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1907 DIGILAW 157 (CAL)

Surendra Nath Ghose v. Kala Chand Banerjee

1907-07-02

body1907
JUDGMENT 1. This appeal arises out of a suit brought by the Plaintiffs to establish the right they claim to a house in the Barrackpur Cantonments. The facts of the case are Bet out in the judgments of the Courts below. It is sufficient to Bay here that one Srikanto Chatterjee died, leaving a widow Tripura Sundari and an adopted son Bipro Das surviving him. Srikanto Chatterjee before his death executed a Will giving his widow a life-interest In the house and providing that on Tripura Sundari's death, Bipro Das should have a right to the house provided he was of good character and was obedient to Tripura Sundari. Bipro Das mortgaged the house in the sixties with the consent of Tripura Sundari. Then one Kali Prasauno Bose sold the house in execution of a money decree obtained against Bipro Das and the house was purchased by the mortgagee, Gobinda Ghose. Tripura Sundari sued to set aside the sale and obtained a decree in the High Court to the effect that the Bale was set aside " as regards Tripur Sundari's life interest in the property--but it was declared that this could not affect any contingent or reversionary rights of Bipro Das after the widow's death, which the mortgagee had purchased, and which he might possibly be in a position to enforce." 2. The Plaintiffs are the heirs of Gobinda Chandra, the purchaser of the house, and now endeavour to establish their rights as against the Defendants, who derive their title from Tripura Sundari. 3. The District Judge, though he speaks in one passage in his judgment of Bipro Das having " a vested interest in the property," has come to the conclusion that Bipro Das had under Srikanto Chatterjee's Will only a contingent right to it, the reversionary right being subject to his being of good character and obedient to Tripura Sundari, that his right could not be alienated, and that therefore the Plaintiff's predecessor got nothing by his purchase, seeing that Bipro Das predeceased his mother and never succeeded to the property. The Plaintiffs appeal. The Plaintiffs appeal. On their behalf it is argued (1) that the right of Bipro Das was alienable during the widow's life-time : (2) that the Judge has misconstrued the Will: (3) that the condition in the Will does not refer to any specified event and is void for vagueness and uncertainty : (4) that the statement of Tripura Sundari in the Kobala, Exhibit A8, as to the misconduct of Bipro Das is inadmissible and (5) that the testator had no authority to make a Will so as to defeat the rights of his adopted son and consequently it is void. 4. We consider, however, that the District Judge is right and that Bipro Das had only a contingent interest in the property--that his rights were subject to the condition precedent that he should be of good character and obedient to his adoptive mother and should survive her. There is no dispute between the parties as to this condition being in the Will, which has been lost, but of which there is secondary evidence in the Kobala. Both parties admit that there was this condition. The Plaintiffs themselves produce the Kobala in which it is recited and before us it has not been denied that there was such a condition in the Will. There, therefore, appears to be no ground for supposing that the Judge has misconstrued the Will and taken a wrong view of Bipro Das's rights, which, being merely contingent, could not be sold. The condition in question does not seem to us to be void for vagueness. The condition is indeed very similar to that referred to in the case of Tatersall v. Howell 2 Merivales Reports p. 26 (1816). 5. It is immaterial whether the statements of Tripura Sundarl in the Kobala as to Bipro Das's misconduct are inadmissible or not, because he did not survive Tripura Sundari. The question whether he had a right to succeed to the house after the death of Tripura Sundari therefore does not arise. If, while Tripura Sundari was alive, Bipro Das had only a contingent reversionary interest, which could not be sold, as we consider was all that he had, the Plaintiffs have no title to the house. The Appellants' last contention is that the testator could not by Will convey his properly away from his adopted son. If, while Tripura Sundari was alive, Bipro Das had only a contingent reversionary interest, which could not be sold, as we consider was all that he had, the Plaintiffs have no title to the house. The Appellants' last contention is that the testator could not by Will convey his properly away from his adopted son. This argument is set at rest by the judgment of their Lordships of the Privy Council in the Pittapur case, Surya Mahipati Ram v. Court of Wards 3 C.W.N. 415 : s.c. L.R. 26 I A. 83 (1899), in which it was held that "in Hindu adoption there is no implied contract with the natural father that in consideration of the gift of his son, the adopter will not make a Will." For these reasons, we dismiss the appeal with costs.