Case: Gadadhur Mullick Vs The Official Trustee of Bengal. High Court of Bombay (India)
| Judges | Thankerton, Romer, George Lowndes, George Rankin and M.R. Jayakar, JJ. |
| Issue | Property Law |
| Citation | 1940 (42) BomLR 621 |
| Judgement Date | January 16, 1940 |
| Court | High Court of Bombay (India) |
Judgment:
George Rankin, J.
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One Shib Chandra Mullick, a Hindu governed by the Dayabhaga, was possessed of considerable property moveable and immo veable, comprising a number of house properties in Calcutta and its suburbs, as well as zamindari property in the Sundarbans. He died on August 4, 1866, leaving him surviving a widow and an only son, Rishikesh Mullick. By his will, dated August 3, 1866, he appointed one Dwarkanath Bhanjoo, his son Rishikesh and the Administrator General of Bengal for the time being (who never acted) to be " executors and trustees of this my will." After providing for his widow's maintenance and residencei and giving pecuniary legacies to her and to certain other persons, he disposed of the residue of his property as follows:-
I give devise and bequeath all the rest, residue and remainder of my property moveable and Immovable unto my Executors hereinafter named in trust as to one moiety thereof for my only son Rishikesh upon his attaining the age of twenty-one years and as to the other moiety thereof In trust for the male issue of my said son Risicase (Rishikesh) share and share alike if more than one and if only one to that only one but in. case my said son should die without male issue or leaving male issue such male issue should die under the age of sixteen years without leaving male issue him, or them surviving then as to that moiety In trust to be paid over to the Trustees and added to the Trust Fund known as Roopchand Dhur Trust Estate and subject to the trusts thereof and) in case my said son Rishikesh should die before attaining the age of twenty-one years and without leaving male issue him surviving or to be born after his death in due course of time then as to the moiety of the moveable and Immovable estate bequeathed and devised to him In trust to be paid over to the Trustees and added to the Trust Fund known as Roopchand Dhur Trust Estate and subject to the Trusts thereof.
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No question now arises as to the moiety which was given to Rishikesh (" the first moiety "), but as to the other moiety (" the second moiety ") the present appeal raises questions as to the validity and effectiveness of the gift to the Roopchand Dhur Trust Estate. It is to be observed that the will came into effect before the Hindu Wills Act of 1870 and that the validity of its provisions must be judged according to the Hindu law in force in Bengal in 1866.
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On August 14, 1866, probate of the will was granted to Rishikesh and Dwarkanath Bhanjoo, who took possession of the testator's estate. On January 9, 1873, Rishikesh, having attained the age of twenty-one years, died intestate, never having had a son, but leaving him surviving a widow, Pura-sundari, and a daughter. The appellants' averments as to what happened after the death of Rishikesh may for the purposes of this appeal be accepted and are stated in their " Case " as follows:-
It appears from mutation papers and cess returns exhibited in the case that after the death of Rishikesh Dwarkanath Bhanjoo continued to act as sole surviving executor till the year 1880, when he applied for mutation of names in favour of Pura-sundari, and in 1881 or 1882 made over the whole estate to her. The widow as heiress of Rishikesh remained in possession of the whole of the testator's residuary estate until her death, which occurred on the 11th September, 1932. During this long period of 50 years neither the plaintiff nor anyone else interested in the Roopchand Dhuit Trust claimed under the will or questioned the right of the lady until the present suit of 1934.
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On April 27, 1934, the Official Trustee of Bengal (respondent No. 1) filed a suit in the High Court at Calcutta claiming as trustee of the Roopchand Dhur Trust to be entitled under the terms of the testator's will to the whole of his residuary estate: alternatively, to one half thereof. He impleaded the present appellants, who are the reversioners of Rishikesh, as persons wrongfully claiming the estate and wrongfully in possession thereof. The claim to the first moiety (which by the terms of the will was given to Rishikesh on his attaining the age of twenty-one years) was abandoned at an carry stage of the suit. But as to the second moiety the suit succeeded before the trial Judge (Ameer Ali J) and also on appeal to a division bench Costello and Panckridge JJ.). A preliminary decree for partition was made (June 28, 1937) and affirmed on appeal (April 6, 1938).
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The first question is whether the suit is barred by limitation and this defence must prevail unless Section 10 of the Indian Limitation) Act, 1908, applies to the case.
Section 10. Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following) in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.
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The appellants contend that this Section does not deprive them of the protection prirna facie afforded to them against stale claims by the appropriate articles in the schedule. They point to the fact that under the will no right arose to the Roopchand Dhur Trust in respect of the moiety now in question until after the death of Rishikesh. Hence they deny that Rishikesh in his lifetime was ever a trustee. They maintain that, even if he was a trustee, his widow took from his surviving co-trustee Dwarkanath Bhanjoo: hence that neither she nor the appellants are to be regarded for the purposes of Section 10 as the legal representatives of a trustee. To this a further argument is added that the widow received the estate from the surviving executor at a time when any claim to a legacy or a distributive share by the plaintiff had become barred by limitation.
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This defence, in their Lordships' opinion, fails. That the interest of the Roopchand Dhur Trust did not arise until the death of Rishikesh is clear chough, in the sense that before that date it was a contingent interest; but Rishikesh as one of the executors and trustees of his father's will had a duty in his lifetime to preserve the property of which the residuary estate consisted. There was an express trust for a specific purpose and he was under a duty to fulfil that part of it which required fulfilment in his lifetime. But when he died he ceased to be a trustee and Dwarkanath Bhanjoo became sole trustee. On the appellants' own showing Purasundari took from him and is the assign of a trustee. As it is not pretended that she gave valuable coin-sideration, the, defence of limitation is not available to her but is excluded by the terms of Section 10. Had the plaintiff in 1881 or 1882 sued Dwarkanath to recover the share of residue given to the Roopchand Dhur Trust, Section 10 would have had the same effect to exclude any plea of limitation raised by the trustee.
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The validity of the bequest of the second moiety to the Roopchand Dhur Trust Estate must therefore be examined. The first limitation of the beneficial interest in this moiety is to the male issue of Rishikesh. This failed as he had no male issue1 at the death of the testator (or at any other time). There is no other disposition of the beneficial interest which could take effect in the lifetime of Rishikesh. But there is a limitation to the Roopchand Dhur Trust Estate which is to take effect in either of two events (a) in case Rishikesh should die without male issue (which probably means without leaving male issue) (b) in case Rishikesh should die leaving male issue but such male issues should die under the age of sixteen years without leaving male issue him or them surviving. The former is the event which happened: the state of affairs described in (b) on any view of that provision did not happen. Clearly the two contingencies are independent and indeed mutually exclusive. Hence though the gift to the Roopchand Dhur Trust might be invalid had it been claimable solely on the ground of fulfilment of condition (b), this consideration would not in any way invalidate the gift if, in the events which happened, it was claimable under (a). Panckride J. put the matter simply and correctly: " if the testator has separated the gift so as to take effect upon the happening of any of several events, and the event which happens is not too remote, the gift over is good."
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The bequest to the Roopchand Dhur Trust which has here to be considered is therefore a bequest to; take effect on the death of Rishikesh without male issue, the disposition intended to have effect during the life of Rishikesh having failed. It is not disputed that had the will given an estate for life to Rishikesh and then directed that upon his death without leaving male issue it should go to the Roopchand Trust Estate, this conditional limitation would have been good. The question for decision is as to the effect at Hindu law of the failure of the testator's disposition of the interest in this moiety during the life of Rishikesh. The view taken by the learned Judges in the High Court is that the gift to the Roopchand Dhur Trust Estate is good and took effect on the death of Rishikesh, who as heir of the testator took the prior interest for his own life in this moiety, such interest not having been disposed of by the will. The view contended for with much learning and ability by Mr. Pugh and Mr. Parikh on behalf of the appellants is that the gift to the Trust Estate is void at Hindu law, no interest being taken under the will by any ascertained parson at the time of the testator's death. There is, therefore, it is said, no possibility of relinquishment by the testator and acceptance by or on behalf of the legatee being supposed to have taken place at the time of the testator's death as required by Hindu law. The same result is contended for on a broader, if not necessarily...
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