MATRU MAL Vs. MEHRI KUNWAR

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit in which the plaintiffs who are minors suing under the guardianship of their grandmother seek a declaration that certain deeds of alienation are void and not binding upon them. In the plaint the plaintiffs averred that their mother Mt. Mahadevi who was the daughter of Chunni Lal, the last male owner of the property in dispute, had without legal necessity alienated part of Chunni Lal's estate. In this appeal we are concerned only with one alienation, namely a mortgage dated 8 March 1927 in favour of the defendant Mt. Mehri Kunwar, and a decree obtained on the basis thereof dated 12 March 1931. The original and main defence to the suit was that the mortgagor Mt. Mahadevi was not a limited owner but a full owner of the property mortgaged under a will executed by her father Chunni Lal on 22 February, 1897. The learned Civil Judge in the trial Court held upon a consideration of the terms of the said will that Mt. Mahadevi was absolute owner of the property mortgaged. He further held that in any event the mortgage of 8 March 1927 was justified by legal necessity. In the result the learned Judge dismissed the suit.

(2.) The plaintiffs appealed and the case was heard by a Bench of this Court on 5th January 1937. In appeal the plea was taken that the will alleged to have been executed by Chunni Lal had not been proved. This plea was taken in view of the decision of the Privy Council in Basant Singh V/s. Brij Raj Saran Singh . This Court took the view that in the circumstances the defendants ought to be given an opportunity of proving the will by secondary evidence, a copy of the will only having been made available in the proceedings in the trial Court. This Court also took the view that the learned Civil Judge had dealt with the question of legal necessity in a somewhat perfunctory manner and that this matter should be further considered by the trial Court. In the result two issues were remitted to the Court below. These issues were: (1) Was the will of which a copy was produced by the defendants validly executed by Chunni Lal? (2) Was the amount borrowed by Mt. Mahadevi under the mortgage of 8 March 1927 or any part of it borrowed for legal necessity?

(3.) The decision of the trial Court on each of these issues is in favour of the defendants. The will has been held proved and further the borrowing of the money on the mortgage of 8 March 1927 was held to be justified by legal necessity. In appeal the finding that the will had been proved was not challenged by the plaintiffs. It was contended however that the evidence adduced by the defendants did not justify the conclusion that the borrowing of the money under the mortgage of 1927 was justified by legal necessity. In this appeal, for the first time, the defendants-respondents have preferred the plea that the plaintiffs suit is not maintainable inasmuch as they are not the nearest reversioners entitled to succeed to the property on the death of the present holder Mt. Mahadevi. In view of the conclusion we have arrived at on this plea, it is unnecessary to consider whether or no the borrowing of the money on the mortgage of 8 March 1927 was justified by legal necessity. We are satisfied that inasmuch as the plaintiffs are not the nearest presumptive reversioners they are not entitled to maintain the present suit. The first question which arises for consideration is as to the nature of Mt. Mahadevi's estate. This depends upon the construction of Chunni Lal's will. The relevant portion of this document is as follows: But after my death my wife Mt. Mohini will be the owner of the entire property left by me. Mt. Mohini aforesaid will have all the rights of ownership like myself, and she will be entitled to spend, transfer or mortgage any property she likes. After the death of Mt. Mohini aforesaid my daughter Mt. Mahadevi will be the owner in possession and enjoyment of the entire property left by Mt. Mohini, out of my properties. In case my wife Mt. Mohini dies in my lifetime, then after my death my daughter Mt. Mahadevi will be the owner in possession and enjoyment of the entire property left by me; she will have all the rights of ownership like myself. God forbid but in case Mt. Mahadevi predeceases Mt. Mohini, then Mt. Mohini will have the right to transfer my property to whomsoever she likes, or to will it away; and no heirs of Mt. Mahadevi belonging to her husband's family will have any right to it.