SISSIR CHANDRA MAITRA Vs. AJIT KISHORE MAITRA

JUDGEMENT

(1.) This is an appeal under Clause 15, Letters Patent against the judgment of my learned brother Mukherjea J. It arises out of an execution proceeding. Mukta Sundari the widow of one Jogesh Chandra Mitra, and her co-sharers who are appellants before us in this appeal obtained a decree for the sum of Rs. 480 and odd annas in a rent suit on 29 July 1933. She executed this decree and made the co-decree-holders pro forma parties to the execution proceeding. She died during the pendency of the execution proceeding. Respondent 1 in this appeal thereupon presented an application for execution of the said decree on 25 December 1935 claiming, to be the successor-in-interest of Mukta Sundari under the will of her husband Jogesh Chandra Mitra.

(2.) The appellants objected to this application of respondent 1 on the ground that the latter had no right to maintain the application for execution as one of the appellants, namely Jitendra Chandra Maitra . was the only person entitled to the estate of Jogesh Chandra Mitra after Mukta Sundari's death. This objection of the co-decree-holders was accepted by the trial Court but was overruled by the learned Subordinate Judge in appeal. The co-decree-holders thereupon appealed to this Court, and my learned brother Mukherjea J. dismissed the appeal and affirmed the order of the lower Appellate Court. Hence this Letters Patent Appeal by the co-decree-holders. The only point for determination in this appeal is whether Hari Kishore, the son of the testator, who adopted respondent 1 as his son got a vested or contingent interest in the estate of the testator under the terms of the will made by him on the death of the testator. The material clauses in the will are: Clause 2.-If my wife Srimati Mukta Sundari Devi should live in amity and good character at my family dwelling-house or at any holy place or with my son, then on my demise my said wife Srimati Mukta Sundari Devi will enjoy and possess the benefits of all the immovable and moveable properties to be left by me being entitled to and in possession of the life interest therein : she shall not be able to transfer those properties in any way by gift, sale etc. or encumber the same in any manner by mortgages etc. If she does it, the same shall be ineffective. Finis. Clause 3.-After the death of my wife my son Sreeman Hari Kishore Maitreya will be entitled to the ownership and possession in absolute interest of all the immovable and moveable properties to be left by me. Nobody shall be entitled to object to or lay claim against this. If anybody does so it shall be rejected. If the said Hari Kishore Maitreya dies leaving son or daughter born of his blood, then on the death of my wife if there be living a son of the said Hari Kishore Maitreya he, otherwise if there be a daughter living she with their heirs, will obtain according to the above- mentioned conditions all the immovable and moveable properties to be left by me. Finis. Clause 5. - God forbid, if in the lifetime of either myself or my wife the said Sreeman Hari Kishore Maitreya dies unmarried then on my demise my wife shall enjoy and possess the life interest in the immovable and moveable properties to be left by me. Thereafter on the death of my wife whoever shall be my heir according to law shall obtain all those properties. Finis.

(3.) A will takes effect after the death of the testator. It therefore follows that: Any devise or bequest in favour of a person in esse simply (i.e. without any intimation of a desire to suspend or postpone its operation) confers an immediately vested interest : Jorman on Wills (Edn. 7) Vol. 2 p. 1330.