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1908 DIGILAW 33 (CAL)

S. M. Hara Kumari Dasi v. Mohim Chandra Sarkar

1908-01-29

body1908
JUDGMENT Maclean, C.J. - This is a very curious suit. It is a suit asking to have the Will of one Ananda Lal Sarkar construed. But in his plaint the Plaintiff sets up very prominently that the Will is a forgery and an appeal was until recently pending in this Court to have the probate revoked. If the suit had come before me, I should have dismissed it summarily. But we are told that the appeal to this Court which was existing when the decision now appealed against was given, has since been withdrawn. So we will deal with the question of the construction upon the merits. The question turns upon the construction of a very short Will dated the 10th of March 1866 : and, we are told the testator died two or three days afterwards. After certain recitals as to his property, the material portion of the Will runs as follows: "I have no son, and I have only one daughter Sreemutty Hara Kumari Dassi," (who is the present Appellant). "Although I have given her in marriage, still it is my duty to maintain her." Pausing there for a moment, these words would appear to indicate that the testator proposed to make some provision by his Will for his daughter. Then he goes on, "I, therefore, of my own free will, and in sound health and in possession of my senses, execute this Will in your favour." The Will purports to be addressed to his wife. "You are my legally married wife, and entitled to the property to be left by me." Up to this point the contents of the Will are in the nature of recitals. I now come to that which may be regarded as the operative part of the Will. "Should I, on a sudden, die at Benares, you shall under this Will, become possessor of my properties, &c., and perform my shradh &c., at a suitale cost, and for the benefit of my soul you shall purchase a house at this Benares, and establish a Mohadev in it, and perform its seba and service &c., and you shall fix a suitable allowance as pronami for my spiritual guide." Pausing there the expression "possessor of my properties" is not inconsistent with the view that the widow was only to have a life interest in the property. There is, so far as I have read, no clear and absolute gift to the widow. Then come the words upon which reliance has been placed by the Respondent, "you will have the right and power to alienate by gift or Bale all the aforesaid moveable and immoveable properties." If the Will had stopped there it might have been difficult to say that the widow did not take the property absolutely. But very important words follow, and we must give effect to all the words of the Will, so far as we can. "My daughter Sreemutty Hara Kumari Dassi shall become entitled to and possessor of whatever properties will remain after your death, and she shall enjoy the same, keeping up and maintaining the aforesaid sebas, &c." Later on be says, "The said daughter shall have the same rights in the aforesaid properties as you have and be, to whom my said daughter may willingly give away those properties, shall possess the same, and enjoy them, keeping up and maintaining the seba, &c." 2. The question is what interest did the widow take. For the Appellant, it is contended that she only took a life interest) with a power--one which in England would be regarded as a power of appointment to alienate by gift or 'sale the property passing by the Will. This is the view pleaded by the Plaintiff in paragraph 5 of the plaint. "According to the directions" he says "contained in the alleged Will, the widow Ichhamoyi had only a life estate in the properties mentioned in the Will." If the Will had stopped at the words " moveable and immoveable properties" as I have already pointed out, it might have been difficult to say that the widow did not take absolutely, but we cannot eliminate from the Will all the words which follow in favour of the daughter. It is clear the daughter was to be "entitled to and possessor of what properties will remain after your death" and she was to "enjoy" the same. Are these words to go for nothing? It is clear the daughter was to be "entitled to and possessor of what properties will remain after your death" and she was to "enjoy" the same. Are these words to go for nothing? There is not, In so many words, any clear and absolute gift to the widow, and we can give effect to all the words in the Will by holding that the widow took for life, with a power of alienation, but to the extent to which such power was not exercised, the daughter similarly took the property. She was to have the "same rights in the properties" as the widow. If the Respondents' argument prevail she takes nothing. We think this is the true construction of the Will. It is only in this way that we can give proper effect to the words that the daughter "shall become entitled to and possessor of whatever properties will remain after her death and she shall enjoy the same." We cannot strike these words out of the Will In my opinion the view of the lower Court that the widow took an absolute interest and the daughter took nothing is mistaken. The decree of the Court below must be discharged and In the circumstances the suit must be dismissed with costs including costs of the appeal. Coxe, J. I agree.