RAJENDRA LAL GHOSE Vs. RAKHAL DAS ROY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for constrution of a Will executed by his step- brother Natobar Ghose. The substantial controversy between the parties relates to the construction of Clause (5) of the Will, which is in the following terms: "That I have some Tezarati Karbar in my own name and in the benami of my son Girish Chandra Ghosh. After my death my said step brother Sriman Rajendralal Ghosh and his sons, &s., in succession shall realise, either amicably or by suits, the amounts that may remain due from my debtors and with the said money and with the G.P. Notes that may be left by me, they shall re excavate, in my name, the tank known as Panja Tank belonging to us in village Khorda Cawnpore and remove thereby the water difficulty of the public. Whatever will remain surplus, after defraying the said expenses, shall be obtained by my said brother and his sons, &s. If he does not re- excavate the said tank in my name, then my three married daughters Srimati Mrinalini Dassi, Srimati Bibhabati Dassi and Srimati Rash-mom Dassi, and after them my daughters sons shall realise the money of the Tezarati Karbar and with the said money and with G.P. Notes that may be left by me, they shall re excavate the said tank in my name; and if any surplus be left it will be obtained by the married daughters and widowed daughter Srimati Nikunja Dassi and daughter in law Srimati Subhashini Dassi in equal shares."

(2.) It appears that after the execution of the Will and before his death, the testator re excavated the tank. Consequently it is no longer possible for the legatee to fulfil the condition imposed in the Will. There can be no question that according to the true construction of this clause this is a condition precedent, that is to say, there is no gift intended at all unless and until the condition is fulfilled. At the time when the Will was executed the condition was not impossible of performance, but by reason of events subsequent, the condition has now become impossible : for, the testator himself re-excavated the tank after he had executed the Will and before his death. Consequently at the time of his death, when the testamentary disposition came into operation, the legatee could not re-excavate the tank. The contention of the legatee is that the condition has been discharged by the act of the testator himself and he can accordingly claim the legacy as if the condition had never been imposed. He invoked in substance the aid of the doctrine that the donee may not be bound by a condition imposed by the Will on account of the acts of the testator or other events subsequent to the date of the Will, where the effect is that substantially the condition is performed or nullified in the testator's lifetime or that substantially the testator has dispensed with the condition or has put performance out of the power of the donee. As an illustration of the application of this principle, reference has been made to the decision of the House of Lords in Darley v. Langworthy (1774) 3 Bro. P.C. 359 : 1 E.R. 1369, where there was a bequest of chattels at a mansion house conditional on residence there. The testator afterwards suffered recovery of the estate : it was ruled that the wife was entitled to the use of the furniture discharged of the condition which the recovery had put out of her power to perform. Reference has also been made to other cases of the same type, such as Gath V/s. Burton (1839) 1 Beav. 478 : 3 Jur. 817 : 48 E.R. 1025 : 40 R.R. 410 (condition requiring payment of debt held satisfied by testator accepting composition) : Wedgwood V/s. Denton (1871) 12 Eq. 290 : 40 L.J. Ch. 526 : 25 L.T. 379 (surrender of term followed by acceptance of new term): Walker V/s. Walker (1860) 2 De G.F & J. 255 : 29 L.J. Ch. 856 : 45 E.R. 619 : 129 R.R. 92 (condition requiring conveyance by donee fulfilled by purchase by testator of donee's interest) and Park, In re, Bott V/s. Chester (1910) 2 Ch. 322 : 79 L.J. Ch. 502 : 102 L.T. 725 : 54 S.J. 563 (marriage with testator's consent). There are remarks in some of these oases, suggesting that the true principle is, not that of considering that the condition has been fulfilled, but that the donees are exempt from the condition altogether, so that the Will must be read as if there were no condition. But this view may militate against the principle that the ascertainment of the testator's intention shown by the Will cannot be varied by events which occur afterwards : see the observations of Wood, V.C., in Clark's Trusts, In re (1863) 32 L.J. Ch. 525 at p. 529 : 2 N.R. 386 : 8 L.T. 571 : 11 W.R. 871 : 139 .R. 349. That intention must be determined from the terms of the bequest, and where the performance of the condition appears to be the motive of the bequest, the impracticability of the performance will be a bar to the claim of the legatee. In such a case the bequest does not take effect, discharged of the condition. Reference may in this connection be made to Lowther V/s. Cavendish (1758) 1 Eden. 99 at p. 116 : Ambl. 366 : 28 E.R. 621 and Priestley V/s. Holgate (1857) 3 K. & J. 286 : 26 L.J. Ch. 448 : 3 Jur. (N.S.) 486 : 4 W.R. 445 : 69 E.R. 1116 : 112 R.R. 153, which afford illustrations of the principle that where a condition precedent becomes impossible to be performed, even though there be no default or laches on the part of the devisee himself, the devise fails, The case before us is clearly of this description. The motive of the testator was that the water difficulty felt by the people of the locality should be removed and that this should be effected by the re-excavation of the tank in his name, to be accomplished by means of the funds placed by him at the disposal of the legatee. The essence of the intention consequently was that the legacy should be applied, in the re-excavation of the tank; and as an inducement to the legatee to carry out this injunction, the testator provided that the surplus should belong to the legatee or his representative in interest. By reason, of events over which the legatee had no control, the re-excavation of the tank has become impossible and unnecessary; in other words, the motive of the bequest had ceased to exist at the date of the death of the testator, whence the Will takes effect. If we test the matter from plain common sense point of view, we may put the question, whether, if the Will had been made at the time of the death of the tesatator, he would have inserted this particular provision therein. The answer must obviously be in the negative; as the tank had already been re excavated by him, he could not very well impose the obligation either upon the plaintiff or upon his daughters to re excavate it. The sub-stance of the matter is that the purpose which he had in view was not then in existence; it is consequently impossible for us to hold that the Will intended that even in such circumstances the bequest should take effect. We are of opinion accordingly that the clause has been correatly construed by the Court below and that this appeal must be dismissed with costs. Buckland, J.

(3.) I agree.