Santosh Kumar Mukherjee vs Anadinath Chattopadhyay

P.N. Mookerjee, J.—This appeal by the Defendant arises out of a suit for declaration of the Plaintiff''s title to the property in suit and for recovery of possession thereof.

There is no dispute now as to the relevant facts but the whole controversy in this appeal centres round two documents-one a deed of gift (Ex. A) and the other a will (Ex. E) as to the construction whereof the parties greatly differ.

It is now the common case of the parties that the suit property originally belonged to one Bhutnath Mukherjee. Bhutnath died leaving a will (Ex. E) dated August 23, 1903, which was probated on March 31, 1928. He was survived by his widow Ganeshjanani and daughter Gopaldasi alias Panchu. The Plaintiffs are the nephews (brother''s sons) of Gopaldasi''s husband Priyanath while the Defendant is her paternal uncle''s, son''s son. On May 24, 1938, Gopaldasi executed the deed of gift (Ex. A) in favour of the Defendant and she died on October 14, 1943. The suit property which was the bastu or homestead of Gopaldasi was in the occupation of the Defendant at the date of the present suit.

This case has certain interesting features to which reference will now be made. Originally it was the Plaintiffs'' case in the plaint that the suit property belonged to Gopaldasi''s husband Priyanath and that, accordingly, the Plaintiffs, as Priyanath''s reversionary heirs, became entitled thereto on Gopaldasi''s death on October 14, 1943. The present suit was filed on December 20, 1946, and on April 16, 1947, the Defendant filed his written statement. In the said written statement the Defendant''s specific Case was that the suit property never belonged to Priyanath but was the property of Bhutnath under whose will (Ex. E) referred to above, the said property had descended, on his death, to his widow Ganeshjanani and daughter Gopaldasi and that, upon Ganeshjanani''s death, it had devolved, under the term of the aforesaid will (Ex. E) upon the survivor Gopaldasi in absolute right. The Defendant claimed title to the suit property from Gopaldasi under the deed of gift (Ex. A). Consequent upon this written statement, the plaint was amended by the Plaintiffs by the introduction of an alternative case to the effect that even if the suit property had belonged absolutely to Gopaldasi as claimed by the defence, it, nevertheless, devolved, on her death, upon the Plaintiffs as the preferential stridhan heirs of Gopaldasi, the deed of gift (Ex. A) not covering or including, according to the Plaintiffs, the said property.

On the above pleadings the suit proceeded in the trial Court and the learned subordinate Judge came to the conclusion that the suit property belonged not to Priyanath but to Bhutnath and eventually became the stridhan property of Gopaldasi as alleged by the defence. The learned subordinate Judge, however, found that the deed of gift (Ex. A) did not cover or include the suit property and that, accordingly, the Plaintiffs, as the preferential stridhan heirs of Gopaldasi, became entitled to the same upon her death. In this view of the matter the learned subordinate Judge decreed the Plaintiffs'' suit except as regards their claim for mesne profits which latter claim had eventually been withdrawn by the Plaintiffs.

On appeal by the Defendant, the decree of the learned sub ordinate Judge was affirmed by the learned district Judge and against this decision of the Court of appeal below the Defendant has preferred this second appeal.

On behalf of the Defendant Appellant Mr. Sen Gupta has raised two contentions: In the first place he has contended that, on a proper construction of the deed of gift (Ex. A) it must be held that by the said document all properties of the donor Gopaldasi, including the property in suit, passed unto the Defendant and that accordingly the Plaintiffs'' suit must fail. In the second place Mr. Sen Gupta has contended that, even assuming that his construction of the deed of gift (Ex. A) is wrong and that the suit property is not covered by the said document, the position would still remain that the Plaintiffs would have no title to a moiety share of the suit property inasmuch as, upon a proper construction of Bhutnath''s will (Ex. E), Gopaldasi herself would have been absolutely entitled to a moiety only of the suit property and the other moiety thereof would have devolved upon her, on Ganeshjanani''s death, only as the latter''s daughter and heir, that is, only in the limited right of a Hindu female, so that on Gopaldasi''s death, this other moiety would have passed to the stridhan heirs of Ganeshjanani, that is, to persons other than the Plaintiffs who can, on no account, claim to be such heirs, and that, accordingly, the suit must, in any event, fail with regard to a moiety share of the suit property.

The first contention raised by Mr. Sen Gupta, was also advanced on behalf of his client in the two Courts below where it was considered at some length but eventually rejected. We have been taken through the entire deed of gift (Ex. A) and, upon a careful perusal of the relevant provisions of the said document, we are unable to say that the Courts below were wrong in appraising the same. The said deed of gift (Ex. A) contains a schedule of properties and, notwithstanding certain ambiguous phrases and expressions in the body of the said document, it seems clear to us, upon a close reading of the same, that by it was intended a gift or transfer of only the properties mentioned in the schedule thereof. This conclusion follows from certain features of the said document (Ex. A) to which we shall presently refer. After a recital of her title on the basis of the will (Ex. E) the donor Gopaldasi proceeded to make the gift in Ex. A in these words - etc., etc.,

In the schedule of the said deed of gift (Ex. A) eight items of property were described and the area thereof was mentioned as Admittedly, the suit property is not to be found amongst the said eight items but Mr. Sen Gupta has contended that, by the operative part of the deed of gift (Ex. A), all the properties of Gopaldasi obtained under the will (Ex. E)-and not merely those described in the schedule thereof-were given or gifted away to the Defendant. Support for this contention has been sought from the words in the quotation, given above from Ex. A and Mr. Sen Gupta has strenuously argued that the said words in the context of the preceding passage where Gopaldasi''s title under the will (Ex. E) is recited clearly signify that all properties, obtained thereunder by Gopaldasi, were intended to be given or gifted away by this deed of gift (Ex. A). The word explains Mr. Sen Gupta, is not exhaustive but merely illustrative and, in any event-so continues his argument- the schedule must be held to be incomplete and erroneous. We are not impressed by any part of this argument and we reject it in its entirety without the least hesitation. We have already pointed out that there is some ambiguity in the body of the deed of gift (Ex. A) but that is effectively resolved by the use of the word in the passage quoted above. Having carefully considered the said word in the setting in which it has been used and in the light of the entire document (Ex. A) we have no doubt in our mind that the word used there, is not a mere term of illustration but a word of limitation, that is, a term meant to be exhaustive. The Full Bench decision of the Bombay High Court, Firm Fram Nusservanji Balsara Vs. State of Bombay and Another, , cited by Mr. Sen Gupta on this part of the case, and the three decisions of the Federal Court, referred to therein, viz., AIR 1941 16 (Federal Court) , Bhola Prosad v. Emperor AIR (1942) (F.C.) 17 and Manikasundara Bhattar v. R.S. Nayadu AIR [1947] (F.C.) 1, do not appear to us to have any bearing on the matter now before us. There the learned Judges were examining the scope of some of the items or entries in the Legislative Lists of the Seventh Schedule of the Government of India Act, 1935, and the considerations which were found relevant there and which weighed with the learned Judges have, in our opinion, little or no bearing on our present enquiry and are entirely out of place in the determination of the meaning of the word before us. Those decisions are, therefore, utterly irrelevant for our present purpose and this is so even though in at least two of them, viz., the Bombay case and Bhola Prasad''s case, the phrase that had to be considered and construed was the apparently cognate phrase "that is to say" in Item 31, List II, Schedule VII, of the Government of India Act, 1935. The nature, scope and subject-matter of the enquiry and the context in which it has to be made make, in our opinion, all the difference and the decisions, cited above, are, therefore, of no assistance to Mr. Sen Gupta''s client. The interpretation sought to be put upon the word by Mr. Sen Gupta must, accordingly, be rejected. We are also, upon the materials before us, unable to agree with Mr. Sen Gupta in his submission that the schedule of Ex. A is incomplete and erroneous. Our conclusion, therefore, is that by the document (Ex. A) nothing more than the properties, mentioned in its schedule, were transferred or intended to be transferred. The use of the word (which, as we have explained above, is a word of limitation) and not (which is the usual term of illustration)-in the operative clause of the document (Ex. A) is not, in the circumstances of this case, wholly without significance and largely supports the view we have expressed above. A further confirmation of our view is to be found in the coincidence of the areas in each case-mentioned in the body and in the schedule of the said document.

As to the other cases cited and references given during argument on the question of construction of Ex. A -viz., Baker v. Richardson (1858) 6 W.R. (Eng.) 663, and Cort v. Sugar (1858) 157 E.R. 513 and Halsbury''s Laws of England, Vol. 10, p. 293, Sections 361-2 and Norton on Deeds, 2nd Ed., pp. 237 and 244, on behalf of the Appellant, and Griffithes v. Penson (1863) H.W.R. (Eng.) 313 and Wood v. Rowcliffe (1851) 86 R.R. 350 and Halsbury''s Laws of England, Vol. 10, p. 294, Section 363, and Norton on Deeds, 2nd Ed., pp. 236 and 237, on the Respondents'' side,-it is enough to say that, when properly read, they disclose no real conflict and that the view we have taken above of Ex. A is quite in consonance with the principles underlying all of them and-we may add further-is well supported by Morrel v. Fisher (1849) 4 Ex. 591, Barton v. Dawes (1850) 84 R.R. 562, and Re Brocket; Dawes v. Miller [1908] 1 Ch. 185, these latter cases being particularly instructive and strikingly suggestive. We have briefly discussed the above cases only for the purpose of showing that the general principles relating to construction of deeds and wills are well-settled but that the result they yield on application to a particular case depends largely on the terms of the document in question. In the above light we have construed the deed (Ex. A) and, as a result of such construction, we have come to the conclusion that the suit property was not the subject-matter of gift in Ex. A.

Upon the above interpretation of the deed of gift (Ex. A)- and as, admittedly, the schedule of the said document does not comprise the suit property or any part of it-the Defendant''s claim of title to any part of the disputed property on the strength of Ex. A must fail. The first contention of Mr. Sen Gupta is, accordingly, overruled.

We shall now examine the Appellant''s second contention. It is clear beyond dispute that the Appellant''s case in this Court in this behalf is new and is even opposed to the case put forward on his behalf in the two Courts below. There, that is, in the Courts below, it was both parties'' case that, under Bhutnath''s will (Ex. E) Gopaldasi became, on Ganeshjanani''s death, solely entitled to, inter alia, sixteen annas of the suit property in full and absolute right, the parties differing on this part of the case only as to the scope and effect of the deed of gift (Ex. A) which difference has already been examined by us and finally pronounced upon. In this Court the Appellant contends-and this is his second contention raising, undoubtedly, a serious and substantial question-that, upon a true construction of Bhutnath''s will (Ex. E) Gopaldasi could get in absolute right only a moiety share-and not the whole-of the suit property so that the Plaintiffs would not, under any circumstances, be entitled to more than eight annas of the disputed property. We would have refused to entertain this new contention, urged for the first time in this Court, had it not appeared clear to us that, upon the admitted facts, this contention raises nothing more than a pure question of law, involving just a construction of the will (Ex. E) in terms of the relevant statute, namely, the Indian Succession Act. The question involved being thus a pure question of law and sufficient notice thereof having been given to the Respondents, it is not open to the latter to complain of any real prejudice and, in such circumstances, we feel that we would not be justified in throwing out this new contention in limine.

In the above view of the matter we proceed to examine the merits of the Appellant''s second contention set out above. That contention clearly rests upon Section 124 of the Indian Succession Act. The Appellant urges that this section applies to the present case and renders inoperative the defeasance clause in Bhutnath''s will (Ex. E) under which alone Gopaldasi could have claimed Ganeshjanani''s moiety in absolute right. There is no dispute now that the suit property belonged to Bhutnath. There is also no dispute that under Bhutnath''s will (Ex. E) the suit property along with his other properties was bequeathed to his widow Ganeshjanani and his daughter Gopaldasi alias Panchu Debi in the following words, namely,

Admittedly also, both Ganeshjanani and Gopaldasi survived the testator Bhutnath. The question then arises as to whether the defeasance clause, quoted above, would be effective-in other words, whether the bequest or legacy, contained therein, to the survivor would take effect. The answer to this question clearly depends upon the applicability or otherwise of Section 124 of the Indian Succession Act to the present case. If that section applies, the answer must be in the negative, if it is inapplicable, the defeasance clause will have full effect. It thus becomes necessary to investigate the language and scope of the said Section 124 and the conditions of its applicability.

The investigation, thus envisaged, is, by no means, simple. It had in the past caused considerable anxiety to Judges and had sometimes yielded widely varying results, not easily reconcilable. This particular provision of the Indian Succession Act-present Section 124, formerly Section 111 -had been before the Judicial Committee on several occasions but the difficulties which were felt in the matter of its construction and application were in no way lessened. The reason for this unsatisfactory state of things was not far to seek. It lay, at the bottom, in an invisible struggle between an innate desire to avoid injustice and an obvious duty to administer the statute. Plainly, the section embodied a pure statutory rule of construction,-or, as it is sometimes called, both a rule of law and a rule of construction. This statutory rule was founded at its inception not upon any clear concept of justice but upon old.

English doctrines, since exploded. It was consequently looked upon, not infrequently, with distrust and disfavour by the Courts and that explains the anxiety on the part of Judges, plainly noticeable in some of the cases, to avoid its application. At the same time it was not possible to ignore it, forming, as it did, a part of the statute law of this land. The result was a perplexing state of uncertainty. On the one hand it was authoritatively ruled in Narendra Nath v. Kamalbasini ILR (1896) Cal. 563 : 23 I.A. 18 that the section was supreme and peremptory and laid down a hard and fast statutory rule of construction and its scope should not be whittled down by any speculation about the testator''s intention. On the other hand, it was ruled with equal authority in Bhupendra v. Amarendra ILR (1915) 43 Cal. 432 : L.R. 43 IndAp 12 that the section should be strictly construed and its scope should not be extended beyond its strict terms. Between these two extremes the position was uncertain and the situation remained somewhat fluid and when in 1932 the Privy Council had before it the case of Indira Rani v. Akshoy Kumar (1932) ILR 60 Cal. 554 : L.R. 59 IndAp 419, two conflicting points of view were presented before them upon the scope and applicability of the section. In that case the trial Judge (Buckland J.) had applied Section 124 to the will in question on the authority of Norendra Nath v. Kamalbasini (supra), but on appeal a Bench of this Court consisting of C.C. Ghose and Pearson JJ. came to the conclusion that Norendra Nath''s case was distinguishable and that Section 124 had no application to the case before them. The clause of defeasance was construed by the learned Judges as clearly indicating that the death, referred to therein, was necessarily to take place after the testator''s death and it thus contained, according to them, in itself a time mentioned for the occurrence of the "specified "uncertain event" referred to in the section, excluding thereby its application. Section 124 being thus put out of the way, the learned Judges applied Section 131 holding, inter alia, that the bequest in question was "not a contingent bequest but a bequest "of a vested interest liable to defeasance on the happening of a "condition subsequent." This judgment of the appellate Court was plainly based upon an ascertainment of the testator''s intention as appearing in the will itself and was thus apparently inconsistent with the approach indicated in Norendra Nath''s case (supra) where Lord Macnaughten delivering the judgment of the Board spoke of the section (then Section 111) in peremptory terms as having laid down "a hard and fast rule which must be applied "wherever it is applicable without speculating on the intention "of the testator" and as not containing by implication-there was admittedly nothing express in the language of the section- a qualification or proviso "unless a contrary intention appears "by the will." When, under these circumstances, Indira Rani''s case (supra) went before the Judicial Committee in 1932 their Lordships had indeed no easy task. All the relevant authorities were placed before them and the limits of the section were discussed in the light of those authorities. In the ultimate result their Lordships dismissed the appeal and held against the applicability of the section to the case before them but, in doing so, they also set down the tests, which, when satisfied, would irresistibly attract the section. The effect of this decision of the Judicial Committee is a matter of vital consideration in the present case.

In the above background we now proceed to investigate the true scope of Section 124 of the Indian Succession Act and the conditions of its applicability. By its express terms the section postulates (i) a fund bequeathed and a "period of distribution" for the same, (ii) a specified uncertain event on the happening of which the legacy in question would take effect and (iii) non-mention of any time for the happening of the said uncertain event. These three requisites appear on the face of the section but, even if they are present, such presence would not be enough to attract its operation unless the fourth requisite, which has now been held to be implied or implicit in its terms and which we shall presently explain, does also simultaneously exist. This implied or implicit requisite, to which reference has been made above, requires that in order that the section may apply it must also be possible to hold as a matter of words, without doing violence to the terms of the will, that the happening or occurrence of the "specified uncertain event" before the "period "of distribution", that is, the period when the fund bequeathed is payable or distributable, must alone have been in the contemplation of the testator in the sense that it is possible, that is, not impossible-to predicate of the will as a matter of words that the "specified uncertain event" would happen before the "period "of distribution". These are the four requisites for the application of Section 124. They are essential-at the same time they are sufficient also-to attract the said section.

To attract, therefore, Section 124 to a particular case it is necessary-and sufficient too-to prove that the three express requisites along with the implied fourth, as explained above, exist. That, according to us, is the true import of Indira Rani''s case and in this view we are supported by the Bench decision of this Court in Purna Chandra v. Sudhangsu Sekhar (1945) 49 C.W.N. 524. Within the limits thus set, Section 124 will have full play and its application cannot be resisted.

The proposition, set out above, is really of a twofold character. On the one hand, it clearly connotes that the absence of any of the four requisites, referred to therein, would, by itself, exclude Section 324. On the other hand, it implies that, once the said requisites are all found present, the section would immediately be attracted and its application cannot be avoided. Upon this construction of the section the scope of our present enquiry becomes limited and the only question that remains for consideration is as to whether the four requisites, enumerated above, are present in the instant case before us. If the answer be in the affirmative, the Appellant''s contention based on Section 124 would succeed. Otherwise, it would fail and this appeal would stand dismissed.

To return now to the present case, the defeasance clause has been quoted above and its terms are quite plain. They clearly contemplate that in case of death of either of the two legatees the survivor will get the whole property. Not the slightest difficulty is felt until we come to determine the ''death'' to which the clause refers. That such death refers to death of either of the two legatees admits of no doubt but the question is what is to be its time. At this stage Section 124 becomes relevant for consideration and a study of the clause in the light of its four requisites becomes necessary.

What then is the ultimate result? The language of the defeasance clause in the case before us is clear enough to show that the first three elements required for the application of the section are plainly present. The fund bequeathed is, clearly on the will, the estate of the testator and there can be no question that it is payable or distributable on his death. There is thus a "period of distribution for the fund bequeathed" to satisfy the first requisite u/s 124. The second and third requisites also present no difficulty. The word in the defeasance clause bespeaks uncertainty and the "specified uncertain event" is clearly the death of one who dies first amongst the two legatees Ganeshjanani and Panchu Debi. Clearly also, no time is mentioned in the will for such death. The only question, therefore, that still requires investigation is whether the fourth requisite, noted above, can be found in the present case, and, in our opinion, this question must be answered in the affirmative for reasons which we are giving below.

On a construction of the defeasance clause, quoted above, it is plainly possible to predicate that the death, contemplated therein, refers to death during the testator''s life-time. This is not disputed by Mr. Banerjee who appears for the Plaintiffs Respondents. He argues, however, that there is one "term" in the will (Ex. E)-and here he refers to the clause in Ex. E which makes the above construction impossible and that, such being the position, Section 124 must be excluded on the authority of Indira Rani''s case (supra). This argument, though plausible at first sight, seems to us, on a close reading of Indira Rani''s case, that, in deciding upon the possibility or otherwise of the happening of the "specified uncertain event" before "the period of distribution" it is not open or permissible to refer to anything other than the language of the defeasance clause in question. That clause alone will have to be textually construed and only where, on such construction, it can be held as a matter of words that the "possibility" does not exist, the section would not apply. Reference to other parts of the will is here plainly forbidden as that would really be speculating on the testator''s intention and reading by implication a qualification or proviso to the section, directly contrary to the directions contained in Norendra Nath''s case. This latter case, it must be remembered, was only distinguished and explained by the Judicial Committee in Indira v. Akshoy (supra) but its authority was in no way shaken. Though Indira Rani''s case has now set definite limits within which the section would work, yet the true field of its operation, as envisaged in Norendra Nath v. Kamalbasini, has not been visibly affected and the tests laid down therein do still apply. The section still reigns supreme though its outside range has now been well defined. The possible conflict as to the scope of the section which was first attempted to be pushed into limelight in Jahangir Dadabhoy v. Kai Khusru I.L.R, (1914) Bom. 296 : L.R. 42 IndAp 71 and there actually forced into discussion but successfully by passed-and which later found expression, though in a different form, in Bhupendra v. Amarendra ILR (1915) 43 Cal. 432, has now been met and resolved on a broad basis. Norendra Nath''s case has now received an authoritative interpretation but the essence of that decision has not been touched and the caution there uttered against speculation on the testator''s intention has not been weakened though its true implication has been carefully explained. It is also interesting-and pertinent too and no less important-to note that no reference to any other clause or part of the will is to be found in the discussion of the Board in Indira Rani''s case as to the possible construction of the relevant clause of defeasance, although it appears from the Report that a clause, substantially similar to the one, relied upon by Mr. Banerjee, existed in that case too. In such circumstances, we are not prepared to uphold Mr. Banerjee''s reference to the other clause, quoted above, for the purpose of ascertaining the relevant possible construction of the clause of defeasance. This by itself is sufficient for the rejection of the Respondents'' rejoinder under this head but there is a still stronger answer on the merits. In our opinion, this other clause, quoted above and referred to, as already indicated by Mr. Banerjee, does not, in any way, alter the real position. As we read the said clause it seems to us that it does not necessarily follow therefrom that the testator did not contemplate the death of the two legatees or either of them before his own death. It is at least a possible construction of this clause that the testator intended that the two ladies, if they survived him, would become his executrixes, just as they would be the legatees under his will only in case of such survival. We may point out further that in the case of Norendra Nath v. Kamalbasini (supra) also there was a clause in the will, almost similar, but the Judicial Committee applied Section 111 (now Section 124) in spite of the same. Mr. Banerjee''s argument, therefore, on this part of the case must be rejected also on the merits.

All requisites for the application of Section 124 being thus established, that section is, in our opinion, attracted to the present case. This conclusion of ours is well in keeping with the decisions of this Court in the cases of Nistarini v. Beharilal (1914) 19 C.W.N. 52 and Jagat Bijoy v. Tamijuddin ILR (1916) Cal. 181, where the statutory rule of construction was applied to clauses of defeasance, closely resembling the one now under consideration. In Nistarini''s case the clause in question was strikingly similar and worded in almost exact terms and there their Lordships applied the then Section 111 (now Section 124) of the Indian Succession Act. It is true that in the two cases, now cited, namely, Nistarini''s case and Jagat Bijoy''s case, the further aspects, examined, explained and emphasised in Indira Rani''s case (supra), were not noticed or considered but that, in our opinion, is not of much consequence inasmuch as we are unable to read this latest pronouncement of the Judicial Committee, as in any way affecting any of the said two decisions. In both of them the section appears to have been correctly applied and their decisions are not open to question.

We have already said in an earlier part of this judgment that the view we have taken of Indira. Hani''s case is supported by the Bench decision of this Court in Purna Chandra v. Sudhangshu Sekhar (supra). That decision has, in our opinion, correctly interpreted Indira''s case though in attempting to draw a distinction between ''mention'' and ''contemplation'' it has possibly overstepped its mark. It is, however, unnecessary to examine here the merits or propriety of that distinction as in the present case nothing turns upon the same. We, accordingly, express no opinion upon the said question.

From what we have said above it is clear beyond doubt that Section 124 applies to the present case. The section, applying, the defeasance clause in Ex. E cannot take effect and the ''gift over'' contained therein, must fail. The position, therefore, is that, upon Ganeshjanani''s death, her moiety devolved on Gopaldasi as her daughter and stridhan heir, that is, only in the limited right of a Hindu female, so that, upon Gopaldasi''s death, this moiety passed to Ganeshjanani''s heirs, that is, to persons other than the Plaintiffs. The latter, therefore, can claim no title to this moiety and that being so, the suit must fail in regard thereto. The Appellant''s second contention must, accordingly, prevail.

In the result, this appeal succeeds in part, the decrees of the Courts below are modified and the Plaintiffs'' suit stands dismissed to the extent of a moiety of the suit property, the decree in their favour to the extent of the other moiety being hereby confirmed. Although the Appellant succeeds in part, we direct that, in the peculiar circumstances of this case, he will pay the costs of this appeal to the contesting Respondents. We direct further that the parties will bear their own costs in the Courts below.

Lahiri, J.

I agree.