Saroda Prasad Ghosh and Another vs Debendra Nath Ghosh and Others

Wort, J.—These two appeals arise out of actions in which the plaintiffs claimed to be beneficiaries under the will of, one Rameshwar Ghosh who died in the year 1927 having left a will which was made in the year 1915. By this will he left his estate to his wife Smt. Sudhamukhi Dasi, and, after the death of his wife, to his daughter. The wife predeceased the testator. The daughter took the estate under the terms of the will, and by those terms after her death, two persons were to take the property, one Sriman Saroda Prasad Ghosh (the testator''s nephew) and the other Sri-man Nalinaksha Ghosh (the testator''s grandson). By the terms of the will, these last persons whom I have mentioned, were to pay a number of annuities including one of Rs. 36 both to Bistu Charan Ghosh and Banamali Ghosh.

Appeal No. 414 refers to the case of Banamali and Appeal No. 415 refers to the case of Bistu. In the Court below, it has been found as a fact that Banamali predeceased the testator, but that Bistu survived him. In spite of this finding the learned Judge in the Court below reversed the decision of the trial Court, and came to the conclusion that the annuity to Banamali did not lapse under the provisions of Section 105, Succession Act. He applied Illus. (iv) to the facts then before him. Section 105 provides that:

If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator''s property, unless it appears by the will that the testator intended that it should go to some other person.

(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.

The illustration which the learned Judge in the Court below has applied to the facts of this case is this:

A sum of money is bequeathed to A for life, and after his death to B.A dies in the lifetime of the testator: B survives the testator. The bequest to B takes effect.

The learned Judge has therefore come to the conclusion on the terms of the will that the testator has expressed an intention that the legacy or the annuity shall not lapse. In my judgment the conclusion of the learned Judge arrived at in this connexion is erroneous. In my opinion although Section 97, Succession Act, does not apply to this will, it quite clearly appears from the decision of their Lordships of the Judicial Committee of the Privy Council in Ramlal Mookerjee v. Secretary of State (1881) 7 Cal 304 that the interest which was given to Banamali was an absolute interest. But that, as I shall in a moment point out, does not finally determine the matter. Their Lordships of the Judicial Committee of the Privy Council, while dealing with words similar to the words in the will before us in this case, putra poutradi krame, which have been translated as ''to their sons, grandsons, etc. in due succession'' approved of the statement of the law by Sir Barnes Peacock in the well-known Tagore''s case, Jotendramohan Tagore v. Ganendramohun Tagore (1872) IA Sup 47, to the following effect:

A gift to a man and his sons and grandsons, or to a man and his sons'' sons, would, in the absence of anything showing contrary intention, pass a general estate of inheritance according to Hindu law. I believe the words usually used in Bengal are putra poutradi krame, and in the Upper Provinces naslan baad naslan, the literal meaning of the former being to sons, grandsons, etc., in due succession, and of the latter in regular descent or succession.

In my judgment therefore the words used by the testator in this case gave the estate of inheritance to Banamali and Bistu, but that as I have already said does not determine the matter. The question to be decided is, whether in the events which have happened the annuity has lapsed. It has been found as a fact that Banamali pre-deceased the testator. In my judgment therefore the most that could be said in favour of Banamali''s case is that it comes within Illustration (ii) u/s 105 of the Succession Act:

A bequest is made to A and his children. A dies before the testator, or happens to be dead when the will is made. The legacy to A and his children lapses.

Some reference is made to Skinner''s case reported in Richard Ross Skinner v. Naunihal Singh (1913) 35 All 211. There their Lordships of the Judicial Committee had to construe these words in the will:

That my private zamindari may, at my demise, descend to my eldest son and to his lawful male, children; in the event of my eldest son dying without lawful male children, the above-mentioned private zamindari shall descend to my next male heir, and should all my sons die without lawful male children...to my female children.

Their Lordships of the Judicial Committee pointed out that Section 84, Succession Act of 1865 (which in terms was similar to Section 97 of the present Act) could have no application by reason of the fact that the testator had died two years before the Act came into force; but, in any event, they had. given effect to the intention of the testator as expressed in the will, and came to the conclusion that the use of the words ''shall descend to my next male heir'' in Clause (5) will cut down the gift made in Clause (4) to Thomas Brown Skinner, and gave him interest for life only. There is another aspect of the case, and that is indicated by Section 173 of the Act which deals specifically with annuities and provides:

Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the will, notwithstanding that the annuity is directed to be paid out of the property generally, or that a sum of money is bequeathed to be invested in the purchase of it.

Generally speaking, the principle of law applicable is that an annuity is a perpetual annuity only in those cases where it is a charge on a specific property, in which circumstances the law assumes that it is not annuity alone, but the property itself, that has been bequeathed. But we still have the question to determine, namely even although a contrary intention is expressed within the meaning of Section 173 of the Act, what is the position in the events which have happened in this case. In my judgment, quite clearly the case is governed by Section 105, Succession Act, and in the events which have happened, the legacy has lapsed. This is not a gift to a person and then to some other person. The words used which I have construed on the authority of the decision of the Privy Council do not describe a person or persons but have the effect of giving an absolute estate to the persons directed to pay the annuities in dispute in this case. That disposes of the appeal in Banamali''s case.

In Bistu''s case similar considerations apply, but with this exception that Bistu survived the testator. The judgment of the learned Judge in the Court below as regards Bistu''s case is, in my judgment, correct, although for reasons somewhat differing from those expressed by the learned Judge. The result therefore is that Appeal No. 414 of 1938 is allowed with costs, and Appeal No. 415 of 1938 is dismissed with costs.

Meredith, J.

I agree. I would only like to add one word, and that is that the argument put forward for the appellant that the words putra poutradi referred not to the legatees of the annuities, but to the testator''s nephew and grand nephew, is an entirely unsustainable argument. In that respect I am in complete agreement with the interpretation put on the will by both the Courts below.