HURRISH CHUNDER CHOWDRY Vs. KALI SUNDARI DEBIA

JUDGEMENT

(1.) IN order to make the subject of this appeal intelligible a short statement is necessary. In the year 1819 Sumhlhoo Chunder, by a sunnud, conveyed to his sister Kassiswari a certain talook. Upon the construction of this sunnud various questions have since arisen. Kassiswari, treating the sunnud as having conveyed to her an absolute estate, disposed of it by her will, the material part of which is this : - "Of the whole of the rest of the rent-paying and rent-free immovable properties in benami and in my own name, in my possession and not in my possession, in which I have a right and interest, a moiety shall after my death be received by my daughter Chundermoni, and if she adopt a son by that adopted son, otherwise by her daughters, i.e., by my granddaughters," - naming them - "in equal shares; and the children born of their wombs, or adopted by them, shall from generation to generation get their (the grand-daughters') respective shares in the order of succession, and the other moiety shall be received by my daughter-in-law, Srimutti Kali Soondari Debia, and if she adopt a son by that adopted son, and by his children from generation to generation in the order of succession. But the same shall remain in the possession of my daughter-in-law, Kali Soondari Debia, till the said adopted son shall have attained his majority; and in case there shall be a misunderstanding between him and my daughter-in-law after he shall have attained his majority, the said adopted son and my daughter-in-law, Srimutti Kali Soondari Debia, shall receive equal shares " (of the property). "But, after the death of Kali Soondari Debia, her adopted son, or any surviving lineal heir of her adopted son, shall obtain the same " (her share of the property).

(2.) UPON the death of Kassiswari, the now Appellant, Hurrish Chunder, who was the son of Sumbhoo Chunder, took possession of this property; whereupon an action was brought to obtain possession of it by Chundermoni and by Kali Soondari, who were then widows. Kali Soondari having adopted a son, Chundermoni not having made an adoption. The plaint in that action claims possession. It recites the sunnud from Sumbhoo Chunder; the will and the death of the testatrix; and proceeds : - "In virtue of this will, I, Plaintiff No. 1," - i.e., Chundermoni, - "and I, Plaintiff No. 2," ? Soondari - "on behalf of the minor, have, since her death, become entitled to hold and enjoy all the aforesaid movable and immovable properties." The plaint goes on to state that the Defendant had unjustly intruded himself into this land. The Defendant denied most of the allegations in the plaint, among them the adoption of a son by Kali Soondari.

(3.) THE Judge, after disposing of the first two issues in favour of the Plaintiffs, proceeds thus :--" Touching the third issue, it is true the original will is not forthcoming, but an attested copy has been filed. I would accept the copy as evidence, as it was attested by the registration authorities, who have the original in their safe custody. The opposite party, I may remark, does not distinctly and emphatically deny the existence of the original will, the execution of which has been substantiated by witnesses. "He finds in favour of the will. He proceeds: -