MAHENDRA LAL NANDY Vs. RAKHAL DAS BISHAI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in a suit for recovery of moveable and immoveable properties; they were successful in the primary Court in respect of a portion of their claim and have appealed as to the remainder. The controversy is now limited to a house and to ornaments and a sum of money in cash. As regards the ornaments and the money, in the course of the hearing of this appeal, the parties have come to terms, and agreed to divide equally the subject-matter of dispute. In so far as the house, however, is concerned, they have asked for judgment of the Court.

(2.) The house in question belonged to one Brojo Nath Das, who made a testamentary disposition of his estate on the 5th May 1889. He left two widows, a widowed daughter and two nephews, the sons of his sister. The nephews are not mentioned in the Will, and, so far as we can gather from his testament, the testator appears to have considered only the claims of his widows and his widowed daughter. In so far as the house is concerned, the provision in the Will is in these terms: "My dwelling house shall remain in the posseesion of both ray widows. On their death, my daughter, Srimati Surat Mohini Dasi, shall get the same. They will be able to make a gift and sale according to their wishes." In a later part of the Will, there occurs the following passage: "As long as my two widows and daughter, by residing in my family dwelling house, shall continue to be in possession, so long they shall have the use of the pathway which now exists for going to the back part of the garden house,, whereto Hari Das Hazrah shall not be able to make any objection with his heirs in succession." The Subordinate Judge held that the effect of this, disposition was to confer upon the widows a life-estate and to give a vested interest in the house to the widowed daughter, and, that consequently upon the death of the daughter, the properties passed to the heirs of her stridhan, namely, the brothers of her husband, who are the defendants in this litigation. It may be statid here that the daughter died on the 10th May 1906; her mother died five days later and her step mother on the following day. According to the view of the Subordinate Judge, the daughter took a vested interest, though her possession was deferred, so that upon the death of the testator, the widows came into possession, and upon the death of the -daughter, the interest vested in her descended to her heirs, subject to the termination of the life-estate of the widows. This view has been challenged on behalf of the plaintiffs in this Court, and three possible interpretations of the Will have been suggested on their behalf.

(3.) It has been contended, in the first place, that the effect of the clause which confers upon the widows and the daughter a power to make gift and sale according to their wishes, was to confer an absolute interest upon them, that under Section 111 of the Indian Succession Act, the widows became entitled to an absolute interest upon the death of the testator and that the gift over in favour of the daughter never took effect, as it could take effect only in the event of the death of the widows during the life-time of the testator. It has been argued, in the second place, as an alternative, that the widows took an absolute interest and the gift over in favour of the daughter was bad, because it is not permissible under the law to create an absolute interest in the grantee, to confer upon him the right to make a gift and sale at his pleasure, and, at the same time, to make a gift over in respect of such portion of the estate as may not be disposed of by the grantee. It has been contended, in the third place, that if the effect of the clause, which confers upon the widows and the daughter a power of gift and sale, is not to create an absolute interest, the widows and the daughter took a life-estate so that upon the death of the daughter and the widows, the plaintiffs, as reversionary heirs to the estate of the testator, became entitled to the house. On behalf of the respondents, the construction adopted by the Subordinate Judge has been supported, and, reliance has been placed upon the decision in the case of Lallu v. Jagmohan 22 B. 409. In our opinion, the view taken by the Subordinate Judge cannot be maintained.