the stridhana of her daughter. On Parulbala's death Khelat, as next heir of his daughter Padma, got an absolute estate in the property and thereafter the plaintiffs acquired Khelat's interest by the deed of 20th August 1936, whereby Khelat transferred all his interest in these properties together with other properties to the plaintiffs. Thus the plaintiffs seek to establish their title as heirs of Parulbala and in the alternative as transferees from Khelat. Bhupendra and Nripendra, defendants 1 and 2, who are the grandsons of Girish by his son Anukul, have filed a joint written statement, while Sanjib, defendant 3, who is a grandson of Girish by his son Charu, and Jatindra one of the sons of Girish have filed separate written statements. The other defendants do not appear. I do not propose to set out the various contentions raised in the written statements inasmuch as the defendants have abandoned some of them at the trial. The position taken up by the defendants now is this: Bhupendra, Nripendra and Sanjib deny that Parul had any daughter living at the time of Girish's death. There is no denial of this part of the plaintiff's case by Jatindra. All the defendants now admit that by the will Parulbala got a life-interest in the properties mentioned in paras. 10 and 11 of the plaint and indeed this is dearly established from the will and the other documents filed with the plaint and proved in this case. The points of difference arise around the bequest to the heirs of Khelat on the demise of Parulbala. Counsel for the various defendants contend that this bequest is of no effect and that on Parulbala's death the property bequeathed to Parulbala devolved as if it had been undisposed of by the will of Girish; in other words they argue that the property in suit should be distributed among the heirs of Girish as on intestacy. According to this view, Bhupendra and Nripendra jointly would get a one-fourth share each. The validity of the deed of transfer executed by Khelat in favour of the plaintiffs on 20th August 1936, so far it transfers this one-fourth share of Khelat to the plaintiffs, is not now challenged and the defendants do not oppose a decree in favour of the plaintiffs with respect to this one-fourth share.
4. Before dealing with the question of the effect of the bequest to the heirs of Khelat on the demise of Parulbala, I propose to dispose of the question of fact whether Khelat had a daughter living at the time of Girish's death. Parulbala's brother Gourdas Rai Choudhuri has been examined and he deposes to the fact that Parulbala had a daughter, Padma, who was born during Girish's lifetime and who died after Girish's death. It is true that this witness is interested inasmuch as he is one of the plain, tiffs; it is also true that there is no birth certificate or other documentary evidence produced in support of this oral testimony, but I was impressed by the manner in which this witness deposed and also by the fact that he seemed to possess an uncommonly good memory about other matters. Further there is no rebutting evidence whatsoever. In these circumstances I find that Parulbala had a daughter living at the time of the testator's death.
5. I shall now consider what effect, if any, should be given to the bequest to the 'heirs or successors' of Khelat on the demise of Parulbala. As stated before, the Bengali words used are 'uttaradhicari' and 'warrish.' The one is a synonym for the other (vide the well-known Dictionary ' Saral Bangla Abhidhan'). The word 'uttaradhicari' according to this Dictionary, means:
a person who has the right of receiving the properties left by the deceased owner by virtue of the fact that he is related to such owner.
6. In short the Bengali words 'uttaradhicari' and 'warrish' have exactly the same meaning and connotation as the English word heir' and the principle nemo est heres viventis would attach to the word 'uttaradhicari' and 'warrish' in the same way as it would attach to the English word 'heir.' In the legal, technical and correct sense of the word, an heir comes into existence only on the death of the ancestor and not before. An heir is a 'person who succeeds by descent to an estate of inheritance'; he is a person
who after his father's or ancestor's death has a right to inherit all his lands, tenements and hereditaments.
7. This is the definition given in Wharton's Law Lexicon. Again in Halsbury's Laws of England, Vol. 28, page 749, there is a passage which says that in the technical sense of the word 'no one can be the heir of a living person.' That this is the strict and technical meaning of the word heir' has been laid down in a long string of decisions, to one of which I have been referred by learned Counsel for the defendant, Jotindra Ghosh: (Doe dem Winter v. Perrat (1843) 6 M & Gr. 314.
8. If the words 'uttaradhicary' and 'warrish' are given this interpretation, the bequest to the heirs of Khelat after the death of Parulbala obviously fails, as there was no one living at the time of the death of Parulbala who could answer to the description, 'heirs of Khelat, 'Khelat being still alive. Again no one could take a vested interest in the legacy or bequest to the heirs of Khelat on the date of Girish's death, for the same reason that on that date Khelat was alive and no one could be described as his heir. On behalf of the plaintiffs it is argued that the word should not be given this technical meaning, but that it should be taken to mean 'heir presumptive,' and certain English cases were cited where this interpretation was given to the word 'heir.' Amongst them I need mention only the case in Hooper v. Carpenter (1936) 1 Ch. 443, as being one which most nearly resembles the present case in regard to the facts. There A bequeathed property to trustees for his mother and wife for successive life-interests and after the death of his wife upon trust 'for such person or persons as at the decease of my said wife shall be my heir or heirs at law absolutely.' The mother and wife both predeceased the testator. It was held that there was an effective gift to the person who would have been the testator's heir if the testator had died on the date of the death of his wife. There the word ' heir' was construed to mean a per. son who would have been the heir of a living person if such a person had died on a particular date. The reason for putting this construction on the word was that this was the manifest intention of the testator deducible from the terms of the will. Another reason was: that if this construction was not put on the term heir,' there would be an intestacy. In England it may be said that the Courts abhor an intestacy. There is no such abhorrence of intestacy in India.
9. To construe one will by having recourse to the interpretation put on another will by some other Court because there are points of resemblance between them is a method of approach that does not commend itself to me. A single word, the turn of a phrase or the other terms of a deed may give to a clause a significance which is entirely different from that which would attach to a clause, otherwise similar in another deed. It would, in my opinion, be a profitless task to compare the various interpretations put on the word 'heir' in the different wills which have formed the subject-matter of judicial decision in England. To use the words of Lord Macnaghten in Norender Nath Sircar v. Kamalbasini Dassi (1896) 23 Cal. 563:
To search and sift the heaps of cases on wills which cumber our English Law Reports, in order to understand and interpret wills of a people speaking a different tongue, trained in different habits of thought and brought up under different conditions of life, seems almost absurd.
10. The better course would be to study the terms of the will under consideration, to come to an understanding of the intention of the testator, if possible, and to give effect to this intention unless it is prevented by the law. In arriving at a decision regarding the intention of the testator, certain principles of construction must of course be remembered. As was stated by Lord Davey in Lalit Mohon Singh Roy v. Chukkun Lal Roy (1896) 23 Cal. 834 there are two cardinal principles to be observed in the consideration of wills, deeds and other documents. The first is that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention. The second is that technical words or words of known legal import must have their legal effect, even-though the testator uses inconsistent words unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical terms in their proper sense: vide also Doe d Gallini v. Gllini (1833) 5 B & Ad. 621.
11. I am satisfied from the facts of this case and the terms of the will that in using the words 'uttaradhicari and warrish' the testator did not intend the words to have their strict legal and technical significance. On the date that the will was executed, viz. on 22nd September 1905, Khelat was alive and there was no heir of Khelat in existence. It cannot be said that the testator when making a gift to Khelat's heirs was hoping that his son Khelat would predecease him leaving an heir. It is very difficult however to come to any sure conclusion of what the testator did mean by the word 'heir'. Did he mean 'heir presumptive' when making his bequest to Khelat's heirs? The heir presumptive of Khelat at the time of the execution of the will and at the time of the testator's death was Khelat's wife Parulbala. The testator could not have meant to indicate Parulbala when he was making a bequest to Khelat's heirs. It is perfectly clear from the terms of the bequest that he did not want Parulbala to have anything more than a life-estate. It is also, perfectly clear that the testator's intention was to give not to Parulbala's heirs but to Khelat's heirs on the death of Parulbala. He could not therefore have intended Parulbala to take a vested remainder as being the heir presumptive of Khelat. Thus the testator did not use the word 'heir' in the sense of 'heir presumptive'. If the clauses of the will be construed to mean that a bequest was being made to such of Khelat's children as may be living on the date of Parulbala's death, then also the plaintiff's claim must fail, as no child of Khelat was; living on that date. It cannot be inferred from the terms of the will and the circumstances prevailing at the time of its execution that the testator intended that any child of Khelat living on the date of the testator's death should take a vested remainder which would devolve upon the heirs of such child in case the child died before the termination of the life-estate. I have grave doubts whether the testator could have any idea of what is meant by a vested remainder, or of the circumstances under which, or of the time when, a postponed bequest would vest in any person. I have, to use a well-known phrase, put myself in the arm chair of the testator in trying to construe this will, but I have not been able to get any inspiration which would help me to arrive at any clear conclusion of what the testator intended by the bequest to the heirs of Khelat on the demise of Parulbala. Looked at from any point of view the bequest fails. The property must therefore devolve as on intestacy. Khelat would get a 1/2 share in the property mentioned in paras. 10 and 11 of the plaint on the death of Parulbala. Of the remaining three-fourths the defendants, Bhupendra and Nripendra, would jointly take and Sanjib and Jatindra a each. Khelat having sold his interest in the property to the plaintiffs, I declare their title to a 1/4 share in the aforesaid property. The plaintiffs did not press for the other reliefs prayed for in the plaint. The rest of the plaintiff's claim is dismissed. Six issues were raised at the hearing and they are as follows:
1. Did either Parulbala or Padma over have an absolute vested remainder as the heir presumptive of Khelat or otherwise in any of the properties mentioned in paras. 10, 11 and 16 of the plaint or become entitled thereto as stridhan?
2. Are the plaintiffs entitled to any of the said properties either as the stridhan heirs of Parulbala or otherwise?
3. What is the effect of the deed of gift by Khelat?
4. Are the allegations in para. 17 of the plaint true?
5. Was any daughter born to Parulbala during the lifetime of the testator Girish Chandra Ghosh?
6. What reliefs, if any, are the plaintiffs entitled to?
12. My answers to the issues are as follows:
Issue 1. The answer is in the negative.
Issue 2. The plaintiffs are entitled to 1/4 of the property in suit as transferees from Khelat by virtue of the deed, dated 20th August 1936.
Issue 3. The answer is to be found in the answer to issue 2.
Issue 4, This was not pressed.
Issue 5. The answer is in the affirmative.
Issue 6. They are entitled to a declaration of title to a 1/4 share of the properties in suit.
13. In the circumstances of this case, although the plaintiffs have succeeded partially, I consider that they should get no costs and that they should, pay the costs of the defendants who have appeared.