SREEMUTTY KRISTOROMONEY DOSSEE Vs. MAHARAJAH NORENDRO KRISHNA BAHADOOR

JUDGEMENT

(1.) THE question in this case arises from a rather obscure passage in the will of Rajah Jadubindro Kristna, who disposed of the residue of his estate in the following terms: I give devise and bequeath the residue of my real and personal estate both joint and self-acquired unto my executors, in trust to pay the rents issues profits and income thereof unto my said daughter during her lifetime, and after her death in trust to pay assign and convey the residue of my estate real and personal to my half-brothers Rajas Nreependro Krishna Bahadur and Norendro Krishna Bahadur in equal moieties and to the heir or heirs male of their or either of their body, in failure of which in trust to give the same to the son or sons of my said daughter.

(2.) THE will is dated the 25th of March, 1851. The testator died in 1852. His daughter, who was his only child, is the Plaintiff and Appellant in this suit. She has six sons, all born after the testator's death. His brothers both survived him. One of them, Nreependro, has died, leaving only two sons, both born after the testator's death. The other, Norendro, is living. He had three sons born in the lifetime of the testator, of whom one is dead and two are living, and four other sons born after the testator's death. The Defendants and Respondents in this suit are Norendro, the surviving brother; his six surviving sons, and the representative of the one who has died; the two sons of Nreependro, who are also his executors; and the six sons of the Plaintiff. Every person, therefore, who could possibly claim an interest under the residuary gift is a party to the suit.

(3.) THE view of the High Court has been supported by the counsel for the Respondents, the brothers' families, who expressly stated that their argument, though endeavouring to amplify and illustrate the High Court's view, must be taken as not departing from it. The High Court considered that the true intention of the testator was, "that in the event of his two half-brothers having at the time of their death male descendants, they, if alive, or their families as representing them if dead, should take the fee of this property; but that in the event of their having no such descendants at the time of their death, the estate should be divested and go over to the son or sons of his daughter."