NIGENDRA CHANDRA SEN Vs. MOHENDRA HARI NAG

JUDGEMENT

(1.) This appeal has arisen out of a decision of the Additional District Judge of Dacca, dismissing an application for Letters of Administration with a copy of a will annexed. The will is said to have been executed by one Brindaban Chandra Nag, who died on the 9 Bhadro 1330 B. S., leaving a widow Kunja Mohini, a son Mohendra Hari Nag, a widowed daughter Kristo Manjuri and two grandsons Nigendra Chandra Sen and Ashuram Sen, sons of the said Kristo Manjuri.

(2.) In 1309 (=1903) the testator had executed and registered a will in which he stated that his son Mohendra was disobedient and disrespectful to him and was giving him trouble and living separately from him. Amongst other provisions the testator by that will gave his. moveablas and his money-lending business absolutely to his wife Kunja Mohini, and a life- interest to her in his immovable property which consisted of a house he had inherited from his own maternal grandfather, and further provided that on Kunja Mohini's death the said immovable property would go to Mohendra and his heirs, but if no moveables or cash money comes into the hands of Kunjo Mohini then she would get the immovable property absolutely with power to alienate a portion thereof by way of sale or gift. In 1324 (=1917) the. feelings between the testator and his son appear to have altered to some extent and the testator felt the necessity to recover his power to alienate his properties. He then executed a deed of gift revoking the will he had previously made. By this deed of gift the testator gave a 4 annas share of his properties to his son Mohendra, saying to him thus: You the recipient of this deed, are my son. Now that you have consented to stay in our family as an obedient son to me and to bear all family expenses of me and of your mother, in view of this advantage and in consideration thereof and you having undertaken under the good advices of well wishers to act, as above, for my welfare and since you are my future heir etc. So far so the facts are not disputed.

(3.) The will in controversy is alleged to have been executed by the testator on the 5th Falgoon 1327 (=17 February 1921). On the same day and at the same time two other documents were executed, two deeds of gift one in favour of Kunja Mohini and the other in favour of Nigendra Chandra Sen and Ashuram. Sen. These two documents also are disputed. By the former of these two deeds a i annas share of the immoveable property together with all moveables were given, and by the latter another four annas share of the immovable property only, to the respective donees. Each of the deeds charged the respective donees to perform the worship of the family deity for a certain period. In this will in which the gift in favour of Mohendra of 1324, and the two gifts in favour of Kunja Mohini and of Nigendra and Ashuram were recited, it was stated; that the remaining 4 annas share of the dwelling house and the money invested in the money lending business and the conch-shell with rightward turns are at my (i. e. testator s) disposal and in my possession.