SEWA RAM Vs. BISHAN DEVI

JUDGEMENT

(1.) The principal question for determination in this appeal under Clause X of the Letters Patent from the decree dated April 19, 1974 of the learned Single Judge, is whether the will (Exhibit P. 5) confers limited or absolute estate on the legatee thereof.

(2.) In order to appreciate the contention raised before us by the learned counsel for the plaintiff-appellants, certain salient features of the case may be noticed. Khushi Ram, last male holder of the property in dispute, executed a will in question in Pakistan devising his property including the land in dispute in favour of his wife Shrimati Sita Bai. After execution of the said will, he died in Pakistan. After partition, Shrimati Sita Bai was allotted land in lieu of the land to which she succeeded as a result of the said will in villages Ahmedpur and Sadipur. She died in January, 1957. On her death, defendant Nos. 1 and 2 Shrimati Bishan Devi and Yashoda Bai claimed succession to that property being her grand daughters (daughter's daughters) and they got the land in dispute mutated in their names. Sewa Ram and Topan Dass sons of Taho Ram brother of Khushi Kam, testator, filed a suit for declaration of their ownership rights in the land in dispute. The suit was strongly resisted by the aforesaid defendants on the ground, inter alia, that the will (Exhibit P. 5) conferred absolute estate on Shrimati Sita Bai and they being her legal heirs were entitled to inherit the property in dispute. The trial Court decreed the suit of the plaintiffs, holding that the will conferred limited estate on Shrimati Sita Bai, but on appeal, the lower appellate court reversed that finding holding that the said will conferred absolute estate on her. On second appeal, the learned Single Judge affirmed the decree of the appellate Court.

(3.) The contention of Shri D.R. Puri, learned counsel for the appellants, is that the learned Single Judge and the lower appellate Court have erred in interpreting the will when it clearly provides limited estate on Shrimati Sita Bai and that the perusal of the will leaves no manner of doubt as to the intention of the testator which was to devise a limited estate on the legatee. In support of his contention, he has relied on a case - Mehtab Singh Gurbachan Singh v. Amrik Singh and others, 1957 AIR(P&H) 146