RAM SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) THE appeal and the cross -objection in this case arise out of the appellate judgment and decree of District Judge, Alwar, dated January 24, 1961, in circumstances to be stated presently. Smt. Kalawati, the deferdant, died during the pendency of the first appeal and her legal representatives were brought on the record in time.

(2.) SMT . Kalawati became a widow at a very early age. She owned some movable and immovable properties in Alwar and Agra, including a residential house in Alwar. Plaintiff Mohanlal belonged to her caste and 'gotra'. He shifted to her house with his family sometime in 1928 when she was in her early twenties. The plaintiff claimed that he did so for the purpose of providing maintenance and protection to her and that he amply fulfilled this requirement so that out of love and affection Smt. Kalawati executed a registered will (Ex. 1) on November 5, 1934, bequeathingher residential house in Alwar to him along with the plot of land attached to it. The plaintiff claimed further that in 5938 -39 he constructed a building, hereinafter referred to as the suit house, consisting of 5 shops and 2 godowns on the ground floor and a residential portion on the first and second floors, on the aforesaid open land, with the permission and consent of the defendant, after obtaining the sanction of the Municipal Board in his own name. The construction was completed in 1939. According to the plaintiff, the suit house remained in his possession since then and he let it out as its owner. The wife of the plaintiff died sometime thereafter and he began to live with his children in another house built by him in the mean -time. But, according to the plaintiff, he made a provision that the defendant shall maintain herself out of the income arising from the rental of the shops and the godowns of the suit house. For this purpose, according to the plaintiff, he transferred the rent -notes of the shops and the godowns in favour of the defendant and she began to collect the rents under that arrangement. The two other floors of the property, which formed one composite flat, however remained in the plaintiff's possession and one Kishori Sharan (P.W. 1) was his tenant there up to October 2, 1949, It so happened, however, that a misunderstanding arose between the parties and the plaintiff claimed further that after the vacation of the residential portions of the property on the first and the second floors by Kishori Sharan, the defendant took them in her possession in May 1950. At first she used them for religious meetings and the plaintiff did not raise any objection. But when she let out a portion of those premises and refused to vacate them on demand by the plaintiff, the relations between them became strained. The plaintiff learnt that the defendant was intending to mortgage, sell or otherwise transfer the suit property by gift or dedication for a religious or charitable purpose and he therefore instituted the present suit on January 8, 1955 with the above mentioned allegations, on the specific ground that the possession of the defendant on the first and the second floors of the suit property was illegal and unauthorised He therefore prayed for possession but he did not want to disturb the arrangement which he had made for the maintenance of the defendant, during her life time, out of the income of the shops and godowns on the ground floor and merely asked for a permanent injunction restraining her from mortgaging, selling, gifting or dedicating that property in any manner. This is how the plaintiff set out his claim in the suit. Soon after its institution, the defendant revoked her will Ex. 1 on January 10, 1955, under notice Ex' 151 dated January 12, 1955.

(3.) THE trial court framed issues on the points which were in controversy between the parties and dismissed the suit by its judgment dated October 30, 1956. The plaintiff preferred an appeal to the District Judge of Alwar who allowed it in p Article By its impugned judgment, the lower appellate court decreed the claim of the plaintiff for possession of the first and the second floors of the suit house, but rejected the other claim for the issue of a perpetual injunction in respect of the property on the ground floor. Both the parties are dissatisfied with that judgment and the decree and have therefore preferred this second appeal and the cross -objection as aforesaid.