ABANI NATH MUKHOPADHAYA Vs. AMAR NATH MUKHOPADHAYA

JUDGEMENT

(1.) The subject-matter of dispute in the suit out of which this second appeal arises is that portion of the 3 bighas 2 cottas of land with the structures and buildings thereon mentioned in para. 12 of the last will (dated 11 July 1879) in Bengali language of Babu Joy Kissen Mukherjee, a wealthy zamindar of Uttarpara which does not appertain to the Uttarpara Public Library. The following geneaology shows the relationship of the parties in this suit to Babu Joy Kissen:

(2.) On 14 June 1928, defendant 1 granted in favour of defendant 2 a lease of the disputed property for 15 years. The material portions of the last will of Baboo Joy Kissen are paras. 12 and 16 of the will. Para. 12 of the will may be divided into four clauses: Clause 1 - Rashbehari Mukhopadhyay, in accordance with previous arrangement (made in some previous will) will become Shatya-dhikari Oh Dokholikar (of the disputed property). Clause 2 - God forbid, if at the time of his death he leaves no male child then his uterine brother Shib Narayan Mukhopadhyay and on his death his eldest son purusannukromah will become Shatyaban Oh Dakholikar: Clause 3-God forbid, if my two aforesaid grandsons (Rashbehari and Shib Narayan) or any male child of their family (bangsha) be not in existence then my existing son Peary Mohan Mukhopadhyay or his eldest son shall become Satayaban Oh Dokholikar and shall continue as such: Clause 4-But ... none of my heirs shall have power to transfer. Paragraph 16 - If anyone among my heirs or their descendants will get dances, amusements or music, etc., held on the occasion of any marriage, sradh or puja ceremony or hold any conference in the rooms on the floor above the said Library, no one shall be entitled to raise any objection thereto. All shall have equal rights in these matters.

(3.) The questions for determination in this appeal are whether on a true construction of the last will of Joy Kissen (1) the heirs of Joy Kissen or their families have the right to hold nach (dances), tamasa (amusements), gan (music), etc,, on the occasions of marriage, sradh or puja, etc., or any bai-thak (conference) in the baithakkhana (the floor above the library) in the manner specified in para. 16 of Joy Kissen's last will; (2) defendant 1 has got only a life interest in the disputed property; (3) the lease of the disputed properties granted by defendant 1 to defendant 2 on 14 June 1928 or any other alienation of the disputed property by defendant 1 will be operative after the death of defendant 1. The Courts below have answered the second question in affirmative and the third question in the negative. So far as the first question is concerned, the finding of the trial Judge is that the plaintiffs and defendants 3, 5 to 7 and defendant 9 have no such right of enjoyment but the other defendants have. A declaration to this effect was embodied in the decree passed by him. The Additional District Judge, however, deleted from the decree of the trial Court that portion of the declaration which was in favour of defendants 2, 4 and 8 as he was of opinion that these defendants did not join in the suit as plaintiffs and did not also pay the requisite court-fees for such relief though at the same time he observed that the trial Judge was justified in making observation in his judgment that defendants 2, 4 and 8 had such rights of enjoyment.