UPENDRA NATH DAS Vs. DURLAV CHANDRA KUNDU

JUDGEMENT

(1.) THIS is an application by the auction-purchaser to set aside a sale by the Registrar on the ground that good title has not been made out. The applicant contends that the property is subject to charges under the will of Krishna Das Kundu which have never been disclosed. The will was not mentioned in the abstract of title, nor in the conditions of sale, and it is alleged that the existence of the charges were deliberately suppressed. The mortgagee contends that the charges do not exist. The will was discovered after searches. Probate has never been granted. The will in Clause 3 provides that the testator's two sons who are the mortgagees shall each get at the rate of Rs. 50 a month from his estate month by month "for defraying the expenses of maintenance etc., of their sons, daughters, wives and their own selves" after the testator's death. There is a further provision that the sons shall get "at the rate of Rs. 2000" from the testator's estate for defraying the expenses of the marriage of each of their daughters. Clause 4 provides for a monthly allowance at the rate of Rs. 8 a month to be paid to the testator's youngest daughter, who was a widow, out of the testator's estate so long as she lives. These are the material portions of the will, and the question before me is whether the allowances granted by the will form charges. For the mortgagee it is contended that no charges will be created unless the testator provides that the allowances are to be paid from a specific property. That is by no means clear, and it appears from Theobald on Wills, Edn. 7 p. 508 that an annuity may be given without words creating an express charge. If the annuity is given in general terms and there is then a gift of residue, the annuity is charged upon the corpus. In Bridges V/s. Hinxman (1847) 16 Simon's Reports p. 71 the testator by his will devised certain property to his son for life and after his death to the first, second, third and fourth son and so on "paying" to the testator's wife "?l6 a year of lawful money of Great Britain," also to the testator's daughter ?10 a year of lawful money quarterly for life. The Vice-Chancellor held that the word "paying" created not a trust but a charge or condition. The matter was dealt with recently by the Division Bench of this Court in Bhola Nath Banerjee V/s. Sarbamangala Debi . There a Hindu testator created two successive life estates and gave the remainder to the defendants who were his grandsons. He further provided that monthly allowances should be paid to his granddaughter out of the estate left by him, and whoever was in possession of the estate would be bound to pay. There it was argued as the property was not specified no valid charge could be created, but the Court held that the charge would attach to the corpus of the estate which was bequeathed by the testator successively to the two ladies and then to the daughter's sons who were the defendants in that case. It is clear therefore on these decisions that a charge may attach to the general estate although the testator in his will may not make provision for the charge or allowances to be paid out of specified properties. In any event whether the allowances form charges or not it is quite clear that this possibility should have been brought to the notice of the prospective purchaser, and since that was not done the purchaser is entitled to have the sale set aside. Order in terms of prayers (a), (b), (c), (d) and (e). The mortgagee (Mr. B. N. Ghose's client) to pay the costs of the application to the auction-purchaser and the mortgagee will add those costs to his claim.