1872 Supreme(SC) 18

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
(PRESENT:—SIR JAMES W. COLVILE, LORD JUSTICE JAMES, LORD JUSTICE MELLISH, MR. JUSTICE WILLES, SIR MONTAGUE E. SMITH, AND SIR ROBERT P. COLLIER. ASSESSOR: SIR LAWRENCE PEEL.
JUTTENDROMOHUN TAGORE - Appellant
Versus
GANENDROMOHUN TAGORE - Respondents
On Appeal from the High Court at Bengal.
Decided On : Feb. 20, 22, 23 ; July 5. 1872

Headnote:

The Privy Council held that a Hindu father has full power under the law of Bengal to alienate by will or otherwise the whole of his ancestral and self-acquired estate and property to the complete disinheritance of his heirs, and that they (the heirs) are not even entitled to maintenance thereout. The Court also held that a Hindu testator cannot create or give successive estates for life, or an estate in tail and therefore the donees ought to have declared that such estates given by the will were validly created; and that the rule applicable should be one in harmony with the rule of English law to prevent perpetuities, which permits property to be tied up during the existence of any number of concurrent lives and for an additional period measured by the duration of legal infancy and the time of gestation.

Fact of the Case:

Prosonocoomar Tagore, a Hindu inhabitant of Calcutta, died on the 30th of August, 1868, leaving his only son, the Plaintiff, and two widow daughters, with six grandchildren, the children of daughters him surviving. The Defendants are three of the trustees and executors under the will of Prosonocoomar, dated the 10th of October, 1862, together with the persons in existence who claim a beneficial interest under the will, other than legacies and annuities (which are not disputed). The trustees and executors are Woopendromohun Tagore, Juttendromohun Tagore, and Doorgapersaud Mookerjee. Juttendromohun Tagore is named as the first tenant for life, and he had, and has, no son. The Defendant Sourendromohun Tgore (named in the will Shooshendromohun Tagore) is also named as tenant for life. The Defendant Promodecoomar Tagore (a minor) is the son of Sourendromohun Tagore, and was born in the lifetime of the testator. He is described as tenant for life. The remaining Defendant, Suttendromohun Tagore (a minor), is the grandson of Lullitmohun Tagore, who was dead at the date of the will. He was born in the lifetime of the testator. His father and grandfather died before the testator. If the will be valid he is entitled to an estate in tail male. It does not appear that any other person beneficially interested is in existence. The fourth trustee has not acted, though he does not appear to have renounced. No question as to parties has been raised except as to the alleged want of any description of the capacity in which Juttendromohun Tagore has been sued. This latter point was not argued before their Lordships, and they see no reason for doubting that the High Court rightly overruled it.

Finding of the Court:

The Privy Council held that a Hindu father has full power under the law of Bengal to alienate by will or otherwise the whole of his ancestral and self-acquired estate and property to the complete disinheritance of his heirs, and that they (the heirs) are not even entitled to maintenance thereout. The Court also held that a Hindu testator cannot create or give successive estates for life, or an estate in tail and therefore the donees ought to have declared that such estates given by the will were validly created; and that the rule applicable should be one in harmony with the rule of English law to prevent perpetuities, which permits property to be tied up during the existence of any number of concurrent lives and for an additional period measured by the duration of legal infancy and the time of gestation.

Issues: 1. Does the plaint disclose any cause of action? 2. Did the testator die intestate with respect to any and what portion of his estate? 3. Was any and what part of the immoveable property of the testator ancestral estate, and, if so, had the testator power to dispose thereof by will? 4. Are any and which of the gifts or limitations contained in the will and codicils of the testator void in law? 5. What are the rights of the parties respectively under the will and codicils? 6. Whether the Plaintiff is entitled to any and what maintenance out of the estate of the said testator? 7. Whether the executors, Defendants, have misapplied any and what portion of the testators estate?

Ratio Decidendi: The Privy Council held that a Hindu father has full power under the law of Bengal to alienate by will or otherwise the whole of his ancestral and self-acquired estate and property to the complete disinheritance of his heirs, and that they (the heirs) are not even entitled to maintenance thereout. The Court also held that a Hindu testator cannot create or give successive estates for life, or an estate in tail and therefore the donees ought to have declared that such estates given by the will were validly created; and that the rule applicable should be one in harmony with the rule of English law to prevent perpetuities, which permits property to be tied up during the existence of any number of concurrent lives and for an additional period measured by the duration of legal infancy and the time of gestation.

Final Decision: The Privy Council held that a Hindu father has full power under the law of Bengal to alienate by will or otherwise the whole of his ancestral and self-acquired estate and property to the complete disinheritance of his heirs, and that they (the heirs) are not even entitled to maintenance thereout. The Court also held that a Hindu testator cannot create or give successive estates for life, or an estate in tail and therefore the donees ought to have declared that such estates given by the will were validly created; and that the rule applicable should be one in harmony with the rule of English law to prevent perpetuities, which permits property to be tied up during the existence of any number of concurrent lives and for an additional period measured by the duration of legal infancy and the time of gestation.