Judgement

Appeal (No. 69 of 1947) from a judgment and decree of the High Court in its civil appellate jurisdiction (April 5, 1946) which affirmed a judgment and decree of that court in its original civil jurisdiction (March 28, 1945).

The following facts and statutory provisions are taken from the judgment of the Judicial Committee. This appeal arose out of a suit by way of originating summons instituted by the appellant for the construction of the will of his father, the late Rai Bihari Lal Mitra. The facts were not in dispute. The testator was a wealthy Hindu governed by the Dayabhaga School of Hindu law. He died on February 7, 1933, leaving him surviving his widow, Sreemutty Nayani Mitra, his only son, the appellant Aniruddha Mitra, and the wife of the appellant, Sreemutty Nivanani Mitra. At the time of the testators death the appellant and his wife had no children. On July 4, 1934, the appellant took the second respondent, Arabinda Mitra, in adoption as his son. He was born on October 19, 1932. On July 5, 1931, the testator executed his last will whereby he appointed the first respondent, the Administrator-General of Bengal, his sole executor with liberty to make over the property to the official trustee for carrying out the trusts. On August 24, 1936, the appellant was adjudicated an insolvent and his estate vested in the third respondent. On May 7, 1943, he was granted a conditional discharge.

The question for determination in the appeal was whether the residuary bequest in cl. 9 of the will in favour of " the " legitimate son or sons of the testators son Aniruddha Mitra, " whether natural born or validly adopted " was, as held by both courts in India (Das J. in the trial court, and Gentle and Ormond JJ. in the appellate court) valid, or whether, as contended by the appellant, it was invalid by reason of the provisions of ss. 113 and 114 of the Indian Succession Act, and the appellant was entitled to the property as on an intestacy. The relevant provisions of the testators will were as follows —

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" 5. I will and direct that after my death my wife Sreemutty " Nayani Mitra, my son Aniruddha Mitra and his wife shall " be entitled to reside for the respective terms of their natural " lives in my family dwelling house and use the furniture " therein, but they shall not be at liberty to remove or dispose of the said furniture in any way.

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" 7. I further will and direct that my executor or trustee " shall pay the sum of Rupees Seven hundred per month " to my wife Sreemutty Nayani Mitra, the sum of Rupees " Seven hundred per month to my son Aniruddha Mitra, " and the sum of Rupees Seven hundred per month to " Sreemutty Nivanani Mitra the wife of my son Aniruddha " Mitra for their maintenance respectively during the respective " terms of their natural lives. In the event of the death of “any one of the said three persons the monthly allowance” so payable to the person so dying shall be paid to the two “survivors in equal shares for life. On the death of one " of such two survivors, the last survivor of the said three " persons shall be paid the said monthly allowances payable " as aforesaid to the two that are dead in addition to his " or her own monthly allowance of Rupees seven hundred.

"8. I further will and direct that my executor and trustee " shall pay the sum of Rupees four thousand per month out "of the income of my estate to the University of Calcutta " for the advancement of female education amongst Hindu " females of Bengal.

" 9. I further will and direct that the legitimate son or sons " of my son Aniruddha Mitra, whether natural born or validly " adopted, shall become entitled to all the rest and residue of my " property. If there is only one son of my son such residue shall " be made over to such son of my son on his completing the " age of twenty-one years and if there are more sons of my " son than one then to such sons of my son Aniruddha Mitra " in equal shares on the youngest of the said sons comp