SURESH CHUNDER MOOKERJI Vs. TARACHURN CHATTERJI

JUDGEMENT

(1.) THE Appellant (one of the Defendants in the suit) is the son of Anund Chunder, who died in 1850. The Respondents (the Plaintiffs in the suit) are the grandsons of Madhub Chunder, the brother of Anund. He died on the 14th of October, 1845. Madhub Chunder had a son Kali Churn, who died on the 23rd of October, 1853, after attaining majority, and a daughter Thako-moni, the mother of the Respondents. Kali Churn left a widow Matangini, who died on the 21st of December, 1879. The property in suit is the share of Madhub in the joint property of himself and Anund, and the Respondents are entitled to it by inheritance if it is not disposed of by the will of Madhub, which was made shortly before his death, or by the will of Kali Churn, by virtue of one or the other of which the Appellant claimed to be entitled to the property. It was not disputed that the will of Kali Churn was genuine, and Madhub's was found to be so by both the lower Courts. The only questions in this appeal are as to the construction of these wills.

(2.) THE will of Madhub addressed to his brother Anund, after stating that he had a half-share in their joint property, and giving directions for the payment of debts and the maintenance of his wife and son and daughter, and the education of the son and other matters, says, "God forbid but if my minor son should die and my daughter should get married and a grandson be born, then on the said grandson's attaining majority you will give him half of my share whatever it may be and give half to your eon, God forbid, but if she having no son becomes a widow then you will pay her Rs. 4 a month for maintenance. You shall perform the Sharodia (Doorga) puja, srads of parents and others, and pay-perquisites and presents to the spiritual guide and family priest according to the circumstances and your sense, God forbid, if you die before my son and daughter attain majority then you may appoint attorney whomsoever you may think fit. You shall account for and make over whatever remains of the estate after payment of debts to my son when he comes of age. If you be of opinion that my half-share should be sold and Company's papers should he purchased (with the proceeds) you may sell it for its proper value. Further if my only son dies before he gets children my wife may with your consent adopt a son." It has been found by the High Court and is not now disputed that Tarachurn was horn before the date of this will.

(3.) THE will of Kali Churn is now to be considered, as if the Appellant has any title to the property it must be under that. In the official translation of it in the record of proceedings, it is said in several places to be torn and illegible, and it was agreed before their Lordships that the statement of it in the judgment of the Subordinate Judge should be taken as correct. This is as follows, the figures 1, 2, &c., being inserted by the Judge.