MAHIM CHANDRA SARKAR Vs. HARA KUMARI DASEE

JUDGEMENT

(1.) The question that arises in these three second appeals is principally one. of interpretation of the will of one Anauda Lal Sarkar which has already been partially construed by a Bench of this Court in the case of Hara Kumari Dasi v. Mohim Chandra Sarkar (1908) 12 C. W. N. 412 : 7 C. L. J. 540. The position of the parties flan be seen from the following genealogical table

(2.) Ananda Lal Sarkar died on the 11th March 1866. His widow Lebhamoye died on the 30th September 1898. Mahim Chandra Sarkar filed a suit against Hara Kumari on the 19th July 1904 for the construction of the will of Ananda Lal, after withdrawing Mb suit for revocation of probate but still wetting np very prominently that the will was a forgery. Maclean C.J. in the opening of his judgment said: "If the suit had come before me, I should have dismissed it summarily; but as the revocation proceeding s have teen withdrawn, the Court will deal with the question of the construction on the merits." He appears to have, held that but for the giftover to Hara Kumari, the will would have given the widow fin absolute estate. Though there is no clear and absolute gift to the widow in the first portion of the operative clause of the will, the words "you will have the right and power to alienate by gift or sale all the aforesaid moveable and immoveable properties," would make it difficult to say that the widow did not take the property absolutely. The giftover to the daughter, however, follows in the following term: "my daughter Ham Kumari shall become entitled to and possessor of whatever property will remain after your death:"-the words are satyaban dakhalkar, or literally, possessor with title,-"and she shall enjoy the same keeping up and maintaining the aforesaid sheba, etc." Later on he says; " the said daughter shall have the same-lights as you have, (it should lie equal rights), and he "to whom my daughter may willingly give away those properties shall while possessing the same and keeping up and maintaining the sheba enjoy them". We have put this last clause rather more literally than, in the translation in. the report of the ease in the books, because on this turns one of the main contentions that the whole will was a devolution in trust for the sole purpose of keeping up the sheba and provided merely maintenance for the daughter,

(3.) The question, before the Court in that case was what interest did the widow Ichhamoye take. The question before us now is what interest did the daughter, Hara Kumari, take, and that question does not appear to have been gone into in the previous ease. The Court, however, held that the widow took for life with power of alienation; but to the extent to which such power was not exercised the daughter took the property with equal rights to those conferred on the widow.