(1.) This is an appeal from a decree dismissing a money suit. One Raja Jyot Kumar Mukherjee of Uttarpara died on February 10, 1921, possessed of considerable properties both moveable and immovable. He left behind him surviving his only son Kumar Sanat Kumar and his grandson Prosad Kumar, Prosad Kumar was the son of Sanat Kumar by his first wife. Before his death Raja Jyot Kumar made and published a Bengali Will dated Poush 15, 1326 B. S. corresponding to December 31, 1919. By Clause 6 of this Will Raja Jyot Kumar bequeathed to his son Sanat Kumar several named items of immovable properties as also all other immovable properties which had not been disposed of by the Will and given to Prosad Kumar. By Clause 7 of the Will the testator bequeathed several named items of immovable properties to his grandson Prosad Kumar and provided that during the life time of Sanat Kumar the properties would remain under the possession and superintendence of Sanat Kumar and that Prosad Kumar would get on account of the profits of those properties a net yearly sum of Rs. 15,000/-. By Clause 8 of the will the testator directed that Sanat Kumar would during his life time pay to Prosad Kumar a sum of Rs. 1,000/-yearly out of the income of lot Kumirmora. It may be mentioned that lot Kumirmora was given by Clause 6 of the will to Sanat Kumar absolutely. Sanat Kumar was one or the executors of this will. He along with the other executors duly obtained probate of the will. By an agreement in writting dated December 18, 1928 by and between Sanat Kumar and Prosad Kumar, the parties entered into an arrangement as to the mode of payment of the total yearly sum of Rs. 16,000 by Sanat Kumar to Prosad Kumar. The agreement recites that at the properties given to Sanat Kumar and Prosad Kumar by the will of Raja Jyot Kumar had been made over to them absolutely. The executors to the estate of Raja Jyot Kumar duly assented to the legacies given by his will and the properties mentioned in Clauses 6 and 7 of the Will were vested in Sanat Kumar and Prosad Kumnar respectively. Sanat Kumar and Prosad Kumar thereafter entered into a supplementary agreement in writing dated September 13, 1931 which inter alia, provided that accounts should be kept clearly by Sanat Kumar with regard to the profits realised by him from the properties which were subject to the yearly payment of the total sum of Rs. 16,000-. From time to time certain arrangements as to rebates of the yearly sum of Rs. 16,000 were entered into between Sanat Kumar and Prosad Kumar. Subsequently a consent decree was passed in a suit No. 1194 of 1943 filed by Prosad Kumar against Sanat Kumar which inter alia provided that the arrangement regarding rebate would lapse after a certain period. On September 13, 1944 Prosad Kumar Mukherjee executed a registered Deed of Trust whereby he transferred all the properties given to him under the will by Raja Jyot Kumar as also his right to receive the annual sum of Rs. 1,000 under Clause 8 of the Will, to certain trustees upon trust for himself for life, and thereafter to his wife Sm. Monira Debi for life and thereafter, failing sons or any other daughter or daughters, to the plaintiff, Sm. Gitarani Debi absolutely. Prosad Kumar died on March 23, 1947. Sm. Monira Debi died on August 9, 1949. It is common case before us that on the death of Sm. Monira Debi the plaintiff became absolutely entitled to all those properties as also to all rights to the annuity of Rs. 1,000 given to Prosad Kumar by the will of Raja Jyot Kumar. Sanat Kumar died testate on January 15, 1953 corresponding to Magh 1, 1359 B. S. leaving a will whereby he had appointed the Administrator General as executor. The Administrator General duly obtained probate of the will of Sanat Kumar. The plaintiff Gitarani Debi instituted this suit on July 2, 1956 claiming from the Administrator General of West Bengal as executor to the estate of Sanat Kumar two sums of Rs. 17,055 and Rs. 8,431-4-2. This claim is comprised of the following items, namely (1) a sum of Rs. 2,750 on account of the annuity payable under Clause 8 of the will for 1357 B. S., 1358 B. S. and Baisakh to Foush 1359 B. S., (2) a sum of Rs. 11,250 being the proportionate amount of the yearly sum of Rs. 15,000 payable to Prosad Kumar under Clause 8 of the Will, (3) a sum of Rs. 6,982-7-4 on account of compensation money for part of the Mouza Makhla given to Prosad Kumar under Clause 7 of the aforesaid will and received by Sanat Kumar during his life time and (4) interest on the aforesaid three items of claim. The learned trial Judge has dismissed the plaintiff's claim in its entirety. The plaintiff being aggrieved by this decree has appealed from the decree passed by the learned Judge. I shall deal with each of the several items of claim separately.
(2.) The first item of claim relates to the annuity or Rs. 1,000 payable under Clause 8 of the will. Clause 8 of the will provided that as long as Sanat Kumar would re-main alive he would pay a sum of Rs. 1,000 to Prosad Kumar out of the income of Lat Kumirmora. On behalf of the plaintiff it is contended that this annuity was payable to the annuitant Prosad Kumar during his life time notwithstanding the fact that he had died before the death of Sanat Kumar. On the other hand, the defendant contends that the annuity ceased to be payable as soon as Prosad Kumar died, and consequently Sanat Kumar was not liable to pay any annuity for 1357 B.S., 1358 B.S. or any portion of 1359 B. S. The defendant relies upon Section 173 of the Indian Succession Act which reads as follows:
"Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the will, notwithstanding that the annuity is directed to be paid out of the property generally, or that a sum of money is bequeathed to be invested in the purchase of it."
The defendant contends that by virtue of Section 173 or the Succession Act, Prosad Kumar was entitled to receive the annuity for his life only. On the other hand the plaintiff contends that the positive direction in Clause 8 of the will with regard to the duration of the annuity shows a contrary intention and having regard to that direction the annuity must be paid during the life time of Sanat Kumar and is not limited to the life of the annuitant Prosad Kumar. On behalf of the plaintiff appellant reliance was placed upon Reid v. Coggans or Reid, 1944 AC 91 at p. 95. In that case the House of Lords had occasion to construe a bond whereby the father undertook gratuitously to pay his son an annuity "during my life". The son predeceased the father. The House of Lords held that the annuity was not limited to the life time of the annuitant and the right to payment of the annuity was transmitted to the son's estate. The decision in that case applied the well-settled English rules of construction relating to wills creating an annuity to a bond granting an annuity. On the other hand, the defendant respondent relies upon the decisions in Norendra Nath v. Kamalabasini Dasi, 23 Ind App 18 at p. 26 (PC) and Bhagabati Barmanya v. Kali Charan Singh, 38 Ind App 54 at p. 64 (PC), to show that technical English rules of construction should not be applied in the case of Indian wills. The first case points out that it is absurd to cite cases on wills encumbering English law reports with a view to understand and interpret will of people speaking a different tongue, trained in different habit and thought and brought up under different conditions of life. In the second case it was pointed out that the rules established in English Courts for construing English documents are not as such applicable to transactions between Indians. These cases were applied and followed by Allsop, J. in Madhusudan v. Hrishikesh Sanyal, AIR 1944 All 120, where the learned Judge pointed out that each case of a will creating an annuity must be decided on its own merits and in the light of Section 173 of the Indian Succession Act. In that case the will provided for payment of a monthly allowance to a legatee till such time as the legatee's sous, would attain majority and her daughters would be married. The will showed that the legatee would not receive the allowance unless she lived in the testator's house. On a construction of the will before him the learned Judge held that the annuity was for the life of the annuitant and no contrary intention had been shown by the will. We must, therefore, construe the Bengali will before us in the light of Section 173 of the Indian Succession Act. On behalf of the appellant it was argued that Clauses 2 and 7 of the will should throw light on the meaning of the expression "as long as my son Sanat Kumar remain alive" under Clause 8 of the will. It was argued that where the testator Intended that the annuity would be for the life time of the annuitant he said so specifically, as in Clause 2 of the will which provided for payment of an annuity to the wife of the testator "as long as she lives'. Again Clause 7 of the will provides for payment of a yearly sum of Prosad Kumar "as long as my son Shriman Sanat Kumar will remain alive". It is common case before us that this yearly sum continued to be payable after the death of Prosad Kumar, that the words "as long as my son Shriman Sanat Kumar will remain alive" in Clause 7 of the will mean was long as Sanat Kumar lives even though Prosad Kumar has in the meantime died." It was therefore argued that there is no reason why the same meaning should not be attributed to the same words in Clause 8 of the will. We are not impressed by these arguments. Clause 2 of the will contains a specific direction for payment of an annuity to the annuitant during her life time. With regard to Clause 2 no question arises as to any intention contrary to the statutory implication arising from Section 173 of the Indian Succession Act. The yearly sum payable under Clause 7 of the will bears no analogy to the annuity payable under Clause 8 of the will. The yearly sum payable under Clause 7 is on account of the income of properties given absolutely to the person entitled to receive the yearly sum and is not strictly an annuity as commonly understood. We must, therefore, construe Clause 8 of the will in the light of its own language. Clause 8 of the will is as follows:
"As long as my son Sanat Kumar will re-main alive, he will go on making payment of Rs. 1000/- one thousand rupees per annum to my grandson Prosad Kumar out of the income from Lat Kumirmora. If my son Sanat Kumar does not pay Patni rent and Collectorate revenue in respect of the said Lat Kumirmora 3 (three) days prior to the date fixed for (such) payment in "that case my grandson Prasad Kumar shall pay the said revenue in time and shall be entitled to realise the said amount together with interest (thereon) from my said son."
(3.) The first sentence of Clause 8 of the original Bengali will reads thus: [Here omitted];