FANI BHUSAN SAHA Vs. FULKUMARI DASI

JUDGEMENT

(1.) This is an appeal from a preliminary decree for partition and accounts; the facts of the case, shortly put, are the following. One Hiralal Shaha died in 1292 B.S.=1886 leaving seven sons, one of whom was Jogendra, who died later on in 1905 leaving a widow Radharani and two daughters Fulkumari and Santashila. The suit was instituted on 27 September 1924 by Radharani. The defendants in the suit are some of the other sons and the heirs of the deceased, sons of the said Hiralal Shaha. During the pendency of the suit Radharani died and the two daughters Fulkumari and Santashila got themselves substituted as plaintiffs in her place. The facts, as alleged in the plaint, were that the plaintiff Radharani was entitled to have a partition of the properties left by Hiralal Shaha inasmuch as under his will each of the sons was entitled to a 1/7 share in the property. Her case was that although under the will the life interest in the said share was given, yet the gift in respect of the residue that was made in favour of the grandsons had failed because at the death of Hiralal no grandson had been born to him, and that therefore each of the sons got absolute title to a seventh share in the properties left by Hiralal.

(2.) The contesting defendants took the plea that under the will of Hiralal each of his sons got only life interest in respect of one-seventh share and the plaintiff Radharani as widow was not entitled to sue for partition inasmuch as she had inherited nothing from her husband. It was also attempted to be shown on behalf of the contesting defendants that as a matter of fact a grandson had been born during the lifetime of Hiralal, he having been a son of Benode Behary, one of the sons. There was a further defence taken on behalf of the defendants and it was to the effect that even if it could not be established that Bejoy was born during the lifetime of Hiralal, the plaintiff cannot succeed because the residue must be regarded as having been given to the grandsons to be taken by them on the death of all the sons of Hiralal and therefore there was a valid gift over which can yet take effect. These defences were overruled by the Subordinate Judge who eventually made a preliminary decree for partition and accounts. From this decree, this appeal has been preferred by some of the defendants, who are sons and grandsons of Benode Behary. The principal question in the appeal is the construction that has to be put upon the provisions of the will left by Hiralal Shaha. The will first of all provides for certain expenses to be incurred for the purposes of certain seva, pujah and religious festivals in connexion with certain deities and states that the total amount so to be spent would be Rs. 533. It is then provided that the said sum of Rs. 533 being thus spent out of the profits of the ancestral properties the balance of the profit and the proceeds of the other properties shall be employed for the maintenance of the members of the family. Amongst the recitals in the will is to be found a passage wherein the testator gave his reasons as to why he was making a will of this character. There it is said: I have long made up my mind to make a will in respect of my estate; specially all my sons are not majors and the sons who have attained majority are not also fully competent. It is highly improbable that my sons will be able after my death to earn for themselves a name in society by satisfactorily performing the business of the estate and by maintaining the rites and ceremonies prescribed by myself and by managing the properties to be left by me. For this reason, it is absolutely necessary to make a will while I am yet alive providing satisfactorily for all things I have in view.

(3.) The two relevant clauses in the will are Clauses 7 and 10. Clause 7 runs in these words: My sons, upon coining by the movable and immovable properties which I have in my own. name or benami in equal shares after my death without powers of sale, gift, etc., shall spend out of the income of those properties the said total amount of Rs. 533 (five hundred and thirty three) year after year for all time to come and continue to enjoy the balance of the income. My sons shall after my death collect all sorts of dues in respect of my estate either jointly or severally according to their respective shares and comply with my directions by maintaining the rites laid down by me above.