SRIMATI KAMINI DEBI Vs. ASUTOSH MOOKERJEE

JUDGEMENT

(1.) THEIR Lordships do not think it necessary to call upon counsel for the Respondents; but they are of opinion, after hearing; the very elaborate and careful argument of Mr. Doyne, that they are bound to decide that the greater portion of the matter comprised in these appeals has been decided in a former suit.

(2.) THE question arises under the will of the testator Ramkomul, which contains a gift of the residue of his estate to a family idol. Then he appoints four persons, his three brothers and one of his wives, to be shebaits of the idol, and he directs them to perform certain matters of ceremony and worship, and after that he says, "the family of us five brothers shall be supported from the prosad," which is translated "the offerings to the deity." That is the whole of the will that contains any gift, excepting specific and pecuniary legacies, to the members of his family.

(3.) NOW the construction of that suit was in this fashion. The then shebait was Modhu Soodim. The sons of Modhu Soodim, of whom the principal appears to have been the present principal Defendant Asutosh, complained that he had made improperly a sale of part of the testator's property to one Adhur Chunder Banerji. They also complained that a person of the name of Bissumbhitr, who was an execution creditor of Ramlcomui, was improperly attaching his assets, and they made Modhu Soodun, Adhur Chunder,and Bissumbhur defendants to the suit, attacking the purchase of Adhur Chunder and the execution proceedings of Bissumbhur. But they also made the present Plaintiff, the heir-at-law, and the other members of the family parties to the suit, and the suit was in effect one for establishing the will against everybody concerned. The prayer was, "That the Court on giving effect to the above will may be pleased to set aside the purchase by the Defendant Adhur" release the items attached by the decree holder, and prohibit the Defendant Modhu Soodun "from infringing the terms of the will hereafter,".