JUDGMENT :

Soumen Sen, J.

1. The appeal is arising out of a judgment and decree dated 12th January, 2009, in a suit for declaration, recovery of Khas possession and mesne profits.

2. The appellants are the legal heirs of Bilash Behari Shaw @ Saha.

3. Briefly stated one Bonku Behari Shaw @ Saha was the common ancestor of the parties. Bonku Behari owned several properties both movable and immovable. During his life time Bonku Behari executed his last Will and testament on 25th November, 1925. Bonku Behari had two wives. His first wife Smt. Radha Rani predeceased Bonku Behari and before the execution of the Will. From the first wife Bonku had four daughters and one son. At the time of execution of the Will his son Bonobehari and two daughters Brojo Gopi and Nidhubala were alive.

4. Smt. Moharani Dasi was the second wife of Bonku Behari. From the second marriage Bonku had three sons namely, Bipin Behari, Pulin Behari and Bijoy Krishna and three daughters namely, Shayma Shakhi, Nanda Rani and Menaka Rani. At the time of execution of the Will Bonobehari, Bipin Behari and Pulin Behari were all major and Bijoy Krishna was minor.

5. The Will gives a list of immovable properties bequeathed in favour of his four sons as mentioned in the Schedule of the Will.

6. Under the Will Bonobehari, Bipin Behari and Pulin Behari became the owner of premises no.79 Narkel Danga North Road, 8 Duff Street, 38 Amherst Street respectively.

7. Bijoy Krishna was given five premises namely, 1A and 1B Ghosh Lane, No.85A Manicktala Street, No.18A and 18B Binod Behari Saha lane. Under the bequeath only the male heirs of his four sons would be entitled to succeed. In other words, the Will only recognized male line of succession on the death of his sons. They would be entitled to enjoy the properties absolutely with the right of alienation. Bonobehari obtained probate of the Will being probate case no.1681 of 1927.

8. By virtue of the Will and subsequent purchase in a court sale in 1935, Bonobehari became the absolute owner of the property presently known as 122-B Sisir Bhaduri Sarani, Kolkata-700 006 containing an area of land measuring 17 Katha, 9 Chitak, 30 Square feet. Bonobehari was survived by five sons, namely, Biman Behari, Bijon Behari, Bongshi Behari, Bimal Behari and Birinchi Behari.

9. During his life time Bonobehari executed a deed of gift on 4th October, 1943 by which he had gifted demarcated portion of the aforesaid properties in favour of his four sons excluding Biman Behari. The deed of gift has indicated the demarcated portions in Schedule Ka, Kha, Ga and Gha respectively in different colours. The said deed, however, restrained the donees from any alienation and creating any encumbrance. It also delineates the line of succession restricted to the male line. However, it provides that his grand-sons down the male line would have the right to gift or sale etc. The said deed also made specific provisions for succession in the event of death of anyone of his sons without any issue. It mentions the devolutions of interest on the surviving male legal heirs and the order in which it would proceed. In other words, it provides that the sons of the donees shall acquire absolute right, title and interest in the property and allotment of their respective fathers would go to their male legal heirs absolutely and forever and if any of such sons do not have any male legal heirs, the same would go to the male legal heirs of the other lot. Biman was one of the attesting witnesses to the deed of gift executed by his father on 4th September, 1943. Biman was survived by two sons Brojo Behari and Bilash Behari. Bilash Behari died on 17th February, 2000. Bilash Behari was survived by the present appellants.

10. The plaintiff Bratin is the son of Bimal Behari. Bimal was one of the sons of Bonobehari and by virtue of the deed of gift became the owner of the suit property.

11. The plaintiff filed the suit inter alia, for eviction and recovery of Khas possession on the ground that th