Moti Lall and Another vs Ramkhelawan Das

Ross, J.—This appeal raises a question of the construction of the Will of one Kandhai. The plaintiff and defendant No. 4 are the nearest agnates. The defendants Nos. 1 and 2 are the sons of a daughter of a brother of the testator. One of the provisions of the Will related to 1 bigha and 5 kathas of land and it is this property which is the subject-matter of the suit. The plaintiff claimed to be jointly entitled to this property along with defendant No. 4 on the ground that it had not been disposed of by Kandhai in his Will.

The Munsif held that the property had been disposed of in favour of defendants Nos. 1 and 2; but this decision was reversed by the Subordinate Judge. The Will recites that these defendants Nos. 1 and 2 lived with the testator as his own children. Alter other dispositions of property the testator goes on to say that he has kept the remaining 1 bigha 5 kathas raiyati kashat for the purpose of performing the sradh ceremony of the executant. After the death of the executant, Moti Lall and Debi Lall, sons of Jaggu Mahto, who are the own maternal grandsons of Hossaini Mahto, the executant''s brother, and who are the Chachera grandsons of the executant, will obtain possession over the same and sell it and perform the sradh ceremonies of the executant from the consideration money and the cremation ceremony and sradh of the executant may be performed by one of the two Chacliera grandsons only. "And I give to Moti Lall and Debi Lall mentioned above after my death all the properties." In the schedule annexed to the Will there is a further reference to this piece of land as follows: "This land the executant has kept for performing his funeral ceremonies and Moti Ifall and Debi La1l are hereby authorised to perform the funeral ceremonies after my death by one of the above-mentioned persons and sell the land as described below and spend the same in my sradh." The two legatees being minors the funeral ceremonies were actually performed by defendant No. 4. The contention of the plaintiff is that the result of this has been that there is, an intestacy with regard to 1 bigha and 5 kathas. I am wholly unable to see why this result should follow. The testator willed that this 1 bigha 5 kathas should come to the possession of defendants Nos. 1 and 2 and he directed them to sell it and perform his sradh ceremonies with the proceeds; but, if the sradh ceremonies were validly performed by a volunteer, the plain result was that they took the property free from the burden. I see absolutely no reason why, because a volunteer stepped in and performed the sradh ceremonies, this property which was specifically devised should go off to the agnates as intestate.

The appeal is decreed with costs and the decree of the Subordinate Judge is set aside and the decree of the Munsif is restored.