Rajendra Chandra Mitra v. Manick Lal Ghatak — 1911 DIGILAW 238 (ALL)

JUDGMENT : KARAMAT HUSAIN, J. One Motilal Ghatak, on the 16th of December, 1901, made a will dealing with certain moveable and immoveable properties. Some of the immoveable property was situated within the jurisdiction of the Calcutta High Court and the rest in these provinces. 2. The portions of the will which have a direct bearing on the rights and duties of the parties to this appeal are the following:— “I appoint, constitute and nominate Babu Rajendra Chandra Mitra to be the sole trustee and executor hereof.” “I further direct that my said executor or executors will select a boy from amongst my caste and that such boy shall be adopted by my senior wife if living. If she be dead at the time, then my junior wife shall adopt such boy. But I direct that Manik Lal Ghatak, son of Chunni Lal Ghatak, will have preference if his parents agree to give him in adoption, and I further direct that if the boy so adopted to me as aforesaid be honest and faithful to my said wives and prosecute his studies up to the M.A. Standard of any Indian University, then my executor or executors shall hand over my properties to my such adopted son on his attaining majority, and such adopted son shall carry out the directions as hereinbefore contained.” “It is my wish that the Shyama Puja which used to be performed annually at the Digra house may be continued at a moderate cost of rupees one hundred (100) to rupees one hundred and fifty (150); that the Durga Puja be performed at the Allahabad house every third or fourth year at a cost not exceeding rupees four hundred (400); and that the destitute and four members of Digra Ghatak family be fed.’ 3. The plaintiff, Manik Lal Ghatak, was adopted by the senior widow of the testator on the 15th of February, 1909, after the death of the testator which took place on the 12th of January, 1909. The boy attained majority on the 19th of April, 1909, and was reading in the matriculation class when he brought this action. After coming of age the plaintiff, on the 12th of August, 1909, applied to this Court for probate of the will of Motilal. The defendant, on the 25th of November, 1909, entered a caveat. The boy attained majority on the 19th of April, 1909, and was reading in the matriculation class when he brought this action. After coming of age the plaintiff, on the 12th of August, 1909, applied to this Court for probate of the will of Motilal. The defendant, on the 25th of November, 1909, entered a caveat. The defendant also applied to the Calcutta High Court for the probate of the same will in September, 1909, and the plaintiff entered a caveat there. That Court granted probate to the defendant on the 20th of December, 1909, and the probate issued on the 17th March, 1910. 4. It is admitted that the defendant, in July, 1909, mortgaged the houses in Calcutta which are covered by the will, and that he is not in possession of any property bequeathed. The plaintiff then, on the 23rd of December, 1909, brought an action in the court of the Subordinate Judge of Allahabad and sought the following reliefs :—(a) A decree declaring that the title to the property specified in the schedule hereto annexed, is vested in the plaintiff, and that the defendant has no concern therewith :—(b) An injunction restraining the defendant for ever from intermeddling with the said estate or in any way interfering with the title and possession of the plaintiff. 5. The pleas in defence are that the authority given by the testator to adopt is unlawful; that the adoption being against the provisions laid down in the will is illegal; that no property vests in the plaintiff unless all the conditions prescribed by the will are fulfilled; that the plaintiff has no cause of action; that the suit is wrongly framed; that there is a non-joinder of necessary parties; that the plaintiff is entitled neither to declaration nor to permanent injunction, and that the probate granted by the Calcutta High Court bars the present suit. The court below gave the plaintiff a decree in the following terms:— It is ordered and decreed that it be declared that the plaintiff is the owner of the property specified in the beginning of the decree and that the defendant has no concern therewith. It is further ordered that a perpetual injunction be issued to the defendant, restraining him from ever interfering with the plaintiff's possession of and title to the property specified in the beginning of the decree.” 6. It is further ordered that a perpetual injunction be issued to the defendant, restraining him from ever interfering with the plaintiff's possession of and title to the property specified in the beginning of the decree.” 6. The defendant appeals and the memorandum of appeal contains 36 pleas. On analysis they, in addition to the pleas in defence, contain the following:— The court below is in error in construing the will inasmuch as there is no prayer for it. The construction put upon the will is wrong. The decree is beyond the scope of the suit. The written authority which is deposed to by the senior widow of the testator is not proved. The conditions imposed in the will for handing over the properties to the plaintiff are valid and have not been fulfilled. The chief points in the appeal are:— (a) the construction of the will; (b) the relative rights and duties of the plaintiff and the defendant under it; (c) the cause of action; (d) the frame of the suit; (e) non-joinder of the necessary parties; (f) the effect of sections 42 and 54 of the Specific Relief Act; (g) the effect of the probate granted by the Calcutta High Court; and (h) the relief to which the plaintiff is entitled. 7. We have carefully gone through the will and the reasonable construction of it so far as it relates to the rights and duties of the plaintiff and the defendant is this:—The defendant was appointed an executor and was bound to hand over the properties covered by the will to the plaintiff, who was lawfully adopted by the senior widow of the testator, on his attaining majority which, as has already been stated, took place on the 19th of April, 1909. The plaintiff was bound to carry out the directions contained in the will in respect of the property bequeathed. To be “honest and faithful” to the widows of the testator and to prosecute studies up to the M.A. Standard of any Indian University were only conditions subsequent, and the vesting of the property in the plaintiff did not depend on those acts on the part of the plaintiff. There is no force in the contention that the authority to adopt given to the senior widow is unlawful and no argument has been addressed to us on that point. There is no force in the contention that the authority to adopt given to the senior widow is unlawful and no argument has been addressed to us on that point. The contention that the adoption of the plaintiff being without his being selected by the defendant is illegal has no substance. The expression in the 8th clause of the will :—“But I direct that Manik Lal Ghatak, son of Chunni Lal Ghatak, will have preference if his parents agree to give him in adoption” completely takes away the power of selection given to the defendant in the adoption of the plaintiff. The argument that the statement of the senior widow of the testator indicates that the written authority to adopt was contained in some document other than the will is futile. There is nothing in the statement of the widow to establish that she is alluding to some document other than the will. Besides, it is not the plaintiff's case that the authority was given by some other document. When the widow says that the authority was read out to her, we have no doubt that she is referring to the will. The point that the will should not have been construed in the absence of a prayer to that effect in the plaint is without force. The reliefs sought by the plaintiff necessarily involved the construction of the will, and the court below was right in construing the will. The construction of the will attempted by the defendant is absolutely wrong and the construction of it so far as it relates to the legality of the plaintiffs adoption and the vesting of the property in him on attaining majority is quite right. The argument, that the word “hereinbefore “in the 8th clause of the will indicates that the defendant for the purposes of the Shyama Puja and the Durga Puja mentioned in the 9th clause of the will is to be the executor, although the plaintiff be held to the executor on coming of age in other respects, is fallacious. The argument, that the word “hereinbefore “in the 8th clause of the will indicates that the defendant for the purposes of the Shyama Puja and the Durga Puja mentioned in the 9th clause of the will is to be the executor, although the plaintiff be held to the executor on coming of age in other respects, is fallacious. When according to the terms of the will all the property is to vest in the plaintiff as soon as he attains majority: he and not the defendant is to carry out all the directions contained in the will, and the mere fact that the word hereinbefore is used in the 8th clause and the two Pujas are mentioned in the following clause cannot confer any right on the defendant to be the executor for the two Pujas. It is the executor and not the defendant personally who has to carry out those instructions. The point that as the case of the plaintiff in the court below was that the conditions relating to honesty and faithfulness to the widows of the testator and to prosecution of studies up to the M.A. Standard were void for uncertainty, those conditions could not in appeal be held to be the conditions subsequent is irrelevant. The constructions of a will or of any other document is the exclusive function of the court, and the fact that a party puts a particular interpretation upon it cannot preclude the court of appeal from interpreting it rightly. The relative rights of the parties under the will are that the defendant's executorship came to an end as soon as the plaintiff attained majority, and that the plaintiff became the executor on the 19th of April, 1909. 8. The facts that the defendant mortgaged the houses in Calcutta and that he entered a caveat in this Court have, without doubt, given the plaintiff a good cause of action. Moreover, there is the fact that the defendant even now claims to be the executor for the two Pujas. The frame of the suit in substance is right. The construction of the will was essential for granting or withholding the reliefs sought by the plaintiff, and the mere fact that there was no express prayer for the construction of the will, can in no way be fatal to the suit. The frame of the suit in substance is right. The construction of the will was essential for granting or withholding the reliefs sought by the plaintiff, and the mere fact that there was no express prayer for the construction of the will, can in no way be fatal to the suit. The absence of an express prayer for the construction of the will did not prejudice the defendant in his defence. The relief that the defendant has no concern with the property covered by the will on a liberal construction involves the declaration that the defendant ceased to be the executor on the 19th of April, 1909. 9. The widows of the testator do not resist the plaintiff's claim. In fact they are satisfied with him and express their willingness that he should be the executor. They, therefore, are not necessary parties and there is no non-joinder. The plaintiff sought all the reliefs he could, and sections 42 and 54 of the Specific Relief Act have in no way been violated. Section 59 of the Probate and Administration Act expressly enacts that a probate when granted shall be conclusive as to the representative title of the grantee in certain respects. That is the only result of a probate. The construction of a will or the determination of the rights of certain persons under a will are outside the scope of a probate. Such being the case, the decree of a competent civil court supersedes the grant. That grant comes to an end without any proceedings, under section 50 of the Probate and Administration Act (V of 1881). Arunmoyi Dasi v. Mohendra Nath Wadadat, [1893] I.L.R., 20 Cal., 888 and Jagannath Prasad Gupta v. Ranjit Singh, [1897] I.L.R., 25 Cal., 354 are authority for the above propositions. We therefore hold that the grant of probate to the defendant is no bar to the present suit and that the decree of this Court will put an end to the grant. The first relief to which the plaintiff is entitled is however not that he is “the owner of the property covered by the will,” but that that property vests in him as the executor of the will of Moti Lal Ghatak, dated the 16th of December, 1901. The second relief as to a permanent injunction has been rightly granted. The first relief to which the plaintiff is entitled is however not that he is “the owner of the property covered by the will,” but that that property vests in him as the executor of the will of Moti Lal Ghatak, dated the 16th of December, 1901. The second relief as to a permanent injunction has been rightly granted. The result is that we allow the appeal so far as to modify the decree of the court below by substituting the words “the property covered by the will of Moti Lal Ghatak dated the 16th of December, 1901, vests in him as the executor” instead of the words “that the plaintiff is the owner of the property.” In other respect the decree of the court below stands. Considering the facts and the circumstances of the case we make no order as to costs.