GOOROO DAS MUSTAFI Vs. SARAT CHUNDER MUSTAFI

JUDGEMENT

(1.) This appeal arises in a suit for the recovery of property with mesne profits. The facts are admitted and the case depends upon the construction of the will of Sarbeswar Mustafi, dated the 3 November, 1863. He died on the 13 November, 1863, leaving a widow (Taramoni), a brother (Radhajiban), and a deceased brother's son (Lakshmi Das). At the time of Sarbeswar's death, Lakshmi had three sons--Gurudas, Purna, and Umesh,--who are the defendants in this suit. Subsequently, i.e., in November, 1865, Lakshmi married a second wife, by whom he had three sons--Sarat, Hem, and Manmatha--the last of whom died in December, 1887. Lakshmi Das died in May, 1887, and Taramoni in January, 1892. The plaintiffs are Sarat, Hem, and their mother as heiress of Manmatha, while the three sons of Lakshmi by his first wife are the defendants.

(2.) It appears that Taramoni executed a deed of gift of the property in favour of Guru, Puma, and Umesh, and it is admitted that the deed is void at her death. The Will first bequeaths Sarbeswar's entire estate to his widow for as long as she shall live (jabat jiban). Then she is given power to adopt one after another any son of Lakshmi Das, but no other person. Then comes the passage: "After the death of my widow, my brother's son, Lakshmi Das Mustafi and his sons, grandsons, and so forth (adi), being in possession of my immoveable and moveable properties, shall perform the Iswar Deb Seba and other rites in honour of the deities for all times to come." Then follows a clause regarding Taramoni's Stridhan, with which this suit is not concerned. The next paragraph recites that there had been a gift of half the testator's property to Radhajiban on certain conditions, and this was confirmed, unless Radhajiban disregarded the stipulations, in which case the half share would go to Taramoni and Lakshmi Das, or, as it is worded, "the entire 16 annas property shall remain in the possession of Lakshmi Das and in the possession of my wife." Such a contingency has not, arisen. Then follow certain legacies payable out of sums due under decrees of Court. Then comes a bequest of the balance of the decretal money, viz., Rs. 9,675, which was to be invested in Government paper. The material portion reads thus: "The rest of the original paper shall remain in my wife's possession during her lifetime, and after her demise shall remain in possession of Lakshmi Das Mustafi."

(3.) The contention of the plaintiffs is that, under the terms of the will, Lakshmi obtained a vested estate of inheritance subject to Taramoni's life estate, and liable to be divested, like Taramoni s, by an adoption which, however, never took place,, If that be the correct construction, the inheritance would be shared equally by all of Lakshmi's six sons, and therefore the plaintiffs are entitled to recover half the property from the defendants, who have taken possession of the whole. On behalf of the defendants, who are appellants before us, it is contended that Taramoni acquired a Hindu widow's estate and that, so long as she was alive, no one could have a vested interest in the succession; and that, on Taramoni's death, none of the class described as Lakshmi's sons, grandsons and the rest, could inherit, who were not alive at the time of the testator's death, I need not stop to enquire whether in such a case the disposition would fail as to all of the persons constituting the class, because some of the sons are incapable of taking. That is the well-settled rule in England, and was recently applied to the will of a Hindu widow by Stanley J. in the case of Rajomoyee Dassee V/s. Troylukho Mohiney Dassee (1901) I. L. R. 29 Calc. 260. I am saved from the necessity of considering whether that rule is always applicable in this country, because I fully agree with the Subordinate Judge that the ultimate estate, which the testator intended to confer, was an absolute one upon Lakshmi Das, and that the words o putra pautradi are equivalent to " putra pautradi krame." That this is so in also made manifest from the context, Where twice over Lakshmi Das is associated with Taramoni in the inheritance without any reference to sons or grandsons. I further think that the intention was to give Taramoni to ordinary" life estate and not that of a Hindu widow. The language employed to express such an intention seems A me quite clear and unequivocal and I do not think a contrary intention can be inferred from the mere fact that power was given to the widow to adopt a son and so divest herself of the estate. This is not a case in which it is contended that the testator gave his widow an absolute estate and which Raises the question whether the intention to give more than the ordinary widow's estate can he deduced. The considerations which apply to that class of cases are inapplicable here.