GOLAK BEHARI MONDAL Vs. SURADHANI DASSI

JUDGEMENT

(1.) The plaintiff who is the principal respondent in the appeal filed the suit for declaration of her one third share in the properties in suit and for possession by partition by metes and bounds. There was also a prayer for mesne profits. Her case is that the properties in suit. belonged to her father-in-law, Bisweswara, Mondal, who by his will, dated 24 July 1908, executed a few days before his death,,, devised in absolute right the residue of his estate to his three surviving sons in equal shares. Her husband, Surath, the eldest of these surviving sons, accordingly got in absolute right one-third of the properties in suit and on his death in 1909, she, as his heir, has inherited the same. The defence of the contesting defendants (1 to 3) is that under the said will the plaintiff has no right to the said share and some of the properties in suit are their self-acquired properties. The relationship of the parties to the suit will appear from the following pedigree:

(2.) The Subordinate Judge found that the plaintiff has a third share in the properties left by Bisweswara and that only some of the properties in suit are the self-acquired properties of the contesting defendants. The last mentioned finding is not attacked by the plaintiff-respondent but the finding of the learned Subordinate Judge to the effect that one anna share out of the two annaa share of property No. 1 of Schedule Ka of the plaint is joint property of the plaintiff and the defendants has been attacked by defendants 1 to 3 who are the appellants before us. They further contend that under the will of Bisweswara which had been probated in 1910, the plaintiff has no claim to a share of the properties left by him that is they say that the said will has been misconstrued by the learned Subordinate Judge. This is the principal question in the appeal and I proceed to consider it at once. The will (II 38-39) is a short will in the Bengali language consisting of seven paragraphs. Of these para. 1 and a portion of 5 (referred to hereafter as para. 5) are important and on their effect depend the rights of the parties to the suit Para. 1 runs thus: After my death the abovementioned three sons of mine will become the maliks of the properties left by me in equal shares, and of them my eldest son Sreeman Surath Chandra Mondal will be the executor of the will.

(3.) Then follow three paragraphs which deal with the devolution of the office of executor and with the payments of his debts which were substantial in amount. The relevant portion of para. 5 runs thus: God forbid, if any of my sons die without leaving any son, then his widow will not get any share of the property left by me but as long as she will live she will get such maintenance as my estate will permit; if any of my sons die leaving one or two daughters they too will not get any share but their marriage expenses will have to be paid from my estate; if any of them be a widow or be not maintained in her husband's family, she too will have to be maintained....