1. This is a suit by two of the six sons of the late Baikunta Nath Sen against their mother and three brothers. Their mother Srimati Hemangini Dasi is now sued in her capacity as executrix of the will of her husband, in her personal capacity, and also as heiress and legal representative of the sixth son, Jagatpati Sen, who died on the 17th April 1907, after the suit was first instituted. The present suit was first instituted on the 20th August 1906. In consequence of the leave under Clause 12 having been informally granted, it was withdrawn and instituted afresh on 14th February 1908. The object of the suit is to have the will of Baikunta Nath Sen finally construed, and to have the property partitioned among those persons, who are entitled to it. An account is prayed for against Hemangini Dasi and, if necessary, administration and other consequential reliefs.
2. The main question for my determination is, whether Hemangini Dasi is entitled on partition not only to the share of her deceased son Jagatpati Sen (which is admitted), but also to another share as a mother on her sons dividing the property among themselves. The solution of this question appears to me to rest solely on the construction to be put upon the will. If that will contains an express gift of Baikunta Nath Sen's property to his sons, then the right to the widow to a share on the partition is defeated: See Debendra Coomar Boy Chowdhry v. Brojendra Coomar Boy Chowdhry (1890) I.L.R. 17 Calc. 886, and she takes only the share inherited from her son Jagatpati, i.e., 1-6. If on the other hand the will merely operates to postpone the partition and the sons take the property as on an intestacy, it appears clear from the texts and the authorities, that the widow is not deprived of her share, as such, by reason of her having inherited a share from a deceased son; that is to say, in that case she would take 2-7ths.
3. Baikunta Nath Sen died on the 16th of April 1905 and his will, which was made in the year 1890, was duly proved by his widow, the sole executrix. The will, directed that the property should be divided among his sons in equal shares, when his youngest son Jagatpati attained the age of 21 years. This happened on 1st August 1906. In 1895 the present plaintiffs filed a suit (No. 592 of 1895) in this Court claiming (as they now do) partition of the property. That suit was heard by Ameer Ali J., who decided that there was an absolute gift of the income of the whole estate to the executrix to be applied by her at her sole discretion up to the date fixed by the testator for division among his sons; that the postponement of their enjoyment was therefore valid; and that that suit was premature. It was accordingly dismissed. The learned Judge also held that there was no gift whatsoever to the sons, but merely a postponement of the partition. It would seem however, that the decision of this last question was not absolutely necessary for the determination of that suit, and it cannot therefore be regarded in any way as res judicata between the parties. An issue was also raised in that suit, but not decided, whether the widow would be entitled to a share on partition. The translation of the will, which was made for the purposes of probate, appears to be wanting in accuracy. Counsel on both sides have taken objections to it, Mr. Chakravarti criticising the translation of Clause 1 and the Advocate-General that of Clauses 4, 6 and 7. With their assistance and that of my interpreter I have had no difficulty in ascertaining the true meaning.
4. Clause 1 should run: Upon my demise my movable and immovable properties shall vest (benoisto) and all affairs in connection therewith shall be performed according to the provisions hereof.
5. Clause 4: The said executrix shall, regard being had to the condition of my property, defray the necessary expenses, & c.
6. Clause 6: The Government securities, which I have made to stand in the name of my wife, Srimati Hemangini Dasi, my sons shall have no right thereto.
7. Clause 7: On my youngest son Sriman Jagatpati Sen attaining the age of 21 years the said executrix shall divide my properties among my sons in equal shares (tullanse bibhag koria diben).
8. The opinion expressed by Ameer Ali J. is not binding upon me, but it is entitled to weight and I should not venture to differ from it, unless I was compelled.
9. After giving the will my best consideration however I have arrived at the same conclusion, namely, that it contains no gift to the sons, but merely operates to postpone partition to a particular date, with directions as to management; in the meantime the property being vested in the executrix for the latter purpose. I can find in the will no words of gift or words that can be interpreted as such. The sons take as the law prescribes and not by any bequest of their father. In this respect the case appears to me to be not distinguishable from the case of Kishori Mohan Ghose v. Moni Mohan Ghose (1885) I.L.R. 12 Calc. 165 it is true, that in that case there was no intermediate gift, though the testator directed that the executors should manage the estate, until his youngest son attained majority. The direction there also was to 'divide the estate amongst the sons in accordance with the shastras.' I do not think that the addition of the words 'in accordance with the shastras' can make any difference. In either case the sons would take according to the Hindu Law. There, as here, there was no bequest to the sons, but merely directions as to management for a certain time and then partition. I cannot see that this ruling has been in any way affected by the case of Sorelah Dossee v. Bhooban Mohan Neoghy (1888) I.L.R. 15 Calc. 292), which decided that the mother's share is taken, not from the father's estate by inheritance or by reason of survivorship, but from the sons, in lieu of or by way of providing for that maintenance, to which she is entitled as against them.
10. If the mother is entitled, as I think she is, to a share on the partition, her right is not affected by the fact that she has already inherited a share from one of her sons. See Jugomohan Haldar v. Sarodamoyee Dossee (1877) I.L.R. 3 Calc. 149. That ruling of Kennedy J. is founded on the text in the Dayabhaga, Ch. III, S. II, para. 31, and there appears to be no doubt as to its correctness. The only other matter, which I need notice, is one as to which there is no dispute. It is conceded that in estimating the share, to which the widow is entitled on partition, credit must be given for any property, which she has received as stridhan from her husband's estate, e.g., in this case the Government securities mentioned in Clause 6 of the will. The share, which she takes as heiress of her son, Jagatpati Sen, is not stridhan, in that she has only a woman's state. As to setting off stridhan property, which has come to her, See Jodoonath Dey Sircar v. Brojonath Dey Sircar (1874) 12 B.L.R. 385, and Kishori Mohan Ghose v. Moni Mohan Ghose (1885) I.L.R. 12 Calc. 165.
11. In the view that I take of the case it is unnecessary to discuss the question of the widow's right to maintenance. There will be a decree as follows: Declare that of the estate of Baikunta Nath Sen, deceased, the plaintiffs and the male defendants are entitled each to 1/7th absolutely, and that Srimati Hemangini Dasi is entitled to 2/7ths, 1/7th as heiress of her deceased son Jagatpati Sen, and the other 1/7th in her right as a Hindu mother on partition. Enquire of what that estate consisted (1) at the death of Baikunta Nath Sen, (2) at the date fixed by the testator for partition, viz., 1st August 1906 Hemangini Dasi to account for all receipts and disbursements subsequent to the last-mentioned date (this is consented to by the Advocate-General on her behalf). Inquire what stridhan property has come to Srimati Hemangini Dasi from her husband and take it into account in estimating the 1/7th share, which she takes as mother on the partition.
12. Costs of all parties of this suit, including reserved costs, to come out of the estate. Commissioner for partition to be named by the parties before the Registrar within a fortnight.
13. Commissioner to have power to make separate returns as to the movable and immovable properties respectively. Commissioner to have liberty to sell, the properties. Executrix to divide the approximate net income in the meantime among the various beneficiaries.