1. Three persons Niladri Nath Mukherji, Himadri Nath Mukherji and Bindhyadri Nath Mukherji who were the grandsons of Rai Bankim Chandra Chatterjee Bahadur who died on 8th April 1894, brought the suit out of which this appeal arises, against Satish Chandra Mukherji who is described as the proprietor of the 'Basumati' and of the Basumati Press and Basumati Sahitya Mandir, and as carrying on business as book-seller and publisher, and also against Brojendra Sundar Banerji who is the first cousin of the three plaintiffs and so also a grandson of Rai Bahadur Bankim Chandra Chatterjee. The three plaintiffs are the sons of Sm. Nilabja Kumari Debi, and the defendant Brojendra is the son of Sm. Sarat Kumari Debi. Those two ladies are the daughters of Rai Bahadur Bankim Chandra Chatterjee. The plaintiffs sued for recovery of damages which they assessed at one lac of Rupees for infringement of the copyright in the works of Bankim Chandra who was a well-known Bengalee litterateur, and the author of a large number of books, a list of which was set forth in para. 1 of the plaint.
2. Brojendra Sunder Banerjee, defendant 2 as the purported owner of the copyright in the works of his grandfather, had granted a licence to defendant 1 for the publication of those works. Brojendra was supposed to have acquired the ownership of the copyright in his grandfather's works in this way: Rai Bahadur Bankim Chandra was married to a lady named Rajlaksbmi Debi. It is said that under the will of Bankim Chandra, dated 23rd May 1890, Rajlakshmi became the absolute owner of the copyright, Letters of Administration having been granted to her on 21st July 1894. Rajlakshmi herself made a will on 2nd September 1894 and to that will was added a codicil on 10th March 1907 whereby she bequeathed the copyright in her husband's books to her older daughter Sm. Sarat Kumari, the mother of defendant 2. In 1908 the licence in respect of the copyright had been granted by Rajlakshmi to the father of defendant 1, and on 20th May 1926, after Sm. Sarat Kumari had acquired the copyright by virtue of the provisions of her mother's will, she in her turn granted a licence to Satish Chandra Mukherjee, defendant 1 in the suit. That licence was for a period of five years. Shortly after that, on 19th September 1926, Sarat Kumari by a registered deed of gift transferred to her son Brojendra all her rights in the copyright in her father's books. On 4th April 1928 there was an agreement between Brojendra and defendant 1 Satish, which conferred upon the latter a right to publish the books of Bankim Chandra Chatterjee. In the plaint, the date from which the alleged infringement is said to have begun, was 23rd December 1927.
3. The plaintiffs founded their claim on the fact that their aunt Sarat Kumari had died and they said, her right had come to an end, because she only had, according to the plaintiffs' contention, the rights of a Hindu daughter in succession to the rights of her mother, Rajlakshmi, who herself also had only the rights of a Hindu widow. Sm. Nilabja Kumari, the mother of the plaintiffs, had predeceased Rajlakshmi Debi. The case of the plaintiffs so far as their rights are concerned depended on the question, whether or not Bankim Chandra disposed of the copyright in his works by the will to which I have already referred and which is dated 23rd May 1890. The case was tried by Roy, J., and the learned Judge came to the conclusion that the plaintiffs had established their case, because the copyright had not passed under the will of Bankim Chandra at all. The learned Judge put the matter thus:
The plaintiffs claim title to the copyright in the books by inheritance and it is conceded that if by his will, dated 23rd May 1890, the late Rai Bahadur Bankim Chandra Chatterjee had made no testamentary disposition of the copyright in his books in favour of his widow, Sm. Rajlakshmi Debi, the plaintiffs and defendant 2 jointly became the owners of the copyright on the death of Sm. Sarat Kumari Debi.
4. The learned Judge pointed out that there was no dispute about the facts of the case. As I have already said Rai Bahadur Bankim Chandra died on 8th April 1894. Roy, J., stated that the question which he had to decide in this form:
The question for determination therefore is whether or not on a proper construction of the will of Rai Bahadur Bankim Chandra Chatterjee there was a testamentary disposition of the copyright in the books mentioned in the plaint, in favour of his widow Rajlakshmi Debi.
5. Then he said:
The learned Counsel for the plaintiffs has submitted that there are no words in the will indicating that the testator intended to make a gift of his moveable properties or the copyright in his books by his will, and that on the contrary the terms of Clause 3 of the will made it clear that the testator did not consider it necessary to make any testamentary disposition in respect of those properties.
6. Now, the only real question which we have to decide is that which is set out clearly by the learned Judge. Clause 3 of the will of Rai Bahadur Bankim Chandra, which we have understood to be in these terms, according to the translation used at the trial and placed before us in the paper book:
On my demise my wife shall become full (absolute) owner of my entire moveable properties according to law, consequently there is no necessity for any will in respect of the same also. The copyright to my books is reckoned among moveable properties.
7. The question therefore is whether the testator by those words gave his moveable properties to his wife, and if so to what extent. Mr. Roy Chowdhury on behalf of defendant 1, the appellant before us, put forward a slightly different version of Clause 3 in this form:
On my demise my wife shall become full (absolute) owner of my entire moveable properties according to law, for this reason about her right, or about the character of her right, there is no necessity for making any will. The copyright to my books is reckoned among moveable properties.
8. We have had a further translation of this Bengali document, that is of Clause 3, made by an interpreter of this Court for the purpose of this appeal. According to that translation, the clause will read in English as follows:
After my death, to all my moveable properties my wife shall be fully entitled, and that according to law. For this reason in that respect too there is no need for any will. The copyright of my books is considered as one included in the moveable properties.
9. It is necessary to consider the general scheme of this will. It consists of four clauses. The fourth clause being however merely for the purpose of revoking a former will, needs no further comment. Under Clause 1, the testator gave certain properties to his wife, and by concluding words of that clause he made it quite clear that he intended to give her those properties in absolute ownership and not merely in the right of a Hindu widow. In Clause 2 he says:
I see no necessity of making will in respect of my other immoveable properties.
10. Therefore, I would think it quite certain that as regards the other immoveable properties other than mentioned in Clause 1, the testator intended to give to his wife no more than the rights which the law would give her as a Hindu widow. Then comes Clause 3 of which I have given three English versions. Under that clause, it may well be that the intention of the testator, or at any rate the ideas of the testator, was that his wife would get the moveable properties in absolute ownership. It may possibly, on the other hand, be contended that he thought she would get the moveable properties in the rights of a Hindu widow. I am disposed to think that what really was in the mind of the testator as regards the moveables, was that his wife would have the moveables in absolute ownership. That seems to me to put upon the whole document a reasonable interpretation. What is really to be determined however is whether by Clause 3 the testator conferred any rights at all on his wife. The outstanding fact shown by Clause 3 is that the testator thought that the law would confer certain rights in the moveable properties on his wife after his death.
11. Then he seems to say that as the law would operate to confer rights on his wife, there was no need for him to make any disposition by will at all.
12. Mr. Roy Chowdhury put before us the second and the third translations, which I have already quoted, for the purpose of suggesting that the testator really meant that the law would confer upon the wife an absolute interest in the moveables, or rather that as the testator thought that the law would confer such a right, there was no need to make any special reference or disposition as regards the nature and character of the right which his wife would acquire. He contended therefore that we ought to read the clause as meaning, at any rate by implication, that the testator was giving to his wife by that clause, or intended to give to his wife an absolute ownership in the moveable properties including the copyright. It seems to me to make no difference whatever whether one takes the view that the testator thought that the law would give to his wife an absolute right to the moveables or whether he only thought that the law would give his wife the right of a Hindu widow as regards the moveables, because in either event we have to decide whether there is, by implication, a gift in the will itself. It may be that as regards the testator's statement as to the law it was a misrecital. The law does not give to a Hindu widow an absolute right even in immovables. But a misrecital which is not followed by any disposition, will not, in my opinion, be sufficient to enable the appellant in this case to argue that the joint effect of the two parts of the clause, is that in substance the testator was either supplementing what his wife would get under the law, or substituting a provision in his will for the ordinary operation of law.
13. A number of cases was cited before the learned Judge, but the law on this matter is, in my opinion, sufficiently and accurately stated in the judgment of Vice-Chancellor Wigram in Adams v. Adams. (1842) 1 Hare 537. In that case a devise and bequest of a certain real and personal estate upon trust for the children of the testator subject however to the dower and thirds at common law of his wife, followed by a direction to apply the rents, issues and profits, after deducting the dower and thirds of his wife, to the maintenance of the children, was held not to be by implication, a gift of any interest; in the estate to the wife; although in fact the wife had no dower. The learned Vice-Chancellor put the matter thus (at p. 540):
I certainly think that this is a hard case upon the widow; but, whatever my opinion in that respect may be, I cannot make a provision for her, which the testator has not directed.
14. The question in all these cases is, whether the testator has actually made any gift; and the gift, if there be any, must be found either in express words or by implication. Where a testator, in one part of his will, has recited that he had given a legacy to a certain person, but it has not appeared that any such legacy was given, the Court has taken the recital as conclusive evidence of an intention to give by the will, and, fastening upon it, has given to the erroneous recital the effect of an actual gift. Where, however, the testator says that only which amounts to a declaration that he supposes that a party who is referred to has an interest independent of the will, such a recital is no evidence of an intention to give by the will, and cannot be treated as a gift by implication. The distinction between the two cases is marked and obvious. In the former the erroneous recital is evidence of an intention to give by the will inadvertently not expressed, 'In the latter', as it is expressed by Mr. Jarman 'On Wills (the author of the well, known treatise on Will),
such recitals do not in general amount to a devise; for, as the testator evidently conceives that the person referred to possesses a title independently of his own, he does not intend to make an actual disposition in favour of such person.
15. The learned Judge then said:
I cannot distinguish the case before me, in principle from those I have referred to.
16. It seems to me that in the present instance the testator Bankim Chandra Chatterjee supposed that his wife had or would have an interest in the moveable properties entirely independent of the will, her interest either amounting to absolute ownership or to that of a Hindu widow. Which ever it was, however, in my opinion makes no difference. What the testator in effect said was this: because my wife will by reason of her inherent right by operation of law get my moveables it is not necessary for me to say anything about them in the will at all. In these circumstances, it seems to me quite impossible to say that there was any gift by implication by reason of the recital with regard to the wife's position in law. Mr. Rai Chaudhuri cited to us a number of cases none of which, in my opinion, are helpful to him with the exception of the case reported in Hall v. Lietch (1870) 9 Eq 376. There the testator, being entitled to a policy of assurance for 500 on the joint lives of himself and his wife, bequeathed all his personal estate:
Save and except the sum of 500 payable at my death, under a policy of insurance, to my wife, and to which she is absolutely entitled under the said policy,
17. to trustees, upon trust for his wife for life, and for his children after her death: and it was held that the 500 payable under the policy was given, by implication, to the widow absolutely by the will. The case was tried by Sir Richard Malins, V.C., who, having stated the facts, said:
I think that this must be construed as showing the intention of the testator that his wife should take the 500 absolutely; if the policy did not give it her, she was to take it under the will. It is just as if a testator had by a codicil disposed of all his personal estate, except 500, which I have given to A by my will, and ha had not given 500 to A by his will; that would give the 500 to A by implication. Then, he said upon the true construction of the will, the 500 is payable to the plaintiff.
18. It is to be observed that the learned Vice Chancellor made no reference to any of the authorities nor, indeed, were any authorities cited before him on one side or the other. One can only come to the conclusion, with all possible respect to the learned Vice-Chancellor, that the decision which he gave was in the nature of one of first impression and that he had inadvertently overlooked or was, in fact, oblivious of the distinction or, if I may very respectfully say so, ignorant of the principles which had been so clearly laid down by one of his learned predecessors in Adams v. Adams. (1842) 1 Hare 537 already referred to. There is a note in the present edition of Mr. Jarman's book which seems to indicate that in the view of the learned editor of it that is the probable explanation of the judgment given by Vice-Chancellor Malins. There is however a further and more potent authority for the explanation I have suggested and that is the case reported in Haverty v. Curtis (1895) 1 Ir Rule 23 where the Master of the Rolls at p. 40 after setting out the facts said:
That case, Hall v. Lietch (1870) 9 Eq 376, does not seem to have been fully argued. No authorities were cited, and the decision seems to me to be more than questionable, and irreconcilable with the decisions in the Court of appeal in this country. The proposition which Malins, V.C. puts as self-evident seems to be contrary to many cases, such as Skerratt v. Oakley (1798) 7 TR 492 and Vaughan v. Foakes (1836) 1 Keen 58. I therefore decline to act upon Hall v. Lietch (1870) 9 Eq 376 however strongly it commends itself to one's feeling of what is in a certain sense fair and reasonable.
19. In my judgment the present case falls exactly within second part of the proposition laid down by Sir James Wigram in Adams v. Adams. (1842) 1 Hare 537. But, in any event, I think the present case ought to be treated entirely upon its own peculiar facts and upon its own merits and it seems to me that the testator said in an unequivocal and unambiguous words that he was not by his will making a gift of the moveables. I think he states quite categorically that he did not intend by his will to touch the moveables or to effect their normal destination after his death. Mr. Rai Chaudhuri referred us to a number of sections of the Succession Act, notably Sections 74, 77 and 84, which embody the English Common Law Rules of interpretation and Canons of Construction which should ordinarily be employed for the purpose of ascertaining a testator's intentions or the meaning of expressions sued in a will. If in the present instance there had been words which, on some view or other, might be construed as making any gift of the moveables, then we should have had to take upon ourselves the task of deciding what the testator's real intention was. Here however the testator stated that there was no necessity for any will in respect of parts of his estate. As I read the clause I think it can only be taken to mean that the testator did not think it necessary for him to make any disposition of the moveables. He uses similar words also in Clause (2) where he says:
I see no necessity of making will in respect of any other immovable properties.
20. Upon that view of the meaning of the clause, whether one looks at it in the light of one version of the Bengali writing or the other, it follows that the learned Judge was quite right in saying that the copyright did not pass under the will to his widow and therefore she had in the copyright no more than a Hindu widow's interest which upon her death passed to her daughters and then, after the deaths of the daughters to the reversionary heirs of the testator jointly that is to say, to the three plaintiffs and defendant 2. Roy, J., states his conclusion in this form:
After carefully considering the matter, I have come to the conclusion that the testator did not, expressly or by implication, make a gift by his will of the copyright in the books to his widow Rajlakshmi Debi. That being my view, it follows that the copyright in the books formed part of the undisposed of residue and that the plaintiffs on the death of Sreemati Sarat Kumari Debi on 17th December 1927 became entitled to the copyright in the books along with defendant 2 Brojendra Sundar Banerjee.
21. There is no substance whatever in any of the other points touched upon by Mr. Rai Chaudhuri and the appeal must therefore be dismissed with costs to the plaintiffs-respondents.
22. I agree.