1. The suit out of which this appeal arises relates to certain properties left by Kali Kinker Chakravarty, deceased. Kali Kinkar had two daughters. The plaintiff, Shyama Charan Bhattacharya, is the son of one daughter and the defendant, Naba Chandra Chakravarty, is the son of the other daughter. Besides his grandsons, Kali Kinkar left him surviving his widow, Brajeswari. The defendants, other than Naba Chandra, are with one or two exceptions admittedly in possession of various portions of the properties in question deriving title under conveyances executed by Brajeswari alone or by Brajeswari and Naba Chandra. The suit was brought to recover a moiety of these properties on the footing that at Brajeswari's death, which occured in 1263 M.E. (1904), the plaintiff and Naba Chandra were each entitled to a moiety as the reversionary heirs of Kali Kinkar. Naba Chandra did not enter appearance but the claim was contested by the defendant in possession. The lower Courts have concurred in dismissing the suit and this appeal is preferred by the plaintiff.
2. In the first Court, many defences were raised and many issues were framed. The controversy, however, has since been narrowed and now turns entirely upon the effect of certain provisions in Kali Kinkar's Will, dated 4th Sraban 1242 M.E. (July 1880), of which Probate was granted in August 1883.
3. The Will consists of a preamble and three clauses. There is no dispute that under the first Clause Brajeswari, the testator's widow, took an estate for life in the properties in question and there is no dispute as to the other specific bequests therein made. The difficulty arises in reference to the Second clause. That clause begins with a permission to Brajeswari to adopt a son and continues:
Upon a son being adopted by the grace of God by the said wife, he, shall, upon the death of the wife, be entitled to all the moveable and immoveable properties other than the lands given away as above. If an adopted son be not procurable, then may daughter's son, Sriman Naba Chandra, should he live in my dwelling house, will, with his sons, son's sons and other heirs in succession, be entitled to and in enjoyment of my properties by retaining the same in tact, but if the said daughter's son or his sons or son's sons and other descendants fail to live in my house, then my granddaughter's husband or his son shall, upon living in my house, be entitled to and be in enjoyment of my properties by retaining the same intact.
4. Then follow other limitations over, each being conditioned on residence in the testator's house, first to the husband of the testator's daughter's daughter and then to 'any of my agnates or any other Brahmin who may be brought in and settled in my dwelling house at first by my wife and upon her death by my daughter-in-law.' Finally, 'should all these fail, then on the death of my wife and daughter-in-law, at first any one of my agnates, then on their failure, any Brahmin, who continuing in his own Dharma should, with his family, live in my dwelling house, and carry on the sheba of my idol, shall be entitled to enjoy my properties by retaining them in tact.'
5. It may be mentioned that the first and the third Clauses confer on the widow express powers of alienation in regard to specific properties and that it was not contended before us that the alienations to which she was a party were within, or that she had any power of alienation over and above, the powers so expressly conferred.
6. No son was adopted by the widow and the plaintiff's case--not as it was put in the plaint where the Will is not mentioned but as it was afterwards put when the Will was set up in defence to this claim--is that Naba Chandra by not fulfilling the condition as to residence forfeited the interest bequeathed to him, that the limitations over were either void and that consequently upon the widow's death there was an intestacy which laid the succession open to the testator's reversionary heirs.
7. The Munsif having held that, in the events which happened, no forfeiture took place and the Subordinate Judge that the clause of defeasance was invalid, their judgments were attacked in this Court on behalf of the appellant mainly on the ground that these conclusions were erroneous in law. As to this question of forfeiture, it may at once be conceded to the plaintiff that under the Will, Naba Chandra, during the widow's life-time, had . merely a contingent interest, the contingency on which he was to succeed being the death of the widow without adopting (Indian Succession Act. Section 107). There can also be no doubt that the residence required by the Will was residence after the interest conferred became an estate in possession. It is quite idle for the respondents to argue that Naba Chandra took a vested interest at some uncertain date before the widow died and that the condition as to residence was satisfied because Naba Chandra lived for some time in the house with the widow. Naba Chandra never lived in the house after the widow's death and he had put it out of his power to do so by joining with the widow in conveying the house to a stranger. By that act, by reason of the operation of the forfeiture clause, Naba Chandra was deprived of the interest given him by the Will Indian Succession Act, Section 123; of. Ganendro Mohun Tagore v. Rajah Juttendra Mohun Tagore 1 I.A. 387 at p. 395 : 14 B.L.R. 60 : 22 W.R. 377.
8. It was argued for the respondents that the condition as to residence was itself invalid. It was conceded that such a condition is not seldom imposed in the case of life-estates [of. Tagore v. Tagore 1 I.A. 387 at p. 395 : 14 B.L.R. 60 : 22 W.R. 377; Tin Couri v. Krishna Bhabini 20 C. 15; Bhoba Tarini v. Peary Lall 24 C. 646 : 1 C.W.N. 578 but it was said that the estate given to Naba Chandra was an absolute estate. We can find nothing, however, in the law to prevent a testator from giving an absolute estate to a legatee with the condition superadded that the legatee shall live in a particular house (Indian Succession Act, Sections 118 and 121). If an estate be given to A. and his heirs with the condition superadded that if at any future time any one, to whom the estate may come under the bequest, does not reside in a particular house, the estate shall go to B. and his heirs, the limitation over may be void as transgressing the rule against perpetuities like a limitation over on an indefinite failure of issue. But as we read the Will before us, it imposes a condition upon Naba Chandra personally to live in the house and provides that if he personally does not live in the house, his interest shall cease and the estate go to some one else. Nor have we to consider what the position would have been if Naba Chandra had fulfilled the condition as to residence and got the estate into his hands and had then conveyed the house to a stranger.
9. The result so far is that Naba Chandra incurred a forfeiture. But it does not follow that the plaintiff has established his title. There are the limitations over and the plaintiff must show that these are void or ineffectual before he can succeed. The ultimate gifts over in favour of an agnate or a Brahmin may at once be dismissed as void for uncertainty. But there are the two earlier bwquests to the granddaughter's husband and the husband of the daughter's daughter. It appears that at the date of the Will, there were living Akbileswari, the testator's widowed daughter-in-law, Tarak Sundari, her daughter, and Bagola Sundari, the daughter of one of the testator's daughters. Tarak was unmarried at that date as is shown by the fact that provision for the expenses of her marriage is made in Clause 1 of the Will. Bagola was married as the Will mentions her husband by name. The gift to Bagola's husband is on the face of it a perfectly good gift and if Tarak was married before the testator died, the gift to her husband would also, in our opinion, be valid. It was, therefore, for the plaintiff to show that these gifts did not take effect and the question arises whether he has done so. The learned Munsif says as to, this part of the case that 'in any view of the matter, there will be no intestacy for it (the estate) will go to the other heirs or legatees under the Will who are mentioned there by name or designation, barring, of course, the uncertain class in regard to whom the bequest is bad for remoteness.'
10. Similarly, the learned Sabordinate Judge says:
Under the Will the husband of the testator's son's daughter, or his son or in their default Naba Sarma, husband of the daughter of a testator's daughter could sue to recover the properties if the interest given to defendant No. 1 were really liable to be divested on his ceasing to live in the testator's house. The above persons or their heirs have not been made parties to the suit etc., etc.
11. It is clear, therefore, that so far from removing the doubts which affect his title, the plaintiff has left the subject in complete obscurity and has not shown that the gifts over to the husbands of the granddaughters are ineffectual. That this should be so is not surprising, regard being had to the fact that the plaintiff carefully avoided any mention of the Will in the plaint.
12. On the whole, therefore, we are of opinion, that the plaintiff's title has not been established and that this appeal must be dismissed wit costs.