J N GHOSE Vs. BBDASI

JUDGEMENT

(1.) This appeal arises out of a suit for administration of the estate and construction of the Will of one Apurba Krishna Ghose. It is alleged that certain properties (to which I will refer later) do not belong to the estate of the testator. The latter died in December 1917 leaving a will of which the first two defendants are executor and executrix. Probate was applied for and obtained of this Will on the 1 of February 1919. This suit was instituted in June 1919, that 13, some four months only after the grant of the Probate. The testator had two wives, the first of whom is now dead and the second is the defendant No. 1. He had, by his first wife, 4 sons and 3 daughters. The plaintiffs are the 2nd, 3 and 4 sons of the testator and his eldest son is the defendant No. 2. The third defendant is a minor, Srimati Mohamaya Dasi, the daughter of the first defendant. Of the three daughters of the first wife, Priyabala, Basanta Kumari and Katyani, two, namely, Basanta Kumari and Katyani are dead. Niether Priyabala nor the heirs of Basanta Kumari and Katyani are parties to this suit. But this, though it might have been material if the conclusion at which we have arrived were adverse to that of the learned Judge on the question of the properties belonging to the estate of the testator, is not now material, for the decision to which I come is, that the judgment of the Court below should be supported and that judgment is one in favour of these persons.

(2.) The point which I will deal with first is the question as regards what properties constitute the estate of the deceased. The executor and the executrix have stated in an affidavit the moveabled and immoveable properties left by Apurba Krishna Ghose and to that list they have appended a note stating that items Nos. 10. 11, 12 and 20 form no part of the estate of the deceased but were held by him in trust--item No. 10 for Basanta Kumari, item No. 11 for Katyani and items Nos. 12 and 20 for Mohamaya Dasi. Exception was taken in the lower Court by the appellant to the statement, their. contention being there as here that these four items formed part of the estate of the testator. A question was also raised in the lower Court as regards item No. 24, namely, the loan advanced to one Apurba Krishna Sarkar. But this point has not been pressed before us in appeal and the statement of the executors is accepted on this point. Another objection has been taken on the ground that certain sums of money which do net appear in the list of assets should form part of the estate of the testator. These sums are Rs. 1.080, Rs. 70, and Rs. 80-4-0. The learned Judge has held as regards these sums that they do not form part of the estate and have been rightly excluded by the executors. The correctness of this conclusion has been contested before us.

(3.) I will deal, iii the first place, with items Nos. 10, 11, 12 and 20. In favour of the contention of the executors there is this fact that the securities mentioned in the items to which I have referred bear in the testator's writing the names of the three ladies whom I have mentioned, namely, Basanta Kumari, Katyani and Mahamaya. One of the plaintiffs, namely, Fanindra Nath Ghose, admits in his evidence that his father made notes on the investment papers for what purposes the investment was made. These notes would then go to show that they were investments made for and held in trust by the testator for the ladies named. Indeed, it is not contested that there was an intention at one time on the part of the testator that these securities should go to the ladies, but the contention is that in substitution thereof provisions were made for them in the Will. It has been pointed out that though, doubtless, these securities bear the names of the ladies for whom the investment appears to have been made there was in fact no actual transfer. It was not, however, necessary that there should be an, actual transfer, because the testator could, by a simple declaration on his part, constitute the papers in his possession a, trust for his daughters.