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1915 Supreme(SC) 48
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD PARMOOR, LORD WRENBURY, SIR JOHN EDGE, AND MR. AMEER ALI.
BHUPENDRA KRISHNA GHOSE - Appellant
Versus
AMARENDRA NATH DEY - Respondents
On Appeal From The High Court in Bengal.
Decided On : Nov. 15. 1915.
Solicitor for appellants : G. C. Farr.
Solicitors for respondents: Watkins & Hunter.
A contingent bequest in a Hindu will is not void under Section 111 of the Indian Succession Act, 1865, if the will explicitly specifies the event (such as the death of a life tenant) that determines the period of distribution.
Headnote:(A) Indian Succession Act, 1865 - Section 111 and Section 107 - Hindu Wills Act, 1870 - Dayabhaga School of Hindu Law - Testamentary power of a Hindu - Bequest contingent on uncertain event - Distribution of estate - A Hindu testator is competent to regulate the course of devolution of his estate provided he remains within legal limits. Under the Dayabhaga school, a testator may authorize a widow to adopt and attach directions that the estate not be divested during her life to ensure the performance of religious rites.
(B) Indian Succession Act, 1865 - Section 111 - Rule of construction - Where a legacy is given contingent upon a specified uncertain event, and no time is mentioned for its occurrence, the legacy fails unless the event happens before the fund is payable or distributable. However, this section does not apply where the event triggering the distribution, such as the death of a life tenant or executrix, is explicitly mentioned in the will, as this defines the period of distribution.
Facts of the case:
A testator governed by the Dayabhaga school appointed his widow as sole executrix and authorized her to adopt sons, providing that if she died without adopting, or if an adopted son died without male issue, the estate would pass to the testator's nephews after the widow's death. The widow adopted a son who died as an infant without issue, and the widow died shortly thereafter. A suit was instituted claiming that the estate vested absolutely in the adopted son by inheritance upon adoption, rendering the gift-over to the nephews void, and further arguing that the bequest failed under Section 111 of the Indian Succession Act, 1865.
Findings of Court:
The court found that the estate did not vest absolutely in the adopted son by inheritance but was subject to the terms of the will. The widow held the estate as executrix to facilitate the testator's wish for successive adoptions to ensure religious rites were performed. The bequest to the nephews was valid and took effect upon the death of the widow.
Issues: Whether the estate vested absolutely in the adopted son upon adoption, thereby divesting the gift-over to the nephews, and whether the bequest to the nephews was void under Section 111 of the Indian Succession Act, 1865, due to the absence of a specified time for the occurrence of the uncertain event.
Ratio Decidendi: The court held that the testator's intention was to ensure the performance of religious rites, allowing the widow to make successive adoptions. The estate remained with the widow during her life, and the gift-over to the nephews was a valid contingent bequest to take effect after her decease. Regarding Section 111, the provision is a rule of construction that does not apply when the event triggering distribution (the death of the widow) is clearly specified, as the death of the widow constitutes the period when the estate becomes distributable.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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hindu law
- adoption
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hindu law
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succession law
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wills
- testamentary power
- executory devises
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statutory law
- indian succession act
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wills
Judgement
Appeal from a judgment and decree of the High Court (November 23, 1913) affirming a judgment and decree of Fletcher J. (June 19, 1912).
The appeal related to the will of Herumbo Nath Ghose, a Hindu inhabitant of Calcutta, governed by the Dayabhaga school.
The testator appointed his wife as his sole executrix and, after giving her authority to adopt, provided in the terms set out in the head-note and in the judgment. The testator died on November 10, 1907,
Law. Rep. 43 Ind. App. 12 ( 1915- 1916) Bhupendra Krishna Ghose V. Amarendra Nath Dey
113
without issue, leaving him surviving his wife, his mother, ; and the respondents, namely, the two sons of Srimati Benodini Dassi, the testators sister. On August 3, 1909, the widow adopted a son, who died an infant and unmarried on March 11, 1910. A few days after, namely, on March 16, 1910, the widow also died.
On March 30, 1910, the testators mother instituted the present suit against the respondents. She claimed the estate as heiress of the adopted son and contended that the gift over in favour of the testators nephews (the respondents) was void and inoperative in law. The plaintiff died pending the hearing of the suit, which was revived in the name of the nearest reversionary heir of the adopted son.
The suit was heard by Fletcher J., who on June 19, 1912, delivered judgment in favour of the defendants, the present respondents. The learned judge was of opinion that it was competent to a Hindu testator to regulate the course of devolution of his estate after his death provided that he kept within the limits laid down by the law ; that the creation of the interest given to the respondents was not in any way repugnant to HINDU LAW ; and that it did not offend against the provisions of s. 111 of the Indian Succession Act, 1865, and was expressly authorized by s. 107 of that Act.
The substituted plaintiff appealed, but having died pending the hearing, the present appellants, his legal representatives, were substituted in his place.
The High Court in its appellate jurisdiction (Sir Lawrence Jenkins C.J. and Woodroffe J.), by a judgment delivered on November 28, 1913, dismissed the appeal. The learned Chief Justice was of opinion that the bequest in favour of the respondents was valid ; that its effect was not to divest an estate which had already vested in the adopted son, but that the latter took a limited estate subject to a gift over to the respondents ; and that there was nothing in the law by which the parties were governed which made a bequest of a legacy or of an estate upon a future contingent event invalid. Woodroffe J. concurred.
The proceedings in the appeal are reported at I. L. R. 41 Calc. 642.
1915. Oct. 19, 20. Sir R. Finlay, K.C., Upjohn, K.C., Sir W. Garth, and Dunne, for the appellants. There was no gift, either express or implied, to the widow or to the adopted son. The estate went to the adopted son by inheritance and not by devise and could not subsequently be divested. According to HINDU LAW the succession vests immediately upon the death of the last owner and cannot remain in abeyance ; a gift of a contingent executory devise not preceded by a prior gift is unknown to that law and invalid. The law as to devises by Hindu wills is based upon the HINDU LAW as to gifts, and a gift in futuro is invalid. [ Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (( 1862) 9 Moo. Ind. Ap. 123, at p. 135.) ; Bhoobum Moyee Debia v. Ram Kishore Acharj (( 1864) 10 Moo. Ind. Ap. 279.) ; Beer Pertab Sahee v. Rajender Pertab Sahee (( 1867) 12 Moo. Ind. Ap. 1, at p. 37.) ; Tagore Case (( 1872) L. R. Sup. vol. Ind. Ap. 47, at pp. 66 and 67.) ; Kally Prosonno Ghose v. Gocool Chunder Mitter (( 1877) I. L. R. 2 Calc. 295.); Bai Motivahoo v. Bai Mamoobai (( 1897) L. R. 24 Ind. Ap. 93.) ; Gordhandas Soonderdas v. Bai Ramcoover (( 1901) I. L. R. 26 Bomb. 449.); Amrito Lall Dutt
v. Surnomoni Dasi (( 1908) I. L. R. 25 Calc. 662, at pp. 690, 691.); Indian Succession Act, 1865, s. 107 ;
