SAJANBAI Vs. SURAJMAL

JUDGEMENT

(1.) This is plaintiff's second appeal arising out of a suit for declaration of her title to the suit house and for its possession along with mesne profits.

(2.) The material facts giving rise to this appeal, briefly, are as follows :- Panchulal, father of the plaintiff, was possessed of considerable movable and immovable property and carried on business at Mahidpur, district Ujjain. He had only one issue, his daughter Sajanbai, the plaintiff. As he had no son, he had brought up the defendant, who was distantly related to him. On 25-6-1949, Panchulal executed a will, which was duly registered. By that will, he bequeathed some of his houses to the plaintiff and some, to the defendant. As regards the residential house situated at Nagori Bazar, Mahidpur, hereinafter referred to as 'the suit house', he bequeathed it to his wife "Panchibai for life and after her death, to the defendant, provided he maintained and looked after Panchibai, who was mentally deranged. It was stated in the will that in the event of failure on the part of the defendant to maintain and look after Panchibai, the suit house would devolve on the plaintiff and her husband if they happened to maintain and look after Panchibai. It was further stated in the will that in case both the plaintiff and the defendant failed to look after Panchibai, then the trustees appointed by the will would look after Panchibai and manage the suit house. The trustees were also required to manage the other property of the testator as directed in the will. Panchibai, wife of the testator, died in the year 1950, during the lifetime of the testator. After the death of the testator, on 7-8-1951, the defendant, who was residing with the testator, took possession of the suit house claiming it under the will. The plaintiff, therefore, filed the present suit for declaration of her title to the suit house and for its possession.

(3.) The plaintiff's case, in brief, was that the bequest of the suit house made by her father in favour of the defendant was conditional, the condition being that the defendant was to maintain and look after the plaintiffs mother, to whom the suit house was bequeathed for life. It was averred that as the mother of the plaintiff had died during the lifetime of the testator, the bequest of the suit house in favour of the defendant failed and the plaintiff became entitled to the suit house as she was the only surviving heir of the deceased testator. The claim of the plaintiff was resisted by the defendant on a number of grounds but the main ground, which was pressed at the time of hearing of this appeal, was that under the will, the defendant had become entitled to the suit house as the same was bequeathed to him by the deceased testator.