BIJRAJ NOPANI Vs. SREEMUTTY PURA SUNDARY DASSEE

JUDGEMENT

(1.) This is an appeal in a suit brought by the respondent against the appellants for a declaration of her title to an equal undivided half part or share in a certain house and premises known as 8, Sobharam Bysack s Street, Calcutta, and for recovery of the premises from the appellants, in whose possession they were at the commencement of the suit, with an inquiry as to mesne profits. The facts of the case, so far as they are material, are not now in dispute and are as follows :-

(2.) The house and premises originally belonged to Premchand Bysack, who died on the 13th June 1886, leaving a will dated 25th October 1884. By his will the said testator devised and bequeathed the said house and premises "to his daughter Katyani Dassee and her heirs absolutely," subject to two charges of 20 rupees per month, payable to two of his daughters-in-law and their children as and for periods specified in the will. He appointed as executors Shambhoo Nath Byzack (the husband of his daughter Katyani Dassee), and two of her sons, Hemendra Nath Bysack and Ratanlal Bysack. On application for probate of this will, the execul tors found that a caveat had been entered by some of the relations of the deceased testator, who alleged that the will was a forgery. This led to a suit, where, after a prolonged inquiry, the Court on the 16th May 1887, pronounced the will to be genuine and granted probate of it, and directed that the costs of the executors should be paid out of the testator s estate.

(3.) It would appear that the executors had no funds in hand out of which they could meet the costs of this litigation, and they therefore mortgaged the property for a sum of Rs. 3,950 to Dwarka Nath Dutt, who had been their attorney in the probate suit, in order to secure the payment of his costs, which amounted to Rs. 3,400, the balance, Rs. 550, being treated as a loan to them. Katyani Dassee was made a party to the mortgage bond apparently to put on record her wish that no portion of the estate should be sold to defray these costs. The term of the mortgage was ten years.