SIVA MOHAN KUNDU CHOUDHURY Vs. SMBECHUMOYEE DASI-PLAINTIFF

JUDGEMENT

(1.) These appeals are from a judgment dated 17 August 1934, whereby the learned Judge in the Court below made a decree in favour of the plaintiff Srimati Bechumoyee Dasi declaring that she is entitled to a one-twelfth share in certain properties and in the business referred to in Schs. B and C annexed to her plaint and to a one-fourth share in properties and in the business mentioned in Schs. D and E. The decree made by the learned Judge also included an order for partition and all other necessary reliefs in that connexion. The suit was instituted by the plaintiff on 19 August 1931 and by the plaint it was averred that one Kissori Mohan Kundu Choudhury, who was during his life time and at the time of his death governed by the Bengali School of Hindu Law, died intestate on 12 March 1880 without any male issue but leaving his widow Srimati Manorama Dassi and the plaintiff who is the only daughter of Kissori Mohan and his wife Manorama.

(2.) The plaintiff Bechumoyee Dassi claimed that on the death of her mother on 23 January 1931 she as the sole daughter of Kissori Mohan Kundu Choudhury became entitled to the whole of his estate. The plaintiff set forth the list of properties which are comprehended in the schedules to which I have already referred. It is to be observed that by the plaint in the suit the plaintiff founded her claim solely upon the basis that her father had died intestate and that after the death of her mother, who inherited a Hindu widow's right in the property of her husband, the plaintiff became entitled to the whole of her father's estate. The statements in the plaint were verified by Ratnamay Srimany who is described as the constituted attorney of the plaintiff. We are informed that he is in fact the son of the plaintiff. The facts as stated in the plaint did not represent the real state of affairs for it was not the fact that Kissori Mohan Kundu Choudhury had died intestate; on the contrary he had not only made a will but probate of that will had been granted by this Court as long ago as the mon April, in the year 1880. By that will broadly speaking, Kissori Mohan gave the bulk of his property to two of his brothers, and made certain provisions for the maintenance of his widow and the maintenance of his daughter, the plaintiff. There were also certain provisions in the will requiring the principal beneficiaries to make provision for certain Debutter dispositions.

(3.) In the year 1912 the widow of the testator Manorama Dasi instituted a suit in which she averred that the maintenance provided for her by the terms of her husband's will are insufficient, and she claimed that she was entitled to receive at the hands of her brothers in- law, as executors and beneficiaries under the will, a larger sum for her maintenance. As an outcome of the proceedings she received, at any rate she was declared to be entitled to a sum of Rs. 235 monthly for her maintenance. The importance of that suit is this: that so far from any question arising as to whether or not Kissori Mohan had left a will, in that suit the will was actually referred to if not in fact relied upon. What we are concerned with however is another suit, a suit which came before the Court at Hooghly. We are concerned with that suit for this reason: In reply to the plaint filed by the plaintiff in the present suit, the defendants put in a written statement in which they stated in para. 3 that: With reference to para. 1 of the plaint they deny that Kishori Mohan Kundu Choudhury (hereinafter referred to as the testator) died intestate. Prior to his death and on 28 Falgoon 1286 B.S. corresponding with 10 March 1880 the testator made and published his last will in the Bengalee language and character whereby he gave and bequeathed his entire estate absolutely unto his uterine brothers Hiramohan Kundu Choudhury and Nagendra Mohan Kundu Choudhury subject to certain legacies and annuities therein mentioned. The widow of the testator is named in the said will as Ramani Dassi.