PROVABATI DEBYA Vs. SAROJINI DEVI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for possession on establishment of title to the properties mentioned in the plaint. The plaintiffs claim based on their right of inheritance as the agnates and reversionary heirs of one Krishna Sundar Adhikary, was resisted by the contesting defendants in the suit. According to the defendants, Krishna Sundar died leaving a will, under which his daughter Kumudini got an absolute estate in the properties in suit, and the plaintiffs could not have any title to the same. It may be mentioned that the first three defendants are the daughters of Kumudini, while defendant 4 is the husband of defendant 1. The clause in the will of Krishna Sundar, most material for the purpose of the decision of this case is the sixth, and it runs as follows: If you do not exercise the right to adopt given, both of you shall enjoy my properties, and on your death, all the properties shall vest in my two daughters. The said two daughters shall live in my homestead and shall perform the devsheba and other ceremonies. If they do not do so whoever shall perform the said sheba &c. the properties shall vest in him.

(2.) The Courts below have differed in the construction of this clause in the will. According to the learned Subordinate Judge in the trial Court, no absolute right to the properties was conferred by the will to Krishna Sundar's daughter. The learned District Judge, in the Court of appeal below, has however held that an absolute title had vested in the daughter of Krishna Sundar, and in that view of the case the plaintiffs suit has been dismissed. The decision of the Court below has been challenged by the plaintiffs appellants; and it has been urged on their behalf that the construction placed by the Court below upon Clause 6 of the will, which has been set out above, was erroneous.

(3.) The will before us is a very simple document. The testator gave life estates to his two widows: the widows were given the power of adoption, which was not exercised. On failure of adoption by the widows, the testator's properties vested in the daughters. Upon the findings arrived at by the learned District Judge, the daughters lived in the testator's homestead and carried on debsheba as enjoined by the father for a pretty long time. The only question arising upon the finding so arrived at, is whether there was intention in the testator to give the daughters an absolute estate, and that question must, upon a plain reading of Clause 6 of the will, be answered in the affirmative. It is well settled now that there is no presumption in regard to a daughter that in every case she takes less than what would be taken by a male. When, in a case like the present, there are words conveying an absolute estate, they could not be cut down by any supposed presumption, such presumption only arising when the document is uncertain or ambiguous. The rule of construction in the case of a will is very well known. One has to try and find out the meaning of a testator, taking the whole of the document together, and to give effect to his meaning. In all cases the primary duty of a Court is to ascertain from the language of the testator what are his intentions. A devise in general terms, as in the present case, the testator simply intending that the estate shall vest in the daughters in the event of the widows not exercising their power of adoption, without the addition of words of inheritance, will pass the entire estate of the testator, unless a contrary intention appears from the context. Taking these principles of general application, as our guide in the matter of construction, we have no hesitation in coming to the only possible conclusion that the will of Krishna Sundar Adhicary conferred an absolute right on his daughters.