BEJOY KUMAR SIRCAR Vs. UMA SANKAR SIRCAR

JUDGEMENT

(1.) This is an originating summons and the questions raised relate to the interpretation of the Will of one Benoy Krishna Sircar who made and published his last Will on September 28, 1920, were by he appointed his son -in -law Nalin Chandra Shaw the executor and inter alia, gaye a legacy of Rs. 30 per month to be paid to Sm. Bidyutlata, the widow of his uncle's son Panchu Dulal, during her life -time and on her death her heirs in equal shares between themselves to be paid ah aggregate sum of Rs. 30 per month from the estate of the deceased and for the purpose of this and the other legacies provided in the. Will, a charge was created on the entire estate except the family dwelling house. The said Benoy Krishna died On October 31, 1920 and the probate of his said Will was duly obtained by Nalin Chandra as the sole executor on June 20; 1921. Thereafter, the executor regularly paid the said legacy of Rs. 30 per month to Sm. Bidyutlata. On or about May 12, 1928, all the properties of the testator were sold in execution of a decree and the said properties were purchased by Sm. Satya Sabitri Dasi, the widow of Shyam Krishna Sircar, as the administratrix to the estate of her minor son Benoy Krishna Sircar, the Applicant in this application. After the said purchase Satya Sabitri continued the payment of the legacy of Rs. 30 per month to Sm. Bidyutlata until her death on March 21, 1930 and thereafter the said sum was paid to the surviving heirs of Bidyutlata, viz. Uma Sankar, Sasanka and Sm. Lilabati in certain proportions. The said Satya Sabitri died on November 13, 1964 and thereafter the Applicant Benoy Krishna had been paying this annuity to the aforesaid persons. The questions asked in this originating summons are as follows:

(2.) Uma Sankar, Sasanka and Sm. Lilabati were made the Defendants -Respondents to this summons. Mr. Hazra, the Learned Counsel appearing for Uma Sankar, took a preliminary objection that in the absence of the sons and daughters of Uma Sankar, Sasanka and Lilabati, who become the legatees on the death of the present legatees, the application was not maintainable. He also took a further objection that the application was riot maintainable as the Plaintiff -Applicant is not one of the persons enumerated in chap. XIII, Rule 1 of the Rules of this Court who are entitled to take out an originating summons. In other words, Mr. Hazra submitted that the Applicant was neither an executor nor an administrator of the estate of Benoy Krishna Sircar nor a trustee under any instrument or any person claiming to be interested in the relief sought as creditor, legatee, heir or legal representative, or as beneficiary under the trusts of any instrument, or as claiming by transfer, or otherwise, under any such creditor or other person as aforesaid or the surety of an executor or administrator. The second point of demurer can at once be disposed of as, in my opinion the Petitioner comes within the said Rule 1 as a person claiming by transfer from the executor of the estate of the deceased. In this view, it is no longer necessary to deal with Mr. Mitra's argument that as the administration of the estate of a deceased is not complete till all the legacies are paid the person interfering with the estate becomes an administrator de bonis non.

(3.) The main contention of Mr. Hazra was that under the terms of the Will of Benoy Krishna the legacy of Rs. 30 per month was payable to the heirs of Bidyutlata Dasi in perpetuity and as such, the heirs of each of the present legatees, viz. Uma Sankar, Sasanka and Sm. Lilabati, were persons interested in the questions raised in the summons and should have been made, parties to this proceeding. I am unable to accept this contention. The relevant words in the Will are as follows: