N.R. Chatterjea, J.
1. This appeal is against an order granting Probate of a Will. The Will was executed nearly 50 years ago--on the 3rd October, 1877 by one Karuna Kanta Sanyal who is said to have died on the 5th October, 1877, according to the applicant for Probate, and two days earlier according to the objectors. Karuna had a brother named Rukmini. Rukmini's son Rohini was married to Kadambini the present applicant for Probate. The objectors are the nearest agnates of the testator.
2. It appears that so far back as the 21st May, 1878, an application for Probate was made by Rukmini. Probate was granted, but only a limited grant was made in respect of the debts mentioned in para. 3 of the Will. Karuna Kanta left a widow Raj Kumari and she died in 1919. Rohini predeceased Raj Kumari, and Kadambini made the present application for Probate in 1922. The Court below was of opinion that the Will had been proved, especially having regard to the fact that it had been proved in 1878 and accordingly granted Letters of Administration with a copy of the Will annexed, to her. It appears that pending the hearing of the application for Probate in the Court below, the opposite party applied to that Court for treating their objection to the application as an application for revocation of the Probate which had been granted in 1878. That has been refused by the Court below and that is the subject matter of Appeal No 134.
3. The first contention on behalf of the appellant was based on the construction of the Will. The Will in the first paragraph provides that on the death of the testator his wife Raj Kumari would be entitled to hold possession of the moveable and immoveable properties left by him during her lifetime, but that if she lived elsewhere and not in the family dwelling house, then her right to the properties would cease and she would only get maintenance to the extent of one-fourth of the profits of the properties from the testator's brother, Rukmini, and in the absence of Rukmini from his son Rohini. In the second paragraph of the Will, it is stated, 'that on the death of my wife Sriman Rohini Kanta' Sanyal, the only son of my brother by his first wife and of whom both I and my wife are very fond, shall get all the moveable and immoveable properties to be left by me. God forbid, if the said Sriman dies before the death of my wife, then of the heirs of my nephew, such as wife, son, grandson, daughter having or likely to have sons or daughter's son, whoever will be alive at the time of the death of my wife, shall get all the properties to be left by me. If my nephew shall have no such heirs, then my brother and the children of his second wife, if any, shall after the death of my wife get all the said properties. If he too shall have no such heirs, then after the death of my wife, the son of my Gurudeb (spiritual guide) the late Brahmananda Bhattacharjee of Pukhurpar and his nephew (brother's son) Srijut Gopal Chandra Bhattacharjee, shall get (my properties) in equal shares.' The third paragraph of the Will provides, 'that my brother Sriman Rukmini Kanta Sanyal and in his absence his son Sriman Rohini Kanta Sanyal will be entitled to realise all sorts of my dues; and the debts incurred by me shall be paid off out of the moveable and immoveable properties to be left by me.'
4. It is contended on behalf of the appellants that Raj Kumari under the Will got only a Hindu widow's estate. I do not think, that, that is so. The estate granted to her was an estate for life. It is true that her life estate was liable to be divested on the happening of certain contingency, but there is no doubt that subject to that there was a grant for life to her.
5. It is contended that even if the estate was granted to her for life, there was no gift of the remainder to any one, at any rate, not to Rohini and, therefore, Raj Kumari obtained the remainder under the Hindu Law. But this argument is based upon the assumption that Rohini did not get a vested interest but had only a contingent interest in the estate under the Will, and we accordingly have to consider that question.
6. The second paragraph of the Will, quoted above, provides in clear terms that on the death of the testator's wife Rohini shall get all the moveable and immoveable properties left by the testator. The appellants contend that Rohini under the Will could succeed only in the event of his surviving Raj Kumari, and that therefore he got only a contingent interest. I think, however, that the provision means that Rohini is to get the estate on the death of Raj Kumari but that if he predeceased her, the estate would then go to his heirs. The mere fact that on Rohini's predeceasing Raj Kumari the estate is to go to his heirs does not raise the inference that the intention was that the legacy to Rohini was not vested in interest in him. I am of opinion that Rohini obtained a vested interest and not a contingent interest in the estate.
7. It is further contended that the subsequent provisions contained in that paragraph, namely, that, if Rohini died before the death of Raj Kumari then Rohini's heirs who might be alive at the time of the death of Raj Kumari should get all the properties, are invalid according to law. We do not, however, think it necessary to consider this contention. If the provision that the heirs of Rohini would get the estate in the event of Rohini's dying during the lifetime of Raj Kumari, is valid, the applicant Kadambini, in the events which have happened would be entitled to get the estate under the provisions of the Will. If, however, that provision is invalid, as contended on behalf of the appellants, she would still get the estate as the heiress of Rohini who had acquired a vested interest in the estate. In either view, therefore, Kadambini had sufficient interest in the estate for obtaining Probate of the Will. In this view it is unnecessary to discuss the question whether the subsequent provision as to the succession of Rohini's heirs under the Will is or is not valid in law.
8. The next question is whether the Will is genuine. As already stated the Will was set up and proved in 1878. The proceedings of 1878 show that one of the attesting witnesses to the Will verified the application for Probate, and another attesting witness was examined before the District Judge who held that the Will was proved and accordingly directed Probate to be granted. It was, however, stated in the application that Raj Kumari was not de sirous of taking out Probate with respect to the properties other than the debts mentioned in the Will, and it was prayed by Rukmini that the grant might be limited to the realisation of the debts mentioned in the third paragraph of the Will; and, the grant was limited accordingly. It is argued that the learned Judge might not have considered the capacity of the testator to understand the complex provisions contained in the second paragraph of the Will. I do not think, however, that the provisions are of such a complicated character that an ordinary person would not be able to understand them. The grant was a limited one, but the Will was proved. All the attesting witnesses are now dead. The applicant proved the signatures of the attesting witnesses to the Will and the learned Judge was of opinion that the Will had been proved in 1878, and he also relied upon the presumption arising under Section 90 of the Evidence Act. 1 think that the learned Judge was right in relying upon the fact that the Will was proved so far back as 1878. That being so, it is unnecessary to consider the question of presumption under Section 90, Evidence Act.
9. It is also contended that the conduct of Raj Kumari and after her death that of Kadambini goes to show that the Will was not genuine. [After considering the evidence his Lordship proceeded:--] I do not think that in these circumstances the conduct relied upon by the appellants is inconsistent with the genuineness of the Will.
10. Another contention was raised, namely, that Kadambini was not born and married before the death of the testator. So far as her birth is concerned, that question has not been seriously pressed; but it was contended that having regard to the deposition of Rohini given in a suit in 1903 taken along with certain statements made by the witness No. 2, Digendra, in the present proceedings, it would appear that Rohini was only 11 or 12 years old when the testator died. From the other statements made by Digendra, however, it would appear that the marriage of Rohini took place in 1877, i.e., before the death of the testator.
11. The Will was executed, as stated above, about half a century ago and the attesting witnesses are all dead. Having regard to the facts that the Will was proved in 1878 and also having regard to such evidence as there is on the record, the Court below has come to the conclusion that the Will was proved. We do not see sufficient reason to differ from the conclusion arrived at by it.
12. This appeal accordingly fails and is dismissed with costs. We assess the hearing-fee in this appeal at five gold mohvrs.
13. Appeal No. 134 of 1924 must also fail as we do not think that any grounds have been made out for revoking the Probate. We make no order as to costs of this appeal.
14. Appeals from Original Decrees Nos. 133 and 134 of 1924.
15. Our decision in this appeal depends upon whether Rohini obtained a vested interest or only a contingent interest under the Will. It has been argued that Rohini was granted merely a contingent interest because his interest under the Will would vest upon the happening of a specified uncertain event, namely, that he survived Raj Kumari. That is not the true construction to be placed upon the clause. In my opinion Rohini obtained a vested interest on the death of the testater, although such in terest was liable to a defeasance in the event of his death before that of Raj Kumari. That being so, it matters not whether the subsequent reversionary interest granted to Rohini's heirs was valid or not, for in either event Kada'mbini would possess a sufficient interest to justify Probate being issued to her.
16. I agree that the appeals should be dismissed.
17. I desire to add that I am much indebted to the learned Vakils in this case for the instructive argument that they have presented to us.