PROVAS CHANDRA SINHA Vs. ASHUTOSH MUKHERJI

JUDGEMENT

(1.) This is an originating summons by the plaintiff, taken out by his mother as next friend, in which the plaintiff claims to be interested in the relief sought as the sole residuary legatee under the will and codicils of his grandfather Gopal Chandra Sinha, for the purpose of determining the title to the property moveable and immovable of the testator. The originating summons is in the following form: Let the defendants Ashutosh Mukhorjee, Sadasiva Mitter and Khitindra Kumar Mitter, the executors of the said Gopal Chandra Sinha deceased, all of No. 9, Ghaulpati Lane, and the defendants Sashi Bhusan Sinha of No. 13-A, Teliparha Road, Khitish Chandra Sinha, since adjudged a lunatic, and Purna Chandra Sinha, the three sons of the said deceased, and the defendant Khoka Sinha, a minor grandson by son of the said deceased, and as such claiming or. having an interest in the latter's estate as a residuary legatee under his will and codicils, dated respectively 2 March, 1919, 2 November, 1920, and 3 Chaitra 1330, B.S., corresponding to 16 March 1924, the last three of No. 26-A, Padmapukur Road, and the defendant deities Sree Sree Raj Rajeswar, Sree Sree Lakshmi Janardan Thakur Shalgram and Sree Iswar Shiva Thakur claiming to bo entitled to properties purported to be dedicated to their sheba by the said wills and codicils by their she <JGN>Page</JGN> 2 of 6 bait, the defendant Sashi Bhusan Sinha of No. 13-A, Teliparha Road, aforesaid within eight days after the service of this summons on them, respectively, inclusive of the day of such service, cause an appearance to be entered for them respectively to this summons, which is issued upon the application of the plaintiff Provas Chandra Sinha, a minor by Sreemati Radharani Dasi his next friend, which plaintiff claims to be interested in the relief sought as the sole residuary legatee under the said will and codicils of the said Gopal Chandra Sinha deceased, that the following questions arising in respect of the estate of the said deceased may be determined under Rule 1, Sub-clauses (a) and (g), Rule 2, Sub-clause (a), and Rule 9, Ch. 13 of the rules of this Court 1914, and relief given in respect thereof, that is to say: I. (1) Whether the purported dedication of the properties mentioned in Clauses 3 and 4 of the said will, as modified by Clauses 2 and 4 of the said codicil of 16 March, 1924, is postponed to a period beyond the time allowed for the vesting of legacies, and or whether the same is void for remoteness or otherwise? (2) Whether the purported gift, under Clause 3 of the said will of property, bearing income sufficient to meet the expenditure of taxes, repairs and thorough repairs in respect of the debuttar, purported to be created as aforesaid, is void for uncertainty and remoteness? (3) Whether the direction for accumulation contained in para. 16 of the said will is void and bad in law? (4) Whether the vesting of the several purported bequests under Clause 16 of the said will is postponed till the period of distribution mentioned therein? (5) Whether the purported bequests of one-third share respectively in the remainder of the said deceased's estate or any one or more of them is void for remoteness as offending against the rule against perpetuities and or for any other reason? (6) If the said bequests in favour of the sons and grandsons of the defendants Khitish Chandra Sinha and Purna Chandra Sinha, respectively, under the said Clause 16 are void, then, whether the limitations or gifts over in favour of charities, in default of such sons or grandsons being in existence as the period of distribution, are also void? (7) If the purported dedication under Clauses 3 and 4 and or other bequests under Clause 16 of the said will or any of them fail by reason of their being void as aforesaid, then do such bequests as are avoided sink into and form part of the said <JGN>Page</JGN> 3 of 6 deceased's residuary estate? (8) Whether the bequest of the residuary estate to the said deceased's grandsons by son under Clause 12 of the said codicil of 16 March 1924, immediately vests the said residuary estate in the plaitiff at the death of the said deceased to the exclusion of the latter's after born grandson by son? (9) Whether the bequest of the said residuary estate under the said Clause 12 of the said last codicil immediately vests the said residuary estate in the plaintiff at the death of the said deceased, but so as to open and let in the said deceased's after-born grandsons by son? II. How the costs of this application are to be borne, and, if necessary, the estate of the said Gapal Chandra Sinha may be administered?

(2.) A preliminary issue has been raised by the defendants that the proceeding is a "suit for land." and, inasmuch as the immovable property left by the testator is all situate outside the jurisdiction, or in the alternative is partly so situate, and no leave has been obtained under Clause 12, Letters Patent, the Court has no jurisdiction to entertain the suit. It is conceeded by the plaintiff that the only immovable property of the testator which it can be pretended, is within the jurisdiction of the Courts is 103, Darmahato Street, Calcutta, of which the testator was the mortgagee under a mortgage in English form executed on 20 October 1917.

(3.) In answer to the preliminary objection of the defendant it was contended that the defendants or some of them, by taking steps in the proceeding, had submitted to the jurisdiction, and thereby had waived any objection to the jurisdiction of the Court to hear the summons. In support of this contention learned Counsel on behalf of the plaintiff referred two decisions of Fletcher, J. King V/s. Secy. of State (1908) 35 Cal. 394 and Shama Kanta & Co. v. Kusum Kumari (1926) 44 Cal. 10, in which it was held that, where leave was necessary under Clause 12, the obtaining of such leave was not a condition precedent to the Court becoming vested with jurisdiction to entertain the suit; and, therefore, when leave had not not bean obtained, the defendant by taking steps in the suit could waive the objection of want of jurisdiction.