MADAN LAL Vs. MTGUR DASSI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for ejectment. The plaintiff produced a will executed by Mt. Gaya Sundari Devi in favour of Mt. Hari Dasi, and she also produced a will purporting to have been executed by Mt. Hari Dasi in her own favour. The defendants appear to have led evidence in the Court of first instance to show that in the lifetime of Hari Dasi the defendants father was a tenant on behalf of Prem Ballabh on whose behalf he is still holding the property, and that Mt. Hari Dasi was not the owner of the house. The Court of first instance decreed the claim and that decree was confirmed by the lower appellate Court. The lower appellate Court has distinctly found that the plaintiff's father took this house on rent from Hari Dasi. It has, therefore, rightly held that the defendants cannot be allowed to deny the title of Hari Dasi to the house in suit. But before the lower appellate Court it was further pressed on behalf of the defendants that Mt. Gaya Sundari Devi had only conferred a life-interest on Mt. Hari Dasi under her will and that on the death of Mt. Hari Dasi the property went to one Prem Ballabh and could not be disposed of by Hari Dasi by a will in favour of the present plaintiff. The tower appellate Court thought that as the defendants father occupied the house in suit as a tenant on behalf of the plaintiff's predecessor-in-interest, Mt. Gaya Sundari Devi, therefore the defendants cannot deny the right or title of the plaintiff in respect of the house in suit. The learned Judge of this Court, before whom the appeal came first, thought that there was no question of law involved in this appeal, and dismissed it summarily under Order 41, Rule 11.

(2.) We are of opinion that the lower appellate Court was quite wrong in thinking that the defendants were estopped from saying that Hari Dasi had only a life- interest in the property which could not be bequeathed to the present plaintiff. Section 116, which lays down the rule of estoppel against a tenant, only provides that he cannot be permitted to deny that the landlord at the beginning of the tenancy had a title to the property. The defendants are precluded from denying that Mt. Hari Dasi had the right to let the house on rent to their father. That, however, does not prevent them from showing that when Mt. Hari Dasi died the property devolved not on the present plaintiff, but on Prem Ballabh.

(3.) We have examined the will executed by Mt. Gaya Sundari Devi which was produced by the plaintiff herself and was proved and marked as Ex. 1. Under that will there can be no doubt that Mt. Hari Dasi was only given a life-interest. After her death the property was to pass on to Prem Ballabh. In this view of the matter the suit ought to have been dismissed.