NAWAB KHAJEH HABIBULLAH Vs. BABU ANANGA MOHAN ROY

JUDGEMENT

(1.) The subject-matter of the suit and the appeal is eight annas share of a permanent garmukorari tenure called taluk Biswanath Roy. The plaintiffs-appellants are the superior landlords of that tenure to which admittedly the Bengal Tenancy Act applies. Two persons, Abinash Chandra Roy Chowdhury and Kiranbala Chowdhurani were the tenure holders. Abinash executed a will (Ex. 11, II-1) on 10 July 1909 and died shortly thereafter. He had married twice. By his first wife, who predeceased him, he. had a son named Abani. Ananga is the only son of Abani. His second wife who survived him was Rumudini. She was child. less. By his will Abinash disinherited his only son Abani, and made his second wife executrix. He gave the whole of his estate, moveable and immovable including his eight annas share in the tenure taluk Biswanath Roy to her in the first instance and made provisions for the devolution of his whole estate after her death. His grandson, Ananga, was to take that estate, according to the terms of the will, after Kumudini's death. The most important controversy in the suit and the appeal is about the nature of the estate conferred by the will on Kumudini, namely, whether it was a life estate or an absolute estate. The probate of the will was granted to Kumudini on 21 February 1911. Kumudini administered the estate and it is admitted by the parties that in 1921 she was in possession of the eight annas share of the tenure, taluk Biswanath Boy, in her capacity as beneficial owner under the terms of her husband's will. The other eight annas share of the tenure was then vested in Kiranbala. That tenure fell into arrears and the plaintiffs filed a suit to recover the arrears of rent on 1 July 1921. This suit which was numbered as Rent Suit No. 8 of 1921 of the Court of the Subordinate Judge of Tipperah was instituted against Kumudini and Kiranbala. During the pendency of this rent suit Kumudini died on 19 September 1921. On 16 September 1921 she executed a will by which she appointed five persons as executors, namely her step-grandson Ananga, her brothers Lalit Mohan Ghosh, Biraj-Mohan Ghosh, Bhuban Mohan Ghosh and one Jitendra Mohan Bose. The beneficial interest in all her properties was given to a deity named Kumudeswar Mahadev. The probate of this will was granted to Ananga only on 9 May 1924, the other four executors having in the end renounced. On the application of the plaintiffs, Abani and Ananga were substituted in the place of Kumudini in the rent suit on 22nd November 1921. The plaintiffs proceeded upon the footing that Ananga became the tenure- holder of that tenure to the extent of eight annans on Kumudini's death on the basis of Abinash's will, but for greater caution they brought Abani on the record also. At that time they had no knowledge of Kumudini's will.

(2.) The four other executors of Kumudini's will however made an application in the rent suit on 12 January 1922. In that application they disclosed Kumudini's will and made a statement that they only were the executors under that will. They claimed to be substituted in the place of Kumudini as her legal representatives, and prayed for such substitution. In the body of the application (Ex. A-II-30) they stated that Abani and Ananga were not necessary parties. The plaintiffs pleader asked for and obtained time to consider his position in regard to that application. Ultimately that application was lost sight of and the Court granted a decree for rent against the parties then on record, namely Abani, Ananga and Kiranbala on 23rd March 1923. Abani was admittedly not a necessary party. The tenure was sold in execution of this decree under the procedure of Chap, 14, Ben. Ten. Act, and was purchased by the plaintiffs on 5 April 1923. After an unsuccessful application by Abani and Ananga to set aside that sale, the sale was confirmed on 21 July 1924 and the sale certificate was issued to the plaintiffs on 27 September 1924. The decree in the rent suit and the sale in execution thereof was held before the probate of Kumudini's will had been granted. The probate of that will was granted to Ananga on 9 May 1924. 3. The question on which this appeal hinges is whether all the tenure holders of the said tenure were parties to the rent decree and in the execution proceedings. If that was so the entire tenure has passed to the plaintiffs by their purchase at the court sale. If not, that rent decree would not have the effect of a rent decree in terms of the Bengal Tenancy Act, but would have the effect of a money decree, effective only against Kiranbala and the right, title and interest of that judgment-debtor only would pass to them. If the will of Kumudini was operative to pass eight annas share of the tenure to the deity Kumudeswar Mahadev, the plaintiffs would then get by their purchase at the said auction sale only the eight annas interest of Kiranabala. These positions are admitted by the parties and are also in accordance with law. If, however, by the will of Abinash a life-estate only had been conferred on Kumudini she would have then no power to give the tenure to the said idol and her executors would not be necessary parties to that rent suit on her death. On her death the same would vest in Ananga by the terms of Abinash's will and no matter whether Ananga had a life- estate or an absolute estate therein he would represent after Kumudini's death the eight annas share of the tenure which belonged to Abinash. The decree passed in the rent suit would be then effective against the tenure and the court sale held in execution thereof would consequently pass to the purchasers the whole tenure and the plaintiffs would be entitled to succeed in this suit. If however Kumudini had an absolute estate in that tenure under her husband's will further questions would arise. We would therefore take up the question of the construction of Abinash's will.

(3.) The will consists of 13 paragraphs. Paragraph 5 is subdivided into three parts. We will designate these sub-paragraphs as 5(a), 5(b) and 5(c). Paragraph 6 is subdivided into four sub-paragraphs which we will designate as 6(a), 6(b), 6(c) and 6(d) and para. 12 into two sub-paragraphs which we designate as 12(a) and 12(b). The material paragraphs are Section 5, 6, 7, 11 and 12. In para. 3 the testator expresses his displeasure at the conduct of his son, Abani and purports to disinherit him. By paras. 5(a) and 5(b) he gives all his properties to his wife Kumudini in the first instance. Paragraph 5 (b) defines her interest. There are three expressions used there, each one of which would ordinarily be sufficient to confer an absolute estate on her. If that sub-paragraph stood alone there could not have been any doubt about the estate she took under her husband's will. Sub-paragraph 5(c) states that after the death of his wife his grandson, Ananga would take all his properties, if he did not forsake his religion. In that paragraph words are also used which would confer an absolute estate on him. Paragraph 6 contemplates other sons being born to Abani, In that event those grandsons of the testator would take equally with Ananga, if they did not forsake their religion. Paragraph 6 (d) states that his grandsons would have an estate of the same nature as was conferred on his wife. Paragraph 7 confers a power on his widow to take sons in adoption. Paragraph 11 deals with his insurance money and his share separately. His wife is to take first and on her death his grandson. Paragraph 12 contemplates the case of the death during the lifetime of his widow of his grandson or grandsons or of the son that may be adopted to him. In that event his estate is to be divided into eight equal parts, four of which are to be devoted to the worship of the idol established by him at Benares and to such other purposes as would be of spiritual benefit to the soul of his deceased father and mother. One part is to be given to his spiritual guide and the remaining three parts were to be utilized for establishing and maintaining a charitable dispensary in his village. It is quite clear that if the estate conferred on his wife be an absolute estate the provisions made in paras. 5(c) and 6(b) for his grandsons would be invalid, as also the dispositions made in para. 12. On reading the whole of the will the dominant intentions of the testator as expressed therein appear to be two--(1) exclusion of his son, Abani, from his properties which was made effective by the disposition of his entire estate to persons other than his son and (2) that his estate in its entirety was to pass intact to his widow and grandsons in succession and on the happening of the event mentioned in para. 12 to the objects specified therein, namely, 7/8ths of his estate was to be devoted to objects of a permanent nature, the remaining 1/8 being given to his spiritual guide. The first dominant intention is made effective by the disposition of his entire estate to persons other than his son, Abani. The second dominant intention, as Lord Tomlin observed in Nisar Ali Khan V/s. Mohammad Ali Khan "is inconsistent with a series of absolute interests and could only be given effect to with such a series if each taker voluntarily denied himself the exercise of all powers of alienation, inter vivos, and disposed of the property testamentary to the next taker in accordance with the testator's scheme." In that case before the Judicial Committee the testator gave his property first to his nephew Nawab Sir Fateh Ali Khan and used terms which would have been sufficient to confer on him an absolute estate. He further provided that on the death of Nawab Sir Fateh, his (testator s) son Nawab Mohammad Ali Khan and on the latter's death his nephew Nawab Hidayat Ali Khan would take the properties in the same interest in which Nawab Sir Fateh Ali Khan was to take; their Lordships of the Judicial Committee held that each one of these persons, Nawab Sir Fateh Ali Khan, Nawab Mohammad Ali Khan and Nawab Hidayat Ali Khan took successive life estate only, though the words of limitation used by the testator would by themselves have conferred on each one of them an absolute estate. Belying on the principle enunciated in Nisar Ali Khan V/s. Mohammad Ali Khan we hold that Kumudini had only a life estate notwithstanding the terms of para. 5 (b) of the will. She had therefore no power to make a will in respect of the tenure, Taluk Biswanath Roy or to dedicate it to the deity. On her death Ananga became the owner of eight annas of that tenure by the terms of his grand-father's will. He was therefore rightly brought on the records of the rent suit on the death of Kumudini. As the tenure was fully represented in the rent suit, at the date of the decree, that is to say, as the rent decree was passed against all the tenure holders and the execution proceedings were taken against the tenure holders, the whole tenure passed to the plaintiffs at the rent sale by reason of provisions of Chap. 14, Ben. Ten. Act.