SOOKHMOY CHUNDER DASS Vs. SRIMATI MONOHURRI DASI

JUDGEMENT

(1.) THE suit which is the subject of this appeal was brought to recover a part of the estate of one Krishna Pershad Dass, who died on the 24th of May, 1853. Upon his death he left a third wife, the Defendant Srimati Pria Dasi, Sookhmoy Chunder Dass, his eldest son by a former wife the present Appellant, and three minor sons, Hurry Churn, Gour Hurri, and Anund Hurri. Another son was born shortly after his death, but as this son only lived for a few days it is not necessary to take any further notice of him. It is only material with regard to the shares into which the estate would be divided. Anund Hurri, one of the sons, married the present Plaintiff, and died in 1873 without leaving children, leaving the Plaintiff his heir-at-law. Thereupon the Plaintiff brought the suit, seeking to recover the share of the estate of Krishna Pershad Dass, her father-in-law, which shealleged had belonged to her husband, Anund Hurri. The question as to whether she is entitled to recover or not depends upon whether Krishna Pershad Dass left a valid will of his property. If he did, she would not be entitled to recover in the way she claimed. The property would be subject to the will, and she would take such rights, if any, as the will would give her.

(2.) THE District Judge who tried the suit gave a decree in favour of the Plaintiff; that she was entitled to recover the share claimed, and that she was also entitled to the account which she asked for in her plaint. The High Court have confirmed that decree.

(3.) THE question is, What was the intention of the testator in this provision of his will ? He says distinctly, "my estate shall remain intact," and then he proceeds to say, as regards the enjoyment of the property, the estate remaining intact, my heirs, sons, &c.," shall be entitled to enjoy the profits thereof." These words appear to their Lordships to indicate that he was not going to give away the estate, but that all he intended was to give the enjoyment of the profits to the persons mentioned in the will. His object appears to have been to create a perpetuity as regards the estate, and to limit, for an indefinite period, the enjoyment of the profits of it, which would not be allowed by Hindu law. It is true, if the bequest had been of rents and profits, and it appeared that it was the intention of the testator to pass the estate, those words would be sufficient to do it; but what their Lordships have to do is to find the intention, looking at the whole of the provisions of the will ? and they gather from those words that it was not his intention to pass the estate. The provision afterwards against alienation further confirms this. It is not a case where the testator has expressed an intention to pass the estate and has added a clause against alienation, in which case the clause against alienation would be void, but the provision here against alienation is confirmatory of the other part of the will.