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Judgment
Banerjee, J.—The questions the court has been asked to answer on the summons involve the construction of the will dated June 21, 1916, made by one Sambhunath Roy who in his life-time was a Hindu governed by the Dayabliaga and died on or about June 25, 1916.
The questions are as follows:
(a) On a true construction of the will of the testator, who, on the death of Sreemati Annabati Dassi, are entitled to the testator''s estate, viz., (i) 55 equal parts or shares in the testator''s portion of the family dwelling house; and (ii) 35 equal parts or shares in the rest and residue?
(b) What are the rights (if any) of the parties named in paras. 18(a) to (e) of the affidavit of Gagan Chand Roy affirmed on December 12, 1949?
(c) What is the true line of succession to the estate of the deceased?
(d) What is the period of distribution?
(e) To whom is the income of the estate to be paid at present and in future and from when?
The testator left a son Rakhaldas Roy, his wife Annabati Dassi and their son Tarakdas and other relations. The relationship of the parties appears from the pedigree set out below:
The will was duly proved by the executors, Gagan Chand of, the testator''s nephew, Nandalal Roy and Jugal Kissore ay, his grand-nephews.
Jugal Kissore Roy died in or about 1917 leaving a son, Defendant Prayag Chand, his only heir.
Jahar Lal Roy died in or about 1918. He left two daughters, Defendants Satya Dassi and Jasoda Dassi, his heirs.
Nanda Lal Roy, the executor, died in or about 1925 leaving 3 sons, Defendants Bankim Chandra, Kala Chand, Tara land, Shyam Chand, Ratan Chand and Nemai Chand, his (sic).
In or about 1926, testator''s grandson Tarakdas died married and intestate.
In or about 1927, Dulal died leaving Defendant Kartick, his by son and heir.
In or about 1936 Rakhal Das died intestate. He left his (sic) Annabati Dassi, but no son.
In or about January 1943, Gocul died. He left-a minor so Defendant Pasupati, his heir.
In or about October 1943, Jadab died. He left Defendant Dwarka, a minor, his only son and heir.
In or about July 1949, Annabati died.
In Suit No. 757 of 1914 Inder Chandra Roy and Ors. v. Gag. Chand Roy and Ors., it was declared and decreed that the testate was entitled to a 1/3rd share in the family dwelling house being premises No. 2 (formerly Nos. 1 and 2) Gopal Chandra Lai Calcutta.
By the decree a portion of the premises was Set apart for t purpose of the trusts which had been declared valid by a decide dated March 15, 1883, made in a previous suit, being No. 4 of 1883. The portion of the house which the testator declared entitled to, became a subject-matter of the testate will.
The testator considered his share of the house as divided in 100 equal parts and gave 15 parts to his nephew. Gagan Chand absolutely, 15 parts to his grand-nephews, Nanda Lal Roy are Jahar Lal Roy absolutely in equal shares and another 15 pa to the sons of his nephew Gour Chand absolutely in equal share As to the remaining 55 parts, the will provides as follows:
As to the remaining fifty-five equal parts or shares thereof unto my said (sic) and trustees (hereinafter referred to as my trustees) upon trust to allow my Rakhal Das Roy and his wife Sreemati Annabati Dassi and their infant son Ts Das Roy otherwise called Phella and any other son or sons who may be born of the hereafter, to live and reside therein during their respective lives and subject to right of residence to hold the said fifty-five equal parts or shares thereof in trust the absolute use and benefit of my grandson the said Tarak Das Roy and such o son or sons of the said Rakhal Das Roy who may be living at my death or (sic) born within twenty years after my death and I declare that in the event of the Tarak Das Roy and the other son or sons of the said Rakhal Das Roy all (sic) without male issue him or them surviving then my trustees shall hold the said (sic) five equal parts or shares of the said family dwelling house on the following (sic) viz., as to one equal third part or share thereof for the absolute use and being of the said Gagan Chand Roy, as to one equal third part or share thereof for absolute use and benefit of the said Nanda Lal Roy and Jahar Lai Roy in (sic) shares and as to the remaining equal third part or share thereof for the absolute and benefit of the said Jugal Kissore Roy, Dulal Kissore Roy, Gocul Kissore Jadab Kissore Roy, Radha Kissore Roy, Madhab Kissore Roy and Mohan (sic) Roy, the sons of the said Gour Chand Roy, in equal shares.
As to the rest and residue of his property, the tests considered the same as divided into hundred equal parts, gave and bequeathed 65 equal parts to his nephew, grandson nephew and his natural sons whose names are mentioned in will and the remaining 35 parts as follows:
As to the remaining thirty-five equal parts or share thereof unto my said (sic) upon trust to defray and pay out of the income thereof the expenses the maintenance of my said son Rakhal Das Roy and his wife Sree Annabati Dassi and their son the said Tarak Das Roy and any other son or sons may be (sic) of them during their respective lives in a suitable style provided (sic) and it is hereby expressly declared that in the event of the said Sree Annabati Dassi not residing with her husband in the said dwelling house or, in (sic) of such family (sic) house being acquired by Government or other public (sic) in the house which shall for the time being be used by her husband and her ion or sons as their family dwelling house, she shall not be entitled to her maintenance is hereinbefore provided and subject to such right of maintenance I direct my trustees (sic) hold the said remaining thirty-five equal parts or shares of my said residuary estate for the absolute use and benefit of my grandson the said Tarak Das Roy or any other son or sons of my said Rakhal Das Roy who may be living at ay death or may be born within twenty years after my death and I declare that ii the event of the said Tarak Das Roy and any other such son or sons of my son the said Rakhal Das Roy as may be having or born as aforesaid all dying without male issue him or them surviving then my trustees shall hold the said thirty-five equal parts or shares of my said residuary estate on the following trusts, viz., as to one sequal third part or share thereof for the absolute use and benefit of the said Gagan Dhand Roy, as to one third equal part or share thereof for the absolute use and benefit of the said Nandalal Roy and Jahar Lai Roy in equal shares and as to the remaining one equal third part or share thereof for the absolute use and benefit of the said Jugal Kissore Roy, Dulal Kissore Roy, Gocul Kissore Roy, Jadab Kissore Roy, Radha Kissore Roy, Madhab Kissore Roy and Mohan Kissore Roy (the sons of the said Gour Chand Roy deceased) in equal shares.
The contest arose after the death of Annabati Dassi between the daughter''s sons of the testator and his nephews and grandson-nephews (hereinafter shortly referred to as the "Roys"), as to the ultimate destination of the estate. It is contended on behalf of the daughters'' sons that the gift over to the Roys is invalid and therefore, the daughters'' sons take the estate as on intestacy.
Mr. A.K. Sen, counsel on their behalf, puts his argument as follows: The gift to Tarak and his brothers is bad, as the gift was to persons some of whom were not born at the testator''s death the gift was to a class some of whom were not born at the date when the testator died. Therefore, counsel said, the gift-over to the Roys was bad, because the condition precedent to the taking effect of the gift over was illegal. Secondly, counsel said that a vested interest was created in favour of Tarak and other grandsons of the testator and therefore, there could not be a gift over, for that would be tantamount to divesting of interest already vested. Thirdly, he said that this case came within the principle of Norendra Nath Sircar v. Kamalbasini Dasi (1896) ILR 23 Cal. 563 : L.R. 23 I.A. 18 and Indirarani Ghosh v. Akshaykumar Ghosh (1932) ILR 60 Cal. 554 : L.R. 59 I.A. 419 had no application. Lastly, counsel said that other sons must be born to Rakhal and they must all die without leaving male issue before the gift to the Roys could take effect as that was what the testator contemplated. In this case, he added, that condition did not and could not happen and therefore, the gift in favour of the Roys must fail.
This, in substance, is Mr. Sen''s contention.
With regard to the first contention of Mr. Sen, the case of Bhagabati Barmanya v. Kali Charan Singh (1905) ILR 32 Cal. 992 is a complete answer. In that case it has been held that there is no rule of Hindu Law to the effect that a gift inter viros or a bequest to a class of persons some of whom are incapable of taking by reason of the rule that a gift is valid only if it is made to a sentient being capable of taking, is void also as regards those who are in existence and capable of taking. The analogy of the rule of English Law laid down in Leake v. Robinson (1817) 2 Mor. 363 : 35 E.R. 979, in connection with class-gifts infringing the rule against remoteness, does not hold good. Where a bequest to a class does not offend against the rule as to perpetuities, the only question is, what was the primary and what the secondary intention of the testator.
In this case, the gift over does not infringe the rule against remoteness, because the gift in favour of the Roys takes effect, if at all, at the close of a life or lives in being. It seems to me that the primary intention of the testator was that all members of the class should take who, under the Hindu Law, could take and his secondary intention was that, if all could not take, those who could take would do so. Both intentions co-exist. In this case, the gift to the grandsons who might be born after the testator''s death is invalid but that does not make the gift to Tarak and such other son or sons of Rakhal who might be living at the testator''s death invalid. Therefore, this contention of Mr. Sen fails.
As to his second argument that if the gift over takes effect, it would divest the estate of Tarak and other grandsons of the testator who got a vested interest. It is a settled principle of Hindu Law that it is competent to a Hindu to make a grant of an absolute estate defeasible on the happening of a subsequent event. All that is required is that the event must happen, if at all immediately on the close of a life in being and the gift over must be in favour of some person in existence at the date of the gift or at the death of the testator, as the case may be. In this case, both these conditions are satisfied. The gift over takes effect, if at all, at the close of a life or lives who would be in existence at the death of the testator and the gift is in favour of persons who were in existence at the death of the testator. There is no hiatus.
With regard to Mr. Sen''s third and fourth contentions, I am unable to accept them. This case does not come within the principle of Norendra Nath Sircar v. Kormalbasini Dasi (supra). That was a case of death simpliciter as in illustration (ii) of Section 124 of the Indian Succession Act (formerly Section 111). That section and the illustration read as follows:
Where a legacy is given if a specified uncertain, event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable (sic) is bequeathed to A, and in case of his death without children, to B. (sic) the testator or dies in his lifetime leaving a child, the legacy to B (sic) se effect.
Norendra''s case (supra), death in the will was confined death in the testator''s lifetime. In the present case, it is that death of Tarak or any of his brothers referred to in (sic) is the death of one who has taken something voider the (sic) gift contained in it; that is to say, it is a death which take place after that of the testator. This distinction is it is true that, in each, the event remains uncertain. (sic) the question is, was it an uncertain event with reference to a it could he said that "no time is prescribed in the will for occurrence."
answer must, (their Lordships think), be in the negative. The two first (sic) attached to Section 124 make clear what may be only implicit in the actual (sic) of the section, namely, that it does not apply if a period is specified in the thin which the contingent event is to happen, or, putting it otherwise, that the only applies, if without doing violence to the terms of the will, it can be held, (sic) of words, that the occurrence of the uncertain event prior to the period he fund bequeathed is payable or distributable, is alone within the (sic) of the testator. If the terms of the will make that construction of his words (sic), the section then does not apply. (Indirarani''s case (supra) at p. 563.)
(sic) my view, the case under consideration is governed by the (sic) laid down in Indirarani''s case (supra). The words or them surviving contemplate the death of Tarak or any s brother or brothers dying without male issue. What the (sic) intended was this. If Tarak was the only son of Rakhal, would be living at the time of the testator''s death, he would (sic) interest in the property, but on his death without (sic) any male issue, the gift over would take effect; likewise (sic) did not survive the testator, but some other son or sons (sic), born within the lifetime of the testator, survived him got absolute interest in the property and then died without issue, the gift over would take effect.
I am unable to accept the contention of Mr. Sen that it was (sic) of the gift over that there must be other sons born (sic) and they must all die without leaving male issue e the gift to the Roys could take effect. That was not the intention of the testator.
This is a case of a bequest made with the condition (sic) that, in case a specified uncertain event shall happen the (sic) bequeathed shall go to another person (Section 131). The (sic) of a vested interest on the happening of a contingency (sic) recognised in India for a long time and the gift takes effect. Soorjeemoney Dossee v. Denobundoo (sic) IX M.I.A. 123; Kristoromoni Dasi v. Narendro Krishna (sic) (1888) ILR 16 Cal. 383 : L.R. 16 I.A. 29; Lalit Mohan Singh Roy v. Chukkan Lal Roy (1897) ILR 24 Cal. 834 : L.R. 24 I.A. 76.
Therefore, the gift over in favour of the Roys is valid the claim of the daughters'' sons fails.
The only other point to be considered on this summon whether all the Roys take or some of them are excluded as of them, whose names are mentioned in the will as legs died before Tarak. The answer to the question depends on when contingent interest is transmissible. The law on point is thus stated in Jarman on Wills, 7th Ed., Vol. 2 p. 1326: 8th Ed., Vol. 2, p. 1342.
A contingent interest will or will not be transmissible to the (sic) representatives of the legatee, according to the nature of the contingency on it is dependent. If the gift is to children who shall live to attain a certain or shall survive a given period or event, the death of any child (sic) contingency has obviously the effect of striking the name of such deceased out of the class of presumptive objects; and consequently, such an inter never devolve to representatives, as it becomes vested and transmissible at the instant of time. Where, however, the contingency on which the vesting (sic) collateral event, irrespective of attainment to a given age and surviving a period, the death of any child pending the contingency works no such (sic) but simply substitutes and lets in the legatee''s representative for himself.
Therefore, all the Roys take. I answer the questions follows:
(a) All the Roys are entitled.
(b)(i) As to the 55 parts of the dwelling house--1/3 absolutely to Gagan Chand Roy, 1/6 to the heirs of Wanda Roy in equal shares, 1/6 to the daughters of Jahar Lal (sic) equal shares to be held by them as a Hindu daughter''s. (sic) 1/3 in equal shares to Prayag (son of Jugal), Kartic (son Dulal), Pasupati (son of Gocul), Jadab, Radha, Madhab Mohan.
(ii) As to the rest and residue of the testator''s estate shares as in the dwelling house--
(c) No further answer is necessary.
(d) No answer is necessary.
(e) To the Roys--according to the shares I have (sic) above.
No argument was placed before me as to from when income is payable. Therefore, I refrain from giving answer on this point.
Declarations accordingly.
The costs of the parties appearing to be paid out of estate. Costs are to be taxed as of a defended suit; those c executor as between attorney and client. Certified for counsel. I am obliged to counsel for their assistance and for the ten notes of their arguments they submitted to me. The s are kept with the records of this case.