NAKSHETRAMALI DEI Vs. BRAJASUNDER DAS

JUDGEMENT

(1.) These two appeals arise out of a suit brought by one Nakshetramali Dei, one of the daughters of Rai Bahadur Sudan Charan Naik, for the construction of a will left by him. The principal relief claimed by her is set out in the plaint in these terms: "That on a proper construction of the document, dated 9 January 1925, propounded as the last will and testament of the late Rai Bahadur Sudani Charan Naik, let it be declared that the disposition made by the deceased of his properties by the said document are invalid, inoperative and void and as such the said properties have vested in his legal heirs, namely, the plaintiff and defendants 8 and 9." Sudani Charan Naik died on 31 January 1925, leaving behind three daughters, one of whom is the plaintiff and the other two are defendants 8 and 9 in the suit.

(2.) His only son Kishore Charan Naik had died during his lifetime and the latter's widow is defendant 1 and their daughter is defendant 2. The other defendants in the suit are the husbands of defendants 8 and 9, their sons, one Lakshmidhar Mahanty (one of the executors under the will) and his two sons. The will after making certain bequests provides in effect that the person referred to in Clause 1 as the "heir" is to be the residuary legatee.

(3.) The only clauses of the will with which we are concerned in these appeals are the following: 1. Lalmohan's first male child by the present wife to be heir; in default of any male child being born to him or dying in childhood either a son of Lakshmidhar or Gopal to be heir, The boy should live with the daughter- in-law as her adopted son. "2. Cuttack house will pass absolutely to Lalmohan subject to the condition that he lives there with the daughter-in-law and her daughter who shall have the right to live there during life. "3. Rs. 10,000 should be set apart in a fund the income of which the executors shall apply to the relief of any poor and deserving Karan family or families or individuals in shape of necessaries of life in times of distress, medical or educational aid, help for marriage of daughter or such other deserving cause. "4. The residue to be administered by the executors for the benefit of the heir to pass to him absolutely on his attaining the age of 21 years." Now, there is considerable difference of opinion among the parties as to the construction and the effect of the first clause. It is argued on behalf of the plaintiff (the appellant in Appeal No. 5) that the bequest under this clause cannot take effect as it is void for uncertainty. Defendants 2 and 9 who are appellants in Appeal No. 6 state on affidavit that a son has been recently born to them (the actual date of birth is stated to be 15 August 1932) and contend in the first place that the newly born son should be taken to be "the hair" referred to in Clause 1 of the will and secondly, that if this contention is not accepted, Clause 1 of the will should be held to be void for uncertainty, and it should be declared that the property left by the testator devolves upon his three daughters who are his natural heirs.