ABDUL KHALEQUE MONDAL Vs. BEPIN BEHARI BOSE

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and arises out of a suit for a declaration that they are entitled to the whole of the properties in suit and that the mortgage which defendant 1 had obtained from one Abdul Mataleb and the decree obtained therein is not binding on them. For the purpose of following, controversy between the parties the following genealogy is material:

(2.) The property belonged to Meher Ali who died on 3 April 1908. Just before his death, that is to say on 7 March 1908, he executed a will by which he appointed his wife Karimannessa executrix to his estate. In para. 1 of the will he states that "you shall as owner enjoy during your life-time all the moveable and immoveable properties described in the schedule and boundaries given below lying in village Mominpur, etc." In para 3 he says "no one shall be entitled to make any claims during your life-time to the moveable and immoveable properties to which you are appointed executrix by this will or to get a share in them or to claim any profit or income arising out of them. No one except yourself shall be entitled to realise those moneys or to take them." Para. 4 of the will is in these terms: I have at present three sons alive of whom the eldest is Abdul Mataleb Mondal, the second Abdul Rahman Mondal, and the youngest Abdul Khaleque Mondal. They shall not get any share or income of the aforesaid moveable and immoveable properties during your lifetime. They shall get immoveable properties, due shares in them, after your death according to the Mahomedan law. During your lifetime they shall not be entitled to claim any property or any share in it nor shall they be entitled to realise and to appropriate any income relating to the properties. They shall live as members of the family and get their regular food and clothing. If they do not live in the family or do not live in the same mess and remove elsewhere they shall not get their food and clothing from the estate and would not be entitled to claim it.

(3.) Then in the subsequent paragraphs the testator recites that he had three daughters and that they had given up all their claims to his properties and that they would not be entitled to any share of the properties left by him. Para. 9 of the will is as follows: Whatever kind of income the aforesaid moveable and immoveable properties may yield shall remain in your custody. You shall be entitled to spend the whole amount of the said income according to your will and discretion and you shall discharge the family expenses with it; no one shall be entitled to demand any account of it from you and you shall not be bound to render any account to any one and you shall not be liable for that money to any one. Para. 10 is in these terms After my death you shall out of the income of the properties left by me spend such sum as you think proper for my spiritual benefit.