SUDHANSU MOHAN SIRKAR Vs. HARISH CHANDRA DUTTA

JUDGEMENT

(1.) This is an application by one Sudhansu Mohan Sirkar who claiming: to be the adopted son of one Kali Krishna Sirkar has moved this Court under Secs.301 and 302, Succession Act, to direct that the latter's estate, which is at present in the possession of Babu Harish Chandra Dutta, one of the executors appointed under his will, be made over to the petitioner. Kali Krishna Sirkar died on 11th December 1905, after executing a will on the same date. He left behind a widow Srimatya Chandan Bilasini Dasi, an old mother and some nephews. As he apprehended that his wife Srimatya Chandan Bilasini Dasi being young and inexperienced could not manage the estate, he appointed five executors under his will including his father-in-law Babu Dwarka Nath Bose and the opposite party Babu Harish Chandra Dutta, who is the sole surviving executor now. The will is a lengthy document with no less than twenty-one paragraphs, but the only provisions which are material for the purpose of this case are those to be found in paras. 10, 11, 13, 14 and 15. Para. 10 provides that subject to certain legacies and expenses referred to in the preceding paragraphs the whole estate will belong to my wife....She will take from the executors the usufruct of the properties which will be left after meeting the legal expenses of collection, etc., and she will maintain herself with and spend according to her will that amount but she will not be competent either to encumber the properties or transfer them in any way by sale or otherwise. Paragraph 11 recites that Srimatya Chandan Bilasini Dasi shall be competent to adopt a son or sons after the death of the testator but in no case more than two children will be adopted. Para. 13 runs as follows: After the death of my wife my adopted son or sons together will be owners of all the properties of my wife; but so long as my wife is alive the adopted son or sons will not be competent to be malik with respect to any of the properties. Paragraph 15 provides that if the executors apprehend that the properties might be wasted owing to the adopted son or sons being of unsound mind or otherwise "unfit," then after making suitable arrangements for the family deity the rest of the properties will be handed over to the Government by the executors on certain conditions.

(2.) It appears that the petitioner was adopted by Srimatya Chandan Bilasini Dasi after the probate of the will had been taken out in 1906 and it is alleged that on 7 November 1933, Chandan Bilasini Dasi executed a deed surrendering the whole estate to him. The petitioner bases his whole case upon this document and contends that the surrender of the estate by the lady is tantamount to her civil death and so he is entitled to the immediate possession of the whole estate under para. 13 of the will. On the other hand, the case of the surviving executor and Srimatya Chandan Bilasini Dasi who was also represented before us by an advocate is that the deed of surrender was obtained by the petitioner from the latter by fraud and deceitful means and that Srimatya Chandan Bilasini Dasi fixed her thumb impression to it "as desired by the petitioner without knowing anything about the effect of the document."

(3.) Now, whatever may have been the circumstances under which the deed was executed, it appears that the petitioner did not claim possession of the estate in his own right after the alleged surrender but was satisfied with obtaining a registered power of attorney on 1 December 1933 from Babu Dwarka Nath Bose who according to both the parties was the managing executor at that time. This document authorized the petitioner merely to manage the estate on behalf of the said executor. The case of Babu Harish Chandra Dutta, opposite party No. 1, is that after the death of Dwarka Nath Bose on 9 May 1937 the power of attorney ceased to be operative and the estate was taken over by him from the petitioner. Now although the present application purports to have been made both under Secs.301 and 302, Succession Act yet in the course of the argument before us only the latter Section was relied on by the learned advocate appearing for the petitioner.