Nand Kishore Lal vs Pasupati Nath Sahu and Another

Ross, J.—On 2nd February 1905 Gopi Sahu, executed a will. He died on 16th August 1910 leaving a granddaughter, Mt. Peary Kuer, the daughter of his son Chamari Sahu, who had predeceased him. By the will his estate was left to Peary Kuer, at all events in the first instance; and, under the terms of the will, in the events that happened, her father-in-law Tasupati Nath Sahu, became "her executor." On 18th January 1911 probate was granted to Pasupati Nath Sahu

limited during the minority of his son Chandrabhan and during the minority of Peary Kour his daughter-in-law.

Peary Kuer(sic) died in 1914, and the present application was made by Nandkishore Lal, a grand nephew of Gopi Sahu (brother''s grand-son),

for letters of administration for the use and benefit of the thakurbari of Gopi Sahu the testator, regarding the unadministered effects of the said testator''s estate.

This application was refused by the learned Subordinate Judge of Gaya and the applicant has appealed.

In this appeal we are asked to construe the will. Now the Court of probate is not in practice a Court of construction and should, generally speaking, construe testamentary documents only in so far as it is necessary to decide that testamentary documents should be admitted to probate [In the estate of Heyes [1904] P. 192] or to see if anyone, and who, is entitled to administration: In the estate of Lupton [1905] P. 321. Now in this case probate has already been granted. It is true that the grant was limited in duration and that in the events that have happened its force is exhausted; but it is not shown that the estate has not been fully administered, except in this respect, that the residue which on the appellant''s construction of the will ought to come to the thakurbari mentioned in the will has not been handed over by the executor. Having regard to the length of time that has elapsed since probate was granted more than fourteen years before the present application was made, it cannot, with any show of reason, be suggested that any of the debts due to the testator have not been realized or the debts due by the estate have not been paid. The executor then is functus officio and, if he is still in possession of the estate which ought to have been handed over to a legatee, he is in the position of a trustee in respect thereof: Solomon v. Attenborough [1912] 1 Ch. 451, In re Grosvenor [1916] 2 Ch. 375; In re Timmis [1902] 1 Ch. 176 and the proper remedy of the appellant is a suit in the civil Court for the construction of the will and the administration of the estate. On this ground therefore I think that the appeal ought to fail; and, in this view, it becomes unnecessary to construe the will.

But if it were necessary to construe the will, I should hold that on a construction of the will the appellant is not entitled to letters of administration. The testator begins by reciting that on the death of Chamari Sahu his daughter Mt. Peary Kuer was aged four months and he had brought her up as his son with a view to keep alive the name and prestige of Chamari Sahu, his son.

Mt. Peary Kuer is at present 9 years old and she, by her obedience and services pleased me much and I, the executant, have great affection for her. I, the executant, on account of my bringing her up and on account of her obedience and services also have affection for my grand-daughter Mt. Peary Koer like my son Chamari Sahu All the properties, both movable, and immovable are exclusively self-acquired properties of me, the executant, and none of them held by me, the executant, is ancestral. I, the executant, have two daughters also one Mt. Sukni and the other Mt. Sanichari. Mt. Sukni, my daughter, died leaving behind her a son named Bansi Sahu, Mt. Sanichari is alive and she has got a son named Balkishun Sahu and a daughter named Mt. Ram Koeri. It cannot be expected from them that they will keep alive my name and prestige and will reside at my house. My grand-daughter Mt. Peary Kuer is very well behaved and good natured and it is expected from her that she will keep alive my name and prestige and will reside at my house.

Then follow the dispositions of the will In para. 1 the testator declares that he shall remain in possession for his life. Then comes para. 2:

That after the death of me, the executant, my grand-daughter Mt. Peary Koer, shall be the absolute proprietor (malik mustakkil) like me of all the properties moveable and immovable, now, in my possession and those which will be acquired by me in future and shall remain as such. She will, moreover, realize all the debts due... by other persons to me, the executant, and she will pay the debt due by me, the executant, to others.

Paragraph 3 provides that Mt. Peary Kuer, is to perform the obsequies and the shradh ceremony of the testator. Then follow the provisions for the management of the property during her minority. Para. 7 provides that the husband of Peary Kuer shall have no right or authority to transfer or mortgage the property and shall acquire no sort of title to the property at any time or under any circumstances. Then come the two paragraphs which have given rise to difficulty, Paragraph 8:

That after the death of Mt. Peary Kuer, my granddaughter, male issue born of the womb of Mt. Peaty Koer, shall be the absolute owners and possessors of the properties in equal shares and stall enjoy the income thereof. In case there be no male issue, female issue of Mt. Peary Kuer shall be absolute owners and possessors of the properties in equal shares and shall enjoy the income thereof.

Paragraph 9:

That in case, God forbid, my granddaughter Mt, Peary Kuer dies without leaving behind her any male or female issue born of her womb, all the properties acquired at present and also that may be acquired hereafter shall belong to the thakurbari erected by me on the other side of the river Phalgo.

Then follow certain small legacies and provision is made for the upkeep of the thakurbari by monthly payments to be made by Mt. Peary Kuer and her heirs.

Now it is not open to question that, if para. 2 had stood alone, Mt. Peary Kuer would have taken an absolute estate. The words are as strong as possible and are apt to confer such an estate. The question is whether the subsequent provisions and in particular paras. 8 and 9 cut down this absolute estate to an estate for life. Para. 9 presents no difficulty and is not inconsistent with an absolute estate in Peary Kuer. It can be, and in my opinion should be, construed as meaning that if Mt. Peary Kuer died without issue in the lifetime of the testator, then the estate was to go to the Thakurbari. As Mt. Peary Kuer survived the testator, this bequest would not take effect unless indeed on other grounds it was held that only a life estate passed to Peary Kuer as in that case the time of distribution would be the date of her death.

The question then reduces itself to this: whether para. 8 cuts down the absolute estate conferred by para. 2. Now I have quoted the recitals in the will, because they seem to me to show a clear intention; (1) that Mt. Peary Kuer should inherit as if she had been a son; and (2) that the agnates of the testator should have no interest in the property.

It will have been observed that the testator is careful to say that all the properties are self acquired and none of them is ancestral and that his object in making a will is to keep alive the name and prestige of himself and his son. Consistently with this intention the husband of Mt. Peary Kuer is absolutely excluded from any interest in the property. That being the overriding intention of the will it seems to me that in para. 8 the testator merely intended to assure still further the devolution of the property through Mt. Peary Kuer alone. This provision in my opinion does not operate to cut down the absolute estate. In law it has no effect. It may further be noted that the devise is not to a widow but to a granddaughter and there is, therefore, no a priori reason for cutting down the estate to a life interest. On this view of the will it would follow that the estate has been fully administered and, on this ground also, the appeal must fail and be dismissed with costs. Hearing-fee: Rs. 250.

Wort, J.

This is an appeal from the decision of the learned District Judge of Gaya dismissing the application of Nandkishore Lal for letters of administration of the estate of Gopi Sahu who died on 16th August 1910 having left a will dated 2nd February 1905. The applicant claimed to be the heir of Gopi Sahu, the last absolute owner of the estate, for the use and benefit of the thakurbari as shebait, and in his application prayed that the Court might declare that the executorship of one Pashupati Nath Sahu had come to an end,

By the will of 1905 the testator provided, that his granddaughter. Mt. Peary Kuer should be the absolute proprietor (like me) of all the properties moveable and immovable then in the possession of the testator. He went on to provide that she should realize the debts due to the testator and pay all the debts due by him and further that his daughter-in-law Mt. Gobind Kuer should be the executrix for his granddaughter till she attained her majority and that in the case of the death of Mt. Gobind Kuer before the majority of his granddaughter Mt. Peary Kuer, the husband of the granddaughter would become her executor until she (the granddaughter) attains her majority. And in case of her husband being minor then the father-in-law of Mt. Peary Kuer should be her "executor" till she becomes of age. It was further provided that after the death of Mt. Peary Kuer the male issue born of her womb should be the absolute owner and possessor of the properties in equal shares and that in case there was no male issue then the female issue should become the absolute owner and possessor in like manner That in case of his granddaughter dying without leaving behind her any male or female issue all the properties acquired at present and also to be acquired hereafter should belong to the thakurbari erected by the testator on the other side of the river Phalgo. There were also provisions that Mt. Govind Kuer should get a monthly allowance of Rs. 15 from the income of the estate and further allowance to Mt. Kosia Kaharin of Rs. 4.

It appears that on 20th January 1911 the father-in-law was granted probate of the will during the minority of Mt. Peary Kuer. It is assumed that the learned District Judge granted the probate with the condition under the Indian Succession Act then in force. The testator in para 6 uses the word "executor," but it is clear from the context that he did not use it in the English sense but as meaning "trustee of Mt. Peary Kuer" that is to say he was not the executor of the will nor in fact was any executor appointed under the will. But as Mt. Peary Kuer was charged with paying the debts and getting in the assets she might be treated as an executor according to the tenor of the will, and being in her minority the father-in-law could have been granted probate under the section named during Mt. Peary Kuer''s minority.

The subsequent history of the case is as follows: Mt. Peary and her husband both died as minors in 1914. The allegation of the applicant is that they died without issue although the objector to the present application alleges that Mt. Peary had a son who survived his mother by a few weeks. The objector contends on this allegation that on the death of Mt. Peary and her husband he became her legal heir and that the subsequent estate granted to the thakurbari never came into existence. On 15th July 1918 Mohunt Madho Das, a pujari of the thakurbari, applied to the District Judge to remove the father-in-law, to whom probate had been granted, and who is the objector in this case, from the executorship and a grant to be made to him. The learned District Judge rejected the application first on the ground that the estate appeared to have been administered; and secondly that the matter was a highly contentious one and could not be dealt with in an application of that character.

On appeal to the High Court the case was remanded for the learned District Judge to take evidence on the question of whether the estate had been fully administered; and secondly whether the applicant is a residuary legatee or whether there had been, as alleged by the objector, a son of Mt. Peary Kuer who took a vested interest on her death. The case, after remand, was compromised on 14th December 1920, the applicant admitting the objector''s, claim and being satisfied that the events which would have entitled him to succeed had not taken place. The present applicant had then filed a petition as a member of the Hindu community for being substituted in place of the objector, praying that the compromise dated 14th December 1920 be set aside and that the proceedings should continue; that the applicant substituted for the Mohunt Madho Das as next friend of the idol, The petitioner also described himself as heir and legal representative of Gopi Sahu. But the District Judge in his order of the 13th January 1921, rejecting the petition, states that in no place in the petition is there an allegation that he was connected with the temple except as a Hindu interested in a Hindu religious endowment.

The learned District Judge in that order stated that the application being what it was it should be made u/s 92, Civil P.C., and that if the applicant claimed to be the heir of Gopi Sahu he clearly was not litigating in the same title as the Mohunt Madho Das and that, therefore, the proceeding should be instituted de novo. The petition was, therefore, rejected as not being maintainable on 10th May 1922. This present application was then filed. The objections were: (1) that it was barred by the order of 13th January 1921, as res judicata; (2), that the estate had been fully administered, that on the death of Gopi Sahu his estate vested absolutely in his granddaughter; and (3) that Mt. Peary Kuer having given birth to a son, on 31st March 1924, her estate devolving upon her son, the objector became her sole heir and successor.

The learned District Judge, in his decision of 6th February 1926, decided the first question in favour of the applicant, the ground for that decision being that the applicant was claiming as heir of Gopi Sahu and not as Mohunt. The chief ground, however, upon which he rejected the application was that under the will Mt. Peary Kuer took an absolute estate. I have the gravest doubt whether in any event the applicant is entitled; to the letters of administration with the will annexed. An executor was appointed, as I have stated, and there is no evidence before us that the estate has not been fully administered; assets have not been got in and the debts not paid.

However, as the applicant alleges in effect that it is not fully administered inasmuch as he is the heir of Gopi Sahu, I propose to decide this application by determining that question. In any event, I am satisfied that he is not entitled to administration for use of the thakurbari. He does not allege that he is thakur. All that can be said is that he is personally interested in the thakurbari as a Hindu; but that would not entitle him to the letters of administration. He will have to bring a suit for the administration of the trust in favour of the thakurbari, if such there be; if he can succeed in showing that the trust has not been administered. That being so the substantial question which I have to decide is whether the applicant is entitled under the will as heir of the issue of Mt. Peary Kuer.

This question depends upon the consideration of the will whether Mt. Peary Kuer took a life estate only or an absolute estate and whether the gift over to the issue (male or female) of Mt. Peary Kuer took effect. The decision of the learned District Judge on the question of quality of the estate taken by Mt. Peary Kuer is based upon the use of the words "absolute proprietor or malik," as it appears in the original. There is no doubt that when these words are used ordinarily their effect is to give an absolute estate to the person in connexion with whom they were used, and the case of Mt. Sasiman Chowdhurani v. Shib Narayan Chowdhury AIR 1922 P.C. 63 is an authority for that proposition. But it is also an authority, if such is necessary, for the proposition that the context of the will must be looked at and that the will must be construed as a whole in order to determine the meaning of the words in any particular case.

We have had a large number of authorities quoted to us, but it would appear they were of very little help as the words in the context in each case are different and it would be dangerous to rely upon an authority, except for establishing a general principle, unless the wording of the will was exactly the same. I must therefore look at the context of the will and endeavour to con-true it as a whole.

Paragraph 2, standing alone, would no doubt give an absolute estate to Mt. Peary Kuer: the subsequent provisions, however, create some difficulty. Clause 8 provides that, after the death of Mt. Peary Kuer, the male issues should be the absolute owners and possessors in equal shares: failing male issue then the female issue should take in like manner. In this connexion we are referred to paras. 11, 13 and 14 where the words "Mt. Peary Kuer and her heirs "are used. Para. 13 reads: "Mt. Peary Kuer or her heirs." Upon these paragraphs is based an argument that the words used in the gift to her issue in para. 8 were words of limitation and not purchase and, therefore, para. 2 was not limited in its effect to a life-interest. But this would seem to be putting upon the words a technical meaning based upon the English law and the rule in Shellepe''s case [1580] l Co. Rep. 936, which certainly do not apply to the construction of wills in India. However, it is unnecessary to discuss this point further, by reason of my conclusions on the main point. A gift to Mt. Peary Kuer and her male issue would undoubtedly have created by the English law an estate tail. But what we have in this case is a clear indication in para. 2 of an absolute estate; then in para. 8, another absolute estate to the issue of the prior holder.

Can it be said in these circumstances that there is any indication that there was a grant of an independent gift to the issue of Mt. Peary Kuer after her death or that the testator was attempting to impress upon the property a descendible quality of a particular character? I see nothing in the words of para. 8 to cut down the absolute estate which was given to the grand-daughter. In the recent case of Madhavrao Ganpatrao Desai v. Balabhai Raghunath Agaskar AIR 1928 P.C. 38 it was decided that a gift which was not dissimilar in its terms took effect so far as the beneficiaries who were alive at the date of the instrument were concerned (that was a case of a settlement and not a will). But it is to be noted that in that case there was no doubt the prior estate was that of one for life. I would decide, therefore, that the gift to Mt. Peary Kuer was that of an absolute estate and that the petitioner fails to show that the estate has not been fully administered in the sense in which he endeavours to show that fact.

I would, therefore, dismiss the appeal.