ANNADA SUNDARI GUPTA Vs. RATAN RAM DEB

JUDGEMENT

(1.) This is the plaintiff's appeal in a suit for recovery of arrears of rent for the years 1332 to 1335 B.S. with damages and coats. The plaintiff's case is that her father was the owner of the land for which the rent is claimed, that the suit lands along with other lands were bequeathed by him in favour of her mother absolutely, that after her death she being the sole heiress of her mother is entitled to recover rent from the tenant defendant. The defence substantially is that the suit is bad for defect of parties inasmuch as under the terms of the will left by the plaintiff's father her mother got only a limited estate and after her death the plaintiff as well as other persons, namely, Nagendra Chandra Dutta and others were entitled to get the rent. The learned Munsif held that under the will the plaintiff as well as the other persons alleged by the defendants became entitled to the property after the death of the plaintiff's mother and in that view dismissed the plaintiff's suit as being not maintainable at the instance of the plaintiff alone. The plaintiff thereupon preferred an appeal to the lower appellate Court. The learned Judge dismissed the appeal. Hence the present appeal by the plaintiff to this Court. The decision of this case really turns upon the construction of the will of the late Dwip Chandra Dutta of which probate was taken in due course. The following are the relevant portions of she will:

(2.) Para. 1.?In case I die sonless my wife Gunamoyee Dassi shall become the owner and possessor, in absolute right, of the rest of my properties moveable and immoveable excluding the lands mentioned in the schedule having equal and same powers as myself and with full powers to make sale or gift of the same for valid reasons and abiding by the following provisions. Only she will not be competent to sell the lands appertaining to my ancestral Khanabari to anybody other then a co-sharer.

(3.) Para. 3.?If I die sonless my wife will have the power to adopt one or more sons and if she makes such adoption such adopted son would be the full owner of the property left undisposed of by her along with the properties mentioned in Schedule 2 and 3.