PADAM LAL Vs. TEK SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff Padam Lal to obtain a declaration that a 4 anna share in the village of Muhana in the district of Cawnpore is not saleable in execution of a decree obtained by the defendant Kunwar Tek Singh against the defendant Musammat Rukmin Kunwar. The entire village of Muhana belonged to the late Gayendra Narain, husband of Kadam Kunwar. He left his second wife Musammat Kadam Kunwar and two daughters by her, namely, Musammat Janki Kunwar and Musammat Rukmin Kunwar, and also a daughter, Musammat Tulshi Kunwar, by his first wife him surviving. The plaintiff Padam Kunwar is son of Rukmin Kunwar. Gayendra Narain before his death, namely, on the 31 of July 1866, executed a will by which he purported to dispose of the village of Muhana. In the will ho recites his title to the village in question and states that he has two heirs to that village, one his wife and the other his daughter: and then he declares that out of the 16 anna zamindari in that village "Musammat Kadam Kunwar will be the malik of a 10 anna 8 pie share," and Musammat Tulshi Kunwar his daughter of a 6 anna 4 pie share. Then follows a statement that he had caused each of these ladies to be placed in separate possession of her respective share and that mutation of names may be effected in the revenue department under the document so that there may be no dispute after his death. This is the substance of the will. No provision is made in it for Musammat Janki Kunwar. Shortly after its execution Gayendra Narain died and his widow and daughter Tulshi entered into possession of the shares given to them by his will. In April 1886 Kadam Kunwar had mutation of names effected in favour of her two daughters, Janki Kunwar and Rukmin Kunwar, in respect of a 6 anna 8 pie share out of her 10 anna 8 pie share. Of the remaining 4 anna share she herself remained in possession. On the 27 of August 1888 she executed a mortgage of this 4 anna share in favour of the defendant Kunwar Tek Singh to secure an advance of Rs. 900. A suit was brought by Kunwar Tek Singh on foot of this mortgage and an ex parte decree was passed on the 30 of January 1901. Kadam Kunwar died on the 19 of June 1902 and after her death the name of her daughter Rukmin Kunwar was substituted in the execution department in her place as her representative. The other daughter, Janki Kunwar had died about 10 years previously. Rukmin Kunwar filed no objection in the execution department to the proceedings for sale of the mortgaged property, and the property has been advertised for sale. The plaintiff's case is that the mortgage was not made to meet any legal necessity and that Kadam Kunwar was not competent to mortgage her share beyond the period of her own life.

(2.) In his defence Kunwar Tek Singh set up the plea that under the will of her husband Musammat Kadam Kunwar became absolute owner of the share of the property given to her, and that in any case the mortgage in dispute was executed for valid necessity. These are the only pleas which have been relied upon before us; but it was further contended that the plaintiff has no right to maintain the suit during the life-time of his mother, he being merely a contingent reversionary heir to the property.

(3.) The learned Subordinate Judge held that upon the true construction of the will of her husband Kadam Kunwar became the absolute owner of the property in dispute; and he also held that the mortgage debt was incurred to meet a legal necessity and dismissed the plaintiff's claim. From this decree the present appeal has been preferred.