JIBAN KRISHNA DAS Vs. JITENDRA NATH DAS

JUDGEMENT

(1.) THIS appeal is directed against a judgment of a division bench of the Calcutta High Court dated November 14, 1944, by which the learned Judges reversed a decree of dismissal made by the Subordinate Judge, First Court, Alipore, in a suit for partition and accounts.

(2.) THE material facts are not controverted and may be briefly stated as follows. THE properties which are described in the schedules to the plaint belonged admittedly to one Kedar Nath Das, who died on December 18, 1920, leaving behind him a will which was executed on July 5, 1916. THE near relatives of Kedar who survived him were his wife Golapmoni, two sonsbejoy Sashi and Benoy Sashiand two daughters Hemnalini and Mrinalini. THEre were four grandsons also born during the life-time of the testator and actually in existence at the date of his death, three of whom were sons of Bejoy Sashi and one of Benoy Sashi. By his will, the testator disinherited both his sons. THE younger son Benoy Sashi was given an allowance of Rs. 50 per month. A similar allowance was given to the family of Bejoy Sashi but not to Bejoy Sashi himself; and after giving certain legacies to his two daughters and making provisions for his wife and the education and marriage expenses of all his grand-children, the testator gave the entire residuary estate to the sons of his two sons.

(3.) THE Subordinate Judge, who heard the suit, accepted both these contentions and the plaintiffs' suit was dismissed. It was held by the Subordinate Judge that as administration of the estate was not complete and legacies had not been paid off, the estate was still in the administratrix and the plaintiffs had not acquired title to any ascertained residue on the basis of which they could claim partition. As the suit was dismissed on this preliminary ground, it was, strictly speaking, not necessary for the trial Judge to go into the other question raised in the suit. THE Subordinate Judge, however, for the purpose of giving completeness to his judgment, dealt with the question of construction of the will and held that the grandsons of the testator were under the terms of the will entitled to share the residuary estate per stirpes and not per capita. THE result, therefore, was that the plaintiffs, according to the decision of the learned Subordinate Judge, were entitled to 8 annas' share in the residuary estate and the other 8 annas' share was to go to defendant No.1.