SURES CHANDRA PALIT Vs. LALIT MOHAN DUTTA CHAUDHURI

JUDGEMENT

(1.) The subject-matter of the litigation, which has culminated in this appeal, originally formed the estate of one Sarat Chandra Datta Chaudhuri, who made a testamentary disposition on the 2nd April 1899, and died on the 7th November 1901. He left a childless widow, Girija Sundari Chaudhri, who died on the 21st November 1903. After the death of the widow, a dispute arose as to the devolution of the estate of her husband which had vested in her. The sons of the sister of the widow contended that the estate had vested in her absolutely and on her death, had devolved upon them as her heirs. The son of the sister of the testator contended, on the other hand, that the widow took nothing beyond a life-interest and that upon her death, the estate had devolved upon him as the reversionary heir to the estate of her husband. The result was that on the 11th September 1911, the sons of the sister of the widow instituted this suit against the son of the sister of the testator for construction of his Will and for recovery of possession of his estate on declaration of title thereto. Three other persons, with whom we are not now concerned, were also joined as defendants. The Subordinate Judge dismissed the suit, on the ground that the widow took only a life-interest and that upon her death, the estate vested in the first defendant as reversionary heir. The plaintiffs have now appealed to this Court and have contended, first, that the widow took an absolute estate under the "Will of her husband, and-, secondly, that the gift over of what might remain undisposed of by her, was repugnant and void.

(2.) The rights of the litigants depend upon a true construction of the Will of the testator and the determination of the legal effect of the disposition made by him. The material clauses of the Will, after the usual prefatory words, are as follows: 2. If, at the time of my death, no son is born of my loins or no son exists, and I die childless, then in respect of my aforesaid moveable and immoveable properties which shall be rightfully owned by me, at the time of my death, by virtue of purchase, gift, inheritance or by any other right, I. appoint my wife, Srimati Girija Sundari Chowdhury, to be the achhi or executrix after my death.

(3.) Immediately after my death, my executrix, i.e., achhi, shall defray the expenses, etc., of my cremation ceremony with the income of my property and shall pay my just debts, etc., if there be any, and shall meet other necessary expenses. If the expenses cannot be met with the income of the aforesaid properties, the said achhi, i.e., executrix, if necessary, shall be competent to sell some portion of my aforesaid properties.