BADAL Vs. KAMAL KUMAR BANERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for partition, and the principal question involved in the appeal is the interpretation of some of the terms of a Will executed by one Rai Bahadur Jogesh Chandra Banerjee. The subject-matter of partition is a residential house at 10/2B, Sri Mohan Lane, P.S. Tollygunge which formerly bore No. 270/2B, Shanagar, Tollygunge P.S. The Will was executed on 22-1-1934, and was modified by a codicil, dated 9-3-1835.

(2.) It is an admitted fact that the testator left two houses bearing Nos. 270/2A and 270/2B Shanagar, besides a considerable amount of liquid money in the shape of postal cash certificates, shares of various companies, loans advanced to a son-in-law named Hiralal Mukherjee, and a life insurance policy. The testator died on 17-10-1944. He left two sons Jyotis Chandra Banerjee and Haripada Banerjee and six daughters at the time of his death, besides his wife Manmohini. Another daughter had predeceased the testator. In this appeal we are concerned with Nivanani, sixth daughter of the testator who is respondent No. 5 of this appeal and her two sons who are respondents Nos. 15 and 16. Nivanani had also another son at the date of the will. He has died since. The will shows, and it has not been disputed, that Nivanani had practically been deserted by her husband and she was living with her father under his care and protection with her children at the date of the will.

(3.) The testator made a bequest of various sums of money to various heirs of his from out of his liquid assets and he bequeathed the house at 270/2B Shanagar to his elder son Jyotis as a residuary legatee in addition to some shares and cash money. The other house at 270/2A Shanagar and the remaining money were bequeathed by the testator to the younger son Haripada under the terms of the original will. This bequest in favour of Haripada was, however, cancelled by the codicil, and arrangement was made for the residence and maintenance of his family, including Haripada himself. Jyotish and Manmohini were appointed executors under the will. The testator died on 17-10-1944 and after his death the executors applied for probate on 5-1-1945. Jyotis, one of the executors died on 20-12-1945, during the pendency of the probate proceedings. Manmohini was granted probate of the will, but after she had administered the estate only for a few years, she was removed on 28-6-1948, from her ex-ecutrixship at the instance of Kamal Kumar Banerjee, defendant No. 1 of the present suit. Appellant Badal alias Nabanna and defendant-respondent Kamal are two sons of Jyotis. After Manmohini was removed from executrixship Kamal applied for and obtained letters of administration in respect of the estate of Joges Banerjee on 5-1-1950. Some time thereafter Haripada applied for revocation of this grant, but was unsuccessful.