Natha Ram And Anr. v. Mt. Sohan Devi And Ors.

Teja Singh, J.

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 27th 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 30th 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. Mt. Kapal Dei and Ors. AIR1936All50 . 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.

4. S. Iqbal Singh drew our attention to illustration (a) to Section 382 of Mulla's Hindu Law which reads as below:

Property is bequeathed to B, and after him to the heirs male of his body, that is, his heirs in tail male.

This case gives rise to the following three points:

1st point--The estate tail is void,

2nd point--B takes an estate for life, and

3rd point--Heir-at-law entitled to whole estate after, B's death.

In support of the second point the learned commentator has remarked that if B were not to take a life estate, and this is the construction that should be put on the will, the result would be that B, as absolute owner, might mortgage OK give away the property, in which case the property might pass away from the family to a mortgagee or a stranger donee and this construction would be in effect to make a new will for the testator and one which, so far from carrying his intention into effect, would be in direct op-position to his intention. It is not clear from the commentary on what authority the observation of the learned commentator were based and, if I may say so with respect, they appear to me to be rather too wide. I can understand that where A makes a will in favour of B with the provision that after B's death the bequeathed property should devolve upon c and says nothing else in the will, it may be permissible to presume that the intention of the testator was to give only a life estate to B. But to say that even where the contents of the will leave no doubt that the intention of the testator was to make B a full owner with complete powers of disposal, in tension to the contrary could be presumed merely because of a provision made for the devolution of property after B's death does not appear to me to lay down correct law. I am supported in this view by the well-known decision' of Mookerjee and Roe, JJ. in Sures Chandra Palit and Anr. v. Lalit Mohan Datta Chaudhuri A.I.R. 1916 Cal. 775, in which the whole case law on the point was discussed and a number of principles were laid down for the construction of wills.

5. In that case, the will was in favour of the testator's wife and one of the clauses vested in her "whatever might remain after the payment of debts and expenses, absolutely and with complete power of alienation." Other clauses provided for the adoption of sons and in case of there being no adopted son or no son or wife of the adopted son at the time of the death of the widow, the heir, according to the Hindu Shastras who should be alive at the time, should get the properties which should remain after disposal by the widow by way of gift or sale. While holding that the testator gave an absolute interest in his estate to his widow with full powers of alienation the learned Judges observed that if an estate is given in terms which confer an absolute estate to a named donee, and, then, further interests are given merely after or on the termination of that donee's interest, and not in defeasance of it, his absolute interest is not cut down and the further interests fail. This case was followed by a Bench of the Lahore High Court in Mohan Lal v. Niranjan Das and Anr. A.I.R. 1921 Lah. 11 which was a case of a will made by a Hindu in favour of his wife. The relevant words of the will were:

Is hi malih meri Zauja Uttam Devi hogi—us ko ikhtiyar hai he jis tarah choke be marzi hhud us ko intikal ya saraf kare. Be-sharat-i-ke meri aural kisi ko mahan na de jawe ya intikal na kare to phir makan mere har do poton Niranjan Das aur Narsingh Das ka mushtarha hoga.

It was held that the will read as a whole conferred a complete ownership on Mtc. Uttam Devi and further that the use of the word "malik" implies absolute ownership unless there is any. thing in the context or surrounding circum-stances to qualify such meaning. Following these decisions, I hold that Mehr Chand became the complete owner and he had complete power of disposal over the suit property.

6. The next question is whether the plaintiffs had locus standi to have the gift in the defendants' favour set aside on the ground that it was obtained by fraud or undue influence. The District Judge, as I have already observed, found this point in the plaintiffs' favour, but in view of the fact that Mehr Chand himself was alive and it was open to him, if he so liked, to have the gift set aside on the grounds taken by the plaintiffs, I do not think the plaintiffs had the right to maintain the action.

7. The learned Counsel for the respondents was not able to cite a single authority in support of the proposition that the plaintiffs could maintain the suit. If Mehr Chand was really the victim of fraud and undue influence it was for him to have the alienation set aside on that ground and the plaintiff certainly had no locus standi to brings the suit.

8. In the result I allow the appeal, set aside the decree and the judgment of the Additional. District Judge and dismiss the plaintiffs' suit. The parties will bear their own costs throughout.

M.C. Mahajan, J.

I agree.