KANHYA LAL MISSIR Vs. MTHIRA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff appellant who claims to be the sister's son of one Madan Mohan Lal for a declaration that the alienations of Madan Mohan Lal's properties by defendants 1 to 6 are not binding on him. Madan Mohan Lal, who was the treasurer of the Patna Branch of the Bank of Bangal (now incorporated with the Imperial Bank), died on 30 January 1882, leaving a will, dated 21 December 1881, of which probate was obtained by Baijnath Prasad Sarma, defendant 6, the executor named in the will. By this will Madan Mohan Lal bequeathed his estate to Mt. Ratan Kuar, widow of his paternal cousin Ghanshyam Das Missir, for her life and after her death to her daughter Mt. Hira Bibi (defendant 1) and her "children (aulad) successively one after another". There was, however, a proviso that in case a son was born to Hira Bibi he would take the estate absolutely. It is not disputed that only a life estate was given to Katan Kuar and that a son of Hira Bibi was to get an absolute estate, but the nature of the estate given to Hira Bibi and her children if she had no son is one of the matters of controversy in the suit.

(2.) The plaintiff's case is that the will does not give more than a life estate to her and that the bequest in favour of her children failed on account of her having had no child during the lifetime of the testator; that therefore there will be an intestacy on the death of Hira Bibi and as he, being the sister's son of Madan Mohan Lal, got a vested interest in the estate on Madan Mohan Lal's death subject to any life estate created by the will, he will succeed to the estate on the death of Hira Bibi. He alleges that Hira Bibi, her sons and her husband, defendants 1 to 6, have made various transfers of the properties, a list of which has been given in Schedule 2, of the plaint, and he seeks a declaration that these transactions will not be binding upon him when he will succeed to the estate of Madan Mohan Lal on the termination of the life estate of Hira Bibi. Defendants 7 to 18 are the transferees against whom the declaration is sought. Though it is not in the pleadings it was also contended by Mr. Mullick for the plaintiff appellant as an alternative case that even if any daughter or daughters of Hira Bibi was or were in existence at the time of the testator's death, she or they also will take only a life estate and there will be an intestacy thereafter, as only a son of Hira Bibi was to get an absolute estate.

(3.) Though written statements were filed by defendants 1,3, 4 and 5, the main contest was on behalf of defendants 7 to 10, 11, 12, 14, 17 and 18 who are transferees of the disputed properties. Defendants 15 and 16 compromised the suit and it was dismissed as against them. The defences with which we are concerned in this appeal are: (1) that the plaintiff is not the sister's son of Madan Mohan Lal and has no right to his estate; (2) that Hira Bibi gave birth to a son (Anant Prasad, defendant (2), during the lifetime of the testator and that he took an absolute estate under the will and therefore the plaintiff has no right to question the transfers; (3) that by the will Hira Bibi was given an absolute estate and, therefore, the plaintiff has no right to the estate even if Hira Bibi had no son at the time of the death of Madan Mohan Lal, and (4) that the plaintiff's suit in respect of some of the transactions is barred by limitation under Art. 125, Schedule 2, Lim. Act. The transferee defendants further allege that the plaintiff whose daughter was admittedly married to Basant Prasad (defendant 3), a son of defendant 1, has been set up by defendants 1 to 6 to lay claim to the properties in order to regain them after they had transferred them.