MUSAMMAT SURAJMANI Vs. RABI NATH OJHA

JUDGEMENT

(1.) This is an appeal from the High Court at Allahabad affirming the decision of the Subordinate Judge of Gorakhpur. The question is whether the first appellant, Musammat Surajmani, acquired a right to alienate the property now in suit under a deed of gift or testamentary instrument of her late husband, Ishwar Nath Ojha. The material part of the document is as follows:- I now of my own free will and accord while in a sound state of mind and in enjoyment of my-senses make a gift of the entire village Dwarkapur Nankar in tappa Asnari and half of the village Telpurwa in tappa Pachhar to Musammat Dhanmati, my first wife, the entire village Doharia Khurd in tappa Banjarha and half of Mauza Telpurwa aforesaid to Musammat Surajmani, my second wife, and half of mauza Jamla Jot, i.e., an eight anna share in it, in tappa : Barikpar to Musammat Sarsuti, my daughter-in-law, out of the aforesaid propertywithout consideration on the conditions that during my lifetime I shall remain in possession of the said property as heretofore and my name shall remain recorded in respect of it in the public records and the Musammats aforesaid shall be maintained by me, that after my death they shall under this document get their names recorded in the public records in respect of their respective properties given to them and remain in possession as owners with proprietary powers; and that if perchance I have a male issue hereafter, this deed of gift shall be considered null and void as against him.

(2.) The words translated as owners with proprietary powers" are in the original "malik wa khud ikhtiyar. "The appellants contend that these words are amply sufficient to confer an alienable estate. The respondents on the other hand contended, and the Courts below have held, that under these words the lady took no more than the ordinary estate of a Hindu widow, which is inalienable except in special conditions which are not alleged to exist in this case.

(3.) After the death of her husband Musammat Surajmani entered into possession of the property given to her and has purported to dispose of it by will in favour of her brother Ram Narain Ojha. The present suit is brought by the plaintiffs (respondents) as heirs of Ishwar Nath and of Surajmani for a declaration that the latter was incompetent to execute the said will, and it is against the decision in their favour that this appeal is brought. The effect of the word "malik" in testamentary gifts has been often discussed in cases decided in the different Courts in India where there has been apparently some fluctuation of opinion. For instance, since this case was decided in the High Court of Allahabad, the same Court, differently constituted, has refused to follow it and expressed the opinion that the words in question passed the absolute estate: Padam Lal V/s. Tek Singh (1906) I.L.R. 29 All, 217, pp. 221-222.