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Akhoy Kumar Ghose Vs. Indira Rani Ghose - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Reported inAIR1931Cal499
AppellantAkhoy Kumar Ghose
Respondentindira Rani Ghose
Cases ReferredNarendranath Sircar v. Kamalbasini
Excerpt:
- .....or his father would have taken hereunder had they or he been then alive) provided the said sons or sons' sons shall be orthodox hindus of good repute equally as tenants-in-common and the said sons or sons of my sons taking equally per stripes as tenants in-common, but nevertheless in the event of my sons or sons' sons dying without leaving lineal male issue him surviving the other of my son or sons or sons, sons living at the time shall be equally entitled to his or their share of the property as he or they would inherit under the hindu law, but should i die without lineal male descendants the son or sons to be adopted by my wife shall inherit the whole of my residuary estate but he shall not be put in possession until he attains the age of twenty-one years and should any of my heirs or.....
Judgment:

1. Romanath Ghose who was a Hindu inhabitant of Calcutta died on 26th July 1904 leaving him surviving his widow Sreemuty Soudaminey Dassea and two sons named Sidheswar and Akhoy. He left a will executed by him on 30th October 1903 by which after giving certain pecuniary legacies and annuities, he devised and bequeathed the whole of his estate to his sons who were then infants. Probate of the will was taken out on 17th August 1904. The elder son Sidheswar after attaining majority applied for and obtained letters of administration de-bonis-non.

2. Sidheswar died on 13th February 1930 leaving him surviving his widow the plaintiff Sreemuty Indira Kanee and a daughter. Thereafter the younger son Akhoy, who had meanwhile attained majority obtained on 30th May 1930 representation to the estate of the said Romanath Ghose. On 3rd July 1930, the present action was started by the plaintiff Sreemuty Indira Rani in which she contended that in the events that have happened and on a true construction of the will of the said testator, the share which her husband Sidheswar had in the said estate had devolved upon her and that she as his heiress was entitled thereto.

3. The clause in the will of the said testator relied upon by the plaintiff is as follows:

Subject to the payments of the legacies and annuities aforesaid (the latter unless otherwise expressly provided being payable during the terms of the natural lives of the annuitants) as well as to the provisions hereinbefore mentioned, I devise and bequeath the whole of my estate real or personal of any kind or description whatsoever and wheresoever situate to my said executors and trustees in trust for such of my sons as shall be living at my death or coma into existence within twelve months after my death and also for the son or sons of such of my sons as shall then be dead (such son or sons taking the share which their or his father would have taken hereunder had they or he been then alive) provided the said sons or sons' sons shall be orthodox Hindus of good repute equally as tenants-in-common and the said sons or sons of my sons taking equally per stripes as tenants in-common, but nevertheless in the event of my sons or sons' sons dying without leaving lineal male issue him surviving the other of my son or sons or sons, sons living at the time shall be equally entitled to his or their share of the property as he or they would inherit under the Hindu law, but should I die without lineal male descendants the son or sons to be adopted by my wife shall inherit the whole of my residuary estate but he shall not be put in possession until he attains the age of twenty-one years and should any of my heirs or residuary legatees cease to be orthodox Hindus of good repute he shall forfeit a moiety of his share which shall go to my other qualified heirs according to their respective shares.

4. The suit came on for hearing before Buckland, J., on 22nd December 1930 when he held that according to the terms the said will the plaintiff was entitled to succeed to the share of Sidheswar in the said estate as his heiress. Buckland, J., was of opinion that the period of distribution was the death of the testator and that being so, the principles applicable to the plaintiff's case were those of Section 124, Succession Act, and that the plaintiff was supported in her contention by the decision of their Lordships of the Judicial Committee in the case of Narendranath Sircar v. Kamalbasini [1899] 23 Cal. 563.

5. The defendant Akhoy is the appellant before us. The question for decision in this appeal is whether in the events that have happened the gift over in favour of Akhoy has taken effect. For that purpose, it is necessary to scrutinize the terms of the clause in the will set out above.

6. As we read the will in view of the events that have happened, it must be taken that the testator gave his estate to his two sons half and half, each taking a vested interest to that extent at the death of the testator. He then directed that, notwithstanding the said bequest, should either of the two sons, Sidheswar or Akhoy, die sonless, the share of the son dying sonless should go over to the surviving son The question is whether the clause of defeasance is valid and whether the specified uncertain event, namely one son dying sonless, on the happening of which the gift over is to take effect, was, according to the testator, to happen after the date of his death. In other words, whether the said specified uncertain event was to take place at a time mentioned in the will itself and whether if that was so, Section 124, Succession Act, can have any application.

7. In our opinion, giving to the testator's [words their fair and natural meaning, there cannot be much doubt that the testator intended that on his death, his two sons should as between themselves divide his estate half and half and that 'subsequently if either of the two sons died sonless, the surviving son was to get the share of the son who had died sonless. If this be the true meaning of the clause (we are reading that clause [bearing in mind, as stated above, the events that have happened) it is equally clear that the specified uncertain event contemplated in the will, namely one son dying sonless, was necessarily to happen after the death of the testator. In lour opinion Sidheswar and Akhoy took a vested interest in their shares in the estate of the testator at his death, but such interest was liable to be divested in case either of them died subsequently without leaving male issue.

8. The case of Narendranath Sircar v. Kamalbasini is distinguishable. No time was mentioned in the will in that case for the occurrence of the specified uncertain event nor did the language show that the testator contemplated that at the time of the son dying sonless he should already have acquired a vested interest in his father's estate under the will. According to our reading of the will, in the present case, a time is 'indicated for the occurrence of the specified uncertain event and that time could only be some date subsequent to the date of the death of the testator. In the present case, there is a vesting of the estate in the two sons to the extent of one half each, a subsequent divesting of the share of the son dying sonless and then a re-vesting of that share in the surviving son.

9. In our opinion, Section 124, Succession Act, does not apply to this will, but Section 131 does apply; the clause of defeasance is valid and that the gift over in favour of Akhoy has taken effect. It is not a contingent bequest but a bequest of a vested interest liable to defeasance on the happening of a condition subsequent.

10. The result therefore is that the plaintiff has not inherited the share which was in Sidheswar and is not entitled to any relief on the principal ground put forward by her. It may be that she is entitled to other reliefs, but these reliefs have not been adjudicated upon. For that purpose, she will have liberty to apply to the Judge on the original side to whom the matter is remitted. The appeal is allowed and the plaintiff must pay the costs of this appeal.


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