NATHA RAM Vs. MTSOHAN DEVI

JUDGEMENT

(1.) The property which is the Subject-matter of this litigation consists of 434 kanals and 7 marlas of land. Originally, it belonged to Honorary Captain Mul Singh of Sarai Amanat Khan and on his death devolved upon one Mehr Chand by virtue of the will made by Mul Singh in his favour. On 27 July 1940, Mehr Chand gifted the said land to his cousins Natha Ram and Paqir Chand by means of a registered deed of gift. On 30 October 1944, Mt. Sohan Devi, Mehr Chand a wife, in her own right and as the next friend of her two minor daughters Kailash Devi and Koshalya Devi, brought a suit for a declaration that the gift was bogus and it did not affect the rights of the plaintiffs. The plaintiffs allegations inter alia were that Mehr Chand's rights over the property were limited for life, and that he had no right to dispose of it by gift. It was further alleged by the plaintiffs that the gift had been obtained by Natha Ram and Paqir Chand by undue influence and fraud and accordingly it conferred no title upon them.

(2.) The defendants denied the plaintiffs allegations and pleaded that they had no locus standi to challenge the gift. They also urged that the suit was collusive. The following four issues were framed by the trial Sub-Judge: (1) Whether defendant 3, Mehr Chand, got the property in dispute by means of a will from S.B. Mul Singh and was he not empowered to alienate it by means of a gift? (2) Whether the plaintiffs can challenge the gift? (3) Whether the gift in dispute was obtained by means of fraud and undue influence and what is its effect, and can the plaintiffs take up this plea? and (4) Whether the suit is collusive and what is its effect? As regards issue l, the trial Sub-Judge held that though the suit property had been obtained by Mehr Chand by will he was complete owner thereof with full powers of disposition. Issue 4 was found against the defendants. The remaining issues were decided against the plaintiffs and the suit was dismissed, but the parties were left to bear their own costs. On appeal the Additional District Judge upheld the finding of the trial Sub Judge on issue 1, but he found issue 3 for the plaintiffs and being of the view that the minor plaintiffs alone had the right to challenge the gift decreed the suit in their favour. The donees have now preferred a second appeal against the judgment and the decree of the Additional District Judge.

(3.) The material question that falls for determination in the appeal is whether the will made by Captain Mul Singh in favour of Mehs Chand conferred upon the latter only a life estate. It need not be mentioned that while construing a will what has to be looked to is the intention of the testator and this must be gathered not from a word used here and a word used there but from the entire document. Now the perusal of the whole will in this case leaves no doubt that the intention of Captain Mul Singh was to make Mehr Chand absolute owner of the property bequeathed to him with full powers of disposal. The document starts with recital that the testator had become ill and had no wife or issue who could succeed to him, and then it states that Mehr Chand in whose favour the bequest was being made was the testator's nephew who had been living with and serving him. The words appearing in the earlier part read as below: After my death Mehr Chand would become the sole owner and possessor of every kind of property left by me. This injunction is repeated three or four times and the will ends with the following words: Now after my death Mehr Chand would be the sole owner and possessor of my entire property whether movable or immovable and he would be entitled to enjoy it in every way. In ray judgment, the concluding words leave no doubt about the testator's intention and that intention was that Mehr Chand's rights over the property bequeathed to him would be complete and and unhampered. It was stressed by S. Iqbal Singh, learned Counsel for the respondents, that because Captain Mul Singh had laid down in the will that after Mehr Chand's death the property would devolve upon other persons it should fee presumed that the testator did not intend to give Mehr Chand complete powers of disposal and what he intended was that he should enjoy the property only for life. In support of his contention, the learned Counsel referred us to a Bands decision of the Allahabad High Court in ML Chhatarpali and Ors. V/s. Mt. Kapal Dei and Ors. . The facts of that case were as follows: The testator had three wives. He was pleased with his third wife, Mt. Kalap Dei, but his relations with the remaining two wives did not appear to be very good. In the will that he made he provided that after him the property left by him would devolve upon his third wife who would be the permanent owner, (The urdu words used were "maliq mustaqil") and she would be at liberty to have her name recorded art the public papers in respect of all the property by virtue of the will and to remain in possession and enjoy the profits thereof. Then appeared the following words: If Mt. Mendha, the first wife, and Mt. Delwa, the second wife, will survive ma and have any children, the said executor will be bound to maintain them as I would have done, and the said Musammats and their children shall also be bound to obey Mt. Kalap Dei with teak heart. The Musammat will also have power to declare Mt. Dhanpali, daughter of Mt. Delwa, as her executor and successor. After the death of Mt. Kalap Dei, Mt, Dhanpali, my daughter, will have the same powers as Mt. Kalag Dai will have. Everyone will be bound to maintain the property and not to waste and destroy it, tat Mt. Kalap Dei can mortgage and sell the property for lawful necessity. The learned Judges held that the intention of the testator was to give Mt. Kalap Dei only a life estate. While coming to this finding, they laid down certain rules of construction. They observed that the term "malik" is not a term of at and its real significance should be considered in the light of the setting in which it occurs. If there is nothing in the context to indicate a contrary intention, the word "malik" certainly denotes full ownership; but it is consistent with a limited estate if it is controlled by other clauses in the will. They also observed that a will should be construed as a whole and a particular clause in which the words "permanent owner" occur should not be taken as standing by itself. With all deference I entirely agree with what was laid down by the learned Judges and, as I have already observed, I accept the principle that while construing a document of the kind of a will what has to be looked is the intention of the testator. In fact in construing the present will I have been guided by these very principles and I have tried to gather the intention of the testator from the whole body of the document. No doubt the words used in the Allahabad case were "malik mustaqil" which I consider are stronger than the words "wahid malik" but it is also clear that in spite of having used these words the testator laid down certain other conditiona which indicated that his intention could be no other than to give his wife a life estate. This point was particularly emphasised by the learn-ed Judges in their judgment. Apart from this, two other things weighed with them. One was that while every one else was required to keep the property intact and not waste or destroy it exception was made in the case of Mt. Kalap Dei and it was laid down that she could mortgage or sell the property for lawful necessity. The other was that no words had been used in the will from which it could be inferred that the testator intended to give Mt. Kalap Dei complete power of disposal over the property bequeathed to her. In the will before us, as I have already pointed out, the last words gave Mehr Chand the power to enjoy the property in every way and I have not the slightest hesitation is coming to the conclusion that this included the power of disposal.