BHUPENDRA KRISHNA GHOSE Vs. AMARENDRA NATH DEY

JUDGEMENT

(1.) THIS is an appeal from a judgment and decree of the High Court of Calcutta pronounced in a suit which relates to the Will of one Herumbo Nath Ghose, a Hindu inhabitant of the town of Calcutta subject to the Dayabhaga School, who died on the 10th of November 1907.

(2.) THE material portion of the Will, which bears date the 26th June 1898, is in the following terms: This is the last Will and Testament of me Herumbo Nath Ghose of No. 45 Pathuriaghat Street, Calcutta, son of Girindra Chunder Ghose, deceased zemindar. I revoke all prior testamentary writings and appoint my wife Srimati Paritoshini Dassi to be the sole executrix of this my Will. I hereby authorize my said wife to adopt dattaka putra. In case of death of an adopted son my said wife shall adopt one after another five sons in succession. If my said wife dies without adopting a son or if such adopted son predeceases her without leaving any male issue, in such case my estate after the death of my said wife shall pass to the sons of my sister Srimati Benodini Dassi who may be living at the time of my death.

(3.) THE present suit was instituted on the 30th of March 1910 by Kissori Moni Dassi, the adoptive mother of Herumbo, against the two sons of Benodini Dassi, his sister, for a declaration that in the events that had happened the devise to them had failed, and that the testator's estate had devolved on her. Kissori Moni died in September following, whereupon one Trailokya Nath Ghose, who alleged himself to be the next reversioner of the infant Hem, was substituted in her place. Trailokya has died since the trial; and the present appellants are his son and widow who represent him as his executor and executrix respectively. The fact of the adoption by Paritoshini of the infant Hem was denied by the respondents, but the question has not been tried. Both the Courts in India have dealt with the case on the assumption that the adoption was duly made as alleged by the plaintiff; and, on the construction of the Will, have held that as the adopted son died without leaving male issue, on the death of the widow the bequest to the sons of Benodini took effect and they accordingly dismissed the suit.