JAGAT BIJOY BHATTACHARJEE Vs. TOMIJUDDI HOWLADAR

JUDGEMENT

(1.) There can be no doubt that the testator in this case intended that his wife and daughter and daughter s daughter should each have an absolute interest in the property, and that, as far as possible, so long as anybody descended from himself was in existence, Gouribijoy or his descendants should have no interest in the property.

(2.) There is, however, a provision of law, namely, Section 111 of the Succession Act, which has been applied to the Wills of Hindus and which seems to be contravened in giving full force to the intention of the testator. That section provides: "Where a legacy is given if a specified uncertain event shall happen, and no time is mentioned in the Will for the occurrence of that event, the legacy cannot take effect unless such event happens before the period when the fund bequeathed is payable or distributable. " Now, if this section applies, the respondent is out of Court.

(3.) The respondent, however, contends that this section does not apply, because it speaks of the happening of a specified uncertain event, and death is a certain event to which every human being is subject. So far, that is a correct proposition of law; but what is uncertain is the period when death comes. The provision in the Will is: "If my wife die before, my daughter Gangamoni Debya shall get the said property," etc. There is, therefore, an "if" in the Will, and there is an "if" in Section 111. Whether the wife would die in the lifetime of the testator or after him, is an uncertain event, and the daughter is allowed the interest that is given to her by the Will only in case the wife die in the lifetime of the testator. That is an uncertain event. These circumstances seem to point to the application of Section 111; and if Section 111 applies, the respondent has no case.