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Surendra Nath Chatterjee and anr. Vs. Saroj Bandhu Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal408,70Ind.Cas.923
AppellantSurendra Nath Chatterjee and anr.
RespondentSaroj Bandhu Bhattacharjee and ors.
Cases ReferredScale v. Rowlins
Excerpt:
will, construction of - will giving absolute estate in one portion and limited in another--succession act (x of 1865), section 125. - .....mother, gopendra bala, obtained an absolute or a limited estate under the will, for if she got an absolute estate the plaintiffs would not be heirs, as she left a maiden daughter who is still living; and, secondly, whether the decree and proceedings held thereunder are valid.2. the court of first instance did not take any evidence in the case but held that the will conferred an absolute estate upon the plaintiffs' mother, that she left a maiden daughter who is still living, and that the plaintiffs therefore, had no title to the property, and accordingly dismissed the suit. on appeal the learned subordinate judge held that the questions raised in the case should be, decided after, taking evidence and remanded the case for trial upon the merits. the defendants have appealed to this.....
Judgment:

1. This appeal arises out or a suit to recover possession of the property in dispute. The plaintiffs alleged that certain persons (who may be described as the Mandals) mortgaged the property in suit to their maternal grandfather Surjya Kant Bhattacharjee, that Surjj'a Kant executed a Will in favour of his daughter Gopendra Bala (the mother of the plaintiffs), that after the death of Surjya Kant the Mandals executed a mortgage kistbandi in favour of Gopendra Bala, and that on her death, the plaintiffs having succeeded to the estate of their maternal grandfather as heirs, brought a suit upon the mortgage and in execution of the decree obtained upon it, purchased the propel and obtained symbolical possession, but that the defendants were withholding possession from the plaintiffs. Some of the defendants are the mortgagees or their heirs, and the others are purchasers of portions of the property. The main points in dispute in the suit were, first, whether the plaintiff's mother, Gopendra Bala, obtained an absolute or a limited estate under the Will, for if she got an absolute estate the plaintiffs would not be heirs, as she left a maiden daughter who is still living; and, secondly, whether the decree and proceedings held thereunder are valid.

2. The Court of first instance did not take any evidence in the case but held that the Will conferred an absolute estate upon the plaintiffs' mother, that she left a maiden daughter who is still living, and that the plaintiffs therefore, had no title to the property, and accordingly dismissed the suit. On appeal the learned Subordinate Judge held that the questions raised in the case should be, decided after, taking evidence and remanded the case for trial upon the merits. The defendants have appealed to this Court.

3. It is contended that the question whether the plaintiffs' mother got an absolute or a limited, estate should be determined upon a construction of the Will only and that, under the Will, she took an absolute estate; secondly, that in any case the lower Appellate Court ought not to have remanded the case for trial, but, should have proceeded under Order XLI, Rule 25 of the Civil Procedure Code.

4. The first point for consideration, therefore, is what was the nature of the estate conferred upon the plaintiffs' mother by the Will.

5. The Will states that the testator had become old and was suffering from diabetes and for that reason rules should be framed regarding his properties. Then it states: 'I therefore, make these provisions by this Will that you are my only daughter there is no Other nearer heir of mine than you. After my death being malik vested with the power to transfer by sale or gift, the entire properties moveable and immoveable specified in Schedules I and II below you will enjoy and hold possession of the same it great felecity down to your sons, son's son and so on in succession and act in the following manner.' Then provisions are made in several paragraphs which run as follows:

1. Living and residing in my homestead dwelling-house (ancestral dwelling-house) in the village of Mowgachi, you will inherit (became uttaradhikari) the rent paying and the rent-free properties, moveable and immoveable, described in Schedules I and II which at present I possess and which will be acquired up to the time before my death, and the monies that are invested in money-lending business, and the cash money and the ornaments in stock, and the paddy and the metalic utensils etc., all the properties left by me, down to your heirs in succession; you will, living and residing on my ancestral Bhitta in the village Mowgachi and by lighting lamp on the Bhitta you will live and reside on my Bhitta down to your sons, son's son and heirs in succession; and hold possession of all the properties left by me. If there be any male child born of your womb, and if your husband (my son-in-law) Srijukta Hari Pada Bhattacharjee or you be totally incapable of bearing the expenses of his education, then you will be competent to sell the entire or a portion of my properties and meet the expenses of their education and alo if you fall in to great calamity you will be competent to sell these properties. On any other grounds except this or if you do not live and reside in my ancestral (sic) welling-house, you will not be competent to transfer by sale or gift or in any way any of my properties mentioned in this Will, if you do so, the same will not be valid.

2. It is my sole and principal object and my utmost desire that the autumnal Durga, Shyamma and Jagadhattri Pujans inaugurated by me, shall be continued for ever, in the same manner, from generation to generation. For this reason, I enjoin by this Will that after my death being entitled to all the properties left by me, you will continue to perform the said Durga, Shyama and jagadhattri Pujahs uninterruptedly continually and uniformly down to your heirs and representatives-in-succession at an expense of Rs. 75 per annum. If for any special reason the same becomes impossible, then the three Pujahs must be performed uninterruptedly for at least 20 years after my death. If yon fail to no the same, you will not be competent to hold possession of any of my properties moveable and immoveable, lert by me and it by living and residing in my ancestral dwelling-house you do not perform the Pujahs, etc., both you and your husband Srijut Hari Pada Bhattacharjee would be sinners and thrown into hell for not obeying the orders of superior (father). If you do not perform the Pujahs, the principal gentlemen of the village, such as Ram Nirshingha Ghose, Upendra Narain Ghose, Jadab Chandra Pattack, Kadar Nath Gangopallhya, Sasi Bhusan Pal, Gopal Chandra Khan, Surja Kanta Dey, Kali Bhanjan shaha, Prosuna Kumar Raha and others shall have power to urge you in the act.

6. In the third and fourth paragraphs, the testator provides that certain persons are to be maintained as members of the family and in case of disagreement they are to be accommodated each separately in a room, and a fixed amount of maintenance provided for them. The other provisions of the Will, are not material for this case.

7. A large, number of cases have been cited before us bearing upon the question whether the words 'malik' and 'putra poutradi kareme' confer an absolute estate. It is unnecessary to deal with them because the meaning of these expressions is now well-settled.

8. The Will before us states that not only is the daughter to, be 'malik' but 'will be vested with power to transfer by sale and gift' and will 'enjoy and hold possession in great felecity down to sons and son's son and so on in succession. These words without anything to qualify them would no doubt create an estate of inheritance, and there is power to alienation expressly given. It is accordingly contended that the provisions in the subsequent part of the Will merely lay down the mode of enjoyment of the property, that those conditions may be disregarded having regard to the provisions of Section 125 of the Succession Act, and that they do hot qualify the absolute estate conferred in the earlier parts of the Will.

9. There is no doubt that if once an estate conferred by a Will is held to be absolute, the conditions as to the mode of its enjoyment are void. But we have to look to all the terms of the Will and find whether an absolute or a limited estate was conferred. We have, therefore, to see whether the provisions mane in the first part of the Will are qualified by the provisions made in the other parts of it. Now, three things appear to have been uppermost in the mind of the testator, the first is that his daughter arm 'her sons, son's son and so on in succession' shall reside in the ancestral Bhitta in village Mowgachi and by 'lighting lamp on the Bhitta' (an idea entertained by orthodox Hindus) hold possession of all the properties, and it is expressly stated that, if the daughter does not reside in the ancestral. dwelling-house, she will not be competent to transfer by sale or gift or in any other way any of the properties mentioned is the Will. The intention of the testator, therefore, was that the daughter and her heirs should reside in the ancestral dwelling house and 'light lamp on the Bhitta.' If, however, an absolute estate was intended to be conferred she might sell away the properties and go to reside in her husband's house, which would defeat the intention of the testator. There appears to be special reason for the testator's making such a provision. Ordinarily, the daughter would reside with her husband in the latter's house and it was probably because the testator apprehended that she might go to live at her husband's house that he made the provision that she would not be competent to transfer by sale or gift or in any other way any if the properties, and that if she did, it would not be valid.

10. The second is the education of the sons who might be born to her. In the same paragraph the testator says that if she or her husband be totally unable to bear the expenses of education of any sons who may be born to her, in that case or in case of great calamity she would be competent to sell the whole or a portion of the properties and meet the expenses of their education and concludes by saying 'on any other ground except this and if you do not live and reside in my ancestral dwelling-house, you will not be competent to transfer by sale or gift or in any other way any of the properties mentioned in the Will. If you do so the sale will not be valid.' The power of alienation, therefore, is given to her only in certain events, viz., for meeting the education expenses of her sons, or in case of 'great calamity,' and she would have no power of alienation at all if she did not reside in the Bhitta.

11. The third is the performance of the Pujahs. In the second paragraph, it is stated that the testator's 'sole and principal object' and his 'utomost desire was that the autumnal Durga, Shyamma and Jagadhattri Pujahs inaugurated by him should be continued for ever in the same manner from generation to generation,' and he enjoined that after his death the daughter being entitled to all the properties left by him will continue to perform the said Pujahs 'uninterruptedly, continually and uniformly' down to her heirs and representatives-in-succession at an expense of Rs. 75 per annum, and if for any special reason the same becomes impossible, then the Pujahs must be performed uninterruptedly for at least 20 years after his death. These. Pujahs had been inaugurated by the testator himself, and it was of paramount importance to him that the Pujahs should be celebrated by the daughter and her heirs-in-succession for ever, at any rate for a period of 20 years. Now, if she was to get an absolute estate she might sell away the properties and go to reside in her husband's house. In that case, what would become of these Pujahs which the testator says were to be celebrated by her and her heirs-in-succession for ever, at any rate for 20 years? The intention of the testator is very clearly expressed. 'It is my sole and principal object and my utmost desire' that the Pujahs should be performed, and if she failed to do the same she 'will not be competent to hold possession of any of my properties moveable and immoveable.' We think that the intention is clear and clearly expressed in the Will. It' is not a mere moral injunction, though such an injunction is given in the lines which follow 'if living and residing in my ancestral dwelling-house you do not perform, the Pujahs, etc., both you and' your husband Srijut Hari Pada Bhattacharjee would be sinners and thrown into hell for not obeying the orders of superior (father).' If you do not perform the Pujahs, the principal gentlemen of the village (naming them) shall have power to urge you in the act.'

12. It may be said that the Pujahs could not be performed for ever or even for 20 years, if the entire properties were sold away to meet the education expenses of the sons who might be born to her. But the provision with respect to the same was that she would be competent to sells portion of the whole of the properties in case she and her husband were to become wholly unable to meet the education expenses. No grandson had been born upto that time. The testator evidently thought that the son-in-law would be able to meet the education expenses, as the words if 'Haripada' be 'totally incapable' would indicate, and although he gave power to the daughter to alienate in the latter case, the testator probably thought it was a very remote contingency for which he was providing. The provision for celebrating the Pujahs for ever shows that the testator did not contemplate the alienation of his entire property as a probable contingency, at any rate, within 20 years.

13. Later on, it is stated in the Will, 'God forbid if after my death you die without leaving any issue and your husband inherits the properties mentioned in this. Will, he shall have to perform year after year the three Pujahs mentioned in my Will and enjoy the profits and hold possession of the said properties. If he does not perform the Pujahs, etc., in the matter stated in this Will he will not be entitled to get any thing out of the properties left by me.' It is contended that the son-in-law could inherit the properties only if the daughter got an absolute estate, and that this provision shows that the testator intended to confer an absolute estate. But the will apparently was not drawn by a lawyer, and the testator might have thought that in the absence of any issue of the daughter the property would devolve by right of inheritance upon her husband. It is, no doubt, difficult to reconcile all the provisions of this badly drawn Will, but that the testator, an old mats of 62 years of age, did say all that he could, to express his intention that the daughter and her heirs-in-succession should reside in the ancestral house, educate the sons who might be born to her, and perform the Pujahs, and she was not to get any property if she failed to comply with the first and third provisions though she was given a restricted power {and full power in certain events) of alienation for meeting the education expenses of her sons or in case of calamity. It may be contended that if that is the proper construction of the Will, the daughter would not get the estate at all in the event of her failing to perform the acts enjoined by the testator, as it has been round by the Court below (on remand) that the daughter did not reside in the house of the testator after his death nor perform the Pujahs after his death as directed by the Will. But the estate vested in the daughter on the death of the testator before any acts enjoined by the testator could be performed. Then there was no gift over on her failure to perform the acts, and she was the heir-at-law. We have relied upon those provisions only for ascertaining whether the intention was to confer an absolute estate upon her or only a limited estate.

14. We do not think we should hold that she was given an absolute estate with absolute power of alienation merely upon what is stated in the earlier part of the Will entirely ignoring the other, provisions of the Will, on the ground that she was given an absolute estate and the other provisions being repugnant to the nature of the estate must be rejected. The Will, as stated above, is badly drawn, but in construing it we must give effect to all its provisions. Taking into consideration all the provisions of the Will we think that the Will does not give an absolute estate to the plaintiffs' mother.

15. As stated above, it is unnecessary to discuss the cases which deal with the effect of the words 'malik' or 'putra pautradi karame' or similar expressions. In the present case both those expressions have been used in the Will as also the power of alienation is expressly given in one part of the Will, while the other parts of the Will show that she was to have power of alienation only in certain events or incidents that she was not to have an absolute estate. We will only refer to the cases where the Will purports to confer tin absolute estate in one portion of it, while other clauses indicate a contrary intention.

16. In Lala Ramjewan Lal v. Dal Koer 24 C. 406 : 12 Ind. Dec. (N.S.) 938 it was held that the prohibtion to alienate did not cut down the absolute gift conferred in that case and reference was made to the provisions of Section 125 of the Succession Act. In Amarendra Nath Bose v. Suradhany 5 Ind. Cas. 73 : 14 C.W.N. 458 where the testator provided that his widow would be malik like himself having right to give away sell, etc., after her death, the property would come into the control of his son if he was reformed, it was held that the intention of the testator was to confer an absolute estate, as otherwise the intention of the testator might have been completely defeated, for whatever portion of the estate might be left undisposed of by his widow would have passed by inheritance to the son to meet which contingency it was provided that if any portion of the estate was left in tact by the widow at the time of her death it was not to go to his son except on the event of a complete reformation of her habits in the interval. In Jitendra Kumar v. Nritya Gopal 16 Ind. Cas. 831 : 18 C.W.N. 140 where the Will gave some properties to his wife with power of alienation and there was no gift over it was held to be an absolute gift. In Tripurari Pal v. Jagat Tarini Dasi 17 Ind. Cas. 696 : 40 I.A. 37 : 17 C.W.N. 145 : 13 M.L.T. 1 : (1913) M.W.N. 34 : C.L.J. 159 : 15 Bom. L.R. 72 : 40 C. 274 (P.C.) the Judicial Committee held that there was an absolute gift, as there was no provision for cutting down the absolute gift in what followed.

17. On the other hand in Shib Lakshan Bhakat v. Srimati Tarangini Dasi 5. 8 C.L.J. 20 where the Will provided that the tetator's widow was to be malik, with power to sell or make gift according to her wish if, for any reason, it became necessary to do so, it was held that she did not get an absolute estate. There was a clause in the Will which directed the widow to carry on out of the income of the properties the daily and' periodical worship of the ancestral family idols, and there were other provisions in the Will which strengthened the view that the estate conferred was riot absolute, one of them being a clause which authorised the widow to have recourse to a sale or gift in case of necessity which would be superfluous if the widow was already vested with absolute power of disposition.

18. In Kandarpa Nath Ghose v. Jogendra Nath Bose 6 Ind. Cas. 141 : 12 C.L.J. 391 the learned Judges with reference to the words of the preamble of the Will that the widow was to 'hold possession like the testator' which were taken to indicate that an absolute interest was intended to be created in her favour observed: 'As pointed out, however, in the case of Shib Lakshan Bhakat v. Srimati Tarangint Dasi 5. 8 C.L.J. 20 importance ought not to be attached to isolated, expressions, but the Court must look to all the clauses of the Will, and give effect to all the clauses ignoring none as redundant or contradictory. In that case it was pointed out that the central ideas of the testator were obviously twofold, first, that whatever properties might be left upon the death of his mother and his wife were to be applied for the establishment of a pious institution of a, permanent character for commemoration of his name, and, (secondly) that in no event was the estate to be alienated in favour of the reversionary heirs; and that they were inconsistent with the theory that the donees took an absolute and alienable interest in-the estate. It was held upon those considerations and upon the other clauses of the Will that the donees did not take an absolute estate. In Hara Kumari Dasi v. Mohim Chandra Sarkar 12 C.W.N. 412 : C.L.J. 540 the Will gave to the widow power of alienation by gift or sale all 'the aforesaid moveable and immoveable properties' and directed her to purchase a house and establish a Mahadeb on it and perform its sheba and service, and that on her death his daughter would be entitled to whatever properties would remain after her death, it was held that giving affect to all the words of the Will the widow took an estate for life with a power of alienation, and to the extent to which such power was exercised, the daughter similarly took the property.

19. In the case of Radha Prasad Mullick v. Ranee Mani Dassee 35 C. 806 : 35 I.A. 118 : 12 C.W.N. 729 : 4 M.L.T. 23 : 18 M.L.J. 287 : 5 A.L.J. 460 : 10 Bom. L.R. 604 : 8 C.L.J. 48 (P.C.) the Judicial Committee in holding that according to the true construction of the Will the intention of the testator was to create in favour of his daughter an estate for life with a remainder over to their sons, relied upon the observations made in the case of Moulvie Mohamed Shamsool Hooda v. Shewukram 2 I.A. 7 : 14 B.L.R. 226 : 22 W.R. 409 : 3 Sar. P.C.J. 405 : 3 Suth. P.C.J. 43 (P.C.) that 'in construing the Will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desire's that an estate, especially an ancestral estate, shall be retained in his family and it may be assumed that as a general rule, at all events women do not take absolute estates of inheritance, which they are enabled to alienate.'

20. We have been referred to an unreported decision of Mookerjee and Panton, JJ., dated the 10th June 1919, in Appeal from Original Decree No. 108 of 1917 Since reported as Sulochana Debi v. Jagattarini Debi 53 Ind. Cas. 602 : 30 C.L.J. 51--[Ed.]. There the Will (in the sixth clause) provided that the widow was the full owner (sampumna malik) and the question was whether the full proprietary right had been cut down by the other clauses of the Will. The learned, Judges held that the other clauses did not in any way qualify the effect of the sixth Clause and referred to the observations of Lord Watson in Scale v. Rowlins (1892) App. Cas. 342 at p. 344 61 L.J. Ch. 421 : 66 L.T. 542. 'We are not at liberty to speculate upon what testator may have intended to do, or may have thought that he had actually done. We cannot give effect to any intention which is not expressed, or plainly implied in the language of the testator.'

21. In the present case the paragraphs 1 and 2 of the Will clearly express the intention of the testator. Nothing can be clearer than the words 'my sole and principal, object and my utmost desire' used with reference to the provision for the Pujahs, and the provision as to residence in the house is also clear, and we do not think that the provisions of the said paragraphs merely lay down the mode of enjoyment of the property so that it can be held that the preamble to the Will elves an absolute estate, and the provisions in the first and second paragraphs are void as being repugnant to the nature of the estate granted. The provisions of first and second paragraphs qualify and govern the provisions made in the earlier part, and in fact explain them, and as stated above, taking all the provisions together we think that the plaintiffs' mother took only a limited estate. The plaintiffs, therefore, on their mother's death inherited the property.

22. There are other questions in the case which have not been tried by the Courts below. The case should, therefore, go back t& the Court of first instance for trial of the remaining issues and disposal of the case according to law.

23. Costs will abide the result.


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