GURUDAS ROY CHOUDHURY Vs. BHUPENDRA NATH GHOSE

JUDGEMENT

(1.) This is a suit principally for a declaration of the plaintiff's title to certain lands and for other ancillary reliefs. One Girish Chandra Ghose, a Hindu governed by the Dayabhaga School of Hindu law, died in March 1908, leaving him surviving his widow Bhutomoyee Dassi, his three sons Anukul, Charu and Jatindra by a predeceased wife, the three wives of the aforesaid three sons, viz. Nababala, Sailabala and Prafulla Sundari, respectively, Khelat a son by his second wife Bhutomoyee and Khelat's wife Parulbala Dassi. The genealogy so far is admitted by all parties. The plaintiff's further case is that at the time of Girish's death Khelat and Parul had a daughter, Padma, living, that she was born in July 1907, and died on 24 May 1908. Some of the defendants deny the existence of Padma. I give below a genealogical table in accordance with the plaintiff's case for easy reference:

(2.) On 22 September, 1905, Girish Chandra Ghosh executed a will in the Bengali language, an English translation of which has been filed with the plaint. By this will the testator inter alia bequeathed certain property to Parulbala, wife of Khelat, for life and thereafter to the heirs or successors of Khelat. The terms of this bequest are to be found in Clauses 9,10,11 and 12 of the will. There is no dispute regarding the validity of this will of which probate has been granted, nor is there any dispute as to the fact that the bequest was to Parulbala for life and on her demise to the heirs or successors of Khelat. The Bengali words used are "uttaradhieari" and "warrish," which, all parties are agreed, mean heirs or successors. Probate was taken of the will on 21 August 1909 from this Court. In 1912 Parulbala instituted a suit against Anukul, Charu and Jatindra for partition. A consent decree was passed. Thereafter in 1920 an arbitrator was appointed by consent of parties to divide and allot certain premises which were among the subject-matter of the will. Eventually Parulbala was allotted the properties mentioned in paras. 10 and 11 of the plaint as being the properties bequeathed by the will of Girish to her for life and on her demise to the heirs of her husband Khelat. These facts are now admitted by all the parties. On 26 September 1935, Parulbala diedileaving her surviving, her husband Khelat and the plaintiffs who are her three brothers. She left no issue. On 20 Agust 1936 Khelat purporting to be the full owner of the properties mentioned in paras. 10 and 11 of the plaint transferred the same, together with certain other properties, to the plaintiffs by a deed. The plaintiffs now sue for a declaration of their title to the properties mentioned in paras. 10 and 11 of the plaint, i.e. to the properties bequeathed by Girish to Parulbala for life and on her demise to the heirs of Khelat.

(3.) This claim is based on two alternative grounds : Firstly, the plaintiffs case is that by the bequest Parulbala got not only a life-interest in the properties but also a vested remainder as the heir presumptive of Khelat on the date of the testator's death. This vested remainder was her "stridhana" and on her death without issue her brothers who are the heirs of her stridhana property acquired absolute title thereto. Secondly, it is contended that if it be held that by the terms of the will Parulbala could not get a vested remainder in the property, the plaintiffs acquired title in the following manner : On the death of Girish, Parulbala got a life-interest and Khelat's daughter Padma who was alive on the date of Girish's death got a vested remainder. On Padma's death, the vested remainder which was Padma's stridhana devolved upon Parulbala as a Hindu mother, i.e. Parulbala got the limited estate which a Hindu mother gets in the stridhana of her daughter. On Parulbala's death Khelat, as next heir of his daughter Padma, got an absolute estate in the property and thereafter the plaintiffs acquired Khelat's interest by the deed of 20 August 1936, whereby Khelat transferred all his interest in these properties together with other properties to the plaintiffs. Thus the plaintiffs seek to establish their title as heirs of Parulbala and in the alternative as transferees from Khelat. Bhupendra and Nripendra, defendants 1 and 2, who are the grandsons of Girish by his son Anukul, have filed a joint written statement, while Sanjib, defendant 3, who is a grandson of Girish by his son Charu, and Jatindra one of the sons of Girish have filed separate written statements. The other defendants do not appear. I do not propose to set out the various contentions raised in the written statements inasmuch as the defendants have abandoned some of them at the trial. The position taken up by the defendants now is this: Bhupendra, Nripendra and Sanjib deny that Parul had any daughter living at the time of Girish's death. There is no denial of this part of the plaintiff's case by Jatindra. All the defendants now admit that by the will Parulbala got a life-interest in the properties mentioned in paras. 10 and 11 of the plaint and indeed this is dearly established from the will and the other documents filed with the plaint and proved in this case. The points of difference arise around the bequest to the heirs of Khelat on the demise of Parulbala. Counsel for the various defendants contend that this bequest is of no effect and that on Parulbala's death the property bequeathed to Parulbala devolved as if it had been undisposed of by the will of Girish; in other words they argue that the property in suit should be distributed among the heirs of Girish as on intestacy. According to this view, Bhupendra and Nripendra jointly would get a one-fourth share each. The validity of the deed of transfer executed by Khelat in favour of the plaintiffs on 20 August 1936, so far it transfers this one-fourth share of Khelat to the plaintiffs, is not now challenged and the defendants do not oppose a decree in favour of the plaintiffs with respect to this one-fourth share.