Decided on September 11,1900



Arnold White, J - (1.) This is an appeal against a judgment of Shephard, J., dismissing as against all the defendants the plaintiff's suit. The defendants were sued as the executors with the probate of the will of one Srirungapatnam Venkatavarada Aiyangar. The plaintiff is the daughter, and the 1 defendant is the only son of the testator. The will contains the following provisions: (10) Moreover as soon as this will shall come into force, out of "the sum forming four-fifths part of the amount which may be derived from the policies insured in my own name and assigned for convenience in favour of my son and which are in force, Government" of India promissory notes shall be purchased and kept for and on "account of my daughter Sowbhagiavathi Venkata Lutchmammal "and the interest derived therefrom shall be paid to the aforesaid "Venkata Lutchmammal for her life and thereafter the whole of the "amount of the aforesaid promissory notes shall go to her children "equally without distinction of male or female, but in case any of her "children shall not have then attained fully the age of twenty-one" years, their shares shall be withheld and interest thereof shall be "paid to them for their education and other benefits and to such" of them as shall have attained the age of twenty-one years shall "be paid their respective shares as soon as they complete twenty "one years." (12) Moreover as soon as this will shall come into force "Government of India promissory notes for the remaining one-fifth" of the insurance policy amount shall be separately purchased and "kept, and the interest thereof shall be paid to my wife as long as" she may live and thereafter the aforesaid interest and the principal (i.e.,) promissory notes shall go to my daughter Venkata "Lutchiammal and her children according to the conditions mentioned in para. 10 of this will. If on her death there be no "children of hers in existence, the whole of these promissory notes" shall go to my son and after his death to his heirs. Only so ; none else have any right whatever thereto.
(2.) The testator died on August 24, 1892. On December 24, 1892 executors took out probate of the will in the Court of the District Judge, Civil and Military Station, Bangalore, the approximate value of the assets in respect of which probate was granted being stated to be Rs. 6,500." On May 5, 1893, the executors took out probate limited to the Presidency of Madras in the High Court of Judicature at Madras. The petition upon which the Madras probate was granted stated that there was property of the testator to be administered in the Presidency of Madras of the value of Rs. 1,00,000. The control and management of the estate was left by the other executors in the hands of the 1 defendant. On May 5, 1894, the 1st defendant filed in this Court, in the matter of the last will and testament of the testator, an inventory showing assets realized in this Presidency between May 1893 a May, 1894 to the amount of Rs. 65,000 odd. On the same date he filed an affidavit in this Court in which he stated "I have collected the "several sums amounting nearly to Rupees fifty thousand payable" by the insurance companies on the life of my late father to me "as the duly registered assignee from the insured (testator) and for" the present with the consent of the testator's only daughter and "wife, that is, my sister and mother who are the present beneficiaries. I have invested the whole sum of rupees fifty thousand or" thereabouts in securities other than the Government of India "promissory notes and have been paying them respectively the interest at 6 per cent, out of their respective legacies of Rs. 40,000" and Rs. 10,000 as devised by paragraphs 10 and 12 of the said "will. This arrangement 1 have made temporarily as all the executors have not yet met and discussed over the matter, and I hope" that this matter too will be settled in a manner consistent with "the directions of the testator before July next."
(3.) The policies referred to in Clause 10 of the will as policies in the name of the testator assigned for convenience to his son (the 1 defendant) were a policy in the North British and Mercantile Insurance Company, Calcutta, for Rs. 20,000 and two policies on the Oriental Government Security Life Assurance Company, Bombay, for Rs. 20,000 and Rs. 10,000 respectively. As regards the Calcutta policy the executors on May 30, 1893, gave a written authority to the company to pay the policy moneys to the 1 defendant and take his receipt as a discharge. On June 19, 1893, the 1 defendant writing from Bangalore forwarded to the agents of the company in Madras the policy stamped and signed by the executors. In his letter he stated that the amount of the policy did not fall within the probate as it had been assigned to him and that he could have sued the company if they had refused to pay the amount to him. On July 3, 1893, a cheque in favour of the executors for Rs. 23,510 was forwarded by the company through their agents in Madras to the 1 defendant at Bangalore, This sum plus a further sum of Rs. 3,500 (Rs. 27,000 in all) appears to have been advanced by the 1 defendant to one K. Shamiengar on September 6, 1893, the 1 defendant taking by way of security a mortgage on lands in Mysore. As regards the bombay policies the policy moneys (Rs. 30,000) were paid over to the 1 defendant, apparently in his capacity as assignee of the policies, by cheques sent direct from be embay to the 1 defendant at Bangalore in November 1892 and receipts for the moneys were signed by the 1 defendant at Bangalore on November 13, 1892. It would seem that out of this Rs. 30,000, Rs. 28,000 was advanced to certain parties at Bangalore on the security of mortgages in Mysore.;

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