SURESH CHANDRA MUKHERJEE Vs. (SRIJUKTA) JOYTIRMOYEE DEBI

JUDGEMENT

(1.) The principal question for determination on this appeal is whether on the true construction of a will and in the events which have happened the testatrix died intestate in regard to the one-third share of the properties described in Cl. 6 of her will, which was given to her niece Indumayi Debi for life.

(2.) The Subordinate Judge at Dacca held that there was no intestacy, and his decision was affirmed (though on different grounds) by the High Court of Judicature at Port William in Bengal. There is no dispute as to the relevant fasts. The testatrix Kripamoyi Debi had no child of her own, but she had three nieces, the daughters of her deceased youngest brother, to whom she had acted as a mother. She had also stepsons and a stepdaughter, the children of her husband by another wife. In those circumstances she made her will on 18 April 1921. Clause 2, so far as relevant, is in the following terms : "My said deceased youngest brother has left three daughters. The eldest is Indumayi Debi and her husband is alive; she has three sons and a daughter named Suramasundari Debi. The second daughter is named Jyotirmayi Debi ; she has lost her husband ; she has a son named Jalad Chandra Mukhopadhaya, and two daughters named Promodebala and Bibhubala Debi. The third daughter is named Taritmavi Debi ; her husband is alive, and a son and a daughter have been born to her. I have brought up my said three nieces from their infancy, and I bear great affection for them, and they too respect and regard me as their mother. It is one of my principal objects to make special provisions regarding them by this Will, and it is also my desire to entrust the post of the shebait to them in succession,"

(3.) By Cl. 3 she made some provision for her stepsons and the sons of deceased stepsons,. By Cl. 4 she made a disposition of cash, Government notes and book debts, under which benefits were conferred upon her husband, her stepsons, her stepdaughter and the daughters of her three nieces. The residue of the specific property covered by this clause remaining after paying the legacies to the legatees appears to be given to the three nieces absolutely with gifts over if "at that time" any of the nieces be dead. Clauses 5 and 6 run thus: "5. On my death the executrix shall so long as the estate left by me will be under the management of the executrix, pay to my husband at the rate of Rs. 6,000 per year in four equal installments. Afterwards from the time when she will, according to the provisions of this will, make over two-thirds of all the immovable properties left by me save and except the properties of Schedules (Ka), (Kha), (Ga) and (Gha), to her two sisters, or to any of her sisters and in case any of her sisters being dead, to her sons, the said enjoyers of the properties shall be bound to pay to my husband the said sum of money in equal shares that is to say, the enjoyers of each one-third share shall pay a one-third share of the said Rs. 6,000 i. e., Rs. 2,000 per year in four equal installments. My husband will get the said allowance so long as he will live. On his death none of his heirs shall get the said money, and he shall not be competent to transfer in any way or sell his right to get the said money, and the same shall not be liable to be attached or sold for his debt. If the enjoyers of the properties fail to pay the said amount according to the installment, then my husband will be competent to realize the same from the enjoyers of the properties with interest at eight annas per cent per month out of the properties left by me. "6. As regards such of my moveable and immovable properties, claims and arrears of rent etc., as will remain after excluding the immovable properties of Schedules (Ka), (Kha), (Ga) and (Gha), and after the division in three equal shares, as provided herein, of the cash Tahasil, G. P. Notes, and loans and paying the legacies, the leaving out the amounts to be reserved in the hands of the executrix for carrying out the works provided for above and which cannot be performed within six months, the persons named in para. 7 will get the properties described therein, and of the immovable properties, the right of enjoyment of my dwelling-house shall be regulated by the provisions of para. 8. The right of enjoyment and ownership of all the remaining moveable properties except the moveable property described in para. 7, and of all the remaining immovable properties, except the dwelling-house, which is to be controlled by the rules provided in para,. 8, shall devolve on the enjoyers of the properties in the following manner, that is to say, each one of my nieces will get in life-interest a one-third share of all the said residue of the moveable and immovable properties. If at the time of my death any of my nieces be dead and her sons, or sons or grandsons of a deceased son, be alive, then they will get, in absolute right, the share of the said niece according to the rules of inheritance of the Hindu Shastras. And in the event of the death of any niece without leaving any male heir born of her line, such as son, grandson, etc., then her other two sisters, i. e., my other two nieces, will get her share equally. If one of them be alive and the other dead then the male heirs of the dead niece born of her line, such as her sons, sons etc., will, according to the rules of inheritance, get the share which this niece would have been entitled to, and in the absence of any such male heir the only surviving niece will get the said share; and if she, too, be not alive then her male heirs belonging to her line such as sons and sons' sons, etc., will get the said share. The husband, daughter or daughter's children of any niece shall not get her share."