TALKESHWARI DEVI Vs. RAM RAN BIKAT PRASAD SINGH

JUDGEMENT

(1.) The only dispute in this appeal is in respect of the construction of a registered will (Ext. 1) executed by one Raghunath Prasad Singh on the 21st August, 1938, who died a month or two later. He was married to one Srimati Jageshar Kuer and had a son named Sukhdeo Prasad Singh and a daughter, Srimati Satrupa Kuer. The son died in the lifetime, of the father, leaving two daughters, namely, Srimati Talkeshwari Devi (plaintiff appellant), who was married to Awadhesh Prasad Singh of village Barahiya, and Srimati Shivrani Devi, who was married to Ram Ran Bikat Prasad Singh (Defendant. No. 1) of village Hardi Chapra. Defendant No. 2 is the brother of defendant No. 1. Jageshar Kuer died in November, 1948, and Shivrani Devi died on the 1st November, 1949 without leaving any issue. The relevant clauses of the will are reproduced below :

(2.) In accordance with the provisions of the will, Jageshar Kuer came in possession of the properly and continued in possession thereof till her death. Thereafter, 5 anna 4 pies share of that property devolved on Satrupa Kuer and her heirs, while the remaining 10 annas 8 pies share devolved on Talkeshwari and Shivrani in equal shares. By reason of a private partition between the two, the property in suit set out in the schedule to the plaint, viz., a little over 40 acres of kasht land in village Toralpura in Gaya District, besides the sixteen annas milkiat interest of tauzi No. 1596 in the same village was allotted to Shivrani. Shortly after her death, a dispute arose, as the plaintiff claimed to have become the owner of the property allotted to Shivrani, and a proceeding under Section 145 of the Code of Criminal Procedure, to which the parties were the plaintiff on the one side and the defendants on the other, was instituted on 17/12/1953 by the Subdivisional Magistrate of Aurangabad, and it was decided ultimately in favour of the defendants on 11.4.1957. During the period in which the suit property was under attachment in the said proceeding, a sum of Rs. 12,100 was obtained from the produce of the land, and the same is in deposit with the Subdivisional Magistrate.

(3.) The case of the plaintiff was that, in view of Sub-clause (5) of Clause 5 of the will, she is entitled to the suit property after the death of Shivrani or, in the alternative, a decree for Rs. 33,800, being the value of the said property, and for a declaration that she is entitled to withdraw the said sum of Rs. 12,100. There is a further prayer for an injunction restraining the defendants from withdrawing the aforesaid amount and a claim for mesne profits from the date of the suit to the date of the recovery of possession, besides costs and interest pendente lite. The defence was that, inasmuch as both Talkeshwari and Shivrani were alive at the time of the testator's death as also at the time of the death of Jageshar Kuer, the absolute estate bequeathed to them and each of them got equal share therein absolutely. In other words, the estate which vested in Shivrani was not a life estate, as contended by the plaintiff. In the pleadings, a question has also been raised whether the provisions of Land Reforms Act would affect the suit property; but in the trial Court as well as in this Court, both the parties conceded that this Act was of no consequence in respect of this property. It is also admitted, that the proprietary interest in tauzi No. 1596 vested in the State of Bihar on 26-1-1955; and the present dispute is in respect of the bakasht land which had become kasht since then.