PANCHAGOPAL MOOKERJEE Vs. KALI DAS MUKHERJEE AND DEBI DAS MUKHERJEE, MINORS BY THEIR MOTHER AND GUARDIAN, SRIMATI SARAT KUMARI DEBI

JUDGEMENT

(1.) This appeal arises out of a suit to recover Rs. 1,563 on the basis of the Will of the late Babu Bijoy Kissen Mnkherjee of Uttarpara.

(2.) Bijoy Kiasen died on the 17th Magh 1300 leaving seven sons and several daughters. Of his eons, the eldest, was Narendra Nath, the second Surendra Nath and the third Nagendra Nath. It is unnecessary to mention the names of the other sons. Narendra died on the 16th Pous 1312, and Nagendra died on the 20th Magh 1318. The appellants are the sons and grandsons of Narendra Nath, and the respondents are the sons of Nagendra Nath.

(3.) Bijoy Kissen, by his Will dated the 16th Magh 1300, devised his movable and immovable properties to his sons and gave certain legacies to his daughters and other persons. By the first paragraph of his Will he gave to his eldest son Narendra Nath certain Mauzas within Lot Dwarbashini and certain other Mouzahs in the same loft were given to his second son Surendra Nath Certain other properties were also given to each of them, which are set out in schedules 1 and 2 respectively to the Will. Similarly some specified properties were given, to each of the other sons including Nagendra Nath in other paragraphs of the Will and these are set forth in the schedules. In the second paragraph it is stated: "The profits from the said Lot Dwarbashini are much larger than those from the Mahals allotted to my other sons, and out of the Mahals allotted to my other sons certain portions of the Mahals within Lot Pautra allotted to my third son Nagendra Nath Mukherjee, fourth son Satyendra Nath Mukherjee and fifth son Jatindra Nath Mukherjee are under water. In regard to the profits of the aforesaid Lot, Dwarbashini, I make this provision that my eldest son Narendra Nath Mukherjee shall, year after year, go on paying to my third son Nagendra Nath Mukherjee the sum of Rs. 500 per annum out of the income from the : Mahals that he (Narendra) shall obtain, as per schedule 1 and comprised within Lot Dwarbashini, and shall execute in terms of this Will an agreement in favour of the said Nagendra Nath Mukherjee promising to pay the same that after my death, if the said Narendra Nath Mukherjee does not pay it and execute the agreement amicably, then my third son the said Nagendra Nath Mukherjee, shall, under the provisions of this Will, be competent to take legal action and by instituting a suit recover the said amount from the Mahals appertaining to the share as per schedule 1 and obtaining a decree realise the same, year after year, from the said Narendra Nath Mukherjee, and all these Mahals and other properties shall be fully liable for the said amount : and further that my second son Surendra Nath mukherjee shall, after my death, pay from the profits of the Mahals as per schedule 2 within Lot Dwarbashini, that he shall obtain the sum of Rs. 1,000 per annum to the aforesaid Satyendra Nath, Jatindra Nath Mukherjee, that is to say, Rs. 500 annually to my fourth son Satyendra Nath Mukherjee and Rs. 500 annually to my fifth son Jatindra Nath Mukherjee and execute separate agreements in favour of the said Satyendra Nath and Jatindra Nath Mukherjee each, promising to pay profits at the rate of Rs. 500 per annum, and that if such agreements be not executed, the said Satyendra Nath Mukherjee and Jatindra Nath Mukherjee shall take legal steps and institute separate suits to recover profits at the rate of Rs. 500 per annum, as provided by this Will, out of the profits of the Mahals representing the share as per schedule No 2 and obtaining a decree against the said Surendra Nath Mukherjee, realise the same, and all the properties specified in schedule No. 2 shall be fully liable for the said amounts."