RAJESHWARI KUER Vs. KHUKHNA KUER

JUDGEMENT

(1.) THIS is an appeal from a judgment of the High Court at Patna of October 27, 1938, affirming with a modification a judgment of the Subordinate Judge of Chapra of April 25, 1938, whereby, in effect, he confirmed the attachment, in execution of a decree, of certain interests of the appellants under the will of Tirgunanand Upadhaya (hereinafter called the testator), who died in the year 1915. The substantial contention of the appellants is that their interests in the corpus so attached are contingent interests, and therefore, by reason of proviso (m) to Section 60(1) of the Civil Procedure Code, 1908, not liable to attachment. The question at issue turns upon the true construction of the somewhat inartistically drafted will of the testator.

(2.) THE testator made his will on July 26, 1915. He had had one son only who had died some three years previously. At the date of his will and at the date of his death (which occurred shortly after the date of his will) his near living relatives were (a) his second wife, Dulhin Ram Sakhi Kuer, (b) his daughter-in-law Dulhin Surja Kuer, the widow of his deceased only son, (c) the present appellants, his two grandchildren, Babui Rajeshwari and Babui Ghagota, daughters of a deceased daughter (d) Babui Khukhna a sister-in-law, of whom the testator says in his will " she has been living with me from her childhood, and I am, quite willing to provide for her comforts." By his will the testator, after summarizing the state of his family, states that although he had not given up the hope of getting a male issue, still in view of the uncertainty of life, he considers it desirable to make proper arrangement of his estate during his lifetime so that no dispute of any kind might arise on his death likely to ruin his estate. He then provides that if (which did not in fact occur) a male child is bora to him, he is to become absolute proprietor of all his (the testator's) property. He then proceeds to provide for the event (which in fact occurred) of no male child being born to him, as follows :-his second wife (whom it is convenient to refer to as the widow) is to become proprietor having life interest only of all his properties (with an immaterial exception). She is to pay out of the income of the estate certain specified annual payments to the daughter-in-law, the two grand-daughters, and the sister-in-law, and Rs. 300 a year to one Ram Lochan Pande or she (the widow) shall have the right to set apart properties fetching the above income and put my daughter-in-law and my daughter's daughters in possession thereof : if she does not set apart such properties herself, they shall have the right to recover cash or properties as specified above from my estate by taking the necessary steps in Court.

(3.) THE testator died shortly after the date of his will. THE annuity payable under the will to the sister-in-law was however not paid. During a period from 1922 to 1934 the present appellants, the two grand-daughters, acted as administrators of the estate, and under a decree obtained by the sister-in-law in a suit against the present appellants, the latter became liable to pay the sister-in-law a sumi of over Rs. 26,000 in respect of the arrears of her annuity, THE decree, as framed in the Appeal Court, was a personal one and was to be recoverable from any property belonging to the present appellants, including such property as they may have acquired or may thereafter acquire under the will.