AMITAVA ROY Vs. JYOTSNA PROVA ROY

JUDGEMENT

(1.) This appeal is at the instance of the plaintiffs and it arises out of a suit for declaration and permanent injunction.

(2.) Kumar Basanta Kumar Roy of Dighapatia died on August 17, 1920 leaving behind him surviving his mother Rani Drabamoyee, three brothers Raja Pramoda Nath Roy, Kumar Sarat Kumar Roy, Kumar Hemendra Kumar Roy and their sons and his sister. Before his death he executed a will in Bengali on August 11, 1920. He appointed his three brothers and his sister's husband Mahendra Kumar Saha Choudhury as executors of his will. Paragraphs 1 to 21 of the will contain provisions for various legacies to different persons including his three brothers and mother. The English translation of paragraphs 22 and 23 of the will is as follows: "22. If excluding the G. P. Notes, War loans. Debentures and foreign bonds mentioned in the different paragraphs of this will which I have arranged to dispose of under the provisions of this will, there be any G. P. Notes, War loans or bonds or Debentures which remain undisposed of, then the executors of this will shall be entitled to spend the same for the supply of water to the people of Rajsahi or for any other work beneficial to the people of Rajsahi. All those works shall be performed with the interest keeping the principal intact."

(3.) The appellants' claim has been opposed by the said respondents who are the heirs of Kumar Hemendra Kumar Roy. It is not disputed by them that the bequest under paragraph 22 of the will is void, but it is contended that Kumar Sarat Kumar Roy was not the residuary legatee, and the bequest did not fall into the residue. Their case is that they, along with the appellants, inherited the funds mentioned in paragraph 22 as heirs of late Kumar Sarat Kumar Roy.