NATHU Vs. DEVI SINGH

JUDGEMENT

(1.) NATHU Singh (defendant 1) as a legatee and five other persons (defendants 2 to 6) as executor were sued by the plain-tiff-respondent Devi Singh for possession of the suit premises consisting of Shop No. 376 situated outside Kucha Ghasi Ram, chandni Chowk, Delhi, on the ground that this shop of which Chhote Lal was a tenant under the plaintiff could not have been bequeathed by this will and consequently the possession of it of Nathu Singh. the first defendant, as legatee and of the other defendants as executors was unlawful. Besides the decree for possession, a sum of Rs. 1,025 as mesne profits was also claimed by Devi Singh plaintiff for wrongful use and occupation of the suit shop by the first defendant. The suit having been decreed by the Subordinate Judge, Delhi, on 15th of June, 1955, for possession and recovery of Rs. 1,025. the defendants have appealed to this Court.

(2.) BY the rent deed executed on 5th May. 1945 (Exhibit P-1 ). Chhote Lal Kahar agreed to take on rent the demised shop outside Kucha Ghasi Ram on a daily rent of Rs. 1-15-6 which was later enhanced to Rs. 2-8-0 from the plaintiff. It was covenanted in the first place that the payment of rent which was on a daily basis would be made regularly and if the rent was not paid for seven days the landlord would be entitled to recover the entire amount of rent in lump sum together with costs. The second stipulation in this rent note is that the tenant bound himself to keep the demised premises intact and not to "locate anybody in it on rent or without rent" and inter alia to refrain from doing anything in respect of the property which is against law. Chhote Lal carried on the business of a pan seller in the shop which being situated in an important part of the city seems to have attracted good business. During the course of his illness which resulted in his death on 9th July, 1952 Chhote Lal executed a will on 1st of July, 1962 (Exhibit d.-3) and according to its fourth clause the first defendant who is stated to have served him well during his lifetime was made an owner of the goods, bardana etc , of the demised shop and a duty was cast on him to pay Rs. 50 per mensem to mst. Parbati during her lifetime for such period as he was running the aforesaid shop. The shop in dispute is not the only property which was bequeathed by the testator Chhote Lal who left behind no heir. The properties owned by Chhote Lal and bequeathed by this will were nine in all including the shop. The five defendants, other than Nathu Singh, were made executors and were directed to recover the amount due to the testator and to pay the interest on the entire amount to Mst. Parbati widow of Chhatar Mal. It is not necessary to refer to the other directions in the will and it would suffice to mention that the first defendant was directed to do business of the said shop in accordance with the wishes of the executors.

(3.) THE principal points on which controversy has hinged relate to the construction of the will and its legal effects and are covered by the following four issues framed by the trial court :-