Decided on July 03,1950

The Sikh Educational Society For Women And Ors. Respondents


Weston, C.J. - (1.) THIS is a Plaintiff's appeal against a decree of the Subordinate Judge, 1st Class, Amritsar, partly dismissing the suit and directing the parties to bear their own costs. The litigation arose on the following facts. On 29 -4 -1941, one Bhai Dan Singh died at Lahore, and according to the Plaintiff a few minutes but according to the other side a few hours, before his death a document (Ex.D -14) is said to have been written and his thumb mark taken upon it. In this document Bhai Dan Singh purported to state that of his own accord he was giving in charity at the last moment of his life his house known as Sewa Samtiwala situated in the Maidan of Dharamsala Bhai Wasti Ram at Amritsar. This house which in reality was a stable with certain rooms attached admittedly formed only a small portion of the estate of Bhai Dan Singh. The estimates of the total property left by him given in evidence varied from two to two and a half lacs of rupees, while the value of the property of the stable or house mentioned in the document (Ex.D -14) is said to have been eight to ten thousands of rupees. After the death of Bhai Dan Singh it appears his widow, Defendant 2 in the present suit, directed the tenant of the house or stable to attorn to the Sikh Educational Society for Women, an institution which is Defendant 1 in the present suit, stating that in accordance with the desire of her husband this property should go to this institution and the rent hereafter should be paid to the institution. Later on 4 -3 -1944, the widow (Defendant 2) executed what is called a tamliknama by which, purporting to act in accordance with the wishes of her husband, she in effect gifted the property to the Sikh Educational Society for Women. The Plaintiff in the present suit is the adopted son of the deceased Bhai Dan Singh and at the time of the latter's death was about 17 years of age. The widow, present Defendant 2, had filed a suit for partition against the present Plaintiff in respect of all the property left by Bhai Dan Singh excepting the property, the subject -matter of the deed of 4 -3 -1944. The present suit was instituted and relates only to this last property. The Plaintiff claims that the property is part of the ancestral property of his adoptive father Bhai Dan Singh, that no title to the property passed to or has been created in favour of the Sikh Educational Society and that, therefore, he is entitled to his half share, and he also sought a declaration that the tamliknama or deed of gift in favour of the Society was not operative and had no effect on his rights as reversioner to the half share to which Defendant 2, the widow of the deceased, is presently entitled. The learned trial Judge has allowed the Plaintiff a decree for partition of his half share, but as regards the other half share he has held that the deed of 4 -3 -1944 is a valid alienation by the widow and has refused the prayer for declaration sought by the Plaintiff in respect of this half share.
(2.) THE question in the present appeal is whether the tamliknama or deed of gift of 4 -3 -1944, was validly made by Defendant 2. Evidence was led that at the time the document (Ex.D -14) was executed by the deceased on his death -bed he had expressed an intention that the Defendant Society should benefit from his charity. The document (Ex.D -14) was attested by three persons. One of these was Professor Sant Ram Grover another Professor J.D. Varma and the third was Bhai Sunder Singh, the younger brother of the deceased. Both Professors Grover and Varma have affirmed that at the time this document was passed the deceased, though expected to die, was conscious, and they have stated that at the time the charity contemplated in the document was the Defendant Society. Bhai Sunder Singh, the brother of the deceased, who was writer of the document, gave evidence that he wrote the document in another room, that the deceased died before it was finished and he supported the suggestion made by the Plaintiff that for some reason this document was got fabricated, and was got thumb -marked by the dying man already unconscious. The learned trial Judge has held that this Bhai Sunder Singh is a person on whom no reliance can be placed, and in face of the evidence of two disinterested and respectable witnesses, Professors Grover and Varma, it seems to me that this conclusion of the learned Judge Was well founded. There are some small discrepancies between the evidence of Professors Grover and Varma and Defendant 2, who was examined on commission, but these discrepancies' in my view are in no way material and are accountable for by the lapse of time which occurred between the date of execution of the document (Ex.D -14) and the time when evidence was given. It must, I think, on the evidence be accepted that at the time of his death the deceased did show a desire or at least accept a suggestion that the suit property should be given not only in charity but for the benefit of the Defendant Society. As a will or gift Ex.D -14 of course is inoperative for uncertainty. Its importance only lies in showing that the tamliknama or gift made by Defendant 2 on 4 -3 -1944, was an act of charity performed in conformity with the desire of her husband which had been expressly stated. It is well settled that a Hindu widow in possession of the estate of her husband may make a gift valid against her husband's reversioner of a small portion of the estate for religious or charitable purposes or those which are supposed to conduce to the spiritual welfare of her husband; See the Collector of Masulipatam v. Cavaly Venkata Narramapah 8 M.I.A. 529 at pages 550 -551 : (2 W.R. 61 p.c.), and this proposition has been reaffirmed in later cases ; See Sardar Singh v. Kunj Bihari Lal, 44 ALL. 503(A.I.R. 1922 P.C. 26l). It might perhaps be argued that not every disposition of a widow for purposes admittedly charitable would be upheld, for the basis of the principle of law appears to be that the disposition must not be unrelated to the desire or to the spiritual welfare of the husband. In the present case, however, it has been held proved, and we have accepted that it has rightly been held proved, that the disposition made by Defendant 2, the widow, on 4 -3 -1944, was in accordance with the desire expressed by her husband at about the time of his death. It seems beyond question in such circumstances that the widow under the principle laid down by the Privy Council would have the power to carry into effect her husband's wishes and to alienate that small portion of his estate in favour of the charity which he himself desired should be given. The learned Counsel for the Appellant has been unable to cite any authority in which, in circumstances such as the present, a disposition of this nature has been held not to be binding upon the reversioner. I think, therefore, that the judgment given by the trial Court was correct and that the Plaintiff was rightly refused the declaration which he asked for. In the circumstances the appeal fails and is dismissed with costs in favour of Defendant 1. Kapur, J.
(3.) I am of the same opinion and have nothing to add.;

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