KUMAR TARAKESWAR ROY Vs. KUMAR SHOSHI SHIKHARESWAR

JUDGEMENT

(1.) THE question in these appeals arises upon the construction of a clause in a Hindu will, which is in these terms:- My brother's sons, Kumar Jagadiswar Roy, Kumar Tarakeswar Roy, and Kumar Sibeswar Roy, shall receive, for defrayment of the expenses of their pious acts, the following out of the properties left by me, to wit, my one half share in pergunnahs Chowgaon and Khord Chowgaon, recorded as No. 278 in the Collectorate of zillah Rajshahye, in dehi Dalil, and others, appertaining to tuppa Byas, and recorded as No. 456, and in mouzah dehi Gobindpore, in pergunnah Santosh, recorded as No. 96 in the towzi or rentroll of the Collectorate of zillah Dinajpore. The said three nephews shall hold possession of the same in equal shares, and shall pay the Government revenue of the same into the Collectorate. They shall have no right to alienate the same by gift or sale; but they, their sons, grandsons, and other descendants in the male line, shall enjoy the same, and shall perform acts of piety as they respectively shall see fit for the spiritual welfare of our ancestors. If any of them die without leaving a male child (which God forbid), then his share shall devolve on the surviving nephews and their male descendants, and not on their other heirs.

(2.) THE facts necessary to be stated are, that the three nephews of the testator were living at his death; that two of them died before the institution of the present suit, one unmarried, the other leaving a widow but no issue; that the suit was instituted by Kumar Tarakeswar Roy, the survivor, against the infant son of the testator, represented by Hurgobind Bose, appointed manager of the estate by the Court of Wards, to obtain a declaration of title to and possession of half of pergunnahs Chowgaon and Khord Chowgaon. No question arises as to Gobindpore in this suit.

(3.) THE Defendant denied the execution and validity of the will, both of which issues have been disposed of by concurrent judgments of the Courts against him. He further contended that upon the true construction of the will, which is narrowed to that of the clause in question, the Plaintiff was entitled only to a life estate in one-third of the property devised.