MT BALAK BALA DASSI Vs. JADU NATH DAS

JUDGEMENT

(1.) This appeal has been preferred from a decree dismissing a suit for administration. The facts necessary to be stated are the following : One Gokul Krishna Das, the testator, had at the time of his death a four annas share in certain moveable and immovable properties, the remaining 12 annas share therein belonging in equal shares to his brother Jadu Nath Das, who was defendant 1 in the suit, defendants 3 and 4 and defendant 5. Gokul Krishna executed a will on 12 April 1912 and died on 19 April 1912. In between these dates, on 15 April 1912, he executed a codicil. He left a widow Gokul Mohini and two daughters Achinta Mohini Dasi and Balakdasi Dasi of whom the former died on 5 November 1919 and the latter on 4th December 1919. Defendant 2 is the husband of Balak Dasi. On 11 April 1924 Balak Dasi instituted the suit out of which this appeal has arisen. Originally the suit was instituted against the first five defendants but subsequently five other defendants were added on the objection of defendant 1 and defendants 3 to 5. The added defendants are persons who are interested in certain business in which it was alleged that Gokul Krishna had a share.

(2.) The will recited in para. 1 that the testator's family had properties and businesses etc., in which the testator had a four annas share and provided thus: Out of the total 16 annas share, my four annas share shall after my death come into possession and enjoyment of my widow Gokul Mohini Dasi. After her death my widowed daughters Achinta Mohini Dasi and Balak Dasi shall equally come into possession and enjoyment of the said four annas share left by me. On the death of my widowed daughter Achinta Bala Dasi my daughter Srimati Balak Dasi shall corns into possession and enjoyment of the properties left by me. On her death, her son born of her womb shall become the owner of the properties and residing at Malihati shall go on holding and enjoying the same. If he does not reside at Malihati he shall not become the owner of the properties. If there be more than one son, then should only one of them reside there, my gadi will be maintained. If none of my daughter's sons come to reside here then my brother and brother's sons shall be the owners. God forbid, if during the lifetime of Achintamoni, my daughter Balak Dasi and the son born of her womb be not alive, my first daughter Srimati Achinta Mohini Dasi shall become the owner in possession. On her death my heirs in the paternal line shall be owners in possession according to shares.

(3.) In para. 2 the brother Jadu Nath Das was appointed executor. In para. 3 it was enjoined that Jadu Nath Das shall duly perform certain pujas and other ceremonies and religious observances. In para. 4 it was provided that the profits derived at the end of the year after management of the estate should be kept with the common estate and improvements and additions to landed properties should be made out. of the same and that the heirs and legatees should he owners in possession of the added properties as well in accordance with the provision of para. 1. The remaining paragraphs are immaterial now. By the codicil the testator appointed a second executor namely defendant 2, directed Rs. 2,000 to be paid out of his estate for the marriage of Balak Dasi's daughter and further provided: My heirs and legatees shall be entitled to withdraw, if they so like, the amount of profits that may be left in my share every year after management of my estate.