Toolsi Das Kurmokar vs Madan Gopal Dey on 24 April, 1901

Calcutta High Court
Toolsi Das Kurmokar vs Madan Gopal Dey on 24 April, 1901
Equivalent citations: (1901) ILR 28 Cal 499
Author: Harington
Bench: Harington


Harington, J.

1. In this case the plaintiff claims certain immoveable property as heir to his maternal uncle, a man named Roop Chand Dass. Roop Chand Dass left a widow Attormoney Dossee. The defendant purchased the property, which is the subject of the present suit, from the administrators to the estate of the last-mentioned lady.

2. The defendant’s case is that Roop Chand Dass bequeathed the property in question to his widow absolutely, and, therefore, the title derived from her administrators is a good one.

3. The plaintiff alleges that Roop Chand Dass’ will was only effectual to give a life estate to his widow, and therefore, on the termination of that life estate, he became entitled to the property as heir-at-law.

4. The question depends, therefore, on the interpretation of Roop Chand Dass’ will, for no question arises as to the right of the administrators to sell, assuming this was the property of Attormoney Dossee, because they had obtained the necessary leave of the Court as such administrators to sell the property.

5. It is contended by the plaintiff that, inasmuch as the will of Roop Chand Dass contains an authorization to adopt, it indicates that the testator intended his widow to take no more than a life estate and, as an authority for that proposition, the case of Punchoo Money Dossee v. Troy-lucko Mohiney Dossee (1884) I.L.R. 10 Cal. 342 is cited. In that case the testator had given either commandment or permission (it does not seem quite clear from the report which is the correot interpretation of the Bengali word) to his wife to adopt a son, and he also gave a direction to her to adopt a second son in the event of any good or evil happening to the first, and the will provided, that on the adopted son attaining full age, he should become the malik of the whole property.

6. On the construction of that will the Court held that it was clear that the testator intended the widow to adopt a son, and, in the event of the’ death of that son, to adopt another, and that that intention coupled with the provision that the son was to become the owner of the property, when he came of age, showed that in that case the testator did not intend the widow to take an absolute interest. In that case there was no adoption, for the widow disregarded the testator’s wishes as to that, but the intention being made clear, the fact that she disregarded the intention to adopt could not alter the constrcution to be put on the will. That case is not an authority for the proposition that in every will in which authority to adopt is given to the widow, it necessarily follows that the widow only takes the life estate. The intention of the testator must be gathered from the terms of the will itself. I do not think he could employ more explicit language for the purpose of giving his wife his estate absolutely, than he has employed in this case. He says:–” Amongst my immoveable property, there is the family dwelling house No. 17, Gobindo Chunder Sen’s Lane in Champatallah Second Lane in Calcutta, and a tenanted house No. 82, in Champatallah Second Lane aforesaid, which I make an absolute gift of to my said wife Sreemutty Attormoney Dossee. After my death she shall reside in the said family dwelling house, and, realizing the rent of the said tenanted premises, she shall in my place and stead carry on with discretion and in a reasonable manner the daily sheba of the Shalgram, the Doorgotsub and the poojahs of other Debs and Debees in the same way as they have been conducted in my lifetime.”

7. He then goes on to give her his moveable property. After first giving the moveable and immoveable properties his will contains a clause to this effect:

If my sister’s son, or any one else, make any objection to this, such objection shall be inadmissible.

8. His will goes on in these terms: ” So long as my wife survives, she shall enjoy possession of the said landed property, and putting out to interest the rents and other cash moneys she shall carry on her own maintenance, perform her Brottoniyom and the daily sheba and other poojahs of the Debs and Debees in a reasonable manner, and, whatever gift or disposition she may make in the future, shall be ratified and upheld after her death.–I do also further authorize her to take in adoption one or two sons, according as she may desire.”

9. After reading that disposition, it appears to me to be unarguable to say, that the effect of that will taken as a whole is to give the widow only a life estate. One of the tests which is applied to see, whether the estate given is intended to be absolute or not, is to see whether the donee of the estate has a power of disposition over it. In this will, in most absolute terms the widow is given the power of disposition, she may make a gift or disposition of it and that gift or disposition shall be upheld after her death. That is clause absolutely inconsistent with the contention of the plaintiff, that no more than the life estate is given by this will. For this reason I am of opinion that the title obtained by the defendants through the administrators of the deceased lady cannot be impugned: the plaintiff’s suit must therefore be dismissed with costs.

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