LAWS(PVC)-1938-6-34

MOKSHADA RANJAN DUTTA Vs. SURENDRA BIJOY DATTA

Decided On June 17, 1938
MOKSHADA RANJAN DUTTA Appellant
V/S
SURENDRA BIJOY DATTA Respondents

JUDGEMENT

(1.) This appeal has arisen out of a suit for declaration of the plaintiff's 8 annas share of the property in suit and for recovery of possession of the same. His case in the plaint is that he is the adopted son of one Jagatbandhu Dutta and he claims 8 annas of the property in that character. His further case is that Jagatbandhu executed a will, on 13 October 1882 and died, shortly thereafter. By the said will, the said testator gave absolutely to his widow Mahamaya Dutta 8 annas share of his property and a life interest to the said lady in respect of the other 8 annas share. Mahamaya died on 2 August, 1922; after haying executed a will on 7 September 1921. By the said will Mahamaya dedicated 16 annas interest in all the. immovable, properties to the family idol. The plaintiff says that Mahamaya had the right to dispose of the 8 annas share of the property in which she had absolute interest ,by her husband's will, but had no power to devise the remaining 8 annas share in which she had only a life interest under the will of Jagatbandhu. The plaintiff accordingly prays for a declaration of title and possession of the 8 annas share of the properties in which, according to him, she, Mahamaya, had only a life interest under her husband's will. Defendant 1 is the executor under Mahamaya's will and his defence was of a two-fold nature. He said firstly that the plaintiff was not the adopted son of Jagatbandhu, that is to say, he had never been adopted by Mahamaya and. assuming that Mahamaya adopted him, that adoption was invalid in law, because the authority given to Mahamaya by her husband had already been exhausted by her exercising her authority by adopting another person Sachinath. The learned Subordinate Judge has held that the plaintiff is the adopted son of Jagatbandhu; and on the construction of the will has come to the conclusion that Jagatbandhu, by his will gave absolute interest to his widow only in respect of an 8 anna share in the properties and in the remaining . 8 annas share his widow had a life interest. In that view, he has decreed the plaintiff's suit. Defendant 1 has appealed against that judgment.

(2.) Mr. Das appearing for defendant 1 appellant has not challenged the finding of the learned Subordinate Judge that the plaintiff is the adopted son of Jagatbandhu. He has confined his argument to the construction of the will of Jagatbandhu, and according to him, that will had conferred upon the widow Mahamaya an absolute interest in 16 annas of Jagatbandhu's properties. It is therefore necessary to examine the terms of the will in order to see if this contention is correct or not. The will of Jagatbandhu which has-been duly probated is Ex. A-1 p. 1, part 2. To follow the will, it is necessary to state one fact. Jagatbandha was an educated man who had no issue, During his life-time, he had adopted a son of the name of Madan Gopal and that son was living at the date of the will.

(3.) The will is a short one, consisting of a short preamble and 4 paragraphs In the pre, amble he states that he was executing, the will for the management, preservation and enjoyment of his entire ancestral and self-acquired moveable and immovable properties. In para. (1) he states that after his death all his properties will vest in his wife Mahamaya. Then he states that Mahamaya would be entitled to enjoy and possess all his properties till her lifetime. In the latter portion of this paragraph, he makes a distinction between the two halves of his estate, with regard to an 8 anna share of all his properties, he states that Mahamaya would be competent to sell the same according to her requirement. With regard to the remaining 8 annas share, he says that she would have no power to sell the same or settle it at a less jama, but if there be any urgent necessity, she will be, competent "to sell any mehal as a whole". If this para, graph had been the only paragraph dealing with the disposition of his properties, it would be fairly contended that an 8 anna share was given; absolutely to her and in the other 8 annas her interest was a life interest. But there are other paragraphs, in the will which will have to be taken into consideration; for it is a well-known principle of construction that no part of a will should be discarded and the will as a whole should be construed. An attempt should be made to reconcile apparent inconsistencies; and if the different clauses of the will, cannot in any way be reconciled, resort must be made in last instance, to the principle that the last clause of the will dealing with the particular disposition of the properties should be taken to be the real intention of the testator.