SANSAR CHAND Vs. MTDURGA DASI

JUDGEMENT

(1.) This appeal has arisen from a suit brought by the plaintiff-appellant for a declaration that the decree passed in suit No. 12 of 1923 in favour of defendant 2 against defendant I for sale of certain property is void as against the plaintiff. The plaintiff, Pt. Sansar Chand is a male collateral in the male line of Hakim Suraj Singh, who had three wives, Sardha Devi, Mathuri and Durga Dasi, whose names have been mentioned above in the order of seniority. Suraj Singh made a gift in favour of Mt. Sardha Devi in respect of, his entire moveable and immoveable property on 12 November 1877. It is common ground that the gift was given effect to and Mt. Sardha Devi remained in possession of the property gifted to her till her death. Suraj Singh died sometime before 1883.

(2.) The exact date of his death is not material. By a will dated 16 March 1883, Mt. Sardha Devi made certain dispositions in favour of her two co-widows (Mathuri and Durga Dasi) and the plaintiff (Sansar Chand). The construction of this will is the principal question involved in this case. According to the plaintiff the will conveyed a life interest to Mts. Mathuri and Durga Dasi with remainder to the plaintiff, Sansar Chand. According to the contesting defendants, Sansar Chand acquired no interest, vested, or otherwise, except in case Mts. Mathuri or Durga Dasi made any transfer in his favour.

(3.) The circumstances which led to the institution of the suit which has given rise to this appeal were that Mts. Mathuri. and Durga Dasi executed a deed of simple mortgage in favour of Karta Kishen, the husband of defendant 2, on 8 March 1911, and that after the death of Karta Kishen, his widow, defendant 2, obtained a decree for sale of the mortgaged property on foot of the aforesaid mortgage. This decree was passed in suit No. 12 of 1923. Sansar Chand, the plaintiff, then instituted the present suit for a declaration that the aforesaid decree was void against him, claiming to be entitled to the interest of a remainder man in the property which originally belonged to Suraj Singh and which was gifted by him to Mt. Sardha Devi. As already stated, the decisive question in the case is the right construction of the will executed by Sardha Devi on 16 March 1883. The learned Subordinate Judge held that the two co-widows of Sardha Devi acquired an absolute interest in the property and that the plaintiff, Sansar Chand took no interest under the will either in the lifetime of the two ladies or after their death. The material portion of the will is as follows: After my death the aforesaid ladies (Mathuri and Durga Dasi) shall be owners and possessors o? my property (malik wa qabiz honge) and they will have power to sell and mortgage (the property) for charity and maintenance (khuro nosh) and etc. The power to manage and to transfer shall be only for charity and maintenance and shall be possessed by Durga Dasi. It will not be necessary for her to obtain the permission of Mathuri. Whatever property is left after expenditure on charity and maintenance will belong to Sansar Chand, son of Ugar Sen, as owner (malik). If Durga Dasi dies before (Mt. Mathuri) then this will shall be considered to be in favour of Mt, Mathuri; and if Mt. Mathuri dies before (Mt. Durga Dasi), then this will shallbe considered to be in favour of Mt. Durga Dasi. If the two ladies, my successors, are pleased with Sansar Chand they can give the property to him or do as they like.