1. This second appeal Involves the construction of a will executed by one Madan Mohan Adhikary who died on 9th Aswin, 1326 B.S., leaving widow Rangadebi Dassi. The will was executed on 30th Bhadra, 1326 B.S.
2. The plaintiffs claim title to 8 annas share in three rooms -- a pucca room on the ground floor and two other rooms with corrugated iron sheet roofs. They also claim title to a passage for ingress and egress. Their case is that by the said will of 30th Bhadra, 1326 B.S. the testator gave only a right of residence to a man called Gostho, being the son of a distant nephew of the testator and after Gostho's death to his direct descendants. According to the plaintiffs, by the will concerned, should Gostho die without any children or the descendants of Gostho should cease to exist, the property concerned would revert to the testator's wife. It is no longer disputed that the plaintiffs have title to the property concerned, subject to such right of residence as was given to Gostho and his children or heirs, as the case may be. Defendant No. 1 has been proved to be an heir of Gostho. The controversy is whether by the will concerned the testator gave a right of residence to Gostho and his heirs or to Gostho and his direct descendants. Both the Courts have held that under 'the terms of the will a right of residence was given to Gostho and his heirs and that that being so, defendant No. 1 is entitled to be in possession of the property concerned.
3. Mr. Chaudhury on behalf of the plaintiffs has contended that in construing the will both the courts left out of consideration the following clause:
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Mr. Chaudhury contended that although from the preceding clauses a general right of inheritance could be deduced, the clause above quoted had the effect of limiting the bequest and that, in any event, the will, read as a whole, made it clear that the testator's intention was to give a right of residence to Gostho and his children and so on and not to his heirs in general.
4. Mr. Jana, on the other hand, has contended that the words 'santan santati', though ordinarily importing only children, were to be construed to mean heirs and that the tenor of the will was a bequest in favour of Gostho and his heirs.
5. There is no dispute that the words 'santan santati' mean children and not heirs. In our view, neither of the two Courts applied its mind to the effect of the said clause which in unmistakable language provides that should Gostho or his children have no issue, the property concerned would vest in the widow of the testator. There is no dispute that the expressions 'putra poutra dicromay' and 'warihoncromay' used frequentlyin the will indicate a bequest in favour of heirs in general, but the said clause at the end of the willnot only limits the earlier disposition but clearly brings out the intention of the testator to give a limited bequest to Gostho and his children, should he have any children, and to the children's children and so on.
6. That being the position, we would hold that defendant No. 1 is a trespasser and decree the plaintiffs' claim to possession and to mesne profits. We direct a reference as to mesne profits and a decree accordingly.
7. In the result, the appeal is allowed.
8. There will be no order as to costs.