Nagendra Nandini Dassi v. Raja Benoy Krishna Deb

Stephen, J.:— In this case I have to decide upon the construction of the Will of Sreemutty Patit Pabani Dassi, a Will of which the Defendant obtained probate as executor in July 1898.

Two preliminary points have been taken before me.

It is admitted that the property affected by the Will is stridhan property and that the Plaintiff’ in case of intestacy is the heiress of the testatrix as her mother.

In the first place I have to decide whether there is an intestacy under the Will.

In the next place, supposing there is unchastity on the part of the mother, such unchastity debars her from inheriting.

The unchastity is not admitted and no evidence is given in relation to it but if I decide in favour of an intestacy and if I decide that unchastity is in this case no bar to inheritance, the case need go no further.

The clauses of the Will as to which it is alleged that there is intestacy are Nos. 4, 5 and 6. By cl. 4 it is directed that “if any spot close to the place where the funeral rites of my deceased husband were performed and the place where his remains were cremated can be purchased from the Municipality or from any other person, then a Shiva mandir (temple of Shiva) and two small rooms attached thereto shall be built on that spot. Rs. 4,000 in all (shall) be spent for this (purpose), this is my desire. If the spot aforesaid be not available, then this mandir shall be erected at Ishwar Kashidham. A Shiva thakur shall be established under the name of ‘Chandranath’ in that mandir.”

By cl. 5 certain property is dedicated for the benefit of the said Shiva thakur, and at the end of that clause it is added “a Brahmin and Atithi (guest) should be entertained and fed from the said money.”

By cl. 6 it is provided that if there is any surplus of the dedicated funds after the performance of the bequests to which I have referred, then the said money being accumulated, there should be feasting of beggars and Brahmins according to means on the anniversaries of her husband's death.

It is admitted that by the well-known law the bequest to the thakur which was not instituted at the time of the testatrix's death is void.

It is suggested however that the bequest is good so far as it refers to the building of the temple and to the other objects.

Reading these clauses together and considering the testatrix's intention and looking to the practical effects which such a reading of the Will would produce, I cannot agree with this contention as the institution of the thakur is plainly the essential bequest to which the others are only ancillary—when it fails, they fail too.

I therefore hold that there is an intestacy under the clauses in question.

I may perhaps add that by cl. 15 of the Will Rs. 2,000 are left to the testatrix's mother and by cl. 17 it is provided that her heirs are to have no title to the surplus of the dedicated money after payment of the expenses of the temple.

It remains to consider what is the effect of the alleged unchastity of the mother.

In the first place it appears that this unchastity has not the same legal effect as prostitution, which produces degradation and outcasting.

The difference between the two seems to be marked, in the cases decided on the one hand in Ramanath Tolapattro v. Durga Sundari Debi and Ramananda Chowdhry v. Raikishori Barmani and on the other in In the goods of Kaminey Monty Bewah.

The exact form of the alleged unchastity in the present case has not been gone into but it is admitted that it does not amount to prostitution.

Under these circumstances I think this case is governed by the case of Mussammat Ganga Jati…(Defendant); v. Ghasita…(Plaintiff). summarized by Mr. Justice Banerjee in his work on Hindu Law and Marriage at p. 344 as follows:— “It was held that unchastity will not disqualify a woman from inheriting the stridhan of her female relatives.” It is unnecessary that 1 should quote further from the judgment to support this summary. I may point out that this account of the law is consistent with the cases which were quoted before me of Romanath Tolapatra v. Durga Sundari Debi and Ramananda Chowdhry v. Raikishori Barmani where the question was one of inheritance from a male and not of stridhan property.

A further point however arises in the judgment in the Allahabad case. It is suggested in the judgment of Mr. Justice Oldfield that the right of succession of stridhan is intimately connected in Bengal with the principle that inheritance depends upon spiritual benefit to be conferred upon ancestors and that the capacity to confer such benefit is lost by unchastity, though a later passage seems to limit this extension of that principle at all events as far as the present case is concerned.

This matter seems to be explained by certain passages in the Dyabhaga, to which my attention has been drawn; and which seem to show that the question of spiritual benefit does not apply in the present case. By para. 29, Ch. 4, sec. 3, property goes first to the whole brothers, then to the mother, then to the father and then to the husband. By para. 31 various persons, whom I need not name, on failure of heirs down to the husband are said to be similar to mothers, Krishna Deb and sec. 37 provides for the inheritance of persons who claim through such mother. Such inheritance, it appears, depends on the principle of spiritual benefit.

The conclusion would seem to be that the characteristic doctrine of the Bengal law is that as far as the near relatives are concerned inheritance depends on consanguinity but in the case of remoter relations the law falls back on the principle of spiritual benefit.

Under these circumstances it is plain that the doctrine of spiritual benefit does not apply in the present case. The alleged unchastity of the mother therefore discloses no bar to her inheritance.

Mr. Chuckerbutty.—Decree for administration will go (6th prayer). Preliminary administration decree with these declarations.

Stephen, J.:— Yes.

Mr. Sinha.— So far as executor's costs of hearing are concerned, submits he is entitled to them. Charges of waste are abandoned.

Mr. Chuckerbutty.— Costs of further order to come out of the estate as between attorney and client.

Stephen, J.:— Yes.

Babu Preo Nath Sen, Attorney for the Plaintiff.

Messrs Morgan & Co., Attorneys for the Defendant.

A.N.C