MT CHHATARPALI Vs. MTKALAP DEI

JUDGEMENT

(1.) This appeal has arisen from a suit for declaration brought by plaintiff 1, Mt. Chhatarpali, claiming to be the daughter of one Moti Rawat, and her two sons, plaintiffs 2 and 3, challenging certain alienations made by Mt. Kalap Dei, defendant 1. Her alienees, thirty-two in number, are also arrayed as defendants. The lower Court dismissed the suit. The present appeal is by the three plaintiffs. The following-pedigree will explain the position of the parties:

(2.) Moti Rawat died some time in November 1906 at Ajudhia in the Fyzabad district, where he is said to have gone, not long before his death, accompanied by his third wife, Mt. Kalap Dei (defendant 1), and his daughter, Mr. Dhanpali. Parties are not agreed as to the object of his visit to Ajudhia. According to the plaintiffs, he was very old and in feeble health, and like a devout Hindu, went to the sacred place of Ajudhia to die; while according to the defendants he had gone there on a pilgrimage and died of cholera. It is common ground, that his daughter, Dhanpali, also died the same day. His three wives admittedly survived him.

(3.) Mt. Kalap Dei claimed mutation of names in respect of the zamindari property left by Moti Rawat on the strength, of a will, dated 5 November 1906, alleged to have been executed by Moti Rawat at Ajudhia. The will leaves practically the whole of Moti Rawat's property to Mt. Kalap Dei (defendant 1) with a chance of succession in favour of his daughter Dhanpali subject to a provision for the maintenance of his other two widows. The latter objected to mutation of names being made in favour of Mt. Kalap Dei. A compromise was arrived at between the parties to the mutation case under which Mt. Kalap Dei agreed to pay Rs. 100 a year to each of her co-widows in consideration of the latter relinquishing their claim to the property of their deceased husband. Accordingly mutation of names was effected in favour of Mt. Kalap Dei. It is not disputed that she has been in possession of her husband's estate and made no less than three gifts to her brother's sons and daughter and to a karinda named Parbhu Nath Dube, defendant 32, and executed a hypothecation bond in favour of Hubdar Chaudhri, since deceased, father of defendants 5 to 7, and another hypothecation bond in favour of defendants 29 to 31. She also executed a taqsimnamah (deed of partition) in favour of certain other defendants. The other two widows of Moti Rawat have since died and do not appear to have ever challenged the right of Mt. Kalap Dei after the compromise to which a reference has already been made. The present suit was instituted on 1 June 1927, by plaintiff 1, who claims to be the daughter of Moti Rawat and, as such, entitled to a reversionary interest in the property left by him. Her two sons claim to be the ultimate reversioners after the termination of the life estates of Mt. Kalap Dei and their mother. The plaintiffs impugn the genuineness of the will relied on by the defendants, and contend that, in any ease, the will confers no more than a limited estate on plaintiff 1. They challenge all the alienations made by defendant 1, and claim a declaration that the same are not binding on the plaintiffs and other reversionary heirs of Moti Rawat. They also prayed for the appointment of a receiver in respect of two of the properties in dispute. The suit was contested by Mt. Kalap Dei, defendant 1, and her alienees, the other defendants. They denied that plaintiff 1 is the daughter of Moti Rawat, but admitted that the other two plaintiffs are the sons of plaintiff 1. They maintain that the will, purporting to have been executed by Moti, is a genuine document and confers an absolute estate on the legatee, namely Mt. Kalap Dei, defendant 1. Legal necessity in respect of all the transactions impugned by the plaintiffs is pleaded.