FOOLCOMARI DASI Vs. DEBENDRA NATH SEAL

JUDGEMENT

(1.) This suit turns upon a point of law. The facts may be very shortly stated. Kundanlal Seal (F)=Baj Lakhi (W), four sons, Jadu (S), second son Jyoti (S) died 1923=Ful Kumari (S.W.), third son Deben (S) fourth son Noren (S), Kundanlal died on 1 April 1939, leaving a will dated 1 December 1929. Under this will there is a provision for W (the widow), there is no provision for S.W. (son's widow) and the property goes, according to Hindu law, to the sons (S.S.S.), the heirs. The family is governed by the Bengal School of Hindu law, and the estate of Kundanlal was self-acquired.

(2.) The question of law is whether S.W. is entitled to claim maintenance by S.S.S., when S.S.S. take under a will and not by inheritance. There is no conflict of law where heirs take by inheritance. The leading case in Calcutta is Siddesury V/s. Janardan ( 01) 5 C.W.N. 549, affirmed in Siddesury V/s. Janardan ( 02) 29 Cal. 557. The theory of the matter has been expounded in detail in the judgment of Mahmood J. in Janki V/s. Nand Ram ( 89) 11 All. 194, see especially pp. 202, 205, 208, 211, 217 and 218. The passage at p. 218 is adopted from Dr. Gurudas Bannerji's book. As regards devisees and donees there is a conflict of authority. I give the cases in tabular form:

(3.) It is on the cases in the second column that both Mr. Chaudhuri and Mr. B. C. Ghose rely. So far as I am concerned, it would be sufficient for me to follow the decision of Sir Ashutosh Mookherjee in 1924. The matter was more fully argued before him than appears in the one report. It was a case of gift. Mr. Chaudhuri sought to make a distinction between "gift" and "will" but if any such distinction exists, in my opinion it would be unfavourable rather than favourable to his contention. For the purposes of this judgment "will" and "gift" have been treated upon the same footing, one being a transfer during life and the other being a transfer taking place at the date of death. Sir Ashutosh Mookherjee's decision is unqualified. It does not indicate any distinction between the obligations of a donee-heir and a donee-stranger. The case before me, as already indicated, is that of a donee-heir. There seem to be three positions, (1) heirship, intestate succession (no doubt as to the law), (2) donee or devisee, sub-divided into (a) heirs and (b) strangers. In order to see whether the legal liability which exists in case (1) attaches to (2)(a) and/or 2 (b), we have to examine the origin and nature of that liability. To this extent I agree with the arguments of Mr. Chaudhuri and Mr. B.C. Ghose. They contend on behalf of the sons that the liability is something peculiar to heirs; that it depends upon a certain ingredient in intestate succession, the ingredient of "spiritual benefit" or pinda. They contend that this element, (P. for short), where there exists absolute freedom to dispose of property, is eliminated by gift or will. The following passage in the notes to Section 89, T.P. Act, by Sir Hari Singh Gour supports this view: Property acquired by a valid testamentary disposition is not governed by the rules of the Hindu law of inheritance, and when the power of making such disposition is unrestricted, it is difficult to conceive any consistent grounds on which the devisee could be held bound by an obligation from which the testator had power to relieve him.