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Satya Ranjan Roy and anr. Vs. Annapurna Dasi - Court Judgment

LegalCrystal Citation
Subject Family
CourtKolkata
Decided On
Reported inAIR1929Cal145,114Ind.Cas.666
AppellantSatya Ranjan Roy and anr.
RespondentAnnapurna Dasi
Cases ReferredBai Dhanlaxmi v. Hariprasad Uttamram A.I.R.
Excerpt:
- .....joint family properties. kali kishore died leaving five sons, namely the defennants 1 to 4 and one rama kanta roy now deceased. mathur chandra then died leaving a son the defendant 5. mukunda thereafter died leaving a widow, the plaintiff annapurna and a female child then in arms.2. mukunda left a will. the preamble to the will recited that kali kishore in his lifetime had given permission to him to adopt as his son kali kishore's son rama kanta and he gave permission to his wife annapurna to adopt after his death the said eama kanta as his son. the will then provided:both of them (meaning annapurna and rama kanta), do enjoy as my heirs and successors according to the terms and conditions of the achalpatra (meaning the will) as executed by me and as laid down in the paragraphs-following,.....
Judgment:

1. Kali Kishore Roy, Mathur Chandra Roy and Mukunda Chandra Eoy were three brothers, each of them having a 1/3rd share in their joint family properties. Kali Kishore died leaving five sons, namely the defennants 1 to 4 and one Rama Kanta Roy now deceased. Mathur Chandra then died leaving a son the defendant 5. Mukunda thereafter died leaving a widow, the plaintiff Annapurna and a female child then in arms.

2. Mukunda left a will. The preamble to the will recited that Kali Kishore in his lifetime had given permission to him to adopt as his son Kali Kishore's son Rama Kanta and he gave permission to his wife Annapurna to adopt after his death the said Eama Kanta as his son. The will then provided:

Both of them (meaning Annapurna and Rama Kanta), do enjoy as my heirs and successors according to the terms and conditions of the achalpatra (meaning the will) as executed by me and as laid down in the paragraphs-following, none of them shall be entitled to violate the same.

3. In para. 1 of the will it was provided that taking his 1/3rd share as 16 annas Rama Kanta, on his death, would as ' malik ' get 12 annas, thereof and the other four sons of Kali Kishore would get the remaining 4 annas.

4. It is stated:

On my death the said Sreemans (all the five sons of Kali Kishore had been described aa Sreemans before) shall give and take their respective shares being entitled to the same in absolute right with powers of gift and sale according to the shares mentioned above.

5. In para. 2 it was enjoined that the adopted son Rama Kanta would have to maintain Annapurna out of his own share. Mathura Chandra evidently was alive at the date of the will and it was provided that the adopted son would perform the obsequies of the testator (para. 2) and give in marriage his daughter who was an infant (para. 3) according to the advice of Mathur Chandra.

6. Paragraph 4 expressed a hope that the testator himself would adopt the son, if possible, in his lifetime and it provided that so long as the said adopted son Rama Kanta or the other sons of Kali Kishore did not attain majority, Mathur Chandra will act as manager on their behalf with full powers and his acts would be binding on the minors on their attaining majority.

7. Paragraph 5 ran thus:

God forbid, if the said adopted son die during the lifetime of my wife without leaving any other heirs, then 11 annas out of the 12 annas moveable and immovable properties of my adopted son left by me as mentioned in the achalpatra shall go to my nephews (meaning the three sone of Kali Kishore and one of Mathur Chandra) in equal shares, and my wife the said Annapurna Dasi shall be entitled to a life-estate in respect of one anna share out of the 1G annas of the moveable and immovable properties left by me.

8. Paragraph 6 provided that if there was difference or disagreement between the widow and the adopted son the widow shall have

power to enjoy, appropriate to herself, give away or sell one anna out of the 12 annas of the adopted son in lieu of her maintenance.

9. It has been found by both the Courts below that the adoption of Rama Kanta was made during the lifetime of Kali Kishore and Mukund by the formal giving and taking of the boy. Rama Kanta died in 1313 without any issue.

10. Certain properties having been sold for arrears of revenue there arose a dispute as regards the surplus sale-proceeds that were in desposit in the Colleetorate. The plaintiff claimed that Rama Kanta had 12 annas out of the 1/3rd share of Mukunda in joint properties, that is to say, an 1/4th share in the said properties, and that Rama Kanta had also an 1/5th share in the properties as a natural son of Kali Kishore, and that she as Rama Kanta's adoptive mother was entitled to both the said shares and she asked for certain reliefs on that footing. The Munsiff gave her a decree on the footing of her having a 4 annas share, as having inherited the same from Rama Kanta. The Subordinate Judge, on appeal, has affirmed that decision. The defendants have then appealed to this Court.

11. The controversy in the appeal centres round the question whether as contemplated in and provided for by para. 5 of the will Rama Kanta having died without any issue, the defendants are entitled to an 11 annas share out of Rama Kanta's 12 annas share. There was a minor contention urged on behalf of the appellants to the effect that the will relates to a place in the District of Sylhet which, though it was inoluded in the Bengal Presidency in 1870 when the Hindu Wills Act was passed, was transferred to the province of Assam before 1883 when the will was executed, and that therefore the Act will not apply to the will. This argument has no substance as the redistribution of the territories would not, by itself, make the Act inapplicable to a place in which it was already in force, vide Section 58, Government of India Act 24 and 25 Vic C. 67, Section 47.

12. An elaborate and learned argument has been presented before us based on Section 111 (now Section 124), Succession Act. Before dealing with it it is necessary to construe the will in order to see what was the interest that was bequeathed to Rama Kanta. The will constituted the adopted son malik of a 12 annas share on the death of the testator, entitled thereto in absolute right with powers of gift and sale (para 1). The said 12 annas share was described as the share of Rama Kanta out of which on the happening of a contingency (namely his death without issue during Annpurna's lifetime) llannas would go to the defendants in equal shares and the remaining 1 anna to Annapurna as a life-estate (para. 5); or in the happening of another contingency during the lifetime of Rama Kanta (namely a differenco or disagreement between Annapurna and (Rama Kanta) Annapurna would get an one anna share in lieu of her maintenance (para. 6). Leaving aside the one anna share which was to be dealt with in the event of a difference or disagreement between Rama Kanta and Annapurna under para. 6, or which would go to Annapurna as a life-estate in the event of Rama Kanta's death without issue during the lifetime of Annapurna under para. 5, the position seems to be that there is an apparent repugnancy, because para. 1 gives an absolute estate to Rama Kanta while para. 5 purports to dispose of it again. The rule of construction in such a case has been stated thus in Jarman on Wills, 6th edition, Vol. 1 pp.565-566.

13. Mr. Jarman states the general rule thus:

Doubt is sometimes oast upon the intention of the testator by the repugnancy or contradiction between the several parts of his will, though each part taken separately, is sufficiently definite and intelligible. In such cases the context (which is so often successfully resorted to for the purpose of throwing light on a doubtful passage) becomes itself the source of obscurity; and unless some principle of construction can be found authorising the adoption of one, and, the rejection of the other of the contrariant parts, both are necessarily void, each having the effect of neutralising and frustrating the other. With a view to prevent this most undesirable result, it has become an established rule in the construction of wills that where two clauses of gift are irreconcilable so that they cannot possibly stand together, the clause or gift 'which is posterior in local position shall prevail, the subsequent words being considered to denote a subsequent intention. Hence it is obvious that a will can seldom be absolutely void by mere repugnancy....It must be borne in mind, however, that the rule only applies where the latter gift shows with reasonable certainty that the testator did not moan the prior gift to take effect according to its terms. The simplest example of the general rule is where a gift to A apparently absolute, is cut down to a life-estate by a subsequent direction that on A's death the property is to go to B. There are numerous authorities to this effect. But the subsequent direction must be unambiguous. And whore there is an absolute gift of property to A, with a gift to B, in the event of A dying without having disposed of it, on a gift to B of what remains at A's death the question of the effect of the words is often a difficult one, and the authorities, as might be expected, are not wholly consistent.

14. The question, therefore, is a pure question of construction, and treating it as such one has to read the whole will together and say whether the testator intended that Rama Kanta would not, merely because he might die issueless and within the lifetime of Annapurna, be competent to deal with the 11 annas share though he was constituted malik in respect of it with power of gift and sale from the time of testator's death. It is difficult to gather such an intention from the words of the will, or in other words, it cannot be said that the directions are at all unambiguons as showing that the absolute interest created in Rama Kanta by the first paragraph of the will was in any way cut down by the gift over provided for in paragraph 5. If this view is correct, then even if the testator meant that in the event of Rama Kanta, who would take an absolute interest, failing to (dispose of it or part of it and dying issueless and within the lifetime of Anna-purna, the 12 anans should be divided between Annapurna and the nephews the provision as to gift over is void as formulating a law of succession unknown to Hindu Law.

15. If, however, no absolute interest was created in Rama Kanta, the question would arise whether in view of Section 124, Succession Act, the gift over in favour of the defendants is void. The appellants have argued that it is a contingent bequest which should take effect and that Section 124 will not affect it, while the respondent argues to the contrary. The section embodies what is known as Rule 4 in Edwards v. Edwards [1852] 15 Beav. 357, and was enunciated by Sir John Romilly in these words:

Where there is an absolute gift to vost in possession at a future time, and a gift over in case the legatee should die without issue living at his decease, this prima facie is to be taken to mean if ha should die without issue before he is entitled to call for delivery as it would be very inconvenient that after delivery the subject of gift should be liable to go over.

16. This rule has been authoritatively modified by the House of Lords in the two cases of O'Mahoncy v. Burdett [1874] 7 H.L. 338 and Ingram v. Souttan [1874] 7 H.L. 408. In the former case Lord Hatherley said:

When the Court has found upon the face of the will a positive direction to pay over the personalty to the legatee, or to make a distribution among several Iegatea3 at a given time, the period, of distribution being fixed at which, as, it appears from the face of the will the whole estate was intended to be entirely disposed of and divided, and to pass from the hands of the executors the Courts have laid hold of that circumstance to say ' we hold this defeasance to be before that period of distribution arrives,' holding it to be an unreasonable construction of the testator's will to say that he directed on the one hand that the money shall be absolutely paid and divided and distributed, and put into the hands of those, who having it in their hands, will of course share it without further trust, and on the other hand that a subsequent event namely a certain person's dying childless after that distribution has taken place, should divest the properties, that is to say, make it necessary for the executor to take steps to get back again, and recall that money which he had paid in order to hand it over to those who took under the executing devise...the period to which the executing devise will be referred will be the period of the death of the first taker unless there are other circumstances and directions in the will which are inconsistent with that disposition.

17. Whatever consequences might follow from the application of the rule in Edwards v. Edwards [1852] 15 Beav. 357, as modifed by the House of Lords cases referred to above in cases to which the Hindu Wills Act and consequently the Indian Succession Act do not apply, in cases to which Section 124, Succession Act does apply, that section will have to be given its full effect. The Judicial Committee in the case of Bhupendra Krishna Ghose v. Amarendra Nath Dey A.I.R. 1915 P.C. 101 have said:

Section 111 embodies the rule enunciated in Edwards v. Edwards (1). The rule of construction laid down in that case has been considerably modified by later English decisions. The Indian Act has given it statutory force. Even in India as regards Hindus its application is confined to special tracts.... Their Lordships think that it should be applied only to cases coming strictly within its scope.

18. The question in these cases is to as' certain when the fund bequeathed is payable or distributable. That being ascertained, in a case where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event the legacy cannot take effect. Here the uncertain event for the happening of which no time is mentioned is the death of Rama Kanta during the lifetime of Annapurna and if the bequest is to take effect it should happen before the period of distribution. Reading the will it seems to be perfectly clear that the intention of the testator was that the distribution was to take place on his death. For the bequest to the defendants to take effect the contemplated contingency should have taken place before the testator's death.

19. It, however, remains to consider a few decisions to which our attention has been drawn on behalf of the appellants and all of which in our opinion are very different from the present case. In Bhupendra Krishna Ghose v. Amarendra Nath Dey A.I.R. 1915 P.C. 101, the wife was appointed sole executrix under the will, she was given authority to adopt five sons in succession and it was provided:

If my said wife dies without adopting a son, or if such adopted son predeceases her without leaving any male issue in such case my estate after the death of my wife shall pass to the sons of my sister Binodini Dasi who may be giving at the time of my death.

20. Their Lordships of the Judicial Committee held that on the death of the testator, the widow, who had obtained possession as executrix was not divested by the adoption of the son, and the period of distribution having been distinctly fixed by the will at the death of the widow and the adopted son having died before the widow's death which was the contingency contemplated, the gift in favour of the nephews was not affected by Section 111 and took effect. In the case of Durga Pershad v. Raghunandan Lal [1914] 19 C.W.N. 439 the testator had made his minor son the malik of the properties after his death and directed that he should succeed to and enter upon possession and also gave directions as to how the-management was to be conducted during such minority, the mother of the minor and on her death some other person to act as his guardian, and finally directed:

If after my death the said minor son dias thc mother of the said son shall in his stead become the malik in possession and occupation when like myself the said Musammat shall acquire all the proprietary powers and all kinds of properties moveable and immovable, and after the death of the widow the property was to go to the testator's two daughters in equal shares.

21. The mother died before the minor son-and the question arose as to whether the gift over was valid. It was held relying upon Section 116, Succession Act, that the gift over should take effect on the failure of the prior bequest in favour of the widow although the failure may not have occurred in the manner contemplated by the testator, that is to say, though the widow died not after but before the adopted son. There is a reference to Section 111 in the judgment in that case but it is by no means clear what it exactly means. In any case the minor was not to acquire full proprietary rights until at least he attained majority and the period of distribution contemplated by the will was, at the earliest the point of time when the minor would be a major.

22. It has been argued on behalf of the appellants that in the present case also the testator had given directions in para. 4 of the will for the management of the properties during the minority of Rama Kanta and of the defendants but such directions appear to have been given not in derogation of the absolute right that was conferred by para. 1 and was to take effect immediately on the testator's death. The decision of the Judicial Committee in the case of Ghunilal Parvati Shankar v. Bai Samrath A.I.R. 1914 P.C. 60 need not be discussed as it was not a decision with reference to Section 111, Succession Act, but in spite of it, the said Act not applying to the will in question in the case. So is the decision in Bai Dhanlaxmi v. Hariprasad Uttamram A.I.R. 1921 Bom. 262 though one proposition that emerges from it may be usefully referred to, namely that a Hindu may create a life estate or successive life-estates, but a series of absolute estate defeasible in succession on the happening of an uncertain event cannot be considered as a succession of life-estates ; it can only be considered as an attempt to create an estate of inheritance which is not recognized by Hindu Law From whatever point of view may the will be looked at, the gift over, in our opinion, cannot be regarded as operative and the appellant's arguments cannot possibly succeed. The appeal accordingly is dismissed with costs


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