SARADINDU MUKHERJEE Vs. CHARU CHANDRA DUTT

JUDGEMENT

(1.) This is an appeal by the defendant against the decision of the, Additional District Judge of the 21-Pergannas, dated the 5th August 1915, modifying the decision of the Subordinate Judge of Alipur, dated the 9th April 1914.

(2.) It is necessary to state before dealing with the contentions raised by the appellant a few material facts. On the 29th January 1907 one Suresh Chandra Ganguly made his Will and thereby, inter alia, dedicated the bulk of his properties to an idol which he might thereafter establish or which might be established after his death at Benares. In his Will he made provision for the five sons of his two daughters named Keshab, Gopal, Bankim, Khetra and Mritunjoy. Suresh died on the 7th February 1907, and on the 19th November 1907 Probate of his Will was granted to Satis Chandra Sen, the executor named in the Will. Satis died on the 30th January 1908 and Keshab, one of the five grandsons, commenced a suit in 1908 for the construction of his grandfather s Will, for the administration of the estate so far as necessary and for partition. In that suit it was held in accordance with the law as it then stood, that the gift under the testator s Will to an idol to be established thereafter was not a valid gift in Hindu Law, and accordingly on the 5th September 1908 a preliminary decree for partition was passed. On the 15th July 1908 prior to that decree two of the grandsons, Keshab and Bankim, mortgaged to one Sukbilal for Rs. 3,500 their shares in their grand-father s estate, which in accordance with the construction of the Will which had been declared consisted inter alia of the property which the testator had dedicated for the purpose of the idol to be established at Benares. On the 29th September 1908 Keshab and Bankim mortgaged their shares to one Nagendra Nath Mitter for Ra. 6,000, the mortgage of Sukhilal being paid off out of the mortgage money. In August 1909, the decision of the Full Bench* was promulgated which declared that bequests to an idol to be established in future were not invalid in Hindu Law. On the 27th September 1909 Nagendra Nath Mitter assigned his mortgage to one Harendra Nath Mukherjee, who was the father of the appellant. On the 25th February 1910 the suit for partition was withdrawn in view of the decision of the Fall Bench of August 1909. On the 15th May 1908 Government published a notification for the acquisition of 151/2 cottas of land which formed part of the testator s estate. The award was published on the 7th August 108 awarding 1/5th of the compensation money to Gopal, testator s grandson, 2/3ths to the other grandsons, Khetra and Mritunjoy, and the remaining 2/5ths to Keshab and Bankim.

(3.) Harendra obtained a decree upon his mortgage and on the 18th March 1910, he attached 2/5ths share in the compensation money belonging to Keshab and Bankim in accordance with the award which amounted to Rs. 2,163, and shortly after Harendra withdrew this sum. On the 19th May 1910 administration de bonis non of the testator s estate was granted to the present plaintiff. There was an appeal but the grant was confirmed on appeal.