Mathura Nath Biswas v. Monmohini Dasya

1. In these apeals the only point in dispute is whether the plaintiff is entitled to a half or one-third of the interest owned by his step-mother Syama Sundari, in a certain property during her life. The plaintiff's father left a Will which provided in respect of this property that his widow and his three sons would get the property left by him in equal shares, that his widow would remain in possession of her share during her lifetime and that on her death his sons would get her share in equal shares. At a later date a suit between the members of the family was compromised and one of the conditions of the deed of compromise was that on the death of Syama Sundari, the three sons, who are the plaintiff and defendants 2 and 3 in that suit, would get in equal shares the widow's, share in the property.

2. It is contended that the same effect must be given to the clause in the rafanama as to the clause in the Will and that the clause of the Will gave one of the sons, Himangsu, only a contingent interest and, as he predeceased his mother on her death the property would be divided between the plaintiff and his half brother in equal shares.

3. In my opinion this contention altogether fails. In the first place, if there were any difference in effect between the clause in the Will and the clause in the rafanama, I should hold that the rafanama superseded the Will, and secondly, even according to the provisions of the Will, under Section 106 of the Succession. Act, Himangsu obtained a vested interest in the share which was to come to him on Syama Sundari's death and consequently on his death and subsequently on Syama Sundari's death, the share which would have gone to Himangsu would be inherited by his full brother Nirode and the plaintiff would be left with the third share given him both by the Will and the rafanama.

4. The result is that these appeals fail and must be dismissed with costs.

5. I allow one set of Pleader's fee for all the appeals.

V.B/R.K

6. Appeals dismissed.