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1908 Supreme(SC) 7
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACNAGHTEN, LORD ATKINSON, SIR ANDREW SCOBLE, AND SIR ARTHUR WILSON.
RADHA PROSAD MULLICK - Appellant
Versus
RANIMONI DASSI - Respondents
On appeal from the High Court in Bengal.
Decided On : Feb. 5, 11; May. 14. 1908
Solicitors for appellants: Watkins & Lempriere.
Solicitors for respondent Ranimoni Dassi: T. L. Wilson &Co.
In construing a Hindu will, traditional notions of property devolution are relevant. A bequest to daughters "and their respective sons," combined with the exclusion of female issue, indicates an intention to create a restricted life estate rather than an absolute interest.
Headnote:(A) Indian Succession Act, 1865 - Section 82 - Construction of testamentary gifts - General rule that a bequest passes the whole interest unless a restricted interest is intended - In the context of a Hindu will, the intention to create a restricted interest can be inferred from the language and the testator's desire to keep property within the male line.
(B) Construction of Hindu Wills - Consideration of ordinary notions and wishes of Hindus regarding devolution of property - Presumption that an estate should be retained in the family and that women generally do not take absolute estates of inheritance.
Facts of the case:
A testator left a will providing for the adoption of a son. Upon the failure of the adoption, the estate was to be divided between his daughters and their respective sons. The will contained specific provisions ensuring that if a daughter died without male issue, her share would pass to the other daughter and her sons, effectively excluding female descendants from the succession.
Findings of Court:
The daughters are entitled to the estate in equal shares for life, with a remainder over to their sons and the benefit of survivorship between themselves.
Issues: Whether the bequest to the daughters under the will conferred an absolute estate or a restricted life estate with a remainder to their sons.
Ratio Decidendi: The court held that the specific language "and their respective sons" and the explicit exclusion of female issue from succession clearly indicated the testator's intention to create a restricted interest rather than an absolute one. This aligns with traditional notions of property devolution where the priority is to ensure the property remains with male descendants capable of performing funeral rites. While Section 82 of the Indian Succession Act generally grants the whole interest, the restriction in this case is evident from the terms of the will.
Result: Appeal allowed.
Legal Category Hierarchy
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succession law
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testamentary succession
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construction of wills
- hindu law
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construction of wills
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testamentary succession
Judgement
Appeal from a decree of the High Court (April 23, 1906) affirming a decree of Woodroffe J. (July 31, 1905).
The questions decided relate to the legal construction of the will of Hurry Dass Dutt, deceased, who died on October 30, 1875. The will was dated on the day of his death and appointed his widow, father, and uncle his executors and trustees.
Inter alia the will contained the folio wing provisions—
M Whereas having no son born to me of my body I am desirous of adopting one in my lifetime but in case I depart this life before carrying such my desire into effect I hereby authorize and empower my wife and executrix Srimutty Surnomoni Dassi and my executors and trustees to whom I give full permission and liberty to adopt after my decease a son and in case of his death during his minority or on attaining his full age and without leaving male issue to adopt a second son and in case of his death during minority or on attaining such age and without leaving male issue to adopt a third son and no more. In any of the above cases of adoption should the adopted son die leaving a son or sons the power of adoption shall cease or remain in abeyance during the life or lives time of such son or sons of such adopted son but shall revive on the death of such son or sons during minority.
" I direct my executors and executrix and trustees to pay out of the income and interest of my estate and effects monthly all necessary household expenses as well as for the worship of our family idol Sri Radha Gobindji and to pay my wife monthly during her natural life for her sole and separate use the sum of rupees two hundred and also the sum of rupees fifty monthly to such adopted son who shall live and attain his full age of eighteen years after his so attaining such age of eighteen years during the lifetime of my said wife provided he remains under her control and bears a good character and if my said executrix and executors and trustees think fit and are satisfied with his conduct and behaviour and for the purposes of such monthly expenditure my executrix executors and trustees shall set apart and retain out of the interest and income of my estate a sum sufficient to meet such expenditure for six months and invest the rest and residue of such income and interest in Government securities in their joint names but in no case shall such adopted son have or exercise any control or dominion over my estate and effects until the death of my wife after which event I direct my said executors and trustees to make over the whole of my estate and effects both real and personal or immovable or movable whatsoever and whosesoever and of what nature or quality soever to such adopted son who shall survive my wife if he shall have attained his age of eighteen years during the lifetime of my wife or on his so attaining such age after her decease to whom and his heirs I give devise and bequeath the same.
" But in case none of such adopted sons survive my said wife or in case of either surviving my said wife and dying under the said age without leaving a son or sons I desire and direct my executors after the death of my said wife or the death of such son after her but under such age of eighteen years without leaving a son or sons to make over and divide the whole of my estate both real and personal unto and between my daughters in equal shares to whom and their respective sons I give, devise and bequeath the same but should either of my said daughters die without leaving any male issue surviving but leaving my other daughter her surviving then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter or in case of the death of either daughter leaving sons the share of such daughter is to be paid to such her son or sons share and share alike."
The testator left a widow, two daughters, Ranimoni and Premmoni, and three sons of the latter. In pursuance of the will the widow on August 9, 1876, adopted Jyoti Prosad Mullick,
