1. This suit is brought to determine the construction of the will of Haridass Dutt, a Hindu governed by the Dayabhaga law, who died on 30th September 1875. Haridas Dutt duly executed his will on the day upon which he died, and the clause in the will that the Court is now invited to interpret has already on three occasions been construed by the Judicial Committee of the Privy Council. I am informed that the parties are determined once more to obtain the opinion of the Privy Council as to the meaning and effect of these provisions. It may be so, but to my mind this is a very plain case, and I have no doubt as to the interpretation that ought to be put upon the clause under consideration.
2. The following genealogical table shows how the parties are related to each other:
(For genealogical table see p. 426)
(died 30th September 1875)
=Srimati Surnamani Dasi
(died 14th August 1904)
Srimati Ranimani Srimati
(died 17th March Premmani
1927).Rama- (died 8th
kanta Sen May 1909)
Srimati Fulkumari |
| | | | | |
| Radha Kasi Jyoti Pyari Lal Behari Lal
| Prosad Prosad Prosad (born 17th (born 8th
| (died 14th (died 30th (died 29th May 1881) Deoember
Jugal Kishore June 1912) December January Plaintiff 1882)
(born 31st | 1914) 1881) Defendant 8
July 1885) | |
(adopted 2nd | ___________________________
November 1900) | | |
| Ganes prasad, Kartik Prosad,
Defendant 1 | Defendant 5 Defendant 6
| | |
Ram Prosad, Khetter Prosad, Shyam Prosad
Defendant 2 Defendant 3 Defendant 4
3. The Official Assignee is defendant 7, as representing the estates of Ram Prosad, Khetter Prosad, and Syam Prosad, who have been adjudicated insolvents. The provisions of the will which are material for the purposes of this case are as follows:
But in case none of such adopted sons survive my said wife, or in case of either surviving my said wife and dying under the said age without leaving a son or sons, I desire and direct my executors, after the death of my said wife, or the death of such a son after her, but under the age of 18 years without leaving a son or sons, to make over and divide the whole of my estate, both real and personal, unto and between my daughters in equal shares, to whom and their respective sons I give, devise and bequeath the same, but should either of my said daughters die without leaving any male issue surviving, but leaving my other daughter her surviving, then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter, or in the case of the death of either daughter leaving sons, the share of such daughter is to be paid to such her son or sons, share and share alike.
4. At the trial an issue was raised as to whether the adoption of defendant 1 Jugal Kishore by Ranimani and Ramakanta Sen, which was alleged to have taken place on 2nd November 1900, was valid in law. All the parties to the suit, except defendant 5 admitted the validity of the adoption, and after Jugal Kishore had adduced evidence to prove his adoption, defendant 5 also expressly admitted through his learned Counsel, and I hold that, on 2nd November 1900, Jugal Kishore duly and validly was adopted by Ramakanta and Ranimani as their son.
5. On 14th August 1904, Srimati Surnamani died, having previously duly adopted Jyoti Prasad, who died without issue on 29th January 1881, and after his death having purported to adopt one Amrita Lal Dutt, whose adoption was declared invalid by the Privy Council on 2nd May 1900. Amrito Lal Dutt v. Surnomoye Dasi [1900J 27 Cal. 996. On 31st January 1903, Srimati Surnamani had executed a will of which she appointed the Administrator. General of Bengal the executor and trustee. After the death of Srimati Surnamani, Ranimani on 19th December 1904, filed a suit (912 of 1904) against her sister Premmani, her sister's four surviving sons, Radha Prosad, Kasi Prosad, Pyari Lal and Behari Lal (the two younger sons having been born aftar the death of Haridas), and Jugal Kishore, the adopted son of Ranimani and Ramakanta Sen, for the construction of the will of Haridas, the administration and partition of his estate, and incidental relief. This suit eventually was heard on appeal by he Privy Council, and the only question raised in the appeal was ' as to the nature of the estate which, in the events which have happened, the testator daughters took under the terms of the will. '
6. The Judicial Committee held that
according to the true construction of the' will the intention of the testator was to create' in favour of his daughters an estate for life with a remainder over to their sons, and the learned Judges of the High Court ought to have held that, in the events that have happened, the daughters of the teltatbf, Kanimani' Dasi and Premmani Dasi, are entitled to the testator's estate in equal shares for life and with benefit of survivorship between themselves. Radha Prosad Mullick v. Rani Mom Dassee  35 Cal. 896
7. On 8th May 1909, Premmani died intestate, leaving her four sons surviving, her
8. On 4th March 1910, Radha Prasad' made an application to the Court (Fletcher, J.), pursuant to the liberty reserved in that behalf in suit 912 of 1904, in which he
claimed to be entitled with his brother Kasi; Prosad to their mother's share in the estate.
9 His claims were resisted by his brothers Pyari Lal and Behari Lal, and by Ranimani Dasi and her adopted son Jugal' Kishore.
10. The High Court, (Jenkins, C. J., and; Woodroffe, J.), reversing the decision of Eletcher, J., held that inasmuch as they were not born at the date of the'death of Haridas:
Pyari Lal and Behari Lai cannot take,, so that those now entitled to participate are Radha Prosad, Kasi Prosad and the represen-(tatives of Jyoti Prosad and between them the property bequeathed (i.e. to Premmani) will he divided in three equal shares. ' Radha Prosad Malliclc v. Ranimoni Dasi  38 Cal 188.
11. An appeal to the Privy Council was (dismissed, their Lordships agreeing both with the decision of the High Court and the reasons upon which it was based. The Judicial Committee, however, added that:
With regard to the contention of the appellants (i.e., Ranimani and her adopted son, Jugal Kishore) that the Court was wrong in holding that no grandchildren of the testator born, or adopted, after the death of the testator on 30th October 1875, could take under his will, their Lordships will not advise His Majesty to make any order except that the present advice is not to prejudice the position of appellant 2 if and when such question comes before a Court for decision, Ranimoni Dasi v. Radha Prasad Mullick A.I.R. 1914 P.C.149
12 On 17th March 1927, Ranimani died, and on 6th April 1927, the present suit was brought by Pyari Lal for the purpore of ascertaining who were the persons entitled under the will of Haridas to Ranimani's share of the estate.
13. Three rival constructions were urged upon the Court. It .is common ground: (1) that, inasmuch as Jugal Kishore was neither born nor adopted during the lifetime of the testator, he is not entitled under the will to succeed to the estate as the son of Ranimani: Bhubaneshwari Debi v. Niloomul Lahiri  12 Cal. 18); (2) that the sons of Radha Prosad and Kashi Prosad, neither of whom were alive at the death of Ranimani, were not entitled upon an intestacy to take any share of the estate as the heirs of Haridas. Nepaldas Mukherji v. Probhas Chandra MiMierji A.I.R. 1926 Cal. 460.. The contention of Pyari Lal and Behari Lal is that as Ranimani died without leaving a son entitled to succeed to her share under the will, there was protanto an intestacy, and on Ranimani's death that Pyari Lal, Behari Lal and Jugal Kishore were entitled to succeed to Raniman's moiety as the heirs of Haridas in equal shares. In my opinion, that is the correct view according to the true construction of thewill. For Jugal Kishore it was contended that on the death of Srimati Surnamani, Ranimani and Premmani each took, not a life- interest but an absolute interest in a,. moiety of Haridas' estate, and, therefore,, on Ranimani's death that he was entitled on the whole of Ranimani's property, in-eluding her moiety of Haridas' estate, as her only son and heir. Were I to-state the reasons that would induce me to hold that this construction is unsound it would avail nothing for the learned Advocate-General, who appeared for Jugal Kishore, conceded that this contention runs counter to the decision of the Judicial Committee in Radha Prasad Mulliek v. Ranee Moni Dassee  35 Cal. 896, and: the construction that has been placed upon this will by the Judicial Committee is binding on the Courts in India. In the alternative, Jugal Kishore claimed that he was entitled to a third share of Ranimani's moiety of the estate as co-heir with Pyari Lal and Behari La of the testator Haridas.
14. The sons of Radha Prosad and Kasi Prosad, defendants 2 to 6, contended that upon a true construction of Haridas' will whereby the testator directed that in the-events that happened the executors were: 'to make over and divide the whole of my estate, both real and personal unto and between my daughters in equal shares, to whom and their respective sons, I give, devise and bequath the same,'the testator intended, provided, and: effected that the whole estate should devolve upon those of his two daughters' sons who might be living at the time of his death, subject to a life interest in a. moiety of the estate in favour of each of the daughters; and that upon the death of Hari Das, Radha Prosad, Kasi Prosad and Jyoti Prosad obtained an immediate' vested interest in the estate to a moiety of which they or their representatives became entitled to possession upon the death of each of the daughters.
15. In my opinion this construction cannot be sustained. It appears to me that such a construction is not in consonance with the intention of the testator to be collected from the terms of the will for example, it gives no effect to the word 'respective' as used in connection with the gift to the daughters and their sons, and it is inconsistent with the provision:
in the case of the death of either daughter-leaving sons, the share of such daughter is to be paid to suoh her son or sons, share and share alike.
16 Further, the contention appears to be Iricompatile with the provious decisions of the Privy Council upon the construction of the will; for if the construction which these defendants urge the Court to put upon this clause is the correct one, and all the sons of the two daughters living at the death of Haridas possessed a vested interest in the whole estate, subject to the life-interest of the daughters, each of such sons would have been entitled to succeed on Premmani's death to a share of her' moiety, and it would have been incumbent upon the Privy Council in Ranimoni's case A.I.R. 1914 P.C. 149 to decide whether or not Jugal Kishore was 'to be regarded as one of such sons, and ..in that capacity entitled to a share of Premmani's moiety of the estate. But that the Privy Council did not do; and 'to my mind it is clear that the reason why the Judicial Committee did not determine whether Jugal Kishore as the adopted son of Ranimani was entitled to to take under Haridas' will in the appeal in which the succession to Premmani's moiety of the estate alone was in dispute was because their Lordships' were of opinion that under the terms of ;the will Jugal Kishore was not entitled and could not succeed in any event, to a ishare in'Premmani's moiety of the estate. 'Their Lordships, therefore, were not disposed to decide what rights (if any) Jugal Kishore possessed under Hari Das' will until the death of Ranimani, in which event aloue (if at all) he would be entitled to a share of the estate of Hari Das. For these reasons, I am clearly of opinion that the will cannot bear the construction for which defendants 2-6 contend, and I hold and declare that with respeot to Ranimani's moiety of Haridas estate there is an intestacy, and that Pyari Lal, Behari Lal, and Jugal Kishore as the heirs of Haridas are entitled to possession thereof in equal shares, including the property moveable and immovable to which Ranimani was entitled on partition and under the consent decree and orders in suit No. 611 of 1907 as iprayed. Pyari Lal, Behari Lal and Jugal Kishore are also jointly entitled to Ranimani's pala of worship. There will be a decree for partition of Ranimani's share. The costs of all parties as between attorney and client including the cost of the inventory that has been made and all Reserved costs will be paid out of ;the estate by the receiver.