GUIRAM MALIK Vs. PACHI DASI

JUDGEMENT

(1.) This appeal is by the Defendant No. 1 and it arises out of a suit for partition. The properties in suit comprise certain lands and a dwelling house with appurtenances, etc. The original owner of the said properties was one Jadunath Malik. He left three sons, Lalbehari alias Lalchand, Bholanath and Ghiiram. Lalchand and Bholanath were sons of Jadunath who were born of a woman, not legally married to him but kept permanently by him as a member of his family. Guiram was the son by his lawfully married wife. Jadunath also left a Will which was dated July 30, 1918. Jadunath died some time after execution of the Will and, after his death, his above Will was duly probated" on September 30, 1921 (vide Ext. A). The Plaintiff is the daughter of Bholanath who died thereafter in or -about February, 1926. The two Defendants are Ghiiram. and the widow of Lalchand alias Lakbehari. The Plaintiff claims 1/3rd share of the disputed properties (which admittedly originally belonged to Jadunath) as the heir of her father Bholanath. Her claim is resisted by the Defendants on the strength of Jadunath's Will, to which reference has been made above, and the only question is whether the Plaintiff is entitled to any share in the disputed properties under the said Will.

(2.) The learned Subordinate Judge accepted the Plaintiff's contention that she would be entitled to 1/3rd share of the disputed properties under and by virtue of Jadunath's Will and, in that view, he decreed the suit preliminarily for partition. Against that preliminary decree, the present appeal has been filed by the Defendant Guiram.

(3.) The only point for consideration in this appeal is as to the true construction of Jadunath's Will. The Will contains as many as fourteen clauses, of which we are concerned with six, namely, clauses 2, 3, 4, 5, 10, and 11. About clauses 2, 3, 4 and 5, there is not much dispute and it is the common case of the parties that, under those clauses of the Will Jadunath's three sons Lalbehari alias Lalchand, Bholanath and Guiram would have been entitled to the disputed properties including the dwelling hause in equal shares and also absolutely, if these clauses had stood alone. The Defendant Guiram seeks to cut down that absolute estate of the Plaintiff's father Bholanath, since deceased, and to defeat the Plaintiff's claim as the heir of her said deceased father on the strengh of the two later clauses 10 and 11 of Jadunath's Will. These two clauses, in their relevant parts runs as follows: