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1929 Supreme(Cal) 113
CALCUTTA HIGH COURT
Page, J.
Provas Chandra Sinha - Appellant
Versus
Ashutosh Mukherji & Ors. - Respondent
Decided On : 29-04-1929
The main legal point established in the judgment is the interpretation of the term 'suit for land' under Clause 12, Letters Patent, and the Court's determination of its jurisdiction based on this interpretation.
Headnote:
Jurisdiction - Suit for Land - Rule 1, Sub-clauses (a) and (g), Rule 2, Sub-clause (a), and Rule 9, Ch. 13 of the rules of this Court 1914 - The Court determined questions arising in respect of the estate of the deceased Gopal Chandra Sinha, including the purported dedication of properties, direction for accumulation, vesting of bequests, and bequest of residuary estate. The Court found that the proceeding was a 'suit for land' and dismissed the summons due to lack of jurisdiction under Clause 12, Letters Patent.
Fact of the Case:
The plaintiff, as the sole residuary legatee under the will and codicils of Gopal Chandra Sinha, sought to determine the title to the property moveable and immovable of the testator. The defendants raised a preliminary issue regarding the jurisdiction of the Court to entertain the suit.
Finding of the Court:
The Court found that the proceeding was a 'suit for land' and dismissed the summons due to lack of jurisdiction under Clause 12, Letters Patent.
Issues: The main issues included the purported dedication of properties, direction for accumulation, vesting of bequests, and bequest of residuary estate. Additionally, the preliminary issue raised was whether the Court had jurisdiction to entertain the suit.
Ratio Decidendi: The Court held that the proceeding was a 'suit for land' and determined that it lacked jurisdiction under Clause 12, Letters Patent, ultimately dismissing the summons.
Final Decision: The Court dismissed the summons due to lack of jurisdiction under Clause 12, Letters Patent.
JUDGMENT
Page, J. - This is an originating summons by the plaintiff, taken out by his mother as next friend, in which the plaintiff
claims to be interested in the relief sought as the sole residuary legatee
under the will and codicils of his grandfather Gopal Chandra Sinha, for the purpose of determining the title to the property moveable and immovable of the testator. The originating summons is in the following form:
Let the defendants Ashutosh Mukhorjee, Sadasiva Mitter and Khitindra Kumar Mitter, the executors of the said Gopal Chandra Sinha deceased, all of No. 9, Ghaulpati Lane, and the defendants Sashi Bhusan Sinha of No. 13-A, Teliparha Road, Khitish Chandra Sinha, since adjudged a lunatic, and Purna Chandra Sinha, the three sons of the said deceased, and the defendant Khoka Sinha, a minor grandson by son of the said deceased, and as such claiming or. having an interest in the latter's estate as a residuary legatee under his will and codicils, dated respectively 2nd March 1919, 2nd November 1920, and 3rd Chaitra 1330, B.S., corresponding to 16th March 1924, the last three of No. 26-A, Padmapukur Road, and the defendant deities Sree Sree Raj Rajeswar, Sree Sree Lakshmi Janardan Thakur Shalgram and Sree Iswar Shiva Thakur claiming to bo entitled to properties purported to be dedicated to their sheba by the said wills and codicils by their she bait, the defendant Sashi Bhusan Sinha of No. 13-A, Teliparha Road, aforesaid within eight days after the service of this summons on them, respectively, inclusive of the day of such service, cause an appearance to be entered for them respectively to this summons, which is issued upon the application of the plaintiff Provas Chandra Sinha, a minor by Sreemati Radharani Dasi his next friend, which plaintiff claims to be interested in the relief sought as the sole residuary legatee under the said will and codicils of the said Gopal Chandra Sinha deceased, that the following questions arising in respect of the estate of the said deceased may be determined under Rule 1, Sub-clauses (a) and (g), Rule 2, Sub-clause (a), and Rule 9, Ch. 13 of the rules of this Court 1914, and relief given in respect thereof, that is to say:
I. (1) Whether the purported dedication of the properties mentioned in Clauses 3 and 4 of the said will, as modified by Clauses 2 and 4 of the said codicil of 16th March 1924, is postponed to a period beyond the time allowed for the vesting of legacies, and or whether the same is void for remoteness or otherwise?
(2) Whether the purported gift, under Clause 3 of the said will of property, bearing income sufficient to meet the expenditure of taxes, repairs and thorough repairs in respect of the debuttar, purported to be created as aforesaid, is void for uncertainty and remoteness?
(3) Whether the direction for accumulation contained in para. 16 of the said will is void and bad in law?
(4) Whether the vesting of the several purported bequests under Clause 16 of the said will is postponed till the period of distribution mentioned therein?
(5) Whether the purported bequests of one-third share respectively in the remainder of the said deceased's estate or any one or more of them is void for remoteness as offending against the rule against perpetuities and or for any other reason?
(6) If the said bequests in favour of the sons and grandsons of the defendants Khitish Chandra Sinha and Purna Chandra Sinha, respectively, under the said Clause 16 are void, then, whether the limitations or gifts over in favour of charities, in default of such sons or grandsons being in existence as the period of distribution, are also void?
(7) If the purported dedication under Clauses 3 and 4 and or other bequests under Clause 16 of the said will or any of them fail by reason of their being void as aforesaid, then do such bequests as are avoided sink into and form part of the said deceased's residuary estate?
(8) Whether the bequest of the residuary estate to the said deceased's grandsons by son under Clause 12
