THAKUR LALTA BAKHSH SINGH Vs. LALA PHOOL CHAND

JUDGEMENT

(1.) This is an appeal from a decree of the Chief Court of Oudh dated 12 December 1939, which modified a decree of the Additional Civil Judge of Bara Banki dated 12 October 1936, by affirming the said decree on condition of respondents 1 to 3 hereinafter called the respondents (who were plaintiffs 2, 3 and 4 in the suit) paying the appellants (defendants 1 to 5) a sum of Rs. 13,592. The said decree awarded the respondents 7/20 (equivalent to 6 annas 7 1/5 pies) share in the property claimed in the suit. The suit out of which this appeal arises was originally brought to recover possession of the entire property (16 annas share) mentioned in the plaint; but it came to be confined to a 9 annas share only. Plaintiff 1 considering himself entitled to the entire property in suit under a will dated 30th. March 1896, executed by one Prag Baksh Singh (hereinafter called the "testator"), sold a 9 annas share of it to the respondents by means of two successive sale deeds in 1932 and 1933, and another 2 annas out of the remaining 7 annas share to plaintiffs 5 and 6, who afterwards withdrew from the suit by virtue of a compromise with the defendants. Later on, plaintiff 1 also withdrew from the suit. Thus out of the 6 plaintiffs, plaintiffs 1, 5 and 6 withdrew, and the suit was continued by the respondents in respect of the 9 annas share in the suit property which they had purchased from plaintiff 1. The disputed property was admittedly in the possession of the appellants. The testator to whom the property in suit belonged died on 20 May 1913. His relationship with the appellants and plaintiff 1 will appear from the following pedigree: It will be seen from the pedigree that the testator died issueless but he left two widows - both called Muna Kuar - the senior of whom died on 20 August 1916, and the junior on 24 April 1924. The testator left two sisters also, one of whom Bachchi Kuar had four sons, appellants 1 to 4. Appellant 5 is the husband of appellant 1's deceased daughter. To her appellant 1 had given a village out of the property in suit. It is not now in dispute that appellants 1 to 4 are the sons of the testator's sister who was married to Debi Baksh Singh. It will be further seen that the testator's father's sister married one Shahaj and that Shahaj had a brother called Bhagwan whose first wife was the mother of plaintiff 1. Plaintiff thus appears to be no relation of the testator, but it is not now in dispute that the son of the testator's aunt, the wife of Bhagwan Singh, is Ramanuj plaintiff 1. The main questions involved in the appeal relate to the respective rights of the parties to the suit property. As these depend on the construction of the will of the testator it is necessary to reproduce the relevant portions of it which are as follows : "Para. 1. That after the death of the executant the wife of the executant shall possess and enjoy the entire aforesaid property without any rights of transfer, e. g., mortgage, sale and gift, etc., up to the time her conduct and character is not contrary to that of kith and kin, i.e., (up to the time) she is not guilty of any immorality. Para. 2. That if the executant contracts a second marriage in the life time of the said wife and has any child male or female from the second wife then the former wife shall be entitled as against the issue from the latter to receive as much Guzara as may suffice for her maintenance. Para. 3. That in case there is no male and female issue and wife, the wife of Bbagwan Bux Singh, taluqdar Lahar, pergana, Haidergarh, district Barabanki, who is the aunt (father's sister) of the executant and also the wife of Thakur Durga Bux Singh, taluqdar Nilgaon, the wife of Thakur Debi Bux Singh, resident of village Kundi, district Sitapur, and wife of Thakur Sher Bahadur Singh, taluqdar Muhommadpur, pergana Fatehpur, district Bara-banki, who are the sisters of me, the executant, shall divide the aforesaid property equally amongst themselves and after them their male and female issue shall be the owners and in case there is no issue, then that female shall continue to enjoy and possess her share till her lifetime and after her demise her husband shall remain in possession and occupation of her property till his lifetime and after him that very share shall be divided equally upon the issue of those ladies out of the aforesaid four ladies who have got issue. Para. 4. That no other member of my family is entitled to my property, nor has he any claim to it. If there appears any claimant, then his claim as against the aforementioned four ladies shall be void and untenable."

(2.) On the testator's death, his two widows entered into possession of the property. When the senior widow died, a dispute arose between the junior widow, and the testator's sister Bachchi Kuar, mother of appellants 1 to 4, regarding the rights of the former in the property. At about this time, the pressure of mortgage debts contracted by the testator at high rates of interest threatened a disruption of the estate and the question of payment of the debts became urgent. The situation was met by the execution of a family settlement dated 1917, the only importance of which, so far as the present appeal is concerned, is that under it appellant 1, in consideration of being allowed certain properties, took over the liability, of paying all the debts due from the estate of the testator. It has now been found that in all a sum of Rs. 71,992 was paid by appellant 1 to the creditors of the testator and that he spent a further sum of Rs. 1,127-6.0, in litigation about the debts, the total sum amounting to Rs. 78,119-6-0. This finding, arrived at by the High Court, has not been questioned before the Board. It has also been found that the above payments made by appellant 1 were by no means voluntary, but were made by him as having an interest in the property. The appellants, and the respondents (transferees from plaintiff 1), both rest their claim to the property in the suit on the terms of the will. Generally stated, the appellants contended, amongst other grounds which need not be detailed, that plaintiff 1 is not entitled to any property under the testator's will, as he is not the son of the testator's aunt, that the right to the property if he took any under the will, was barred by limitation under Art. 140 or Art. 141, Limitation Act, that appellant 1 had paid up the debts of the testator and had incurred costs in connexion with litigation relating to those debts, and that he was entitled to recover the same with interest from persons claiming the property. Art. 140, Limitation Act, prescribes a period of "12 years" for a suit "for possession of immovable property by a remainderman, a reversioner (other than a landlord) or a devisee," and the period begins to run from the time "when his estate falls into possession." Art. 141 prescribes a period of 12 years for "a like suit" by a Hindu or Mahomed an entitled to the possession of immovable property on the death of a Hindu or Mahomed an "female" and the period begins to run from the time "when the female dies.'' Holding that plaintiff 1 is the son of the testator's aunt referred to in the will which finding, as stated already, is not challenged before the Board, the Subordinate Judge came to the conclusion on a construction of para. 3 of the will that he was entitled to 7/20ths share of the property in the suit and that the suit was not barred by limitation. As regards the debts alleged to have been paid by appellant 1, he held that these amounted to Rs. 71,992, but that he was not entitled to recover anything from the respondents as the income realised by the appellants who were in possession of the property amounted to Rs. 1,00,000. The Subordinate Judge also held that appellant 1 was not entitled to any costs of litigation, and interest. In the result, he gave a decree in favour of the respondents for possession of 7/20 the share (equivalent to 5 annas 71/5 pies out of 16 annas) in the entire property in suit -though a 9 annas share had been sold to them-along with the mesne profits which were left to be determined later.

(3.) Their Lordships may now conveniently refer to the Subordinate Judge's construction of para. 3 of the will and also to the reasoning on which his finding as to limitation is based. As regards the first, it will be remembered that when the testator died issueless on 20 May 1913, he left surviving him two widows, his sister Bachchi Kuar the mother of the appellants, and plaintiff 1 the son of Bhagwan and his first wife mentioned in cl. 3, as the first of the 4 lady legatees. His other sisters mentioned in the will and their husbands had died issueless. The construction put upon para 3 of the will by the Subordinate Judge has been thus correctly summarised by the High Court. "The Court held that as on the death of Mt. Muna Kuar junior the issue of only two of the four ladies mentioned in the will namely plaintiff 1 (son of the wife of Bhagwan Baksh Singh) and defendants 1 to 4 (sons of Bachchi Kuar, sister of Prag Baksh Singh and wife of Debi Bakhsh Singh) were living, one-fourth of the property would go to plaintiff 1 and another one-fourth to defendants 1 to 4 and that the remaining half of the property would be divided equally among the issues of the wife of Bhagwan Baksh Singh and Mt. Bachchi Kuar under cl. 3 of the will, so that plaintiff 1 and defendants 1 to 4 would each be entitled to a one-fifth share out of the remaining half. In this way the Court found that the share of plaintiff 1 in the entire property of Durga Baksh Singh was one-fourth plus one-tenth, that is, seven- twentieth."