BIPRADAS GOSWAMI Vs. SADHAN CHANDRA BANERJI

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the District Judge of Murshidabad, dated 9 February 1925, which affirmed a judgment and decree of the Subordinate Judge of the same place, dated 13 May 1924.

(2.) The plaintiff, now appellant, brought a suit for the construction of a will of his father, Kunja Behari Goswami, and for a declaration of his title to the immovable properties mentioned in the ka and kha schedules of the plaint and for recovery of possession of property ka with mesne profits and for an injunction restraining the defendant from taking any step for recovery of rent from the plaintiff with respect to properties described in schedule ka.

(3.) The case stated in the plaint is that plaintiff's father died on 13 Falgun 1924, corresponding to 24 February 1886, leaving behind him the plaintiff, his only son, and Nabinkali Debi, his only daughter; that the plaintiff's father executed a will sometime before his death: that probate was taken of the will and the plaintiff was possessing the properties left by his father according to the terms of the will; that in the will there was a provision that Nabinkali would get 3-annas share in a brahmottar property named Baguladangi and that there was a further provision in the will that a sum of Us. 1,000 should be paid to Nabinkali for the construction of a dwelling house out of the estate of the testator, that Nabinkali possessed and enjoyed ka and kha schedule properties and died on 14 Falgun 1325, corresponding to 26 February 1919, that the defendant, Satyendra, son of Nabinkali, was born on 6 Aswin 1297, corresponding to 21 September 1890; that the said Satyendra having been born after the testator's death, any bequest in his favour was void under the Hindu Law, as being a bequest in favour of an unborn person; that Nabinkali got only a life-interest in the suit properties; that during Nabinkali's lifetime, the plaintiff took a jote settlement from Nabinkali in respect of the ka properties and that, on her death, the jote has ceased to exist and the plaintiff became entitled to the full brahmottar right in schedule ka properties and the plaintiff also acquired title to the dwelling house (schedule kha) and that the defendant, in spite of the plaintiff's protest, got his name registered in the land registration register with regard to the ka schedule properties and has brought a suit for recovery of rent against the plaintiff and that the defendant was in wrongful possession of the schedule ka properties.