BHUPENDRA MOHAN ROY Vs. MATI PURNA SASHI DEBI

JUDGEMENT

(1.) THIS is an appeal from a decree of the High Court of Judicature at Fort William in Bengal dated May 20, 1935, reversing the judgment and decree of the First Additional Subordinate Judge of Dacca dated June 17, 1932, whereby he had dismissed with costs a suit brought by the first respondent Srimati Purna Sashi Debi (hereinafter called the respondent) against the appellants and others.

(2.) THE respondent is the widow of one Bhabendra Mohan Roy (hereinafter called the testator) who died on January 11, 1915, having made his will on the day preceding his death. He left a daughter surviving him but no son. He also left him surviving his three brothers (who are the appellants) and a step-brother, one Rajendra Mohan Roy.

(3.) MY mother Srijukta Harakamini Debi, of whom I was born, will be entitled to maintenance out of my estate according to share, in accordance with my father's Will, and a sum not exceeding Rs. 2,000 should be spent out of my estate for her Sradh ceremony. MY wife, Srimati Purnasashi Debi, will be under the care of my Executors and under the care of my son or adopted son when he would attain majority. She will be entitled to maintenance and all expenses for religious rites, pilgrimage, &c, out of the estate according to the circumstances of the estate and directions of the Executors. If my aforesaid wife be not on good terms with them, she will be entitled to a monthly maintenance allowance at the rate of Rs. 20 during her life and to a sum of Rs. 1,000 at a time out of my estate for the expenses of her pilgrimage, and she will further be entitled to live in a proper house in my residential homestead. MY only daughter Srimati Binapani Debi is at present minor and unmarried. All the expenses of her marriage will have to be paid out of my estate in accordance with the custom of my family, and my estate will bear the cost of her maintenance till her marriage. If she lives at her husband's house after her marriage, she will receive Rs. 5 per month during her life out of my estate, and if she lives at my own house she will be entitled to maintenance out of my estate. If she be not on good terms with my heirs or successors in interest and if she wants to live in my own village, then my heirs and successors-in-interest should be bound to give her separate lands and houses according to the circumstances of the estate, and she will be entitled to a monthly allowance of Rs. 20 during her lifetime on account of her maintenance out of my estate ; and she will be entitled to get proper sum of money out of my estate on the said accounts. If any other daughter is born to me, then she also will be entitled to maintenance, monthly allowance, marriage expenses, homestead and houses, &c. , just like the aforesaid Srimati Binapani. MY three brothers, executors, will together or two of them or one of them will take the probate of this Will and will administer and manage the estate left by me till my son or grandson attains majority, being vested with all the responsibilities and power as mentioned in this Will and by paying off all the debts. If there be no son born of my loin, or if such a son die sonless after birth, or if perchance, no son be taken in adoption, or if the son taken in adoption die sonless, then the Executors or any of them or, in the event of their disagreement the Collector of Dacca will establish at my own native village Rawail, the place of my residence, a school on a charitable dispensary named after me and will spend the whole amount of surplus of my estate for its maintenance, To the above effect, being in full possession of my senses and in tranquil state of mind, I execute today this Will, being in Calcutta at 19, Hara Chandra Mallick Lane, Finis. Dated 26th Pous, 1321 B. S. 4 As already stated, the testator died on January 11, 1915. Ten years then passed without the respondent's taking any steps to adopt any one of the sons of the testator's brothers or step-brother. This was in no way due to any difficulty in finding such a son. It seems to have been a deliberate omission on her part. The learned Subordinate Judge has examined the evidence about this in some detail and has summed it up in these words : So there is not only no evidence that the plaintiff even made any genuine endeavour to take any of her husband's brothers' sons in adoption within 10 years and failed, but there is evidence in the contrary direction that defendants 1 and 2 (i. e. , two of the appellants) offered their sons for adoption to the plaintiff but she did not adopt. On August 13, 1926, however, the respondent purported to adopt an infant son of one of the appellants. That the adoption took place in fact is not now in dispute. The only question about it is whether it was a valid adoption seeing that it was not made within ten years of the testator's death. On November 24, 1926, the adopted son died sonless.