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Satish Chandra Neogi Vs. Sarat Sundari Debya Widow of Kailash Chandra Neogi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.103
AppellantSatish Chandra Neogi
RespondentSarat Sundari Debya Widow of Kailash Chandra Neogi
Excerpt:
will, construction of - family dwelling-house in hindu family, meaning of--conditional grant of annuity--condition, impossibility of fulfilment of, effect of. - .....reside there with the defendant. but that does not answer the description of the family dwelling-house contemplated by clause 14 of the will. the family dwelling-house contemplated there was a dwelling-house erected by the testator or erected by his executors after his death, if they thought it necessary. nothing is said in the will as to any family dwelling-house being erected by the defendant. the will when properly construed does not mean that, and we are not entitled to read into the condition words so as to make the condition wider than stated by the testator.3. another question arises on paragraph 6 of the will--that is, a forfeiture clause. it is with reference to the wife's residing in her father's house. if she resides in her father's house the gift is forfeited. it may well.....
Judgment:

Fletcher, J.

1. This is an appeal from a decision of the learned Subordinate Judge of Bogra, dated the 2nd August 1915, affirming a decision of the Munsif of the same place. The first appeal is by the defendant. The step-mother of the defendant, who appears to be a young widow, brought the suit to recover the arrears of annuity given to her under the Will of her late husband, the father of the plaintiff. The defence was that the annuity was not payable under the terms of the Will. Both the lower Courts, after considering the Will, have come to the conclusion that the annuity is payable. The annuity was given to the plaintiff by the 6th clause of her late husband's Will. We have not got an official translation of the Will, but the translation given to us by the learned Vakil who has conducted the case for the appellant may be taken as correct. It runs in these terms: 'My second wife, Srimutty Sarat Sundari Debi living permanently in my place of abod' or family dwelling-house will get for he maintenance Rs. 50 per month out of my estate up to the end of her life. But she shall not get the said maintenance if she does not live a religious life and bear a good character and also if she lives in her father's house.' The last clause of the Will was a statement by the deceased that at present he had no family dwelling-house but he intended to build one, and if he did not do so he gave a discretion to his executors to build a family dwelling-house if they thought necessary. It is common ground that the deceased had no family dwelling-house at the date of his death or at the date of the Will and the executors have never erected a dwelling-house pursuant to the discretion vested in them by the last clause of the Will. The plaintiff is now living in the town of Bogra. It is said, therefore, that this young lady is not entitled to any maintenance at all. The case set up in the lower Courts was that under the terms of the Will, the plaintiff had to live in Benares. That case has been properly abandoned in this Court. The young lady is a Bengali lady and it is impossible that the testator should have in view that his youthful widow should go out of Bengal altogether and reside alone in the United Provinces, far away from all her relations. The slightest knowledge of the customs obtaining in this country would at once tell any one that such a provision would not have been contemplated by the testator.

2. The next suggestion was that the plaintiff was bound to live in a house at Adamdighi. The Judge has found that that is not a family dwelling-house. That in my view is quite sufficient to dispose of the question as to whether she has to live in the house at Adamdighi. But the facts as proved on the evidence are quite inconsistent with the house at Adamdighi being the class of dwelling-house that is contemplated by Clause 14 of the Will. In Adamdighi there is a thakurbari and attached to it there is a cutchery containing two rooms. That obviously at the date of the Will of the testator could not have been a family dwelling-house in which the testator contemplated that his youthful wife should reside after his demise. It is said, and apparently that has been found, that the house at Adamdighi has been enlarged by the defendant and that it would be possible for the lady, if she so wishes, to go and reside there with the defendant. But that does not answer the description of the family dwelling-house contemplated by Clause 14 of the Will. The family dwelling-house contemplated there was a dwelling-house erected by the testator or erected by his executors after his death, if they thought it necessary. Nothing is said in the Will as to any family dwelling-house being erected by the defendant. The Will when properly construed does not mean that, and we are not entitled to read into the condition words so as to make the condition wider than stated by the testator.

3. Another question arises on paragraph 6 of the Will--that is, a forfeiture clause. It is with reference to the wife's residing in her father's house. If she resides in her father's house the gift is forfeited. It may well be said that the failure to observe the condition as to residing in the family dwelling-house does not give rise to a forfeiture in the event of her residing elsewhere than the father's house but not in the abode of the testator. The real fact is that the condition that the testator contemplated in this case, namely, the subsequent erection either during his lifetime or after his death by his executors of what is known as the family dwelling-house, which in a Hindu family is a place that has a separate and a distinct meaning and which is recognised by every Hindu, never did arise. The lady, therefore, had no family dwelling-house where she is bound to seclude herself during her widowhood. She was not bound to go to the enlarged cutchery house because the defendant wished her to do so. It may be that the defendant, having regard to his position, and perhaps rightly so, feels that his dead father's widow ought not to live away from the family. That, of course, is a matter which we have nothing to do with. We have to adjudicate upon the rights of the widow as set out in the Will without any reference as to where she ought to live and whether her living where she at present lives is or is not proper according to the Hindu social customs, All that we have to see is whether under the circumstances appearing in the case, the plaintiff is entitled to receive the annuity of Rs. 50 per month given to her by the Will of her late husband.

4. In that view of the case the present appeal fails and must be dismissed with costs.

Richardson, J.

5. I agree.


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