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1936 Supreme(SC) 51
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD THANKERTON, AND SIR SHADI LAL.
GANESH CHUNDER DHUR - Appellant
Versus
LAL BEHARY DHUR - Respondents
On appeal from the High Court at Calcutta.
Decided On : July 29, 1936.
Solicitors for appellant : W. W. Box & Co.
Solicitor for respondents 1-5: Harold Shephard.
Solicitors for the Administrator-General of Bengal: Morgan, Price, Marley & Rugg.
Under Hindu law, any testamentary provision attempting to create a line of succession (estate tail) inconsistent with the general law of inheritance is void. Such provisions cannot be construed as independent gifts if the testator's clear intent was to establish a prohibited succession scheme.
Headnote:(A) Indian Succession Act, 1925 - Section 87 - Hindu Law (Dayabhag School) - Succession to Shebaitship - Validity of line of succession in a will - A person capable of taking under a will must be in existence at the death of the testator - All estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance, are void - Hindu law does not recognize estates tail - These principles apply to hereditary offices and endowments as well as immovable property.
(B) Construction of Will - Section 87 of the Indian Succession Act, 1925 - Intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible - However, the court cannot invent a will to create an estate of inheritance if the testator's expressed intention was to create a prohibited line of succession, as this would contradict the testator's intelligibly expressed wishes.
Facts of the case:
A testator appointed his sons as Shebaits of certain idols and provided in his will that upon the death, retirement, or refusal to act of any Shebait, the next eldest male lineal descendant of his sons should succeed to the office. The testator expressed an intention that the eldest in the male line should always remain as joint Shebaits. Following the deaths of the initial appointees, a dispute arose as to whether this line of succession was valid under Hindu law or if the succession should follow ordinary laws of inheritance.
Findings of Court:
The court found that the clause attempting to lay down a line of succession was invalid as it sought to create an estate tail, which is not permissible under Hindu law. The court further determined that the clause could not be construed as providing independent gifts for life to the immediate successors because the testator combined the entire series of succession changes into a single scheme, indicating a prohibited line of descent rather than separate gifts.
Issues: Whether the provisions of a will establishing a specific line of succession for the office of Shebaitship are valid under Hindu law, and whether such provisions can be construed as independent gifts to the persons who would take immediately after the first appointees.
Ratio Decidendi: The court ruled that any attempt to create a line of succession inconsistent with the general law of inheritance is void under Hindu law. Where the testator's intention is clearly to create a prohibited succession scheme rather than an estate of inheritance defined by ordinary law, the court cannot rewrite the will to create a legal estate. Consequently, the succession to the office and the income of the estate must follow the ordinary Hindu law of succession.
Result: Appeal allowed.
Legal Category Hierarchy
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hindu law
-
testamentary succession
- validity of will clauses
- estates tail
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religious endowments
- shebaitship
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testamentary succession
Judgement
Appeal (No. 51 of 1935) from a decree of the High Court in its appellate jurisdiction (July 20, 1934) reversing a decree of the High Court in its original jurisdiction (January 10, 1934).
This appeal raised questions as to the validity or otherwise of the provisions relating to the succession of the Shebaitship of certain Hindu idols contained in the will of Luckey Narain Dhur, deceased. The main question was whether the testator had in cl. 11 of his will laid down a line of succession, which is invalid under HINDU LAW .
The facts, the relevant provisions of the will, and the contentions appear from the judgment of the Judicial Committee.
The suit was tried by Panckridge J., who held that " Cl. 11 cannot be construed as an independent gift to the persons who happen to answer to the description of the eldest male lineal descendant of the original Shebaits at the time of their deaths. In my opinion the clause attempts to lay down a line of succession which is not permissible under the HINDU LAW and is therefore invalid on the authority of Manohar Mukherji v. Bhupendranath Mukherji (( 1932) I. L. R. 60 C. 452 ; 37 Cal. W. N. 29.)."
An appeal was heard by a Division Bench consisting of Costello and Lort-Williams JJ., who, setting aside the judgment of Panckridge J., held that " &. n can be construed as providing (inter alia) for independent gift for life to .... the persons who happened to answer the description of eldest male lineal descendants of [the testators two Shebait sons] at the times of their respective deaths, and they are the persons at present entitled to act as Shebaits."
1936. July 13, 14. De Gruyther K.C. and L. P. E. Pugh for the appellant.
Dunne K.C. and S. P. Khambatta for the respondents Nos. 1-5.
Sir Thomas Strangman for respondent Administrator-General of Bengal.
July 29. The judgment of their Lordships was delivered by
LORD THANKERTON. This appeal raises a question as to the validity of the provisions for the shebaitship of certain Hindu idols made by the will of Luckey Narain Dhur, who was a Hindu governed by the Dayabhag School of HINDU LAW , and who died on March 26, 1927. The following genealogical table will show the relationship of the parties —
Luckey Narain Dhur — Kadammoni Dasi
|
| | |
Kartick Ganesh Ram
| (appellant) |
| | |
| | |
Netye Madan |
| | | |
Lal Behary Bon Behary Rash Behary Banku Behary
The testator was survived by his widow and by his three sons. The material clauses of the will, which
was made and published on November 18, 1923, and under which his sons Kartick and Ram were appointed executors, are as follows "9. Subject to the payments aforesaid I give the rest and residue of my estate unto my executors and trustees upon trust to pay the balance of the income of my said estate to the Shebaits for the time being of the Thacoors Netai Gour and etc., established by me and located at my family dwelling-house No. 23, Sankaritola Lane to be applied by the said Shebaits for the time being for the expenses of daily Sheba and periodical festivals and ceremonies of the said Thacoors as are usually observed and performed in Hindu families of my caste and I direct that after the death of all the legatees under this my Will my executors and trustees shall make over the whole of the corpus and undrawn income of my said estate unto the Shebaits or Shebait for the time being of my said Thacoors upon the trusts as aforesaid.
" 10. It is my Will and I direct that the said house and premises No. 23, Sankaritola Lane shall always remain for the location and use of the said Thacoors and my Executors and Trustees or the Shebaits shall have no power or authority to sell mortgage or dispose of or deal with the said premises in any manner whatever and if at any time the said house and premises is acquired for any public purposes under any enactment for the time being in force them (sic) I direct that my exeutors and trustees shall with the money received for such acquisition purchase or build a
