Guiram Malik vs Pachi Dasi

P.N. Mookerjee, J.—This appeal is by the Defendant No. 1 and it arises out of a suit for partition. The properties in suit comprise certain lands and a dwelling house with appurtenances, etc. The original owner of the said properties was one Jadunath Malik. He left three sons, Lalbehari alias Lalchand, Bholanath and Ghiiram. Lalchand and Bholanath were sons of Jadunath who were born of a woman, not legally married to him but kept permanently by him as a member of his family. Guiram was the son by his lawfully married wife. Jadunath also left a Will which was dated July 30, 1918. Jadunath died some time after execution of the Will and, after his death, his above Will was duly probated" on September 30, 1921 (vide Ext. A). The Plaintiff is the daughter of Bholanath who died thereafter in or -about February, 1926. The two Defendants are Ghiiram. and the widow of Lalchand alias Lakbehari. The Plaintiff claims 1/3rd share of the disputed properties (which admittedly originally belonged to Jadunath) as the heir of her father Bholanath. Her claim is resisted by the Defendants on the strength of Jadunath''s Will, to which reference has been made above, and the only question is whether the Plaintiff is entitled to any share in the disputed properties under the said Will.

The learned Subordinate Judge accepted the Plaintiff''s contention that she would be entitled to 1/3rd share of the disputed properties under and by virtue of Jadunath''s Will and, in that view, he decreed the suit preliminarily for partition. Against that preliminary decree, the present appeal has been filed by the Defendant Guiram.

The only point for consideration in this appeal is as to the true construction of Jadunath''s Will. The Will contains as many as fourteen clauses, of which we are concerned with six, namely, clauses 2, 3, 4, 5, 10, and 11. About clauses 2, 3, 4 and 5, there is not much dispute and it is the common case of the parties that, under those clauses of the Will Jadunath''s three sons Lalbehari alias Lalchand, Bholanath and Guiram would have been entitled to the disputed properties including the dwelling hause in equal shares and also absolutely, if these clauses had stood alone. The Defendant Guiram seeks to cut down that absolute estate of the Plaintiff''s father Bholanath, since deceased, and to defeat the Plaintiff''s claim as the heir of her said deceased father on the strengh of the two later clauses 10 and 11 of Jadunath''s Will. These two clauses, in their relevant parts runs as follows:

Clause 10:

Clause 11:

Clearly, Clause 10 is not relevant for our present purpose as, admittedly, all the three sons of Jadunath survived their father. The contingency, contemplated in the said Clause 10, is one of death of the particular son during the life time of his father. That has not, admittedly, happened and, as all the three sons of Jadunath survived their father, the happening of that contingency became impossible. Clause 10 of the Will, therefore, have no application or operation in this case.

The relevant clause is Clause 11 and the real question is whether by virtue of that clause, the absolute estate which was otherwise given to the three sons in the disputed properties by the testator Jadunath in the earlier Clause 2 to 5 of the Will has been either effectively altered, restricted or curtailed or rendered liable to defeasance.

Mr. Sanyal, arguing on behalf of the Defendant Appellant, contended that reading Clause 11 along with the other clauses of the Will, the intention of the testator was quite clear that he was intending to confer only life estate upon his sons unless they left sons at their death. We are unable to accede to the contention. Clause 11 may either be read as containing a defeasance clause, namely, if any of the sons left only daughters, the daughters would not inherit and the absolute estate of the sons under the earlier clauses would be defeated and it would come to an end or as altering, restricting or curtailing the said absolute estate, conferred upon the sons by the earlier clauses, into an estate, in which the daughters of the sons would have no interest or right of inheritance. In either view, this clause, namely, Clause 11, or rather, the particular part of it which relates to or contemplates and provides for disinherison of the sons'' daughters, would be invalid. As a defeasance clause it would be invalid as there is no gift over, contained in it or attaching to it, and, in the absence of a gift over, such a defeasance clause would not be operative vide Chandidas Sinha and Anr. v. Sm. Molina Bala Sinha and Anr. (1936) 41 C.W.N. 432, 435, where, at p. 435, the learned Judges (Mitter and Patterson, JJ.) observed that

It is well-established now that a clause of defeasance in order to be operative must contain express words or words of necessary implication of a gift over to a definite person.

Puegarded, again, as a clause, creating an estate in favour of the son, in which his daughters would have no right of inheritance, either when daughters alone are left or they are left along with sons, this clause would still be invalid under the rule, laid down in Jatindra Mohan Tagore and Anr. v. Ganendra Mohan Tagore and Anr. (1872) L.R.IndAp Sup. 47 see also (1932) ILR 59 142 (Privy Council) and, under that rule, the disputed Clause (clause 11), regarded as having the effect of altering, restricting or curtailing the absolute estate in favour of the sons into a limited one in which the son''s daughters would have no right of inheritance, would be invalid as creating or attempting to create an estate, unknown or repugnant to Hindu Law, and so, in law, the effect would be that the absolute estate in favour of the sons under the earlier clauses would prevail and the creation of the attempted creation of the new estate, restricted or limited in character as aforesaid, would fail. In either view, therefore Clause 11 would be ineffective either to defeat or to alter, restrict or curtail the absolute estate in favour of the sons.

It is only necessary to add, in the above connection, that in Clause 10, there was express provision of a gift over under specified circumstances. The contingency, contemplated under that clause, did not of course, happen and its happening became impossible and thus the said clause is inapplicable to this case. It is clear, however, from that Clause (clause 10) that where the testator intended a gift over he expressly mentioned or provided for it. In Clause 11, we do not find any such gift over and, as a gift over is not to be lightly inferred vide 37 CWN 153 (Privy Council) , and, particularly, when it is clear from what we have stated above that the testator, if he had in mind any gift over under this clause he would have expressly provided for it-no gift over can be implied in the present case and the absence of the gift over, as we have said above, would render the defasance clause invalid.

Mr. Sanyal did not argue-nor, do we think, it is possible to argue-that the present case is one of contingent bequest and, admittedly also, as we have pointed out above, it is not a case of gift over. There is thus no question here of any application of Section 124 (old Section III) or Section 131 of the Indian Succession Act and neither (1896) L.R. 23 I.A. 18 (Privy Council) nor, the decision in Indira Rani Ghose v. Akshoy Kumar Ghosh (supra), above cited, is directly relevant. We do not, therefore, deem it necessary to consider the effect and implications of the paid two decisions so far as they bear or purport to bear on the said two statutory provisions.

In the above view, we hold that, under Jadunath''s Will, Bholanath obtained an absolute estate in a third share of the disputed properties and that share, upon his death, passed by inheritance to his daughter, the Plaintiff Respondent before us.

We would, accordingly, affirm the decree of the learned Subordinate Judge and dismiss this appeal.

In the circumstances of this case, we would direct the parties to bear their own costs in this Court.

Sarkar, J.

I agree.