BABUI RAJESHWARI KUER Vs. BABUI KHUKHNA KUER

JUDGEMENT

(1.) This is an appeal from a judgment of the High Court at Patna of 27 October 1938, affirming with a modification a judgment of the Subordinate Judge of Chapra of 25 April 1938, whereby, in effect, he confirmed the attachment, in execution of a decree, of certain interests of the appellants under the will of Tirgunanand Upadhaya (hereinafter called the testator), who died in the year 1915. The substantial contention of the appellants is that their interests in the corpus so attached are contingent interests and therefore by reason of proviso (m) to S. 60 (1), Civil P. C., 1908, not liable to attachment. The question at issue turns upon the true construction of the somewhat inartistically drafted will of the testator. The testator made his will on 26 July 1915. He had one son only who had died some three years previously. At the date of his will and at the date of his death (which occurred shortly after the date of his will) his near living relatives were (a) his second wife, Dulhin Ram Sakhi Kuer, (b) his daughter-in-law Dulhin Surja Kuer, the widow of his deceased only son, (c) the present appellants his two grandchildren, Babui Rajeshwari and Babui Ghagota, daughters of a deceased daughter (d) Babui Khukhna, a sister-in-law, of whom the testator says in his will "she has been living with me from her childhood and I am quite willing to provide for her comforts."

(2.) By his will the testator, after summarizing the state of his family, states that although he had not given up the hope of getting a male issue, still in view of the uncertainty of life, he considers it desirable to make proper arrangement of "his estate during his lifetime so that no dispute of any kind might arise on his death likely to ruin his estate. He then provides that if (which did not in fact occur) a male child is born to him he is to become absolute proprietor of all his (the testator's) property. He then proceeds to provide for the event (which infact occurred) of no male child being born to him, as follows : his second wife (whom it is convenient to refer to as the widow) is to become proprietor having life interest only of all his properties (with an immaterial exception). She is to pay out of the income of the estate certain specified annual payments to the daughter-in-law, the two grand-daughters, and the sister-in-law, and Rs. 800 a year to one Ram Lochan Pande or she (the widow) shall have the right to set apart properties fetching the above income and put my daughter-in-law and my daughter's daughters in possession thereof: if she does not get apart such properties herself, they shall have the right to recover cash or properties as specified above from my estate by taking the necessary steps in Court.

(3.) The will then proceeds as follows : 4. On the death of my wife the whole of my estate [with certain immaterial exceptions] being treated as 16 annas right three annas and odd out of it shall pass into the possession of [the daughter-in-law] but she shall not have the right to transfer the same, 12 annas share shall pass into the possession of the two daughters born of the womb of my daughter who are still living in equal shares, i.e., each will get six annas share and one anna share shall pass into the possession of [the sister-in-law] as absolute proprietors having the right to alienate, etc., the property. On the death of my wife all the proprietors and my heirs and representatives shall be liable for payment of Rs. 300 a year to Ram Lochan Pande aforesaid in proportion to the share held in possession by each. 5. On the death of my daughter-in-law all properties held in possession by her without the right of transfer as laid down in para. 4 of this will shall pass in entirety into the possession of the two daughters of my daughter in equal shares and that of their heirs and representatives as absolute proprietors thereof. 6. If for any reason God forbid, any portion of the said estate is not taken possession of by my daughter's daughters and [the sister-in-law] and they do not get the opportunity of entering upon possession and occupation of it, the entire estate will remain in my daughter-in-law's possession without the right of transfer and on her death the entire estate shall be treated as my estate with the District Magistrate and Collector of Saran as its manager and trustee.