Decided on September 16,1970



- (1.) THIS appeal) is against a preliminary decree for partition. The plaintiffs Nos. 1 and 2 are the sons respectively of Radhika and Tarakeswar while the plaintiff No. 3 is the daughter of Nanda Gopal. Radhika, tarakeswar and Nanda were the nephews (sister's sons) of one jagneswar Poddar who was the owner of the properties in suit. By a will executed on Baisakh 22, 1328 B. S. , and duly probated Jagneswar bequeathed some properties to his Gurudeb, created a Debattar in respect of some other properties and gave some properties to his legally married wife swarnamoyee absolutely with full rights of alienation while some other properties were given to his mistress Sidheswari Baisnabi in life interest without power of alienation. The residue of the properties were given to Swarnamoyee, in life estate. It was further provided in the will that after the death of Swarnamoyee, the properties left and as would be acquired by their income, would devolve in the three nephews in -|2|- annas share each while the remaining -|10|- annas would devolve on the defendant appellant, Ram Narayan an agnatic nephew of the testator who was treated by him and his wife as their son, to be enjoyed by them down to sons and grandsons. It was also provided that if any of the four nephews predeceased the testator or swarnamoyee their heirs would be entitled to the interest of such deceased person.
(2.) THERE was a further provision in the will following the above provision to the effect that the heirs of such nephews predeceasing the testator or Swarnamoyee would never be entitled to divide the estate of the testator but would divide the usufructs less expenses in the said share. It is this clause on the scope and effect whereof the decision of the appeal hinges. The three nephews, the predecessors-in interest of the plaintiffs, predeceased Swarnamoyee and there is no dispute that the plaintiffs thereupon inherited the interest of their respective predecessors-in-interest each in -|2|- annas share while -|10|- annas share had already devolved on the defendant. According to the plaintiffs, they were entitled to a partition of the estate in their admitted shares while according to the defendant, the estate of the testator was impartible in view of the above provision in the will and the plaintiffs were only entitled to the usufructs from the estate in proportion to their interest and further the defendant under its provisions was the sole trustee of the estate. The plaintiffs also claimed accounts from the date of death of Swarnamoyee who died in Jaishta. 1352 B. S. (May and June, 1945)while the defendant admitted his liability for accounts from the death of the last executor to the will Jadunandan Poddar on April 11, 1947. There was another objection in respect of Gadibari property left by the testator which according to the defendant, could not be subject of partition as the defendant, under terms of the will, was required to reside there.
(3.) THE learned Judge held, on a construction of the will, that the deceased nephews were given absolute interest in the estate in -|2|- annas share each and the same was to descend from generation to generation. The plaintiffs thereby acqu red the interest of their respective father's absolute interest and the clause restricting their right to receive usufructs only and also not to "divide the estate" was repugnant to and inconsistent with the nature of the absolute gift provided in the will. The Court also found that the defendant was liable for accounts from the death of Swarnamoyee. It was further held that the Gadibari was also to be subject of partition as claimed and merely because the defendant was to stay therein it could not mean exclusion of their cosharers therefrom. The suit was decreed accordingly in preliminary form and the present appeal is from the said decree.;

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