JETINDRA KUMAR CHATTERJI Vs. NRITYA GOPAL MUKERJEE

JUDGEMENT

(1.) The decision of these appeals tarns upon the construction to be put upon the Will of Tara Prosad Banerjee, dated the 13th August 1902. Tara Prosad Banerjee died at Benares on the 20th April 1906, leaving his third wife, Durga Sundari Debi, and two grandsons, the sons of his daughter, Khetramoni Debi. One of these sons, Sarat Kumar Chatterji, has since died and is represented by his sons, Tarak Das and Durga Das, plaintiffs Nos. 2 and 3. Plaintiff No. 1, Jitendra Kumar Chatterji, is the other son of Khetramoni.

(2.) By his Will, Clause (2), the testator said: "Upon my death, my wife Srimati Durga Sundari Debi shall get the taluks, rent-bearing, rent-fee, and Jabd Bahali (confirmed or held valid after resumption) lands and jamas, orchards, gardens, tanks, and cash money and Government Promissory-Notes, etc., and all other immoveable and moveable properties of which I am in possession and enjoyment gave and except the lands and the buildings mentioned in the schedule and marked with, the letters (cha) and (chha), and she will possess and enjoy the same, with the right of transfer by gift or sale; and no one will be entitled to raise any objection regarding any gift or sale to be made by her." By Clauses (3), (4) and (5), the testator left the properties specified in schedules (cha) and (chha) to his daughter, Khetramoni Debi and, after her, to her sons and he declared that his wife should not have any right, possession or claim in respect thereof. He appointed his wife, Darga Sundari Debi, to be the executrix of his Will.

(3.) The suit has been brought by the plaintiffs to recover possession of the properties left by the testator on the ground that Darga Sundari, the widow, only took a widow s estate in the property left to her by her husband and that, on her death, which occurred on 29th January 1903, the property passed to the plaintiffs as heirs of the testator. The Subordinate Judge has decided against the plaintiffs on this contention. He has given them a decree in respect of a house at Benares on the ground that it was purchased by the testator after the date of the Will and did not, therefore, pass under the bequest contained in Clause (2) of the Will. He has held that there was an intestacy as to this item of the property and that the plaintiffs are entitled to succeed as heirs-at-law to this and to the moveable property specified in schedule (ga). Appeal No. 36 is presented by the plaintiffs against the main decision in the case, while Appeal No. 42 is presented by defendants Nos. 1 and 2 and relates to the house at Benares and the moveable property in schedule (ga).