ANILA BALA DEVI Vs. MADHABENDU NARAIN ROY

JUDGEMENT

(1.) In the course of time the Jemo Raj family had divided itself into five branches called the Bara-taraf, Madhyam Turaf, Na-taraf, Ful-taraf and Chota taraf. In this appeal we are concerned with the Madhyam and the Na-tarafs only. Raja Saradindu Narayan Roy (called hereafter the Na Raja) was the proprietor of the Na-taraf. He had two sons Sibendu and Ardhendu. The proprietor of the Madhyam Taraf, Raja Purnendu Narayan had no male issue. He adopted Ardhendu, the youngest son of Raja Saradindu, and named him Rajendu, whose widow Anila Bala, is the appellant before us. Sibendu's wife is Santi Devi. Sibendu predeceased his father, the Na Raja, leaving two sons Amarendu and Dibyendu, who is the principal respondent in this appeal and was the plaintiff in the suit. It is his case that after the death of Rajendu he was adopted by Anila Bala and named Madhabendu. Rajendu and the Na Raja lived as members of a joint family till about 1926 when there was separation. While living jointly with the Na Raja Rajendu executed a will (Ex. C) on 16 May 1919. Amarendu and Dibyendu were appointed executors, and Anila Bala was to be the executrix during their minority. A maintenance allowance of Rs. 100 per month was provided for Anila Bala. She was given the power to adopt a son, but that power was limited both in regard to time and choice. If Dibyendu was alive she was to adopt him and no one else. If he and other sons of the Na Raja were dead then she could adopt from outside the Jemo family. On adoption the adopted son was to get his estate and would be entitled to possession from the date of adoption. Anila Bala was directed to adopt Dibyendu within eighteen months of the testator's death. If she failed to do so his estate would vest in Amarendu and Dibyendu in equal shares, and Anila Bala was to get the monthly allowance of Rs. 100 only. Other provisions of this will are not material to this appeal.

(2.) After separation from the Na Raja, Rajendu executed his second will (Ex. O-1) on 11 August 1926. By it he revoked his earlier will, Ex. O. He appointed Anila Bala as executrix and his brother-in-law (sister's husband) Bejoy Gopal Roy as executor. He gave a life estate in the whole of his estate to Anila Bala. She was given authority to adopt but her power was not limited. She could exercise it at any time and could adopt anybody she pleased. If Rajendu had a natural born son (aurasa son) that son was to get the estate in possession on attaining majority, but the enjoyment of the estate by the adopted son was to be postponed till the death of Anila Bala. The net effect is that Anila Bala's life estate was to cease on the natural born son attaining majority but was to continue till her death when an adopted son only entered the field. We do not set out the effect of the will where a natural born son came into existence after a boy had been taken in adoption, as that contingency has not happened. Rajendu died on 23 December 1927 without leaving any issue. It appears from the evidence that before his death he was not on good terms with the Na Raja and after his death the relations between his widow Anila Bala and the Na Raja did not improve.

(3.) Shortly after the death of Rajendu, Anila Bala expressed her intention of adopting a son from the Chota Taraf. That brought matters to head. Amarendu made an application before the District Judge on 30 April 1928 for probate of Rajendu's first will, Ex. C (Case No. 18 of 1928). Dibyendu, then a minor filed a suit against Anila Bala and others through his mother and next friend, Santi Debi, for restraining Anila Bala from adopting the son of the Chota Taraf. In that plaint it was alleged that Anila Bala was stating that the will Ex. O had been revoked by Rajendu by a later will which she was attempting to set up. Anila Bala in her turn opposed the application for probate of the will Ex. O. filed by Amarendu and on 25 August 1928 made an application before the District Judge for probate of Rajendu's second will Ex. O- 1 (Case No. 23 of 1928). Amarendu opposed this application and on 3 April 1929 made an application in this case, case No. 23 of 1928, for the appointment of an administrator pendente lite. Patit Paban Chowdhury, the father of Anila Bala, who had shortly after the death of Rajendu, taken service under the Na Raja at the latter's request and who had leanings towards the Na Raja was appointed administrator pendente lite by an ex parte order dated 25 May 1929. He was ordered to give security to the extent of one lac of rupees and the Na Raja stood security for him for that amount.