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Judgment
This is a perfectly simple case which has been unnecessarily complicated in the Courts below.
If the will is a valid one as we hold it to be, it is unnecessary to offer any opinion on the question of Hindu Law which the Subrodinate Judge has
discussed at needless length. The District Judge holds the will to be invalid, giving no reason of his own, but merely referring to the authorities
mentioned by the Subordinate Judge.
The judgment of the Subordinate Judge is very puzzling, for in one part he inclines to the view that the Willis valid Whereas in para. 17 he
indicates the opposite opinion and even remarks that both parties'' equally challenge the will.
The suggestion that the will is invalid is put on two grounds: It is said that the1 intention of the testator was to keep the estate intact and to
prevent any partition of it in the hands of his sons and grandsons. We do not think the will bears that construction. There are no words prohibiting
the alienation or partition of the property. The testator probably'' expected'' that the estate would not be divided and made provision accordingly.
But it is another thing to say that he prohibited it. Then it is said that there was no gift of the corpus. The will is inartificially framed. It directs the
division of the. profits of the mittah. into equal shares among his sons and grandsons, following the. decision in Hemangini Dasi v. Nobin Chand
Ghose ILR 3 C. 801 in which the words used were much more dubious than they are here, we hold that it was the intention of the testator that the
corpus should be distributed in the same proportion. It is further contended that there ought to have been a finding on the 5th issue. As to this it is
sufficient to say that the alienees are not parties to this appeal and that this point was not argued in the Lower Appellate Court.
We dismiss the appeal with costs.