Anandi Prasad and Others vs Mt. Dulhin Kishori kuer

Wort, J.—This is an application taken out u/s 302, Succession Act, with regard to annuity payable under a will dated 19th February 1930. The testator died in the same year, indeed the next day, leaving an absolute estate to his widow subject to a payment to the petitioning College of a sum of Rs. 700 per annum. The relevant words in the will are:

It shall be ''proper'' on the part of the Musammat to continue to pay, after my demise, a sum of Rs. 700 (seven hundred rupees) out of the income of my properties to the Nalanda College at Bihar, annually and make over every year a sum of Rs. 700 to the Trustees of the said college for expenses of the school department;

and then follows:

and this amount of rupees seven hundred shall all along be continued to be paid every year by the said Musammat.

The first point taken was the question of jurisdiction and it was contended that the application did not lie u/s 302, Succession Act, which contains provisions merely for the purpose of determining questions raised by the executor or trustees calling the assistance of the Court as regards the administration of the estate. At first I felt inclined to hold that that was the correct view to be taken of Section 302; but it seems to me perfectly clear that this point has been decided, if not directly, by inference, by their Lordships of the Privy Council in AIR 1935 203 (Privy Council) . One of the main questions which came to be decided in that case, was whether it was necessary for the applicant, who was the mother of a beneficiary under the will, to take out a succession certificate, as against a debtor u/s 214, Succession Act. It was held by the Courts in India and by their Lordships of the Judicial Committee that the Administrator-General of Bengal, against whom the application was made was not a debtor within the meaning of that Section. I said that the matter of Section 302 was decided by inference if not expressly.

The short answer to the case would have been that the application did not lie under the Section. But their Lordships expressly mentioned the Section and there was no argument suggesting that the application could not be maintained. It may be that I am not correctly stating the decision of their Lordships with regard to Section 302, as it would appear at p. 73 of the Report that this very question was at least mentioned. Their Lordships observed as follows:

Their Lordships are of opinion that there is nothing in the order of Costello J. dated 17th March 1931, which does not come within the material words of Section 302;

and then quoting: "in regard to the estate or in regard to the administration thereof."

Dr. Mitter, who appears on behalf of the person who is entitled to the absolute estate in this property, does not seriously contend that the decision to which I have referred is not an authority on this point. I overrule therefore the objection with regard to Section 302, Succession Act The second contention is that the bequest contained in para. 5 of the will is invalid or in the alternative, merely a pious wish on the part of the testator, and therefore not binding on the widow. There was some suggestion that the translation is not correct. In Appeal from Original Decree No. 11 of 1934, where the matter of probate came before this Court, the will is translated in these words: "It shall be ''incumbent'' &c. Dr. Mitter would ask me to construe the clause in this way; "it shall be ''proper'' on the part of the Musammat."

But even had it been open to me to do that, I would still have the clause which I have already read and which is in para. 5 of the will to this effect: "and this amount of rupees seven hundred shall all along be continued to be paid every year." But it is not open to me to put the construction which Dr Mitter suggests on the clause of the will. If there is any objection on the part of the respondent to the only translation of the will which is before me, there is a certain procedure to adopt to have the matter put right. That procedure has not been adopted, and I am unable to accept the suggestion made by Dr. Mitter in this behalf.

The question whether the estate is cut down by para. 5 does not seem to me to arise. It is a misconception to say that the absolute estate in all the properties given to the widow is cut down by such directions as are contained in para. 5 of the will The absolute estate is still there, and, if I may use the expression (which is not strictly applicable to this country) the fee simple is in the widow, but subject to certain conditions which in this case is a payment of Rs. 700 per annum to the college which payment does not cut down the estate. Therefore, in my judgment, it could not be said that the bequest to the college is invalid. The question whether this is merely a pious wish on the part of the testator has already been dealt with by me with regard, to the matter of translation.

If the words'' in the will are "it shall be incumbent" and later "this amount shall all along be continued to be paid," there is no doubt that there is an obligation on the part of the widow to pay over to the college this annual sum of Rs. 700. Some argument was addressed to me on Section 173, Succession Act, which provides:

Where an annuity is created by a will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the will.

I must say with great respect to Dr. Mitter I fail to see what connexion that has with the will before me. There is no question arising as to the validity of the gift being a gift to the college, and therefore, in my judgment, that part of the case necessarily fails. A further argument was presented u/s 114 of the Act and it was contended that the bequest in Clause 5 of the will was invalid as it would vest beyond the period provided for by the Section. Section 114 provides:

No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator''s death and the minority of some person who shall be in existence at the expiration of that period

In other words, it is the rule against perpetuity. There is no question here that the bequest vests beyond the lifetime of one or more persons living but immediately upon the death of the testator. It is first contended that the annual sum of Rs. 700 is not chargeable upon the corpus of the estate but merely on its income). The argument as I understand it is that the widow has not at the present moment in her possession the arrears which were payable as from the date of the probate of the will. It is impossible for me to deal with the question because it does not arise. The petitioners here (who are trustees) are not asking for a charge on the corpus of the estate, but merely for a payment over of the annuity payable under the terms of the will.

Whether it is a charge on the income of the property or not in these circum-stances, as I have already stated, does not arise. The decision of the Court of Appeal in England in In re Coller''s Deed Trusts: Coller v. Coller (1939) 1 Ch 277 was relied upon. At the moment, in any event, I need not trouble myself with the question; because as I have already stated, it does not arise. The last point is the question of limitation. Shortly stated, Dr. Mitter''s argument is that Article 120, Limitation Act, applies, as the word "annuity" does not occur in Article 123 which reads:

For legacy or for a share of a residue bequeathed by a testator, or for a distributive share of the property of an intestate.

It certainly was not the last, it might be the second and certainly not the first, because this is not a legacy but an annuity. I see the force of the argument addressed to me in this regard, but the matter has been finally disposed of by a case which, so far as I am concerned, is binding on me. I refer to the decision of Manohar Lall J. in Smt. Hemangini Devi Vs. Anil Krishna Banerjee and Another, That was a case of annuity and it was held by the Court that Article 123, Limitation Act, applied. Until that decision is reversed--a decision which, as I have already said, is binding on me, the point taken by Dr. Mitter cannot be entertained. In the result, the petitioners, who are trustees of the Nalanda College in Bihar, are entitled to a direction against the Musammat (Mt. Dulhin Kishore Kuer, the widow and the executrix) for the payment over of the sum of Rs. 700 per annum from 20th February 1930, with interest at the rate of 6 per cent, per annum u/s 353. The petitioners are entitled to costs: the hearing fee is assessed at five gold mohurs.