JIBAN KRISHNA DAS Vs. JITENDRA NATH DAS

JUDGEMENT

(1.) I have read the judgment prepared by Mukherjea J. I agree with the reasoning and conclusion of that judgment and have nothing to add. Mukherjea, J. This appeal is directed against a judgment of a division bench of the Calcutta High Court dated November 14, 1944, by which the learned Judges reversed a decree of dismissal made by the Subordinate Judge, First Court, Alipore, in a suit for partition and accounts.

(2.) The material facts are not controverted and may be briefly stated as follows. The properties which are described in the schedules to the plaint belonged admittedly to one Kedar Nath Das, who died on December 18, 1920, leaving behind him a will which was executed on July 5, 1916. The near relatives of Kedar who survived him were his wife Golapmoni, two sons Bejoy Sashi and Benoy Sashi and two daughters Hemnalini and Mrinalini. There were four grandsons also born during the life-time of the testator and actually in existence at the date of his death, three of whom were sons of Bejoy Sashi and one of Benoy Sashi. By his will, the testator disinherited both his sons. The younger son Benoy Sashi was given an allowance of Rs. 50 per month. A similar allowance was given to the family of Bejoy Sashi but not to Bejoy Sashi himself; and after giving certain legacies to his two daughters and making provisions for his wife and the education and marriage expenses of all his grand-children, the testator gave the entire residuary estate to the sons of his two sons.

(3.) It appears that after the death of the testator, neither of his two sons took any steps for taking out probate of his will; on the other hand, they applied for and obtained a succession certificate for collecting the debts due to the deceased on the footing that he died intestate. On July 31, 1922, Bejoy Sashi died. On September 4, 1933, Hemnalini, the elder daughter of the testator, filed an application in the Court of the District Delegate at Alipore for letters of administration in respect of the estate of her deceased father with a copy of the will annexed. This application being opposed by Benoy Sashi, it was returned to the applicant and was refiled in the Court of the District Judge at Alipore, where it was registered as a contested suit. During the pendency of these proceedings, the three sons of Bejoy Sashi filed, as plaintiffs, a suit for partition and accounts in the Court of the Subordinate Judge, 24 Parganas, and it is out of this suit that the present appeal has arisen. Jiban Krishna, the minor son of Benoy Sashi, is defendant No. 1 in the suit and Benoy Sashi himself figured as defendant No. 2, though he died pending the hearing of the suit. The other two defendants are Hemnalini and Mrinalini, the two daughters of the testator, to whom certain legacies were given by the will. Golapmoni, the widow of the testator, was already dead when the suit was instituted. As the proceedings for letters of administration were, at the date of the institution of the partition suit, still pending before the Probate Court, the reliefs prayed for by the plaintiffs were cast in an alternative form. It was prayed in the first place that if the Probate Court pronounced in favour of the will, the plaintiffs, as the three grandsons of the testator, were entitled to separate possession, by partition, of a three-fourths share of the residuary estate of the testator after excluding the legacies payable under the will, and defendant No, 1 was entitled to the remaining one-fourth share. The alternative prayer was that in case the decision of the Probate Court was against the existence or genuineness of the will and the properties of Kedar were to devolve as on intestacy, the plaintiffs were entitled to half share of the entire property, the other half going to defendant No. 1.