- (1.) This is a suit brought by Ganendra Mohan Tagore, the only son of the late Prasanna Kumar Tagore, a Hindu, against Upendra Mohan Tagore, Jatindra Mohan Tagore, and Durga Prasad Mookerjee, who were appointed executors and trustees under the will of the said Prasanna Kumar Tagore, dated the 10th day of October 1862, and also against Surendra Mohan Tagore and others, who were devisees under the said will. The suit is brought to obtain certain declarations of right and relief to which I shall have to advert more particularly. The above-named Jatindra Mohan Tagore was also a devisee under the said will, and it was objected that he ought to have been sued in his character of devisee as well as in his character of one of the executors and trustees. I am of opinion, however, that there is nothing in that objection, for he is a party to the suit, and as such can defend his rights as devisee as well as those in his character of executor and trustee. It should be remarked that the first three defendants were not sued as executors and trustees, and that the words executors and trustees were used merely by way of description. Furthermore, in paragraph 7 of the written statement of Jatindra Mohan Tagore, he, in his character of devisee, particularly submits his rights and interests under the will to the judgment of the Court. The will commences as follows:--(Here Peacock, C.J., read the material paragraphs of the will, and gave the effect of the remainder of the will and of the codicils, and the substance of the plaint, and recited the issues.)
(2.) It is not contended, nor could it be contended with any hope of success, that a Hindu, according to the Bengal school, is incapable of making a will. It was attempted to be shown that the will was void as to ancestral estate, and that the plaintiff is at any rate entitled to maintenance; but those points are, in my opinion, wholly untenable. The Bengal school makes no distinction as to the right of alienation by sale, gift, will, or otherwise between ancestral and self-acquired property.
(3.) In Nagalutchmee Ummal v. Gopoo Nadaraga Chetty : 6 M. I.A. 309 (341), it was said by Lord Kingsdown,--"Throughout Bengal, a man who is the absolute owner of the property may now dispose of it by will as he pleases, whether it be ancestral or not." So in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee 12 M.I.A. 1 (37), decided by the Privy Council, on 4th March 1868, it was said,--"It is too late to contend that because the ancient Hindu treatises make no mention of wills, a Hindu cannot make a testamentary disposition of his property. Decided cases, too numerous to be now questioned, have determined that the testamentary power exists, "and may be exercised it least within the limits which the law prescribes "for alienation by gift inter vivos." See also the case of Soorjeemoney Dossee v. Denobundoo Mullik : 9 M.I.A 123 (135).;