SUNIL KUMAR KERR Vs. SISIR KUMAR KERR

JUDGEMENT

(1.) THE only question in this appeal is whether two mortgages executed by the executors of Thakur Das Kerr are binding on the estate of Thakur Das Kerr and on the properties which are the subject of the mortgages. THE issue arises in a suit filed by the appellant and respondents Nos. 1 and 2 on August 31, 1929, for construction of the will of Thakur Das Kerr and for certain declarations, including a declaration that the said mortgages are invalid, inoperative and nullities and do not in any way bind the estate of the testator. Respondents Nos. 5 and 6, who alone appear in the appeal, are the representatives of the mortgagee under the first of the two mortgages. This appeal is against the judgment and decree of the High Court, of Judicature at Fort William in Bengal, in its appellate jurisdiction, dated December 7, 1934, which, as regards the declaration in question, affirmed the judgment of the said High Court in its ordinary original civil jurisdiction, made by Ameer Ali J. , and dated January 18, 1932, which dismissed the suit as regards the said declaration.

(2.) THE testator died on October 5, 1919, leaving a will dated December 16, 1917, and a codicil dated April 16, 1919, the latter of which is not material. He was survived by a widow, four sons and three grandsons Respondents Nos. 3 and 4 are two of the sons and are the executors of the will. THE three grandsons are sons of respondent No.4 and are the appellant and respondents Nos. 1 and 2

(3.) THE material provisions of the will are as follows, (2) I appoint my sons Dhirendra Chandra Kerf and Narendrai Chandra Kerr to be the executors of this my Will with full authority to carry on the printing, publishing and bookselling business now carried on by me under the name and style of R. Cambray & Co. (7) I will and direct that my sons with their respective families (if any) shall be entitled to reside in my said house at Bowbazar and at the ancestral house at Nalkorah in such manner as they may choose and to be maintained out of the income of my estate in the manner prevalent in my lifetime. If any of my sons or their widows do not reside in either of my said houses he or she will not be entitled to maintenance of my estate. (8) I will and direct that my said sons Dhirendra Chandra Kerr and Narendra Chandra Kerr shall receive a monthly sum or allowance of Rs. 52 and 50 respectively as remuneration for looking after the management of my estate. (10) I further will and direct that my executors shall be authorised in thei: absolute discretion to employ my sons Satyendra Chandra Kerr and Sailendra Chandra Kerr in the management of my estate and give each of them while so employed a salary or allowance of Rs. 15 rising to Rs. 30 a month according to ability. My said son Sriman Satyendra will not be entitled to any allowance if he refuses to be employed as aforesaid. My youngest son Sriman Sailendra besides the allowance provided herein being further entitled to a sum of Rs. 1,000 towards his marriage. (15) I further declare it to be my express1 will and intention that after paying the annuities and meeting the expenses hereby directed as aforesaid the residue of the income of my estate shall be invested in Government Promissiory Notes or in purchasing profitable property in the vicinity of my said Bowbazar house or of my said ancestral house at Nalkourah and the said Government Promissory Notes or the property as the case may be shall form a part of my estate. (16) I further declare it to be my express will and intention that the monthly sum or salary hereby directed to be paid to my sons shall on their respective deaths be payable to their respective male descendants then alive in equal shares if more than one. (18) I lastly give devise and bequeath the rest and residue of my estate in equal shares to the male descendants of my sons living at the death of my last surviving son, those in whose descent from me a living ancestor shall intervene being excluded by the others. THE will was duly proved, and respondents Nos. 3 and 4, as executors, took possession of the estate and carried on the business.