SANKAR NATH MUKHERJI Vs. BIDDUTLATA DEBI

JUDGEMENT

(1.) This appeal arises out of an application for Probate of the Will of one Bhayaharini Debi, dated the 2nd Agrahan l288.

(2.) By her Will she appointed her husband s brother s sons Girindra and Harendra, her daughter Lambodari and her husband Tara Nath, her executors. It was also provided in the Will that Sankar Nath (the appellant), who was the son of another brother of Tara Nath, when he attained majority, would be able to act as executor: and that in case Tara Nath, was willing and able to act as sole executor, he would be entitled to do so. Bhayaharini died two days after the execution of the Will: and as Tara Nath was not willing to apply for Probate, Girindra, Harendra and Lambodari applied for, and obtained, Probate in January 1882 and went on administering the estate until April 1S88 when Tara Nath having applied for Probate, he was appointed executor.

(3.) In the year 1893, Girindra, Harendra and Narendra as also Sankar Nath and his two minor brothers represented by their mother were called upon to state whether they would accept the bequest in their favour, which consisted of certain immoveable property subject to an annuity of Rs. 2,400 a year in favour of Lambodari. Girindra, Harendra and Narendra filed a petition in Court giving up the legacies. In 1894, there was an agreement between Tara Nath and her daughter Lambodari and daughter s son Mohini Mohan, under which Lambodari and her son gave up their right to certain properties and also the annuity given to her under the Will, and Tara Nath gave certain properties to her absolutely. Tara Nath died in 1908, and in 1910 Girindra and Harendra applied for Probate. Notice was served upon Sankar and he stated that he could not apply for Probate owing to ill health but that he would do so later on.