SUBODHCHANDRA NIYOGI Vs. BHUBALIKA DASEE

JUDGEMENT

(1.) This is an appeal by defendant 3 from a preliminary decree made by the Subordinate Judge of 24-Parganas on 17 August 1929, and arises in a suit for partition of five items of immovable properties mentioned in Schedule A of the plaint and of moveable properties mentioned in Schedule B of the plaint. The plaintiffs claim eight annas share of the said properties under one title and two annas under another title. The Subordinate Judge has dismissed plaintiffs claim in respect of the Schedule B properties (moveables). He has, however, granted a decree declaring plaintiffs title to eight annas share of the immovable properties described in Schedule A and has appointed a commissioner to effect the partition of the same. Hence the present appeal by defendant 3, who contends that the entire suit should have been dismissed. The relationship between the parties to the suit is shown in the following genealogical tree:

(2.) It appears from the said tree that Bishwanath died leaving him surviving four sons, and it is common ground that he left three cottas of land in Dakshineshwar. The case of the plaintiffs is that, of the four sons, Rajkrishna, Nabeen and Umacharan continued to live as members of a Dayabhaga joint family after their father's death and that Prankrishna abandoned his share in the ancestral properties and started a new business of his own and separated from the joint family ; and this is common ground. The plaint further alleges that after Bishwanath's death, Rajkrishna, Nabeen and Umacharan started a joint family partnership business in castor oil seeds; that, on 21 July 1862, Rajkrishna executed a will and died a short time after in the same year. In this will he made provisions for carrying out of the business by Nabeen for the maintenance of his wife after his death ; that, at the time of death of Rajkrishna, his son Narasingha was a minor ; that Nabeen, following the directions of his elder brother, carried on the business with due diligence and acquired considerable properties both moveable and immovable, mentioned in Schedules A and B to the plaint ; that Nabeen died leaving him surviving his son Nandalal, the husband of defendant 2, and his grandson Kanai, now deceased, the husband of defendant 1 ; that, prior to his death in the year 1892, Nabeen executed the will on 18 June 1891, in which he recites that all the properties acquired with the profits of the castor oil business were his self acquired properties. It may be stated here that, by the will, Nabeen appoints Narasingha and Kanai as executors and Nanda who was an ascetic was given a legacy of Rs. 500 and in case of his return he was given a legacy of 25 rupees per month ; the will further provides that: If any sons be born to him (Narasingha) then you, the executors, shall be entitled to my entire estate upon effecting a partition thereof in two equal shares. If, on the other hand, no son is born to him, then, in that case, the daughters of the said Narasingha shall be entitled to a 4 annas (four annas) share of the said estate, while Kanailal shall get the remaining twelve annas share thereof.

(3.) That probate of the will was taken by both Narasingha and Kanai on 10 September 1892. The plaint alleges that Nabin had no authority to make a disposition of Rajkrishna's share in the oil business and in the joint properties that were acquired out of the profits of the same ; that Narasingha died after making a will dated 23 Chaitra 1300 B. S., corresponding to 5 April 1894, and leaving him surviving his wife Mahamaya and his daughters, the two plaintiffs in the suit. In para, 13 of the plaint the plaintiffs submit that their father Narasingha was under a misapprehension of facts and law as regards his own right and erroneously thought that he was entitled only to a four annas share of the joint estate under the will of his uncle Nabeen, although, as a matter of fact, eight annas share of Rajkrishna had already vested in him. This is the foundation of the plaintiffs title regarding the eight annas share of the disputed properties.