Syed Sadat Abdul Masud, J. -
(1.) In this matter Originating Summons has been taken out by the Executor, Sri L. K. Jha, in respect of the Will of Maharajadhiraja Sir Kameshwara Singh of Darbhanga, hereinafter described as the 'Maharajadhiraj'. The Will was executed on July 5, 1951, and the Maharajadhiraj died on October 1, 1962. Earlier, an application was made on December 3, 1967, by Maharani Kamsundari, the Respondent No. 2, for removal of the Executor and for other directions. On that application, controversy arose on construction of the said Will. In my judgment, on the said application, I made an observation that no final decision on the construction of the Will could be made in that application and that the Executor should have made an application in the Court by way of originating summons for construction of the Will which would crystallize the rights of the legatees including those of Maharani Kamsundari. Thereafter, the present application was made on July 17, 1968. But for reasons best known to the parties adjournments were taken from time to time.
(2.) Mr. Gouri Mitter, on behalf of the Executor, has at the outset made it clear that his client would abide by any construction which would be made by the Court on the Will. I, however, have requested him to express his views on the construction which he would think to be correct. On request, Mr. Mitter has made his submissions. But, before I discuss his views on the matter it is necessary to set out the relevant provisions of the Will which read as follows:
Now, I the said Maharajadhiraja Kameshwara Singh of Darbhanga do hereby make the bequests as follows:
(1) I bequeath the property mentioned in Schedule 'A' to my wife Maharani Rajyalakshmi for her life for her residence only (and for no other purpose). She shall be entitled to reside it the said house and use the furniture and fittings solely without let or hindrance by anybody. After her demise the said property shall vest in my youngest nephew Rajkumar Subheshwara Singh absolutely.
(2) Similarly, I bequeath the property mentioned in Schedule 'IV to my wife Maharani Kamsundari for her life for - the residence only (and for no other purpose) and at her demise the said property shall vest in my youngest nephew Rajkumar Subheshwara Singh absolutely.
(3) I further bequeath to my wife Maharani Rajyalakshmi assets of the value of Rs. 15 (fifteen) lacs and to my wife Maharani Kamsundari assets of the value of Rs. 15 (fifteen) lacs.
(4) Subject to the dispositions and bequests mentioned above the entire residue of my estate shall vest in a Board of Trustees consisting of persons named and described in Schedule 'C, who will hold the property in Trust for my two wives and the children of my aforesaid three nephews (sons of my deceased brother). The Trustees shall pay out of capital assets Rs. 8 (eight) lacs to Maharani Rajyalakshmi and Rs. 12 (twelve) lacs to Maharani Kamsundari, and keep the properties, particularly the house properties in proper repairs. On the demise of my two wives, one -third of the properties shall vest in the children of my youngest nephew Rajkumar Subheshwara Singh, born of a wife of his own Brahmin community, and one -third will be divided between the children of my other two nephews, Rajkumar Jeeveshwara Singh and Rajkumar Yajneshwara Singh and one -third will remain in Trust for public charitable purposes.
(5a) The properties bequeathed to my wife Maharani Rajyalakshmi shall be held in Trust for her life by a Board of Trustees consisting of (1) Sri Girindra Mohan Misra, son of Pandit Bhagwant Bihari Misra of Village Behta, Thana Behara, District Darbhanga, (2) Sri Lakshmi Kanta Jha, son of Pandit Ajaib Jha of Village Balia, Thana Madhubani, District Darbhanga, and (3) Sri Mukunda Jha, son of Pandit Ganesh Dutta Jha of Village Mohanpur, Thana Sadar, District Darbhanga, who will hold the property in Trust for the said legatee, and shall pay to her, after payments of taxes and other public demands, Rs. 3,000 (Rupees three thousand) per month to her; and should the net income of the properties after payment of taxes and other similar liabilities be not found in any year to be sufficient to enable the Trustees to pay to her Rs. 3,000 (Rupees three thousand) per month, they will be at liberty to make up the deficit from out of the capital assets.
(5b) Similarly, the properties bequeathed to my wife Maharani Kamsundari shall be held in Trust for her life by a Board of Trustees composed of the same persons, namely, Sri Girindni Mohan Misra, Pandit Lakshmi Kanta Jha and Sri Mukunda Jha, who shall pay to her monthly Rs. 3,000 (Rupees three thousand) from out of the income of the property and should the net income of the property after payment of taxes and other public demands be not sufficient in any year to enable the payment of the net amount of Rs. 3,000 (Rupees three thousand) to her, the Trustees will be at liberty to make up the deficit from out of the capital assets of the legatee.
(6) The Trustees aforesaid shall keep in proper repairs the house properties mentioned in Schedules 'A' and 'B' and spend the necessary amount for their maintenance from out of the properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsundari respectively.
(8) The Trusts shall terminate on the death of my two wives except the Trust in respect of public charitable purposes.
(9) I appoint Sri Lakshmi Kanta Jha, son of Pandit Ajaib Jha deceased of Balia, Thana Madhubani, District Darbhanga, an Advocate of Supreme Court, as the Executor of this my last Will and Testament. The aforesaid Executor shall, on my demise, pay all expenses incidental to or consequent on my demise, and also pay all liabilities that I might have incurred before my demise or that may accrue as a consequence of my demise including all public demands after my demise in respect of my estate. It shall also get all my assets valued by an approved Valuer and shall make distribution of the bequests as per directions given above. In making such distribution of the assets the properties mentioned in Schedules 'A' and 'B' and also properties situate within the Rambagh compound will not be taken into account. The Executor shall take all the necessary steps to the administration of the estates in accordance with the directions hereinbefore laid down.
(3.) Mr. Mitter has put before me the following construction on the Will. The two widows of the Maharajadhiraj, Maharani Rajyalakshmi and Maharani Kamsundari are entitled to reside in the residential house at Rambagh and at Nargauna palace respectively and also to use the furniture and fittings in the said two buildings without interference by anybody. After the death of Maharani Rajyalakshmi the house at Rambagh shall vest in Maharaja's youngest nephew Rajkumar Subheshwar Singh absolutely. Similarly, on the death of Maharani Kamsundari, Nargauna palace shall vest in the said nephew. Further, the two Maharanis would be entitled to have assets of the value of Rs. 15 lacs each out of the ' estate of the Maharajadhiraj. Subject to the said disposition and bequest, the entire residue of the estate shall vest in a Board of Trustees consisting of three Trustees, Sri Girindra Mohan Mishra, Sri Lakshmi Kanta Jha and Ojha Sri Mukunda Jha. The said Trust was constituted for the benefit of the said two Maharanis and the children of the Maharajadhiraj's three nephews. The Trustees of this residuary estate shall pay out of the capital assets sums of Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to Maharani Kamsundari. On the death of the two Maharanis 1/3 of the residuary estate shall vest in the children of the said nephew Rajkumar Subheshwar Singh, born of a wife of his own Brahmin community, 1/3 will be divided to the children of Maharaja's other two nephews Rajkumar Jeeveshwar Singh and Rajkumar Yajneshwar Singh and the remaining 1/3 will remain in perpetual Trust for public charitable purposes. Clauses 5(1), 5(b) and 6, however, have put restrictions on the absolute use of the properties bequeathed to the two Maharanis. The first restriction is that all the properties bequeathed to the Maharanis will be held in a Trust for their respective lives by two separate Boards of Trustees consisting of the said three persons ; or in other words, the Maharanis' limited estate in the house at Rambagh and Nargauna palace and also assets of the total value of Rs. 30 lacs would be administered by the said three Trustees who are to pay every month to each of the two Maharanis a sum of Rs. 3,000 during their life -time after payment of taxes and other public demands. According to Mr. Mitra, if the net income of the property bequeathed to each of the Maharanis is not sufficient to pay the said sum of Rs. 3,000 to each of the Maharanis, the Trustees will be at liberty to make up the deficit from out of the capital assets. Under Clause 6, the Trustees shall not only keep the house at Rambagh and Nargauna palace in proper repairs but also will spend money for the maintenance of those buildings out of those properties respectively bequeathed to the two Maharanis. Mr. Mitra has contended that there will. be three Trusts, one for the properties bequeathed to Maharani Rajyalakshmi, second for the properties bequeathed to Maharani Kamsundari and the third for the residuary estate. The said Trusts excepting the Trusts for public charitable purposes which are mentioned in Clause 4 will terminate on the death of the two Maharanis.;