JYOTISH CHANDRA CHAUDHURI Vs. PROFULLA CHANDRA SANYAL

JUDGEMENT

(1.) This appeal is on behalf of defendants 2 and 3 and it arises out of a suit commenced by three plaintiffs for recovery of a sum of Rs. 1763 odd annas alleged to be due as two-thirds share of certain annuities payable for the years 1336 to 1342 B.S. under the terms of a deed executed by the predecessor of defendants 1 to 3. There was also a prayer for declaration of a charge in respect of the amounts decreed upon the estate left by the grantor.

(2.) Now, the facts are not disputed. Defendants 1 to 3 represent the estate of one Bhairab Chandra Chowdhury, who created an annuity in favour of his daughter Shiba Sundari and her lineal descendants by a document executed on 7 February 1856. The material portion of the document stands as follows: You are my daughter and I being pleased very much with you, I wanted to give you some immovable property for defraying the expenses, of your food and clothing hut (hat not being possible now I am creating this mashohara in your favour fixing a sum of Rs. 41 and annas odd per mounth or Rs. 500 a year as your allowance. la my absence you will be entitled to realize this amount together with your sons, grandsons and other heirs of your body from my heirs and successors.

(3.) Then there was a clause providing that none but the lineal descendants of the grantee would be entitled to have this allowance and that the daughters and other agnatic relations of the said, daughter Shiba Sundari would not be entitled to the allowance. It appears that Shiba Sundari enjoyed the annuity during her lifetime and she died leaving behind her four sons, to wit, Mahendra, Prasanna, Harendra and Narendra. Of these four sons, Harendra died first without leaving any wife or issue and Narendra, the fourth brother, is alleged to have separated from the other two, who continued to live together in common mess. Mahendra died next leaving a widow named Rashmoni. After that Narendra died and his son Surendra has been made a pro forma defendant in this suit. Prasanna died last and his two sons were Ramesh and Suresh. Both these brothers are dead. Plaintiffs 1 arid 2 are the two sons of Suresh and plaintiff 3 is the widow of Ramesh. The three plaintiffs claim two-thirds share of the annuity as representing the line of Prasanna who is alleged to have got besides his own one-third share the other third share of Mahendra after the death of the latter. The defence of the contesting defendants was that no charge was created by the deed and none could be declared by the Court. It Was contended further that the annuity being descendible only to the lineal heirs of the grantee the shares of Harendra, Mahendra and Ramesh must have lapsed and reverted back to the grantor and his heirs. In other words, the contention was that the plaintiffs were entitled to only one-eighth share in the annuity created in favour of Shiba Sundari.