RADHA PRASAD MALLICK Vs. RANIMONI DASI

JUDGEMENT

(1.) This appeal arises out of an application made under the liberty to apply contained, in the decree passed in this suit, and it involves the question - whether in the events that have happened the applicant, the appellant before us, has a present interest under the will dated the 30th. October 1870 of Hurry Dass Dutt, who died on the same day. In that will there is a clause in these terms: But in case none of such adopted sons survive my said wife or in case of either surviving by said wife and dying under the said age without leaving a son or sons I desire and direct my executors after the death of my said wife or the death of such son after her but under such age of eighteen years without leaving a son or sons to make over and divide the whole of my estate both real and personal unto and between my daughters in equal shares in whom and their respective sons I give devise and bequeath the same but should either of my said daughters die without leaving any male issue surviving but leaving my other daughter her surviving then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter or in the case of, the death of either daughter leaving sons the share of such daughter is to be paid to such her son or sons share and share alike.

(2.) The testator left him surviving his widow Surnomoni Dasi, his daughter Ranimoni Dasi, his daughter Premmoni Dasi and three sons of Premmoni Dasi, i.e., the appellant Had ha Prasad Mallick, Kasi Prasad Mallick, and Jyoti Prasad Mallick.

(3.) It is common ground that those events have happened in which the gift in favour of the testator's daughters and their sons is expressed to come into operation. It is in these circumstances that the present suit was instituted and the first question of construction that arose was whether the daughters took absolute or limited interests. In reversal of the High Court's view it has been held by the Privy Council that the daughters did not take absolute interests and in the order in Council consequent on that decision it was ordered that the decree of the High Court be varied by substituting for the words therein contained "are each absolutely entitled to a moiety or half part of the estate of the said testator including the additions and accretions thereto" the words "are in the events that have happened entitled to the estate of the said testator including the additions and accretions thereto in equal shares for life and with benefit of survivorship between themselves." In other respects the decree of the High Court was affirmed.