SARODA PRASAD GHOSH Vs. DEBENDRA NATH GHOSH

JUDGEMENT

(1.) These two appeals arise out of actions in which the plaintiffs claimed to be beneficiaries under the will of, one Rameshwar Ghosh who died in the year 1927 having left a will which was made in the year 1915. By this will he left his estate to his wife Smt. Sudhamukhi Dasi, and, after the death of his wife, to his daughter. The wife predeceased the testator. The daughter took the estate under the terms of the will, and by those terms after her death, two persons were to take the property, one Sriman Saroda Prasad Ghosh (the testator's nephew) and the other Sri-man Nalinaksha Ghosh (the testator's grandson). By the terms of the will, these last persons whom I have mentioned, were to pay a number of annuities including one of Rs. 36 both to Bistu Charan Ghosh and Banamali Ghosh.

(2.) Appeal No. 414 refers to the case of Banamali and Appeal No. 415 refers to the case of Bistu. In the Court below, it has been found as a fact that Banamali predeceased the testator, but that Bistu survived him. In spite of this finding the learned Judge in the Court below reversed the decision of the trial Court, and came to the conclusion that the annuity to Banamali did not lapse under the provisions of Section 105, Succession Act. He applied Illus. (iv) to the facts then before him. Section 105 provides that: If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator. The illustration which the learned Judge in the Court below has applied to the facts of this case is this: A sum of money is bequeathed to A for life, and after his death to B.A dies in the lifetime of the testator: B survives the testator. The bequest to B takes effect.

(3.) The learned Judge has therefore come to the conclusion on the terms of the will that the testator has expressed an intention that the legacy or the annuity shall not lapse. In my judgment the conclusion of the learned Judge arrived at in this connexion is erroneous. In my opinion although Section 97, Succession Act, does not apply to this will, it quite clearly appears from the decision of their Lordships of the Judicial Committee of the Privy Council in Ramlal Mookerjee v. Secretary of State (1881) 7 Cal 304 that the interest which was given to Banamali was an absolute interest. But that, as I shall in a moment point out, does not finally determine the matter. Their Lordships of the Judicial Committee of the Privy Council, while dealing with words similar to the words in the will before us in this case, putra poutradi krame, which have been translated as to their sons, grandsons, etc. in due succession approved of the statement of the law by Sir Barnes Peacock in the well-known Tagore's case, Jotendramohan Tagore v. Ganendramohun Tagore (1872) IA Sup 47, to the following effect: A gift to a man and his sons and grandsons, or to a man and his sons sons, would, in the absence of anything showing contrary intention, pass a general estate of inheritance according to Hindu law. I believe the words usually used in Bengal are putra poutradi krame, and in the Upper Provinces naslan baad naslan, the literal meaning of the former being to sons, grandsons, etc., in due succession, and of the latter in regular descent or succession.