Tottenham and O'Kinealy, JJ.
1. These two appeals have been instituted by the three defendants in the original suit which was brought against them all by the plaintiff for the partition of family property left by his father, who died in January 1875.
2. The father was Raj Coomar Roy Chowdhry: the plaintiff is the youngest son: defendant No. 1 was the third son; defendant No. 2 is the son of Raj Coomar's second son, who predeceased him; and defendant No. 3 is Raj Coomar's widow. The eldest son and his son are both dead.
3. The matter now in dispute arises out of the provisions of the will of Raj Coomar. and the question is whether the widow, defendant No. 3, is entitled to any share of the estate on the partition now sought. The plaintiff in his plaint did not question her claim to a share, but alleged that the defendants Nos. 1 and 2 disputed it. And these defendants have contested it throughout the suit and appeal, while they do not deny her right to maintenance.
4. The widow herself claims a share of the estate.
5. The defendants Nos. 1 and 2 objected to the suit on the ground that the plaintiff had not included the whole of the property in which they and himself were interested. This objection, overruled by the lower Court, has been put forward again in appeal, but has not been seriously pressed.
6. As to the substantial matter in dispute, the Court below held that, as regards one-fourth of the estate and as to the whole of the family residence of Raj Coomar Roy Chowdhry, the will operated to exclude the widow from any share on partition; but that as regards the remaining three-fourths of the estate Raj Coomar died intestate, and that the widow was therefore entitled on this partition to have 3 annas out of the 12 annas.
7. In one of the appeals before us her right to this share is contested; and in the other appeal the widow objects to being excluded from the other quarter share of the estate and to being excluded from the family residence called the Barakuti.
8. Probate of Raj Coomar's will was granted to plaintiff and defendant No. 1, two of his sons. We have to determine the meaning and effect of that document. It first recites the properties of the testator; then it recites that he had four sons, whose names are mentioned, and that the second son was dead, and his son a minor. It proceeds to state that the eldest son being addicted to vice and having left the paternal house, it was inadvisable to place any of the property in his hands; and this fact is given as the reason which rendered it necessary to make a will. The testator next dedicates a portion of this property for the worship of an idol and for the performance of the Doorga Pooja; and then he specifically bequeathes to his third and fourth sons and to his two grandsons, the children of the eldest and second sons, the whole of his Barakuti residence with the land pertaining thereto, and to his eldest son he gives his own share in an ancestral dwelling-house. To this son he further bequeathes a monthly allowance of Rs. 75, but he gives the share of the estate, which would otherwise have been his, to his son Surendra Coomar. And he wills that his third and fourth sons and the two grandsons shall be the real heirs of all his property the management remaining in the hands of the two sons during their life-time.
9. We do not agree with the conclusion arrived at by the Subordinate Judge that there is any case of intestacy arising upon this will. The object that the testator had before his mind was to deprive his eldest son of his inheritance, and if, as the Subordinate Judge says, there is no bequest in the 4th paragraph of the will, the result would be that the desire of the testator to deprive his eldest son of the property would have failed. We think that the plain reading of that paragraph is that the third son. Debendra Coomar, and the youngest Bon, Brojendra Coomar, and the two grandsons, Surendra Coomar and Jotindra Coomar, shall be his successors to all his moveable and immoveable properties, and that no intestacy has ensued.
10. In regard to the other question, viz., whether the lady has a right to a share on partition, we are inclined to think that the opinion expressed by the Judge in the Court below in regard to the other share is correct.
11. In the case of Bhoobunmoyee Dabea Chowdhrani v. Ramkissore Acharj Chowdhry S.D.A. Rep. 1860, p. 485, the right of a Hindu in Bengal to make a will affecting his property was discussed, and it was decided, in conformity with the reference from the Judges of the Supreme Court in 1836, that in Bengal a widow has no indefeasible vested right in the property left by her husband, though she has by virtue of her marriage a right, if all the property be willed away, to maintenance.
12. It therefore appears clear to us, following that decision, that if the testator in this case intended to will away his property so as to deprive the widow of her share on partition, he had perfect power to do so.
13. The intention of the testator is to be gathered from the will, and in that he gave Debendra Coomar and Brojendra Coomar, who are his heirs, the same interest as he gave to Surendra Coomar and Jotindra Coomar, who could not succeed by the will to any interest in the property. We think, therefore, that the estate or interest given to each of these was the same, and that the interest was an out-and-out interest unclogged and unfettered by any other devise.
14. The conclusion that we arrive at, therefore, is that as regards this property the lady is not in a position to claim, as of right, under the Hindu law a share in the partition of this property. If that were so, the grandsons, Surendra Coomar and Jotindra Coomar, instead of receiving one-fourth of the property devised, would be only entitled to one fifth. This, we think, is clearly opposed to the intention of the testator as portrayed in the will. But though we are unable to give the widow-appellant the relief she asks, we can and do declare that she is entitled to suitable accommodation in her late husband's dwelling-house, the Barakuti. And this must be provided for her when the partition is made.
15. All parties admit that she is entitled to maintenance, and it will be for them to consider whether this should take the form of a money allowance, or whether a portion of the landed property be assigned to her for her life in lieu of maintenance.
16. The result is that the appeal of the defendants Nos. 1 and 2 succeeds to the extent of reversing the lower Court's finding that as to three-fourths of the estate of Raj Coomar Chowdhry there was intestacy, and its order that the widow obtain 3-16 ths share on partition be set aside.
17. The widow's appeal must be dismissed, excepting only that she is to get suitable accommodation assigned to her in the Barakuti.
18. The plaintiff-respondent will pay the costs of appellants.