KRISHNAMMA BOYEE Vs. GOPAL ROW

JUDGEMENT

(1.) The plaint in this case recites the Will and codicil of D. Nagoji Row, and alleges that under the terms of a bequest of immoveable property, the plaintiff became entitled thereto upon the death of Radha Boyee the wife, of the testator s son, D. Balaji Row, as her daughter and heir. The 1st defendant is the son of Radha Boyee, and the 2nd and 3rd defendants are his children, and the remaining defendants are alleged to claim different portions of the property as assignees and in-cumbrancers under dispositions made by the first defendant. Evidence has been adduced that the testator s adopted son Balaji Row had been twice insolvent and with respect to the state of family of the testator.

(2.) It appears from the wording of the Will and Codicil, and it is in fact admitted by both parties, that these documents were drafted by an English lawyer and the testator was a Hindu. It is obvious that the draftsman was not a skilled conveyancer, though he had access to English common forms, and he uses technical terms such as heirs, executors, administrators and representatives, with no clear idea as to their legal significance. The Will commences with bequests of specific legacies, which are given "for the sole use and benefit" or as the absolute property" of the legatees (clauses 1 to 5). Clause 6 contains a bequest to the testator s wife of domestic articles now in use in my dwelling-house for her use during her life and after her death to my daughter-in-law the said Radha Boyee for her use during her life and after death to her heirs, executors, administrators and representatives."

(3.) Clause 8, upon which the plaintiff relies, bequeaths to two persons their executors, administrators and representatives" specified immoveable properties, To hold the same into the said Kristna Row and Rama Row, their executors, administrators and representatives, (all the said properties assigned to the said Kristna Row and Rama Row, shall neither be sold, mortgaged nor in any way alienated but shall remain for ever as trust property) upon trust that they, the said Kristna Row and Rama Row and the survivor of them and the executors, administrators and representatives of such survivor do" receive the rents and profits of the properties and pay outgoings and an allowance to the testator s adopted son : and then follows the provision now in dispute, and the said trustees do and shall pay the balance of the said rents and profits to my said wife Soundari Boyee during her life and after her death to my aforesaid daughter-in-law the said Radha Boyee during her life and after her death to her heirs, executors, administrators and representatives." The clause concludes with a direction that out of the monies so payable the same beneficiaries, who are described in the same words, shall pay the expenses of feeding a certain number of Brahmins.