RANI PRAVABATI ROY Vs. SAILESHNATH ROY

JUDGEMENT

(1.) These two appeals are against the common judgment and order No. 114 dated Oct. 9, 1969 passed by the Subordinate Judge, 6th Court, Alipore passed in Misc. Case No. 55 of 1967 and Misc. Case No. 5 of 1968 arising out of Title Execution Case No. 13 of 1967 under Section 47 of the Civil P. C.

(2.) The salient facts of the cases are one Raja Promoda Nath Roy of Dighapatia who was possessed of considerable immovable properties in the various districts of undivided province of Bengal executed a will on February 13, 1926 whereby he appointed his eldest son Prativa Nath Roy as one of the co-executors along with other executors. The said Raja died leaving behind him his widow Rani Girija Kumari and 6 sons and three daughters. The entire estate of the testator was divided into three divisions 'ka' which has been described as main estate was given to the eldest son Kumar Prativa Nath Roy, and 'kha' estate was given to all the sons of the testator excluding the eldest son Kumar Prativa Nath Roy. Under Clause 19 of the said will the testator created 5 legacies of Rs. 2,35,000/- each, that is, Rs. 85,000/-for construction of the house and Rupees 1,50,000/- on account of miscellaneous items and it was enjoined that the said legacies were to be paid out of the income of the 'ga' estate. It was also provided under Clause 20 of the said will that the entire 'ga' estate after repayment of debt and payment of legacies would be obtained by the recipient of the main estate i. e. 'ka' estate. The said will was duly probated on August 15, 1928 in the Court of the District Judge, Rajshahi. Kumar Bijanendra Nath, who was a bachelor died intestate on June 30, 1926. Rajkumari Usha Prova Dey, one of the daughters of the testator brought a suit being Title Suit No. 82 of 1939 for administration of the estate in the Second Additional Court of Subordinate Judge, Alipore. The suit was decreed on 9th of November, 1949 on the basis of a compromise entered into between the parties in Civil Rale No. 1564 of 1946 which was issued against certain orders passed in the said Title Suit. In Clause 'O' of the said compromise decree it has been provided that Rani Girija Kumari agreed to receive interest on the sum of Rupees 2,35,000/- payable to her as heir of Kumar Bijanendra Nath Roy, now deceased, at the rate of 5 per cent during her lifetime, Raja Prativa Nath Roy agreed and gave an undertaking to the court to pay such interest as stated above as and when it would become due to her during her life and on her death the defendant Raja Prativa Nath Roy agreed and undertook to pay the sum of Rs. 2,35,000/- to the then heirs of Kumar Bijanendra Nath Roy, since deceased and until such payment the properties recited in 'ka' and 'ga' schedules of the said will would stand charged for payment of such interest and also of the said capital sum. Clause 15 of the said consent order further has provided that all these payments secured therein by way of charge and or undertaking would be paid by defendant Raja Prativa Nath Roy and would be enforceable against him by the party or parties entitled thereto by execution of that order or decree without recourse to a fresh suit and the defendant Prativa Nath gave an undertaking not to raise any objection relating thereto in such proceeding. All the other executors were discharged and the defendant Prativa Nath Roy became the absolute owner of the 'ga' schedule properties under Clause 7 of the said compromise decree.

(3.) Rani Girija Kumari died intestate on 26th June, 1964 leaving behind her surviving three sons Prativa Nath, Sailesh Nath and Tushar Kumar besides the three daughters. Prativa Nath died intestate on 30th of September, 1964 leaving behind widow Rani Pravabati and two sons Prabhat Nath and Bimalendu Nath, the appellants.