SANT NARAIN MATHUR Vs. RAMA KRISHNA MISSION

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the Allahabad High Court reported in AIR 1973 All 249 affirming on appeal the decision of the trial court whereby a decree for possession of the property in dispute had been awarded in favour of Capt. J. N. Mitra deceased-plaintiff, now represented by Rma Krishna Mission and other respondents, against Smt. Dayali Devi and Smt. Deva Devi deceased-defendants, now represented by Sant Narain Mathur and other appellants. Although the question involved in appeal lies within a narrow compass, the case has a long history going back to the end of the last century, and it would, therefore, be necessary to set out the detailed facts, Dr. Chandan Singh who hailed from Pilibhit settled in Dehra Dun towards the end of the last century. Dr. Chandan Singh had two sons Tegh Singh and Shamsher Singh and two daughters Deve Devi and Lachmi Devi. Dayali Devi was the wife of Shamsher Singh. On March 26, 1897 Dr. Chandan Singh executed a will. After making provision for the maintenance of his two wives and the marriage expenses of daughter Deva Devi, Dr. Chandan Singh bequeathed his estate in equal shares to his sons Tegh Singh and Shamsher Singh for their lifetime The relevant part of clause 6-B of the will read as under:

(2.) On December 10, 1946 Capt. J. N. Mitra applied for grant of probate of the will of Shamsher Singh in the Allahabad High Court. Dayali Devi contested the aforesaid petition and also set up a rival will. The High Court did not accept the plea of Dayali Devi regarding the rival will. Probate was granted to Capt. Mitra on March 18, 1949, Dayali Devi filed Letters Patent Appeal against the order of the single Judge granting probate to Capt. Mitra but her appeal was dismissed on March 14, 1952.

(3.) On July 15, 1952 Dayali Devi filed civil suit No. 54 of 1952 against Capt. Mitra, Rama Krishna Mission and Deva Devi in the court of the Civil Judge Dehra Dun for a declaration that she was the owner of all movable and immovable properties of her husband Shamsher Singh. According to the claim of Dayali Devi's, as the legal heir of Shamsher Singh she became entitled to the aforesaid properties under the will of Chandan Singh. Dayali Devi' suit was dismissed by the trial court on November 7, 1958. It was held that Dayali Devi did not acquire any interest under the will of Chandan Singh. The trial court came to this conclusion on the basis of the Privy Council decision in Tagore v. Tagore, (1872-73) Ind App Sup Vol. p. 43 (PC) that a bequest in favour of unborn persons was void. It was observed that Chandan Singh did not intend to give any property to any legal heir of his sons except to their sons. The court held that part of property bequeathed by Shamsher Singh was his self-acquired properly. It was held that Shamsher was entitled to one-half share for his life in the property bequeathed to him by Chandan Singh. Regarding the other half share which was bequeathed for his life to Tegh Singh, the Court held that after Tegh Singh's death Shamsher Singh became absolute owner of that. As Dayali Devi was held not entitled to the property in question under the will of Chandan Singh, her suit was dismissed.