SHYAM CHANRAN BHATTACHARYA Vs. NABA CHANDRA CHAKRAVARTI

JUDGEMENT

(1.) The suit out of which this appeal arises relates to certain properties left by Kali Kinker Chakravarty, deceased. Kali Kinkar had two daughters. The plaintiff, Shyama Charan Bhattacharya, is the son of one daughter and the defendant, Naba Chandra Chakravarty, is the son of the other daughter. Besides his grandsons, Kali Kinkar left him surviving his widow, Brajeswari. The defendants, other than Naba Chandra, are with one or two exceptions admittedly in possession of various portions of the properties in question deriving title under conveyances executed by Brajeswari alone or by Brajeswari and Naba Chandra. The suit was brought to recover a moiety of these properties on the footing that at Brajeswari s death, which occured in 1263 M.E. (1904), the plaintiff and Naba Chandra were each entitled to a moiety as the reversionary heirs of Kali Kinkar. Naba Chandra did not enter appearance but the claim was contested by the defendant in possession. The lower Courts have concurred in dismissing the suit and this appeal is preferred by the plaintiff.

(2.) In the first Court, many defences were raised and many issues were framed. The controversy, however, has since been narrowed and now turns entirely upon the effect of certain provisions in Kali Kinkar s Will, dated 4th Sraban 1242 M.E. (July 1880), of which Probate was granted in August 1883.

(3.) The Will consists of a preamble and three clauses. There is no dispute that under the first Clause Brajeswari, the testator s widow, took an estate for life in the properties in question and there is no dispute as to the other specific bequests therein made. The difficulty arises in reference to the Second clause. That clause begins with a permission to Brajeswari to adopt a son and continues: Upon a son being adopted by the grace of God by the said wife, he, shall, upon the death of the wife, be entitled to all the moveable and immoveable properties other than the lands given away as above. If an adopted son be not procurable, then may daughter s son, Sriman Naba Chandra, should he live in my dwelling house, will, with his sons, son s sons and other heirs in succession, be entitled to and in enjoyment of my properties by retaining the same in tact, but if the said daughter s son or his sons or son s sons and other descendants fail to live in my house, then my granddaughter s husband or his son shall, upon living in my house, be entitled to and be in enjoyment of my properties by retaining the same intact.