POORENDRA NATH SEN Vs. HEMANGINI DASI

JUDGEMENT

(1.) This is a suit by two of the six sons of the late Baikunta Nath Sen against their mother and three brothers. Their mother Srimati Hemangini Dasi is now sued in her capacity as executrix of the will of her husband, in her personal capacity, and also as heiress and legal representative of the sixth son, Jagatpati Sen, who died on the 17 April 1907, after the suit was first instituted. The present suit was first instituted on the 20 August 1906. In consequence of the leave under Clause 12 having been informally granted, it was withdrawn and instituted afresh on 14 February 1908. The object of the suit is to have the will of Baikunta Nath Sen finally construed, and to have the property partitioned among those persons, who are entitled to it. An account is prayed for against Hemangini Dasi and, if necessary, administration and other consequential reliefs.

(2.) The main question for my determination is, whether Hemangini Dasi is entitled on partition not only to the share of her deceased son Jagatpati Sen (which is admitted), but also to another share as a mother on her sons dividing the property among themselves. The solution of this question appears to me to rest solely on the construction to be put upon the will. If that will contains an express gift of Baikunta Nath Sen's property to his sons, then the right to the widow to a share on the partition is defeated: See Debendra Coomar Boy Chowdhry V/s. Brojendra Coomar Boy Chowdhry (1890) I.L.R. 17 Calc. 886, and she takes only the share inherited from her son Jagatpati, i.e., 1-6. If on the other hand the will merely operates to postpone the partition and the sons take the property as on an intestacy, it appears clear from the texts and the authorities, that the widow is not deprived of her share, as such, by reason of her having inherited a share from a deceased son; that is to say, in that case she would take 2-7ths.

(3.) Baikunta Nath Sen died on the 16 of April 1905 and his will, which was made in the year 1890, was duly proved by his widow, the sole executrix. The will, directed that the property should be divided among his sons in equal shares, when his youngest son Jagatpati attained the age of 21 years. This happened on 1 August 1906. In 1895 the present plaintiffs filed a suit (No. 592 of 1895) in this Court claiming (as they now do) partition of the property. That suit was heard by Ameer Ali J., who decided that there was an absolute gift of the income of the whole estate to the executrix to be applied by her at her sole discretion up to the date fixed by the testator for division among his sons; that the postponement of their enjoyment was therefore valid; and that that suit was premature. It was accordingly dismissed. The learned Judge also held that there was no gift whatsoever to the sons, but merely a postponement of the partition. It would seem however, that the decision of this last question was not absolutely necessary for the determination of that suit, and it cannot therefore be regarded in any way as res judicata between the parties. An issue was also raised in that suit, but not decided, whether the widow would be entitled to a share on partition. The translation of the will, which was made for the purposes of probate, appears to be wanting in accuracy. Counsel on both sides have taken objections to it, Mr. Chakravarti criticising the translation of Clause 1 and the Advocate-General that of Clauses 4, 6 and 7. With their assistance and that of my interpreter I have had no difficulty in ascertaining the true meaning.