1. This is an appeal by the defendants against the decision of the Subordinate Judge of Howrah, dated the 17th February 1917, decreeing the suit in favour of the plaintiffs. The plaintiffs' suit was to recover possession of an 8-annas share of certain properties four in number scheduled to the plaint and his claim was resisted on the ground that these properties were included with other properties in a mortgage executed on the 3rd May 1889 by one Nagendra Nath Mullick in favour of one Kedar-Nath Kundu Choudhury in respect of which Kedar-Nath obtained a decree on the 19th September 1892 under which he brought the mortgaged properties to sale on the 28th April 1895 two of the properties in suit being purchased at the sale by defendants Nos. 1 to 7 and two by one. Mohini Nath Mittra who subsequently conveyed these to the defendants.
2. The properties in suit properly belonged to one Shama Sundari Dassi as her yautuk stridhan. She died on the 23rd March 1872 leaving her surviving two sons, Jagendra Nath Mullick and Nagendra Nath Mullick, a childless widowed daughter, Kailash Kamini, and a daughter Krishna Bhabini. The mother of the plaintiff. Shama Sundari, left a Will dated the 16th March 1872 whereby, after appointing her sons Jagendra and Nagendra trustees, she directed them: to make proper arrangements for managing and preserving her properties and to pay out of the profits, after deduction Government revenue and other expenses, the cost of repairs and maintenance of Kailash Kamini and of her daughter-in law Nistarini, (who was the widow of Khagendra Nath, a son of Shama Sundari, who predeceased her) and the expenses of certain religious observances and ceremonies, and directed that the balance of the profits should be appropriated and, enjoyed by Jagendra and Nagendra during their life time. The Will further provided that on the death of Jagendra and Nagendra the son or sons born of their loins who might be alive should be equally and fully entitled to the properties and should possess and. enjoy the same. The Will further provided that none of the properties should be sold for the son's debts and that they should not hi entitled to transfer the same in any way by gifts, sale, etc., but that if they desired to do any meritorious work they would be entitled to pay reasonable expenses for the same out of the profits of the properties and that if, after starting any meritorious work, they died their heirs should be bound to finish the same. The Will contained a provision that if the income of the estate was insufficient to pay the malguzari payable to the Board of Revenue the sons would be entitled to pay the same by mortgaging the properties.
3. On the 10th December 1872 Jagendra and Nagendra obtained a Succession Certificate. On the 15th July 1884 Jagendra died childless leaving a widow. On the 17th September 1886 Probate of the Will of Shama Sundari was granted to Nagendra who, on the 3rd May 1889, executed the mortgage, already referred to, to secure sums said to have been previously borrowed to pay Government revenue and sums then borrowed for the same purpose. Nagendra died intestate on the 9th June 1891 and on the 10th December 1891 letters of Administration of his estate were granted to his daughter, Girbala. Apparently before the Subordinate Judge the suit proceeded upon the basis that Jagendra and Nagendra acquired absolute interest of Sham Sundari's estate (see the finding of the Subordinate Judge upon the third issue.) In the plaint as originally drawn the plaintiff claimed the properties in suit as heir of Jagendra although he subsequently amended his plaint by inserting an alternative claim as heir of Shama Sundari. The Subordinate Judge apparently thinks that, although Jagendra and Nagendra acquired life interests only under Shama Sundari's Will, their interests were subsequently enlarged into absolute interests by reason of the plaintiff's mother Krishna Bhabini, failing to assert her claim as heiress of, Shama Sundari after Nagendra's death. How this could affect the plaintiff's, claim if otherwise well founded, we find it difficult to understand and it seems to us useles to discuss the finding of the Subordinate Judge on this part of the case. The case for the appellant was based on this finding and if the finding is, as we think, erroneous, many of the arguments raised before us on appeal go.
4. The real position appears to us to be that, upon the true construction of Shama Sundari's Will, Jagendr'a and Nagendra took only life-interests, not absolute interests as the appellant contends, and that as Jagendra had no son and Nagendra no son who survived him (his son Jagendra Nath died in February 1891 and thus predeceased him by three months), there was an intestacy after Nagendra's death of the corpus of the estate If this is the true position as we hold it is, it is not disputed that upon Nagendra's death Krishna Bhabini who had a son, the plaintiff, became the heir to Shama Sundari's estate. This being so, upon her death on the 5th September 1908 the plaintiff as heir of his mother and as heir of Shania Sundari became entitled to the estate unless otherwise debarred. The present suit was filed on the 3rd December 1915, arid consequently no question of limitation arises, but on behalf of the appellant it is urged that as Nagendra was executor and must be deemed to have executed as executor and not as trustee, the mortgage of the 3rd May 1889, the Subordinate Judge was wrong in holding, as he has done, that mortgage was invalid as the leave of the Court was not obtained, and he is also wrong in holding, as he has also done, that there was no necessity for the mortgage it being urged before us that the mortgagee was not bound to enquire whether the money was required or not. We think that it is unnecessary to consider either of these questions.
5. It appears from the decree of the. 19th September 1892 in the mortgage suit (see Exhibit M-3) that the suit was against Nagendra's administratrix, his daughter Giribala, and that no representative of Shama Sundari was brought on the record. This being so, Shama Sundari's estate is not bound and the decree-holder and those claiming under him, that is, the appellant, have acquired no title against the heir of Shama Sundari or Krishna Bhabini.
6. This really disposes of the appeal but the learned Vakil for the appellant in reply contended that, even if the mortgage-decree was not binding, on Shama Sundari's estate that inasmuch as the estate had had the benefit of the mortgage the plaintiff was bound to redeem the mortgage. This contention, as already stated, was raised in reply for the first time, no such contention was raised in the lower Court and it involves other considerations. Firstly, we are told the purchaser at the auction-sale under the mortgage-decree has been in possession for a good many years. It is said from 1901 and that consequently the mortgage-debt, if it was a charge on the estate, has long since been discharged from the rents and profits; and, secondly, it is said that in this suit we are dealing only with four of the mortgaged properties and that if the present contention prevailed they would only be liable to contribute to the mortgage rate ably with the other properties mortgaged and that there is no evidence to the value of these properties. We do not think that at this late stage we can go into this question and accordingly the appeal fails and must be dismissed with costs.