Authored By : Mookerjee, P.L. Buckland

Mookerjee, J.

1. This is an appeal by the plaintiff in a suit forconstruction of a Will executed by his step brother Natobar Ghose. Thesubstantial controversy between the parties relates to the construction of Cl.(5) of the Will which is in the following terms:

That I have some texartati karbar in my own name and in thebenami of my son Girish Chandra Ghose. After my death my said stepbrotherSriman Rajendra Lal Ghose and his sons etc. in succession shall realise eitheramicably or by suits the amounts that may remain due from my debtors and withthe said money and with the Government Promissory Notes that may be left by me,they shall re-excavate in my name the tank known as Panja tank belonging to usin village khorda Cawnpore and remove thereby the water difficulty of thepublic. Whatever will remain surplus, after defraying the said expenses shallbe obtained by my said brother and his sons etc. If he does not re-excavate thesaid tank in my name, then my three married daughters Srimati Mrinalini Dasi,Srirmati Bibhabati Dasi and Srimati Rashmant Dasi, and after them my daughterssons, shall realise the money of the tesarati karbar and with the said moneyand with the Government Promissory notes that may be left by me, they shallre-excavate the said tank in my name; and if any surplus be left it will beobtained by the married daughters and widowed daughter, Srimati Nikunja Dasiand daughter-in-law, Srimati Subhasini Dasi in equal shares.

2. It appears that after the execution of the Will andbefore his death the testator re-excavated the tank. Consequently it is nolonger possible for the legatee to fulfil the condition imposed in the Will.There can be no question that according to the true construction of this clausethis is a condition precedent, that is to say, there is no gift intended at allunless and until the condition is fulfilled.

3. At the time when the Will was executed the condition wasnot impossible of performance but by reason of event subsequent, the conditionhas now become impossible ; for, the testator himself re-excavated the tankafter he had executed the Will and before his death. Consequently at the timeof his death, when the testamentary disposition came into operation, thelegatee could not re excavate the tank.

4. The contention of the legatee is that the condition hasbeen discharged by the act of the testator himself and he can accordingly claimthe legacy as if the condition had never been imposed. He invokes in substancethe aid of the doctrine that the donee may not be bound by a condition imposedby the Will, where on account of the acts of the testator or other eventssubsequent to the date of the Will the effect is that substantially thecondition is performed or nullified in the testators lifetime or thatsubstantially the testator has dispensed with the condition or has putperformance out of the power of the donee.

As an illustration of the application of this principle,reference has been made to the decision of the House of Lords in Darley v.Longworthy (1774) 3 Brown P.C. 359 = 1 E.R. 1369, where there was a bequest ofchattels at a mansion house conditional on residence there. The testatorafterwards suffered recovery of the estate ; it was ruled that the wife wasentitled to the use of the furniture discharged of the condition which therecovery had put out of her power to perform.

5. Reference has also been made to other cases of the sametype such as Gath v. Burton (1839) 1 Beav. 478 = 48 E.R. 1023 = 3 Jur. 817,(condition requiring payment of debt held satisfied by testator acceptingcomposition), Wedgwood v. Denton (1871) 12 Eq. 390 = 25 L.T. 379 = 40 L.J.Ch.326 (surrender of term followed by acceptance of new term), Walker v. Walker(1860) 2 De G. F. & J. 255 = 129 R.R. 92 = 29 L.J. Ch. 856 (condition requitingconveyance by donee fulfilled by purchase by testator of donees interest) andRe Path (1910) 2 Ch. 322 = 79 L.J. Ch. 502 = 54 S.J. 563, (marriage withtestators consent).

There are remarks in some of these cases suggesting that thetrue principle is not that of considering that the condition has been fulfilledbut that the donees are exempt from the condition altogether so that the Willmust be read as if there were no condition. But this view may militate againstthe principle that the ascertainment of the testators intention shown by theWill cannot be varied by events which occur afterwards: seethe observations ofWood V.C. in Re Clarkes Trusts (1863)32 L.J.Ch. 325 = 11 W.R. 871 = 2 N.R.386. That intention must be determined from the terms of the bequest and wherethe performance of the condition appears to be the motive of the bequest theimpracticability of the performance will be a bar to the claim of the legatee.In such a case the bequest does not take effect, discharged of the condition.

6. Reference may in this connection be made to Lowthey v.Cavendesh (1758) 1 Eden 99 = 28 E.R. 621 and Priestly v. Holgate (1857) 3 K.and J. 286 = 4 W.R. 445 = 26 L.J. Ch. 448 = 69 E.R. 1116, which affordillustrations of the principle that where a condition precedent becomesimpossible to be performed even though there be no fault or laches on the partof the devisee himself, the devise fails. The case, clearly before us is ofthis description. The motive of the testator was that the water difficulty feltby the people of the locality should be removed and that this should beeffected by the re-excavation of the tank in his name, to be accomplished bymeans of the funds placed by him at the disposal of the legatee.

7. The essence of the intention consequently was that thelegacy should be applied in the re-excavation of the tank, and as an inducementto the legatee to carry out this injunction, the testator provided that thesurplus should belong to the legatee or his representative-in-interest. Byreason of events over which the legatee had no control, the re-excavation ofthe tank has become impossible and unnecessary, in other words, the motive ofthe bequest had ceased to exist at the date of the death of the testator,whence the Will takes effect. If we test the matter from a plain common sensepoint of view, we may put the question whether, if the Will had been made atthe time of the death of the testator, he would have inserted this particularprovision therein. The answer must obviously be in the negative. As the tankhad already been re excavated by him, he could not very well impose theobligation either upon the plaintiff or upon his daughters to re-excavate it.The substance of the matter is that the purpose which he had in view was notthen in existence, it is consequently impossible for us to hold that the Willintended that even in such circumstances the bequest should take effect. We areof opinion accordingly that the clause has been correctly construed by theCourt below and that this appeal must be dismissed with costs.

P.L. Buckland, J.

8. I agree.

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Rajendra Lal Ghosh vs. Mrinalini Dasi and Ors. (22.03.1921 -CALHC)