BISWANATH MULLICK Vs. NETAI CHANDRA MULLICK

JUDGEMENT

(1.) The-grant of the probate of an unprivileged will in Testamentary Suit No. 12 of 1971 Dipak Kumar Sen, J. dated July 23, 1976 is the subject matter of the present appeal at instance of one of the caveators, Biswanath Mullick. The disputed will was alleged to have been executed by Sarojkumari Mullick on May 17, 1964. the testatrix died on April 26, 1970. The properties belonging to the said testatrix and her three sons originally belonged to Mohanlal Mullick, the husband of the testatrix and the father of Biswanath, Radhanath Lokenath and Subhasini. A Partition Suit being Suit No. 2308 of 1956 was filed by Biswanath on August 28, 1956 ws against his other brothers and their mother for partition of the said properties inherited form Mohanlal on his death in 1953. The partition suit was decreed on September 11, 1956 preliminarily on the basis of terms of settlement between the parties filed in the suit on or about September 5, 1956 declaring one fourth share of each party in the properties, moveable and immoveable. Lokenath and Narendranath, husband of Subhasani only daughter of Mohanlal and Sarojkumari, were appointed Receivers of the properties with obligation to pay, out of the rent collections, Corporation tax, Income Tax, electric, telephone charges, maintenance charges of residential premises of 26/1A, Prasanna Kumar Tagore Street, Salary of two cooks, two maid servants and one servant. Thereafter Sarojkumari was to be paid Rs. 500/- for meeting the joint food expenses of the parties and their respective family members. The balance, after retaining 1/5th as reserve fund, was to be distributed to the parties in equal shares. Radhanath Mullick, the Solicitor for the defendants was appointed the Commissioner of Partition for division and allotment of the properties according to the shares of the parties by metes and bounds and to file his return within one year for effecting partition. Accordingly divisions of properties were made to the aforesaid co-sharers by the Commissioner and allotment was also made by him by means of a "lottery" and the return was filed on the extended date which was May 9, 1960 and the final decree was passed thereon March 6, 1962. The properties which were allotted to testatrix Sarojkumari situate in the city of Calcutta with valuations as per the Commissioner's return and admitted rental income were as follows :

(2.) By the propounded will written in the English language properties referred to in Clause (a) and (b) above were bequeathed to Lokenath absolutely and for ever and the will receited that Loknath was very dear to the Testatrix and looked after her and her affairs. This is the first disposition of the will. The second disposition was a legacy to Balaram Som of the second son Radhanath, grandson of the testatrix, of the properties referred in Clause (c) but the legacy though absolute was subject to the charge for payment of Estate Duty, Probate Duty, Law charges and other testamentary expenses as would be required for obtaining probate of the will. The third legacy was to the daughter Subhasisni in life interest of the properties referred to in Clause (d) and to her younger son Mohendra absolutely and for ever after her death. The fourth legacy was about the rest and residue which were to vest in Lokenath absolutely. The testatrix expressed her wish that Likenath and Subhasini were to continue payments and make 'tattyas' made by her during her life time.

(3.) The will further expressed that for the payment of Estate Duty, Probate Duty and other testamentary expenses for obtaining probate of the will the premises No. 19C, Goabagan Street was to remain charged. It was further provided that if Balaram paid all such duties and expenses personally through the Executor, which according to the estimate of K. L. Dutt, solicitor, who drafted the will, to the testatrix would be about Rs. 10000/- to Rs. 15000/- he would be entitled to the properties bequeathed as aforesaid absolutely; if however he would not pay to the said Executor, such charges personally within a reasonable time the Executor would be entitled to sell or mortgage the said property and pay all such expenses either from sale proceeds of the said property with balance to Balaram or if a mortgage was created on the said property for meeting aforesaid expenses, Balaram would get the property subject to such mortgage. The testatrix, mother of Biswanath and Radhanath by express terms in the will disinherited them from her estate though no reasons were ascribed. These are the broad features of the will.