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Golak Behari Mondal and ors. Vs. Suradhani Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal226
AppellantGolak Behari Mondal and ors.
RespondentSuradhani Dassi and ors.
Cases ReferredBhoobun Mohini Debya v. Harrish Chunder Chowdhury
Excerpt:
- r.c. mitter, j.1. the plaintiff who is the principal respondent in the appeal filed the suit for declaration of her one third' share in the properties in suit and for possession by partition by metes and bounds. there was also a prayer for mesne profits. her case is that the properties in suit. belonged to her father-in-law, bisweswara, mondal, who by his will, dated 24th july 1908, executed a few days before his death,,, devised in absolute right the residue of his estate to his three surviving sons in equal shares. her husband, surath, the eldest of these surviving sons, accordingly got in absolute right one-third of the properties in suit and on his death in 1909, she, as his heir, has inherited the same. the defence of the contesting defendants (1 to 3) is that under the said will the.....
Judgment:

R.C. Mitter, J.

1. The plaintiff who is the principal respondent in the appeal filed the suit for declaration of her one third' share in the properties in suit and for possession by partition by metes and bounds. There was also a prayer for mesne profits. Her case is that the properties in suit. belonged to her father-in-law, Bisweswara, Mondal, who by his will, dated 24th July 1908, executed a few days before his death,,, devised in absolute right the residue of his estate to his three surviving sons in equal shares. Her husband, Surath, the eldest of these surviving sons, accordingly got in absolute right one-third of the properties in suit and on his death in 1909, she, as his heir, has inherited the same. The defence of the contesting defendants (1 to 3) is that under the said will the plaintiff has no right to the said share and some of the properties in suit are their self-acquired properties. The relationship of the parties to the suit will appear from the following pedigree:

BISWESWARA MONDAL

(Died July-August 1908)

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Kriti Surath Rajendra Died Debendra

(predeceased Bisweswara) Died June April 1917. Died March

1909. Suradhani Gour Bhabini 1931. Sarojini

(Plff.) (Deft. 5) (Deft. 4)

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4 daughters 2 daughters |

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Golak Gokul Brindaban

(Deft 1) (Deft 2) (Deft 3)

2. The Subordinate Judge found that the plaintiff has a third share in the properties left by Bisweswara and that only some of the properties in suit are the self-acquired properties of the contesting defendants. The last mentioned finding is not attacked by the plaintiff-respondent but the finding of the learned Subordinate Judge to the effect that one anna share out of the two annaa share of property No. 1 of Schedule 'Ka' of the plaint is joint property of the plaintiff and the defendants has been attacked by defendants 1 to 3 who are the appellants before us. They further contend that under the will of Bisweswara which had been probated in 1910, the plaintiff has no claim to a share of the properties left by him that is they say that the said will has been misconstrued by the learned Subordinate Judge. This is the principal question in the appeal and I proceed to consider it at once. The will (II 38-39) is a short will in the Bengali language consisting of seven paragraphs. Of these para. 1 and a portion of 5 (referred to hereafter as para. 5) are important and on their effect depend the rights of the parties to the suit Para. 1 runs thus:

After my death the abovementioned three sons of mine will become the maliks of the properties left by me in equal shares, and of them my eldest son Sreeman Surath Chandra Mondal will be the executor of the will.

3. Then follow three paragraphs which deal with the devolution of the office of executor and with the payments of his debts which were substantial in amount. The relevant portion of para. 5 runs thus:

God forbid, if any of my sons die without leaving any son, then his widow will not get any share of the property left by me but as long as she will live she will get such maintenance as my estate will permit; if any of my sons die leaving one or two daughters they too will not get any share but their marriage expenses will have to be paid from my estate; if any of them be a widow or be not maintained in her husband's family, she too will have to be maintained....

4. Paragraphs 6 and 7 contain provisions for the testator's mother. Para. 1 of the will in its terms confers an absolute estate a heritable one, on each of the sons of the testator. There is no Subsequent clause by which the import of the word malik has been cut down. That word by itself in the absence of expression of intention to the contrary - and such contrary intention must be expressed in clear unambiguous terms - Home v. Pillans (1833) 2 My & K 15 would confer on the legatee absolute interest: Lalit Mohan Singh v. Chukkun Lal Roy (1896) 23 Cal. 834, Mt. Surajmani v. Rabi Nath Ojha (1908) 30 All. 84 and Bhaidas Shibdas v Baighulab (1922) 9 A.I.R. P.C. 193. It is said however by the appellant's advocate that the general intention of the testator as can be gathered from the terms of the will was that his estate should re. main in his family, and that intention must be given effect to. I cannot accept this contention, for, it is a cardinal principle of construction 'that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention' : Lalit Mohan Singh v. Chukkun Lal Roy (1896) 23 Cal. 834. I accordingly hold in agreement with the learned Subordinate Judge that each of the three surviving sons of Bisweswar got by his will an absolute estate.

5. The effect of para. 5 of the will has to be considered. The learned Subordinate Judge held that that clause had not legal effect because (i) it is not a defeasance clause one bringing the bequest contained in para. 1 of the will under Section 134, Succession Act and (ii) that it is void for uncertainty. I cannot accept the second reason, for, so far as the intention as expressed therein is concerned, there is no vagueness, no uncertainty. The first ground on which the Subordinate Judge has proceeded however has to be examined with care. He has said that the clause is not a defeasance clause as there is no gift over. That is the only reason given in support of his views. In considering this part of the case the said misconception which has also found expression in some of the reported decisions of this Court have to be cleared up. At the very outset a fundamental and an elementary proposition must be kept in view. If para. 5 of the will is a defeasance clause, it must be given effect to according to its import, but if it is a repugnant one it must be discarded altogether as being void and of no effect.

6. A clause would be a defeasance clause if on an expressed contingency happening the testator had indicated therein to determine a bequest - may be a limited or an absolute one - made to one in the earlier part of the will. There may be the termination of that bequest with or without a gift over, and in the latter case the bequest so terminated would either fall into the residue or if the bequest so terminated be itself the residuary one the testator's heir-at-law would step into the void, 'Where however there is a gift over the intention to determine the prior bequest is patent but where there is none it may be in some cases, a question, and a serious or a difficult one, if the testator did intend an extinguishment of such bequest. I am accordingly of opinion that it is a misconception that a gift over is sine qua non the essence of a defeasance clause, and cannot accordingly subscribe to the views expressed in Amulya Charan Seal v. Kalidas Sen (1905) 32 Cal. 861, or in Chandidas Sinha v. Sm. Malina Bala Sinha (1936) 41 C.W.N. 432 at p. 435. In Bhoobun Mohini Debya v. Harrish Chunder Chowdhury (1879) 4 Cal. 28 there was no gift over on the contingency of Kasiswari dying without issue of her body and still Sir Robert Collier said that the clause in question, if the contingency had happened, would have operated as a defeasance clause and the estate would have reverted to the donor and his heirs. In Kristoromoi Dasi v. Narendro Krishna (1889) 16 Cal. 383 Lord Hobhouse in dealing with the will of a Hindu gave indications at p. 39 of the report that a defeasance of a prior bequest may be a defeasance simpliciter; in that case all that is required is that the contingent event must happen, if at all, on the close of a life in being at the time of the gift and secondly, there may be a defeasance by gift over, in which case the gift over must be in favour of somebody in existence at the time of the gift. This last limitation in the case of a Hindu donor or testator was made on the basis of the rule laid down in Jatindra Mohan Tagore v. Gnanendra Mohan Tagore (1872) I.A. Sup. Vol. 47, which rule has been altered in 1916 by the Legislature by the Hindu Disposition of Property Act (15 of 1916). If the view expressed in Amulya Charan Seal v. Kalidas Sen (1905) 32 Cal. 861 and Chandidas Sinha v. Sm. Malina Bala Sinha (1936) 41 C.W.N. 432 was correct, Section 134, Succession Act, would be a redundant one and would have to be discarded in the view of the fact that cases of gift over are provided for in Section 131. I accordingly repel the contention that Clause 5 if it has expressed the intention of terminating the absolute bequest to the sons or any of them made in para. 1 cannot be considered a defeasance clause simply because there is no gift over on the contingency mentioned therein.

7. The distinction between a defeasance clause and a repugnant one is sometimes a nice one. One useful test has been formulated by the Madras High Court in Govindaraja Pillai v. Mangalam Pillai (1933) 20 A.I.R. Mad. 80 at p. 913. Where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership the clause is a repugnant one and is therefore void. If however the intention expressed, or to be necessarily implied, is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be the violation of any rule of law the clause is a defeasance clause and would operate according to its tenor.

8. The exclusion by a subsequent clause of some of the heirs or only a class of heirs of the donee or legatee who has been given an absolute estate, an estate of inheritance, would not make the clause a defeasance clause but only a repugnant one, for a heritable estate must descend according to the law of the land or the personal law of the donee or legatee, as the case may be, and any provision made for excluding some of the heirs-at-law of the donee or legatee or a particular class of them would be regarded as an attempt by the donor or testator to legislate which cannot be permitted. This principle is well established and has been illustrated by the Judicial Committee in recent times in Raghunath Prasad Singh Deputy Commissioner, Pratabbarh (1929) 16 A.I.R. P.C. 283 at p. 22 and Sarajubala Debi v. Jyotirmoyee Debi . The intention to terminate a gift or a bequest may be an expressed one or may be inferred by necessary implication. Where it is an absolute one an estate of inheritance having been conferred on the donee or legatee and the contingency is one which is to happen, if at all, the moment the donee or legatee dies and not earlier, that intention would be necessarily implied if at that moment of time the donee's or legatee's absolute estate is cut down by the words used by the donor or testator to a life-estate, for with his death (i.e. of the death of the donee or legatee) all his interest determines, nature doing the final act. An absolute estate so conferred can only, where there are no express words of conversion into a life estate, be cut down to a life estate if the quality of heritability be destroyed and that can be done by the exclusion of all the heirs of the donee or legatee then living. In Bhoobun Mohini Debya v. Harrish Chunder Chowdhury (1879) 4 Cal. 28 the contingency was Kassiswari's dying with issue of her body. Ex hypothesi for the defeasance to operate her issues, who would have been her heirs according to Hindu law, are to be non-existing at the time of her death and the further provisions that 'no other heirs of hers' were to take. The absolute estate that was conferred on her was therefore cut off from all her heirs who may possibly be living at her death. Para. 5 of the will before us has no such effect for only the widows and the daughters of the sons of the testator, two only out of a large number of the possible heirs, are deprived by the testator. If Surath had died leaving a predeceased son's son or grandson or if he had died without a widow or a married daughter or a daughter with male issue but leaving a daughter's son or a more distant heir, e.g. his mother, the said paragraph according to its intent would have left it free to those persons to inherit from Surath. For these reasons I hold that para. 5 of the will cannot be construed as a defeasance clause but must be taken to be a repugnant clause as so void. The plaintiff therefore notwithstanding the provisions of the said paragraph has inherited from her husband, because the estate of inheritance given to her husband by para. 1 has not been destroyed or cut down to a life estate by para. 5. The plaintiff has accordingly title to those properties which were originally the properties of her father-in-law, Bisweswara.

9. There now remains the question whether one-anna out of the two-annas of property No. 1 of Schedule 'Ka' is to be regarded still as a part of Bisweswara's properties. It is admiteed that it originally belonged to him. But the case of the contesting defendants is that it was sold after Bisweswara's death to one Purna Mondal and the latter made a gift to Debendra. That is how they claim it to be their self-acquisition. In the plaint the conveyance to Purna Mondal and other dealings by Debendra are characterized as collusive and paper transactions. We have already held that in a separate order recorded by us that in arriving at his conclusions the learned Subordinate Judge wrongly excluded two documents, and we have admitted them in evidence. In this state of things it would not be proper for us to adjudicate upon this question of self-acquisition without giving the plaintiff an opportunity to further cross-examine such of the defendant's witnesses who have given evidence on these two documents and of leading rebutting evidence. I accordingly set aside only this portion of the learned Subordinate Judge's judgment and decree and send the case back to him to adjudicate upon this point and this point only after carrying out the directions as set forth above. In all other respects the decree o the Subordinate Judge is confirmed. If there is delay in partitioning the properties by metes and bounds or in the plaintiff getting possession and if the properties require preservation he would give the plaintiff leave to make such applications as she may be advised to make for safeguarding her interests.

10. There now remains the question of costs. The suit is not one for administration nor one for construction of the will. I cannot therefore accede to the request of the learned advocate for the appellants that the costs of all parties should come out of the estate. But the rights of the parties depended upon the construction of the will, which was a difficult one. In these circumstances I think that the decree made by the lower Court regarding the amount of court-fees should be allowed to stand, but the parties should themselves bear all other costs of the Court below up to this stage and the costs of this appeal. The decree of the lower Court is accordingly modified as indicated above and the case remanded to the lower Court for the decision of the point relating to one-anna out of the two-annas share of property No. 1 of Schedule 'Ka' of the plaint. Let the records be sent down as early as possible.

Sen, J.

11. This appeal is by defendants 1 to 3 and it arises out of a suit for a declaration of the plaintiff's title to certain land, for possession thereof after partition 'and for mesne profits. The case of the plaintiff briefly is as follows : The property in suit belonged to one Bisweswar Mondal. He died leaving three sons Surath, Rajendra and Debendra. Surath died in 1316 B.S. leaving a widow Suradhani Dassi who is the plaintiff and four daughters; Rajendra died in 1324 B.S. leaving a widow Gourbhabini who is defendant 5 and two daughters. Debendra died in 1337 B.S. leaving a widow Sarojini who is defendant 4 and three sons Golak, Gokul and Brindaban who are defendants 1, 2 and 3 respectively. I give below a genealogical table for easy reference:

BISWESWAR MONDAL

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Surath Rajendra Debendra

married Married married

Suradhani Gour Bhabini Sarojini

(plaintiff) (defendant 5) (defendant 4)

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---------------------------

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Golak Gokul Brindaban

(defendant 1) (defendant 2) (defendant 3)

12. Bisweswar left a will by which he disposed of his property. The material clauses of the will are Clauses 1 and 5 which are as follows:

(1) After my death the abovementioned three sons of mine will become the maliks (owners) of the properties left by me, in equal shares, and of them my eldest son Sriman Surath Chandra Mondal will be the executor of this will.

(5) God forbid, if any of my sons die without leaving any son, then his widow will not get any share of the property left by me but as long as she will live she will get such maintenance as my estate will permit; if any of my sons die leaving one or two daughters they will not get any share, but their marriage expenses will have to be paid from my estate; if any of them be a widow or be not maintained in her husband's family, she too will have to be maintained. I have got one widowed daughter-in-law. I have already made provision for her maintenance and for the Debsheba separate properties have been endowed as a debuttar.

13. The plaintiff's contention is that by this will each of the sons was left one-third share in the property of Bisweswar absolutely and that on the death of Surath the plaintiff as his widow and heir has inherited this one-third share in the property in suit, notwithstanding the provisions of Clause 5 which the plaintiff asserts is void and of no effect. On these allegations the plaintiff sued for declaration of her title to a one-third share in the property left by Bisweswar and for partition and possession thereafter together with mesne profits. The defendants raised many defences but only two of them need be stated as the others were abandoned in this Court. It is conceded that by Clause 1 of the will each of the sons of Bisweswar was given an absolute heritable interest in the property in suit but it is contended that this interest was liable to be defeated on the happening of the events mentioned in Clause 5 of the will. It is the defendant's case that on the death of Surath without any male issue the bequest to Surath ceased to have effect and the property passed as on intestacy to the other heirs of Bisweswar, the plaintiff getting nothing. The next defence relates to property No. 1 of Schedule 'Ka'. This property, it is admitted by the defendants, belonged to Bisweswar, but a one-anna share of it was sold to satisfy a debt of Bisweswar. The purchaser of this one-anna share in the property subsequently made a gift of it to Debendra. This property according to the defendant is Debendra's self-acquired property and the plaintiff has no interest whatsoever in it.

14. The learned Subordinate Judge has held in favour of the plaintiff as regards the first line of defence for reasons which I shall discuss presently. He has declared the plaintiffs' title to a one-third share in the plots mentioned in Schedule 'Ka' of the plaint excluding certain plots thereof and he has passed a preliminary decree for partition. As regards the second point also, the learned Subordinate Judge has found in favour of the plaintiff. The defendants relied on two documents for this part of their case, viz. a satisfied mortgage bond executed by Bisweswar Mondal in favour of Indra Narain Chakravarti and a kobala executed by Rajendra Mondal and another in favour of Purna Chandra Mondal. These documents were tendered in evidence but were rejected on the ground that they had been filed at too late a stage of the suit. The defendants appeal against this decision.

15. I take up for consideration the first point raised by the appellants, viz. that according to the terms of the will the interest bequeathed to Surath was defeated on his death without male issue and that the property thereafter reverted to the heirs of Bisweswar as on an intestacy. It is admitted by learned advocate for the appellants that by Clause 1 of the will an absolute heritable interest was granted to each of Bisweswar's sons in the property left by him. Indeed the words used in Clause 1 leave no scope for any other interpretation. The word 'malik' means a person having an absolute interest in the property of which he is being made 'malik.' This was the interpretation put on the word by Lord Davey in Lalit Mohan Singh v. Chukkun Lal Roy (1896) 23 Cal. 834. At page 88 his Lordship says:

Nor was it disputed that the words of gift to the appellant were such as to confer on him also an heritable and alienable estate. The words become 'owner (malik) of all my estates' and properties would, unless the context indicated a different meaning, be sufficient for that purpose even without the words 'enjoy with son, grandson and so on in succession,' which latter words are frequently used in Hindu wills, etc.

16. The only question for decision therefore is whether the terms of Clause 5 have, in the circumstances which have happened, the effect of defeating this absolute gift or bequest granted in Clause 1. The learned Subordinate Judge answers this question in the negative and he gives the following reasons in support of his view. First he says that the bequest of an estate of inheritance cannot be defeated because there is no provision in the will for a gift over to anyone. He seems to think that there can not be a defeasance unless there is a gift over. Then he says that as there is no gift over, the terms of Clause 5 are void for uncertainty under Section 89, Succession Act. Apparently Sections 124, 131 and 134, Succession Act, were relied upon by the defendants. The learned Subordinate Judge disposes of this argument by saying merely that these Sections have no application. Learned advocate for the appellants contends that a bequest or gift may be defeated without there being a gift over and he refers us to Section 134, Succession Act. Next he points out that the learned Subordinate Judge's view that Clause 5 of the will is void for uncertainty is incorrect. The argument of learned advocate for the appellants, as I understand it, is this. The testator granted an absolute heritable estate to each of his three sons by Clause 1 but he provided by Clause 5 that in the case of each son this estate shall be defeated and the bequest shall cease to have effect if he dies without a son leaving a widow and daughters. He points out that Surath died leaving a widow and daughters only and that thereupon the bequest to him ceased to have effect. He relies on Section 134, Succession Act. He also relies on the cases in Bhoobun Mohini Debya v. Harrish Chunder Chowdhury (1879) 4 Cal. 28, Kristoromoi Dasi v. Narendro Krishna (1889) 16 Cal. 383 and on a passage to be found in the judgment of the case in Govindaraja Pillai v. Mangalam Pillai (1933) 20 A.I.R. Mad. 80. His argument is that an absolute estate may be granted with a clause of defeasance on the happening of a contingency and that where such clause is not a violation of any rule of law the original estate is curtailed upon the happening of that contingency. Clause 5, he argues, is such a clause of defeasance. Learned advocate for the respondent in an argument, which was remarkable for its lucidity and conciseness, contended that an absolute estate can be created with a provision that it shall be reduced to a life-estate on the happening of a certain event without there being any gift over. To use his own words he concedes that there can be a defeasance 'simplieiter'; but he says that Clause 5 cannot operate as a defeasance clause for three reasons: Firstly, because it does not reduce the absolute estate left to Surath by Clause 1 to a life-estate; secondly, because it sets up a line of inheritance not known to Hindu law and thirdly because it is a clause which is void on the ground that it is repugnant to the grant of an absolute estate contained' in Clause 1.

17. In my opinion the view of the learned advocate for the respondent must prevail and for all the reasons given by him. In Clause 5 all that the testator says is that if Surath dies without leaving a son his widow or daughter shall not inherit the property but shall only get maintenance and certain other payments. This clause is not such a clause as is contemplated by Section 184, Succession Act, which is as follows:

A bequest may be made with the condition Superadded that it shall cease to have effect in lase a specified uncertain event shall happen or in case a specified uncertain event shall not happen.

18. The words 'shall cease to have effect' are important. They mean that the bequest shall have no effect at all. Section 134 contemplates a case when the condition superadded has the effect of completely destroying the bequest on the happening of a specified uncertain event or on a specified uncertain event not happening. It has nothing to do with a case where a gift absolute is merely modified or curtailed. Clause 5 of the will does not explicitly or impliedly provide that the bequest to Surath shall fail on his dying' without a son or without male issue. It merely stipulates that if he leaves no son his widow and daughters shall not inherit. It leaves untouched the right of inheritance of any other possible heir of Surath; it merely precludes two specified types of heirs from inheriting. The bequest is thus not destroyed completely. In these circumstances Section 134, Succession Act, can have no application. If the matter be considered apart from the provisions of Section 134 it is also clear that Clause 5 can have no effect. It is not a defeasance clause inasmuch as it does not indicate an intention to defeat the absolute bequest. Learned advocate for the appellants relied upon a passage of a judgment in Govindaraja Pillai v. Mangalam Pillai (1933) 20 A.I.R. Mad. 80 where his Lordship, Sundaram Chetty J., distinguishes between repugnant provision and a defeasance clause and he argues that Clause 5 of this will comes within the latter category. The passage is as follows:

The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but, where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative.

19. In my opinion Clause 5 cannot be said to fall within the description of a defeasance clause. There is no express or implied provision that the bequest to Surath shall be defeated. Clause 5 merely restricts certain person from inheriting; it merely adds restrictions in derogation of the incidents of the absolute grant given in Clause 1 and is therefore a repugnant provision.

20. Again Clause 5 is void as it lays downs a line of succession unknown to Hindtt law : Jatindra Mohan Tagore v. Gnanendra Mohan Tagore (1872) I.A. Sup. Vol. 47. What the testator stipulates in Clause 5 is that a certain class of persons who under the Hindu law may succeed to the estate as heirs shall be barred from inheriting the property. This amounts to an attempt to lay down a line of succession unknown to the law. It is now well settled that this cannot be permitted. There can be no doubt, as their Lordships of the Privy Council have said in Bhoobun Mohini Debya v. Harrish Chunder Chowdhury (1879) 4 Cal. 28, that a Hindu may grant an absolute estate defeasible in the event of a failure of issue-living at the time of the donee's death.

21. But it is an entirely different thing to say that a person can grant an absolute estate and then provide that it will descend in a particular way on the happening of a certain event as has been done in the present case. I also agree with the proposition, stated by learned advocate for the respondent that where it is sought to be established that an absolute estate granted in. one part of a will has been defeated by a. subsequent clause it must be shown that the defeasance clause shuts out all heirs from inheriting and reduces the heritable estate to a life-estate. A defeasance clause by its very terms means a clause which, defeats or destroys'. An absolute estate of inheritance cannot be defeated unless the quality or attribute of heritability is destroyed. A clause, which does not completely destroy the heritability of estate but merely modifies it or interferes with the course of succession, cannot therefore operate as a defeasance clause. In 4 Cal 237 the defeasance clause in the grant was given effect to on the interpretation that all the heirs of the donee were shut out on the donee dying without issue. Their Lordships interpreted the deed as granting to the donee an absolute heritable estate which was defeasible-on the donee dying without issue and which was in such event to revert to the donor and his heirs. The facts of the present case are quite different. As regards the case in. Kristoromoi Dasi v. Narendro Krishna (1889) 16 Cal. 383, I am unable to see any similarity between the clauses which their Lordships had to deal with and the clauses of the will under consideration. In that case the testator gave a life-interest to his daughter in certain property with remainder to his two half-brothers with stipulation that on their death the property would be inherited by their 'heirs male of the body' and that on the failure of such heirs the property would go to the son or sons of the daughters. Their Lordships held that the gift of an estate of inheritance to the testator's half brothers and the heirs male of their bodies is contrary to law and void and that they took a life interest in remainder expectant on the death of the sister of the plaintiff. There was no gift of an absolute estate either to the daughters or to the half brothers. I do not think that this case is of much assistance in construing the terms of this will except in so far as it expresses certain general principles which in my opinion support the contentions of the respondents. There is a passage in the judgment which has erroneously been interpreted as laying down the principle that there cannot be a defeasance without a gift over. The passage occurs at p. 39 and is as follows:

In stating the rule relating to the defeasance of a prior absolute interest by a subsequent event, it is important to add, first, that the event must happen, if at all, immediately on the close of a life in being at the time of the gift, is was laid down in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (1861-63) 9 M.I.A. 123 (P.C.); and secondly, that a defeasance by way of gift over must be in favour of somebody in existence at the time of the gift, as laid down in Jatindra Mohan Tagore v. Gnanendra Mohan Tagore (1872) I.A. Sup. Vol. 47.

22. Their Lordships here were dealing with a defeasance by a gift over and they state the conditions under which such a defeasance can take effect. They do not state that there cannot be a defeasance simpliciter without a gift over. The next few lines in the judgment where they say 'the case in Bhoobun Mohini Debya v. Harrish Chunder Chowdhury (1879) 4 Cal. 28 conforms to all these rules. There was no gift over in that case,' makes this perfectly clear. I am of opinion that Clause 5 of the will is void inasmuch as it is merely repugnant to the absolute grant contained in Clause 1 and inasmuch as it does not indicate an intention in the testator that the absolute grant should be defeated on the happening of the events mentioned in Clause 5. It is also of no effect on the ground that it strives to lay down a line of succession unknown to law and on the ground that it does not defeat the absolute estate by reducing it to a life estate. I now take up for consideration the second point urged on behalf of the appellants regarding a one-anna share in the property No. 1 of Schedule 'Ka.' The defendants tendered in evidence two documents in support of this part of their case but they were rejected on the ground that they were filed at a very late stage of the case. They complained that without these documents they cannot establish this part of their case and they applied for the admission of these documents in evidence. We have in a separate order acceded to this prayer and have admitted these documents in evidence for reasons given therein. The plaintiff contends that she should be given an opportunity of cross-examining witnesses and adducing rebutting evidence on this point. This appears to me to be a reasonable request which should be granted.

23. In the circumstances mentioned above I am of opinion that the decision of the learned Subordinate Judge should be upheld in so far as he has decided that plaintiff has succeeded to the interest of her husband Surath in the property bequeathed to him' by Bisweswar. The case must however be remanded for the consideration of one point only, viz. whether the one-anna share in property No. 1 of Schedule 'Ka' was the self-acquired property of Debandar, father of defendants 1 to 3 and brother of defendant 5, or whether it is property in which the plaintiff has title as heir of Surath. In view of the conclusions arrived at I concur in the order and directions passed and given by my learned brother.


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