Probodh Lal Kundu v. Harish Chandra Dey — 1904 DIGILAW 212 (CAL)

JUDGMENT 1. The Plaintiff Appellant brought this suit against the Defendants to recover possession, after establishment of his title, of a certain house which the Defendants Nos. 1 and 2 had purchased from Defendant No 3, Gorobini Dasi The house with other property originally belonged to Girish Chandra Kundu, and the Plaintiff claimed title to it under a Will executed by Girish Chandra Kundu on the 1st Pous 1290 and under a subsequent Will executed by Rajabala Dasi, widow of Girish Chandra Kundu, in favour of Plaintiff on the 21st Sravan 1296, probate of which was obtained on the 4th November 1894 on behalf of the Plaintiff who was then a minor by his father and next friend. Srish Chandra Kundu was at the same time appointed administrator to the estate of Rajabala Dasi and Girish Chandra Kundu on behalf of the Plaintiff and he instituted the suit on the Plaintiff's behalf. Gorobini Dasi was the mistress of Girish Chandra Kundu and by his Will. Girish Chandra left her, to live in during her lifetime, the house which is the subject of the present suit. It was alleged on behalf of the Plaintiff that Gorobini had no interest in the house except a life-interest for the purpose of residence. She bad no power to transfer it either by sale or gift, either during her lifetime or by Will, and therefore the sale of it by her to the Defendants Nos. 1 and 2 did not transfer to them any legal right to the property. 2. It was accordingly prayed that it be declared that Gorobini Dasi, Defendant No. 3, had no saleable interest in the house and that the deed of sale executed by her in favour of Defendant No. 2 on the 25th Joista 1306 was null and void; that even if it be found that Gorobini Dasi had a saleable interest in the house it be declared that the Defendants Nos. 1 and 2 have acquired no absolute right to it under the kobala of the 25th Joista 1306 and that the Plaintiff be declared to be entitled to take khas possession of the house by evicting Defendants Nos. 1 and 2. 3. 1 and 2 have acquired no absolute right to it under the kobala of the 25th Joista 1306 and that the Plaintiff be declared to be entitled to take khas possession of the house by evicting Defendants Nos. 1 and 2. 3. The Defendants denied that the Plaintiff had acquired any right or interest in the house under the Wills of Girish Chandra Kundu and Rajabala Dasi and contended that the house in dispute was acquired and absolutely owned and held by the Defendant No. 3, Gorobini Dasi and that the Defendants Nos. 1 and 2 had acquired a full title by purchase to the house under the deed of sale executed by her in their favour on the 25th Joista 1306. The provisions of the Will of Girish Chandra Kundu which are important for the purposes of this case are the following--after setting out that the property in his possession is a share in ancestral property which had been partitioned between him and his two brothers, and the necessity for making a Will, the testator proceeds:--"I therefore, thinking it proper to make some provision about the properties to be left by me and for the offering of libations of water and funeral cakes to my manes after my death, execute this Will." He then proceeds to mention the persons for whom "it is necessary to make some provision after his death." He first mentions his wife Rajabala Dasi, and then proceeds as follows:--"I and my wife have given shelter to a son of my wife's full sister and my agnate relative Srish Chandra Kundu, whose name is Probodh Chandra Kundu, and who is 21/2, years old, from his infancy and been supporting and bringing him up. The boy is particularly dear to us." He then mentions the boy's sister and lastly his mistress Gorobini. The second clause of the Will which is very important runs as follows:--"Thai after my death, my wife Srimati Rajabala Dasi shall become the rightful owner of all my properties moveable and immoveable left by me, and she shall take in adoption Sree Probodh Lal Kundu aforenamed as her son. The said Probodh Lal Kundu shall during my wife's lifetime remain under the care and support of my wife who shall perform his marriage and other ceremonies. The said Probodh Lal Kundu shall during my wife's lifetime remain under the care and support of my wife who shall perform his marriage and other ceremonies. After the death of my wife Probodh Lal shall become the owner of my estate but so long as my wife lives Probodh Lal shall have no free hand in respect of my properties. If, which God forbid, the said Probodh Lal dies during the lifetime of my wife, my wife shall be competent to adopt sons up to three, one after the other, and the son so adopted shall perform the duties of a son born of my loins and shall after the death of my wife become the owner of all my properties. It should be further stated that my wife during her lifetime shall be competent to alienate by sale, gift or otherwise, as may be necessary, the property left by me as she pleases; after my death my wife shall amicably and by law suits realise my dues from my debtors to which no objection shall lie." 4. The third clause deals with Khudumani Dasi, the boy's sister. 5. The fourth provides "that Gorobini Dasi shall occupy for life the house I have built for her, etc.," and continues "after her death my heirs shall inherit the said house and Gorobini Dasi's heirs shall have no right to succeed thereto." It also contains a bequest of Rs. 1,000 for her maintenance and concludes with the following passage:--"It should be slated here that the said Gorobini Dasi shall not be competent to sell or give away to anybody the house she lives in." 6. The 5th clause refers to the worship of the family deity and states, "my adopted son as paricharak shall duly perform the services with my share of the income of the debottur properties endowed before, etc., etc." 7. It is admitted that it was in the contemplation of the testator that after his death his widow should adopt the boy Probodh Lal Kundu, the Plaintiff, as her son. It seems, however, that the Plaintiff's father refused to allow the adoption, and the result is that the Plaintiff has not been adopted. 8. It is admitted that it was in the contemplation of the testator that after his death his widow should adopt the boy Probodh Lal Kundu, the Plaintiff, as her son. It seems, however, that the Plaintiff's father refused to allow the adoption, and the result is that the Plaintiff has not been adopted. 8. In the Will of Rajabala Dasi, dated the 21st Sravan 1296 (5th August 1889), she sets out this fact and says:--"But as Girish Chandra Kundu father of the said Probodh Nath does not agree to give him in adoption, I, out of extreme affection for the boy, and in order to carry out my husband's wishes, hereby provide that after my death the said Probodh Nath shall become the owner of all the properties moveable and immoveable left by my husband and myself" and after giving him absolute title to the property, she appoints him sole executor of her Will. 9. The Munsif held that as Gorobini Dasi had elected to abide by the terms of the Will and had taken her legacy of Rs. 1,000 under it, she and her transferees were estopped from denying the title of Girish Chandra Kundu to the house and setting up a title of her own to it. 10. He appears further to have held that the Plaintiff acquired no title to the property left by Girish Chandra Kundu under his Will because he was not his adopted son and so failed to fulfil the condition under which the property was left to him in the Will. 11. He also held that the widow Rajabala Dasi acquired under the Will only a life-estate in the property left by her husband and therefore that the Plaintiff acquired no right to the property in dispute under the Will executed in his favour by her. 12. Accordingly he dismissed the Plaintiff's suit. On appeal the judgment and decree of the Munsif have been confirmed by the lower Appellate Court, and the Plaintiff has appealed to this Court. 13. 12. Accordingly he dismissed the Plaintiff's suit. On appeal the judgment and decree of the Munsif have been confirmed by the lower Appellate Court, and the Plaintiff has appealed to this Court. 13. In support of the appeal two main points have been argued-- (1) That even though the Plaintiff failed to fulfil the condition in the Will of Girish Chandra Kundu which required that he should be adopted by Rajabala Dasi, the widow, still he took an estate in remainder under the terms of the Will as a persona designata, to whom the property had been specifically devised; and (2) that even if he was not entitled to any interest in the property left by Girish Chandra Kundu under that Will, still he was entitled to the whole of the property left by Girish Chandra Kundu and his widow under the Will executed in his favour by the widow, because if the Plaintiff took no interest under the Will of Girish Chandra Kundu then the widow Rajabala Dasi took an absolute interest under its terms. 14. In support of the first contention the following cases are relied on : Doss Moni Dasi v. Prosonno Moye, Dasi 2 Ind. Jur. (N.S.) 18 (1866), though it is admitted that it was not followed by Mr. Justice Phear in the case of Abhoy Charan Ghose v. Dasmoni Dasi 6 B.L.R. 623 (1871), Nidhoomoni Debya v. Sarada Prosad Mukerjee 26 W.R. 91 : s.c. L.R. 3 IndAp 253 (1876), Bireswar Mukerjee v. Ardha Chandra Roy Chowdhary L.R. 19 IndAp 101 : s.c. ILR 19 Cal. 452 (1892), Venkata Surjya Mohipati Ram v. Court of Wards L.R. 26 IndAp 83 : s.c. ILR 22 Mad. 383 (1899), Subbarayor v. Subbamal L.R. 27 IndAp 162 : s.c. ILR 24 Mad. 214 (1900), and the case in the English Court of Schloss v. Stiebel 6 Simmon 1 (1833). 15. In order to substantiate the second point reliance is placed in the case of In re Jones, Richard v. Jones L.R. (1898) 1 Ch. 438, and the case of Lalit Mohan Singh Roy v. Chukkun Lall Roy L.R. 24 IndAp 76 (1897). 16. A further point was taken that Gorobini had no transferable interest in the house at all and in support of this view the cases of Dewali v. Apaji Ganesh ILR 10 Bom. 438, and the case of Lalit Mohan Singh Roy v. Chukkun Lall Roy L.R. 24 IndAp 76 (1897). 16. A further point was taken that Gorobini had no transferable interest in the house at all and in support of this view the cases of Dewali v. Apaji Ganesh ILR 10 Bom. 342 (1886) and of May v. May 44 L.T.R. 412 (1881) were relied upon. It was contended that her interest in the house was restricted in its enjoyment to her personally and therefore she could not transfer it. [See cl. (d). sec. 6, Transfer of Property Act ] 17. Moreover it was urged that as she had elected to take the legacy of Rs. 1,000 under the Will, she was estopped from setting up a title contrary to the provisions of the Will. 18. So far us this last point is concerned we may say at once that we think that the contention of the Appellant is sound. At the same time there can be no doubt that unless the Appellant can establish his own title, he cannot avail himself of any defect of title in the Defendants. The important points, therefore, for consideration in this case are the two first. 19. Now with regard to the first point it is contended on behalf of the Respondents that the cases relied on by the Appellant are clearly distinguishable from the present. It is argued that the case in suit is similar to the following: Fanindra Deb Raikat v. Rajeswar Das L.R. 12 IndAp 72 : s.c. ILR 11 Cal. 463 (1885), Abbu v. Kuppummal ILR 16 Mad. 355 (1892), Surendra Keshab Roy v. Doorga Soondary Dassi and others L.R. 19 IndAp 108 : s.c. ILR 19 Cal. 513 (1891), Karamsi Madhowji v. Karsandas Natha ILR 20 Bom. 718 (1896), and the judgment of the Privy Council in the same case ILR 23 Bom. 271, 278 (1896). Reliance is also placed on the remarks of Farran, J, in the case of Karsamdas Natha v. Ladkavahu ILR 12 Rom. 185 (1887), as laying down the principle according to which the Will should be interpreted. 20. In opposition to the second point taken for the Appellants, it is contended that the terms of the Will did not confer on the widow Rajabala an absolute title and the cases of Mahomed Shamsool v. Shewakram L.R. 2 IndAp 7 at pp. 185 (1887), as laying down the principle according to which the Will should be interpreted. 20. In opposition to the second point taken for the Appellants, it is contended that the terms of the Will did not confer on the widow Rajabala an absolute title and the cases of Mahomed Shamsool v. Shewakram L.R. 2 IndAp 7 at pp. 14, 15 (1874), and Panchoo Mony Dasi v. Troilokho Mohini Dasi ILR 10 Cal. 342 (1884), and Bhoba Tarini Debya v. Peary Lall Sanyall and others ILR 24 Cal. 646 (1897) are relied on. 21. It is not necessary in our opinion in this case to enter into a long discussion of the different authorities relied on by both sides. We need only say that in our opinion the principles diducible from them applicable to the first point raised in the present appeal are-- (1) That the decision in each case of this nature must depend on the terms of the testamentary documents which are in question. (2) That in endeavouring to interpret such documents we must, as remarked by Farran, J., keep the provisions of the Hindu law in mind in endeavouring to carry out the intentions of the testator and that it is not safe to apply the English principles against holding conditions to be conditions precedent in such cases; and (3) That if on an interpretation of the document we hold that the intention of the testator was that the fulfilment of a certain qualification was a condition precedent to the bequest taking effect, then it follows that the legatee cannot take the bequest unless the condition be fulfilled. But if we hold that it was the intention of the testator that the legatee should take the bequest irrespective of the condition and the bequest was made to the legatee specifically, then it follows that the bequest will take effect even though the condition be not fulfilled. 22. But if we hold that it was the intention of the testator that the legatee should take the bequest irrespective of the condition and the bequest was made to the legatee specifically, then it follows that the bequest will take effect even though the condition be not fulfilled. 22. Now applying these principles to the interpretation of the Will of Girish Chandra Kundu we find that in the forefront of the document the testator states: "I therefore thinking it proper to make some provision about the properties to be left by me and for the offering of libations of water and funeral cakes to my manes after my death I execute this Will." This we take to be the express object for which the Will was executed and the only reasonable interpretation which we can give to the passage is that the testator's intention was so to dispose of this property as to provide after his death for the spiritual benefit of himself and of his ancestors, This object could only be secured by a bequest of the property to a person, who after the testator's death would become a member of his family and as such capable of making the offering for his spiritual benefit. In order to carry out this object the testator in the second paragraph of the Will proceeds to lay down that his widow Rajabala Dasi shall adopt Probodh Lal Kundu (the present Plaintiff) as her son, that during the widow's lifetime she shall be the rightful owner of all his properties and shall maintain and support Probodh Lal Kundu, and that, after her death Probodh Lal shall become the owner of the whole of his estate. In the event of Probodh Lal predeceasing the testator's widow he gave her power to adopt other persons up to three as sons and provided that the son so adopted shall perform the duties of a son born of his loins and shall after the death of his wife become the owner of all his properties. In the 5th paragraph the testator lays down that his adopted son as paricharak shall only perform the services of the family deity with the share of the income of the debottur properties endowed before, etc. 23. In the 5th paragraph the testator lays down that his adopted son as paricharak shall only perform the services of the family deity with the share of the income of the debottur properties endowed before, etc. 23. These clauses of the Will further support the view that the intention of the testator was that his properties should go after his death to a person, who by adoption, would become a member of his family, and as such be able not only to make offerings for the testator's spiritual benefit but also to perform the services of the family deity. 24. These are objects which, in our opinion, a pious Hindu would have in view in making a disposition of his property by Will, and these objects could not be secured unless a son was adopted by his wife after his death. The Plaintiff, Probodh Lal Kundu, could not carry out the objects of the testator unless he were adopted. We hold, therefore, that his adoption was a condition precedent to his taking the property under the Will. 25. The remarks of their Lordships of the Privy Council in the case of Karamsi Madhouji v. karsandas Natha ILR 23 Bom. 271 (1898) appear to be peculiarly applicable to the present case. In that case it was accepted as a valid argument that the testator assumed as a basis of his disposition that there would be an adoption and that, the alternative did not occur to him Thus with the failure of the adoption the whole structure of the Will failed and there ensued an intestacy not as desired or contemplated by the testator but because he took for granted the existence of a condition which did not however come to pass. 26. This is in our opinion exactly what has happened in the present case. The testator never contemplated that the father of Probodh Lal Kundu would refuse to give him in adoption and he, therefore, made no provision in his Will for such a contingency. What provision he might have made if he had had such a contingency in contemplation we cannot determine. We can only hold on an interpretation of the testator's Will that he assumed as a basis of his disposition that there would be an adoption of Probodh Lal Kundu, and that that was the essential condition on which the bequest to Probodh Lal was made. We can only hold on an interpretation of the testator's Will that he assumed as a basis of his disposition that there would be an adoption of Probodh Lal Kundu, and that that was the essential condition on which the bequest to Probodh Lal was made. We hold on the authority of that and the other cases relied on by the Respondent that the adoption was a condition precedent to Probodh Lal taking the property under the Will, and, that condition not having been fulfilled, Probodh Lal (the Plaintiff) acquired no title to the property of Girish Chandra Kundu under that Will. 27. On the second point we have no hesitation in holding that the widow Rajabala Dasi acquired under the Will a life-interest only in her husband's property and not an absolute estate. We consider that the principles laid down by the Privy Council in the case of Mahomed Shamsool v. Shewakram L.R. 2 IndAp 7 (1874) apply and that we have to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of their property and to assume that a Hindu knows that as a general rule, at all events, women do not take alienable estates of inheritance which they are able to alienate. 28. Moreover in the Will of Girish Chandra Kundu it is distinctly provided that the widow Rajabala Dasi should be the rightful owner of the property during her lifetime and that at her death all the property should pass to the son whom she might adopt. The provision which enable her to alienate during her lifetime by sale or gift or otherwise at her option as might be necessary cannot, in our opinion, be taken to have conferred on her an absolute right of alienation so as to give her an absolute title to the property and the words used which gave her the option, seem to us to mean, not that she could alienate the whole of the property at will, but that a power of selection was given to her in determining what properties should be sold in case of necessity. The provision giving her power of gift must in our opinion be taken to he restricted to such gifts as are usual at the time of death for spiritual purposes and not to confer on her absolute freedom to dispose of the whole property by gift during her lifetime. 29. Certainly the provisions of the Will are not capable in our opinion of the interpretation that she had full power to dispose of the whole estate by Will at the time of her death. 30. We hold therefore that the Will executed by Rajabala Dasi in favour of the Plaintiff cannot be held to have conferred on him any valid title to the property left by Girish Chandra Kundu. 31. In our opinion therefore the Plaintiff has failed to prove that he had any valid title to the property in suit under the Wills of either Girish Chandra Kundu or Rajabala Dasi, and we are of opinion that the conclusions arrived at by the lower Appellate Court are correct, and that the points taken in support of this appeal fail. The result is that we confirm the finding and decree of the Sub-Judge and dismiss this appeal with costs.