AJIT CHANDRA MAJUMDAE Vs. AKHIL CHANDRA MAJUMDAR

JUDGEMENT

(1.) This testamentary suit relates to the Will of Adhar Chandra Majumdar who died on December 20, 1955. The Will propounded bears the date of Jan-wary 8, 19-39. Ajit the youngest son of the testator who is named as an executor is the pro pounder. The Will is challenged by the remaining two son3 of the testator alive, namely, Akhil and Anil. The testator had another son Arun who died in 1950. Arun's heirs do not contest the Will. The testator died at a ripe old age of about 90 years and the Will was executed about 16 years' back, that is, when the testator was 74 years' old.

(2.) The testator was a Government servant, and it is in evidence that at the time of his superannuation in 1932 he was drawing a salary of Rs. 275 per month, and thereafter getting a pension of Rs. 124-4 per month. It is clear that he began his official career with a small salary. His eldest son Akhil started life at a very early age, being employed in the Stationery Department of the India Government. He took War Service during the First World War of 1914-18, and during that period he was getting a fat salary. During this period Akhil used regularly to send to his father a sum of Rs. 100 per month. On returning back after the War he paid his father a substantial sum not less than Rs. 2000. Apart from this he used to make regular contribution to his father as is expected of an earning member living in joint family. This I get from the evidence of DT. Anil Majumdar which I have no reason to disbelieve and which is evidently acceptable. Anil himself is best educated amongst the sons of Adhar. He became a Medical Graduate of the Calcutta University in 1922 and a House Surgeon in the Medical College. He is apparently a successful medical practitioner. He is now a lecturer in the R.G. Kar Medical College and was appointed an Examiner of M. B. Examination of the Calcutta University. For years he has been running a motor car. According to him during all the years he has been living with his father he has been making contribution to the family. This evidence is also eminently acceptable and I have no reason to disbelieve Anil on this point. The third brother Arun was a railway employee drawing a small salary and he was also in the habit of making contribution to the family when he lived with the family, though his contribution was modest. Ajit the younger son did not receive general education and did not read up to even Matric Class. He had training in electrical works at Tata Workshop at Jamshedpur and read in Tata Technical School. He was there from 1924 to 1928. On coming back to Calcutta he got an appointment with the Calcutta Electric Supply Corporation as an apprentice for two or three years. While working there he started business at 10/1 Cornwall's Street. The business was to carry out maintenance work in various premises. His father assisted him financially at the initial stage and the other brothers did assist the younger brother in a variety of ways. Later on, the business proved to be successful and it is common case that he rendered substantial financial assistance to his father in the matter of the construction of the house. According to Anil, Ajit paid about Rs. 5,000 but according to Ajit himself he paid the entire sum of Rs. 12,000 for purchasing the land, and another Rs. 12,000 for construction of the building. Evidence has been given of the cheque counterfoils to show the payment of consideration money for the purchase of land by Ajit, but such evidence is not sufficient to enable me to hold that the money was his. Adhar had no banking account, and it is in evidence that he utilised Ajit's account for his own purpose. It might be that Adhar's money was kept in Ajit's account and it is not disputed by Ajit that Adhar had money which was used partially for the purpose of constructing the house. Ajit did not tender his account books and his bank pass books to prove that he had Rs. 24,000 spare money of his own to give to his father for constructing the house. He started his business, as indicated before, in 1929, and unless convincing documentary evidence is produced I am not prepared to hold that he would make sufficient profit in a few years' time to make such a large advance to his father. It is highly improbable and not acceptable to me. The evidence of Anil is more, acceptable to the effect that Ajit gave to his father a sum of round about Rs. 5,000 for the purpose of the house; the balance of about Rs. 35,000 has been contributed by Adhar out of his saving. From the evidence I am satisfied that the house cost Adhar about Rs. 40,000. Adhar was a saving man and out of the saving from his own income supplemented by the contributions made by his sons and sums received by him as dowry at the time of the marriages of Akhil and Anil amounting to Rs. 3,500 the house was built. This receipt of dowry I get from the evidence of Anil which I accept. By such a process of saving bit by bit a fund was built up by the old man so that he could have a house of his own in Calcutta to die possessed of and which is the subject matter of the present ruinous litigation. The passionate desire of Adhar that the house should be preserved for the family and should not be sold is further evidenced by his letter, dated January 10, 1939, to Ajit from Puri only two days after the execution of the Will, to which reference will be made later.

(3.) Adhar was greatly attached to each of his children Adhar was in the habit of keeping diary. Many of the diary entries have been exhibited in this case. A perusal of these entries leave no doubt in the mind that not only Adhar did not nourish any grievances against his sons but on the other hand he had great affection for each of them. He was naturally proud of his second son Anil who established himself in the medical profession and was appointed an Examiner of M. B. examination by the Calcutta University. To a middle class Bengalee, to be appointed an Examiner by the Calcutta University is a great recognition and the father felt great pride when Anil was so appointed. Adhar records this in his diary. He was equally attached to his eldest son Akhil and his wife and for years had his meal from Akhil's kitchen when the sons separated in mess. His diary entry recording the death of Akhil's wife betrays his strong love and affection for Akhils wife. With respect to the other sons also Adliar entertained very good feeling. As I heard the oral evidence tendered in this case and read the letters and diaries tendered, I had no doubt in my mind that at no period of his life Adhar entertained any grievance against any of his sons, but on the other hand he entertained very tender feeling for each of them.