- (1.) THIS appeal is at the instance of the plaintiffs and it arises out of a suit for declaration and permanent injunction.
(2.) KUMAR Basanta Kumar Roy of dighapatia died on August 17, 1920 leaving behind him surviving his mother rani Drabamoyee, three brothers Raja pramoda Nath Roy, Kumar Sarat kumar Roy, Kumar Hemendra Kumar roy and their sons, and his sister before his death he executed a will in Bengali on August 11, 1920. He appointed his three brothers and his sister's husband Mahendra Kumar Saha choudhury as executors of his will, paragraphs 1 to 21 of the will contain provisions for various legacies to different persons including his three brothers and mother. The English translation of paragraphs 22 and 23 of the will is as follows : "22. If excluding the G. P. Notes, war loans, Debentures and foreign bonds mentioned in the different paragraphs of this will which 1 have arranged to dispose of under the provisions of this will, there be any G. P. Notes, War loans or bonds or Debentures which remain un-disposed of, then the executors of this will shall be entitled to spend the same for the supply of water to the people of Rajsahi or for any other work beneficial to the people of Rajsahi. All those works shall be performed with the interest keeping the principal in tact". "23. Excluding all my G. P. Notes, War loans, Debentures etc. and all kinds of Government Promissory Notes and the expenses for my Sradh and for taking the probate of the will, my third brother sriman Sarat Kumar will get all other movable and immovable properties including the share of Techno chemical Laboratory and Works". The probate of the will was granted on September 30, 1921 in Probate Case no. 63 of 1920 of the Court of the district Judge, Rajsahi. The case of the appellant is that the bequest made by paragraph 22 of the will is void for vagueness and uncertainty and, as such, the said bequest has fallen into the residue of the estate of the testator. After payment of the specific legacies under the will, the G. P. Notes, municipal Debentures, War loans, bands etc. of the face value of rs. 1,25,000/- remained. The said mahendra Kumar Saha Choudhury illegally misappropriated a portion of the same and the balance mentioned in the plaint Schedule 'a' which, after conversion, amounted to Rs. 75,200/-, is still lying in the Bhowanipore Branch of the Central Bank of India Limited, the respondent No. 4. It is contended that Kumar sarat Kumar Roy, the predecessor-in-interest of the appellants was the residuary legatee and the bequest as made by paragraph 22 of the will being void it fell into the residue and Kumar sarat Kumar Roy became entitled to the same. The appellants being the heirs of Kumar Sarat Kumar Roy are entitled to the said amount lying in the said Bank. Alternatively, the appellants have claimed that, if on account of the provisions of paragraph 23 of the will, it is held that the Government papers etc. have been expressly excluded from the residuary legacy and, the same passed on intestacy, the respondents excepting the respondent No. 4, who are the heirs of Kumar Hemendra Kumar roy and the appellants have become entitled to the same. There is another alternative prayer, namely, that if the provisions in paragraph 22 of the will are held to constitute a valid trust, then on the death of Mahendra Kumar saha Choudhury, the last trustee and executor, the present heirs of the testator, namely, the appellants and the said respondents are entitled to get possession of the G. P. Notes etc. now lying in the said Bank, as trustees in place of the said Mahendra Kumar Saha Choudhury, who died on December 16, 1931.
(3.) THE appellants' claim has been opposed by the said respondents who are the heirs of Kumar Hemendra Kumar roy. It is not disputed by them that the bequest under paragraph 22 of tine will is void, but it is contended that kumar Sarat Kumar Roy was not the residuary legatee, and the bequest did not fall into the residue. Their case is that they, along with the appellants, inherited the funds mentioned in paragraph 22 as heirs of late Kumar Sarat Kumar Roy.;