Judgement

Mahajan J. -

These two connected. appeals from the judgment and decree of the High Court of Judicature at Calcutta in appeal from original Decree NO. 43 of 1942 dated 6-5-1946, arise out of Title Suit NO. 63 of 1938, instituted on 21-9-1938 in the Court of the Second Additional Subordinate Judge of Alipore, by Rajlakshmi against the Sens and the Dasses for possession of the properties which represent a four anna share of the estate once held by one Raj Ballav Seal.

2. On 8-6-1870, two days before his death, Raj Ballav Seal,a Hindu inhabitant of the town of Calcutta governed by the Bengal School of Hindu law, executed a will giving authority to his widow Mati Dassi to adopt a son and apointed her and three other persons as executors and trustees of the estate and gave them elaborate directions for the administration and distribution of his extensive properties. Raj Bhallav was one of those persons Who believe in leaving detailed instructions about their property and the manner in which it is to be managed and taken after their death and expect their wishes to be dutifully carried out by those who survive them. How his wishes have been respected by his descendants is now a matter of history. Since the year 1890 this is the eighth or ninth litigation concerning the construction of the testament he made on that fateful day, and if by any means Raj Ballav could be informed of the result of these litigations and was told that it had been held that he, had died intestate,he would surely rise out of me ashes and lodge an emphatic protest against what has happened.

3. Raj Ballav died on 10-6-1870 leaving him surviving his widow Mati Dassi and three grand sons, who were sons of a predeceased daughter by another wife, and one of whom died in 1880 unmarried. The grandsons line will be referred to in this judgment as the Sens. On Raj Ballav s death Mati Dassi entered into possession of the estate and adopted one Jogandra Nath Seal in 1873 under the authority conferred on her. Jogendra married Katyayani, and Rajlakshmi, the plantiff in the suit out of which these appeals arise, is their only child. She was less than one year old when Jogendra died in 1886. Shortly after the death of Jogendra, Mati Dassi adopted Amulya Charan, a brother of Katyayani in further exercise of the authority conferred on her. Mali Dassi died in 1890 and the Sens then appeared to have taken possession of the estate. During the lifetime of Mati Dassi, the two grandsons commenced a suit on 22-7-1890 against Mati Dassi and the other executors then living, Amulya and Katyayani for a declaration of the rights of the parties under the will, administration of the estate, accounts and a declaration as regards their quarter share of the net income.

Trevelyan J. declared that the grandsons were entitled to a one-fourth share of the estate absolutely and directed accounts to be taken. This declaration was granted against Mati Dassi alone the suit having been dismissed against the other defendants. The two grandsons having taken possession of the whole estate after the death of Mati Dassi, Amulya brought a suit on 9-10-1901 against them and Katyayani for construction of the will and a declaration that he was the duly adopted son and heir of Raj Ballav and that as such, he was entitled to a three-fourth share of the estate and the Sens were entitled only to the remaining one fourth share. By a judgment dated 5-1-1903 the trial Court dismissed the suit on the view that under the will the first adopted son had acquired an absolute right, title and interest in the share of the estate left by the will of his adoptive father and he having left a widow and a daughter, Mati Dassi had no authority to make a second adoption. This decision was affirmed on appeal. Amulya Charan Seal v. Kalidas Sen, 32 Cal. 861.

4. On 13-1-1903, eight days after the-decision of the trial Court dismissing Amulya s suit, Katyayani commenced suit No. 11 of 1903 against the Sens Amulya and the receiver a