GOBERDHONEDAS Vs. SMPRAFULLABALA DASI

JUDGEMENT

(1.) This suit is concerned with the construction of the will of Dwarkanath Dey, a Hindu, who was the owner of landed properties in Calcutta of considerable value, and who died on 10th May 1911. He was survived by his widow, Golapmani, and by two widowed daughters, Sm. Sailabala and Sm. Nanibala, and also by a married daughter, Sm. Prafullabala, who is defendant 1 in these proceedings. The name of Prafullabala's husband was Bejoy Krishna Dutt and he died on 28 July 1936. Bejoy Krishna and Prafullabala had no children of their own, but on 30 April 1931, Bejoy had adopted a son who is now called Narain Chandra Dubt, and is defendant 2 in this suit. He has not yet attained the age of majority. Golapmani, the testator's widow, survived until 16 November 1937. The plaintiffs in this suit are the sons of Makan lal Das, whose mother, Shama Dasi, was the testator's sister. Makhanlal Das died on 12bh August 1924. Both of the plaintiffs were born during the lifetime of the testator. The testator's will was executed on the day of his death, and probate of it was obtained in due course by the executors and executrix named therein. The residuary be-quest in the will is in the following terms: I give, bequeath and devise all and whatsoever I possess or I may die possessed of or I may be entitled to either moveable property or immovable property to my said wife Sreemutty Golapmani Dasi to hold and enjoy the rents, issues and profits thereof during the time of her natural life and thereafter to my married daughter Sreemutty Prafullabala for her natural life and then to her heirs for ever; in the Case however my said daughter dies or becomes a widow without issue heirs my nephew (sister's son) Makhanlal Das and his heirs will succeed to my estate as absolute owner or owners thereof.

(2.) The will also made provision for the maintenance of the testator's widowed daughters. The present suit was filed on 22 December, 1937. The contention of the plaintiffs is that they are entitled to the testator's residuary estate because Prafullabala has become "a widow without issue heirs" within the meaning of the testator s, will. Although Mr. S.C. Bose has argued to the contrary, I am of opinion that the conditions under which the gift over is to take effect, that is, the death or widowhood of Prafullabala without issue heirs, whatever that may mean, must be fulfilled in the lifetime of the first tenant for life, Golapmani Dasi and I cannot accept the suggestion that the period of distribution is the death of the second tenant for life, Prafullabala, for it is obvious that a person can only become a widower or widow during his or her lifetime, and therefore the condition is not one the fulfilment of which can be postponed to the death of the person concerned. If the condition of the gift over has been fulfilled, the fulfilment occurred when Prafullabala became a widow on the death of her husband, Bejoy Krishna, on 28 July 1936, that is, during the lifetime of Golapmani. The question therefore is whether, when Prafullabala became a widow, she did so, "without issue heirs" within the meaning of the will.

(3.) It has been suggested that either the word "issue" or the word "heirs" is redundant in the sense that one of the words has been inserted through a slip in draughtsmanship. I do not think I can pay any heed to that suggestion, and I am bound to do my beat to construe the will as it stands and in the form in which it has been proved. According to the plaintiffs, "issue heirs" means natural-born descendants and excludes descendants by adoption. According to the defendants the term "issue heirs" is used to signify descendants whether adopted or natural-born, and is employed in contra distinction to heirs who are either ascendants or collaterals. In my opinion no assistance can be derived on this point from the provisions of the Succession Act. Section 99 (g) of that Act provides that the words "issue" and "descendants" apply to all lineal descendants whatever of the person whose "issue" or "descendants" are spoken of. The Section however is not applicable to wills executed by Hindus.