V. N. Khare, J. -
(1.)One Jamuna Prasad was the owner of a house as well as certain other properties including Bhumadhari land, situated at village Kakhra Kaurd, Pargana Naugrah, District Basti. Jamuna Prasad had two wives - Smt. Suraja Devi and Smt. Sona Devi, Jamuna Prasad married Smt. Sona Devi after the death of his first wife Smt. Suraja Devi, Jamuna Prasad had no male issue. He had three daughters from his first wife Smt. Surja Devi - Smt. Mishara, Smt. Partapa and Smt. Dulari. From second wife Smt. Sona Devi, Jamuna Prasad had also three daughters - Smt. Gunjan Devi, Smt. Ram Sanwari and Smt. Dhupa. Smt. Mishara has a son Chandrakant. Smt. Partapa has three sons - Ram Sureman, Ram Ujagar and Ram Millan. Smt. Dulari has two sons - Sesh Chandra and Ram Chandra. Smt. Gunjan Devi - daughter of Smt. Sona Devi, has a son Balbhaddar. Smt. Ram Sanwari has a son Ram Kirpal and Smt. Dhupa has a son Bindhabasni.
(2.)After the Hindu Succession Act came into force, Jamuna Prasad executed a Will dated 3-7-1956 bequeathing his entire property in favour of his second wife Smt. Sona Devi and after her death subsequent bequeath was in favour of his daughters' son(s) from both the wives. Jamuna Prasad died in 1961, whereas Smt. Sona Devi died in 1964. On 4-9-1964, plaintiffs Nos. 1 to 3 who are respondents herein, purchased the land through a sale deed from Ram Sureman, Ram Ujagar and Ram Millan - sons of Smt. Partapa. In the said sale deed, Smt. Partapa also joined as vendor. On 24-3-1965, plaintiff No. 6 obtained sale deed from defendant No. 11 - Chandrakant in respect of his share in the property. On 4-2-1966, plaintiffs Nos. 4 and 5 who are respondents herein, obtained sale deed from defendant-Sesh Chandra in respect of his share in the property.
On 1-6-1966, the plaintiffs who were purchasers of the shares in the land filed a suit out of which the present appeal arises, praying therein for a decree for a sum of Rs. 1946.66 against defendants I and II sets by way of damages on account of the defendants having wrongfully cut away the crop and, in the alternative, for mesne profits - Rs. 330/- as damages in lieu of their share and for partition of 4/9th share in the disputed house and for joint possession to the extent of their shares in the disputed Bhumidhari lands. The plaintiffs' case was that Smt. Sona Devi obtained a limited estate on the death of Jamuna Prasad under the Will and after her death, all the nine sons of the daughters from both the wives inherited the property in accordance with the provisions of the Will. Defendants Nos. 1 to 10 contested the suit. Defendants-appellants' case was that Smt. Sona Devi - second wife of Jamuna Prasad, through the Will obtained an absolute estate and became full owner of the property on the death of Jamuna Prasad, and in that view of the matter, any subsequent bequeath in the same Will in favour of daughters' sons was invalid. It was also their case that after the death of Smt. Sona Devi, her daughters succeeded to her interest in respect of Bhumadhari plots under S. 174 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). The trial Court was of the view that Smt. Sona Devi having obtained an absolute estate under the Will executed by Jamuna Prasad, the subsequent bequeath in the said Will in favour of daughters' sons was invalid and, therefore, the daughters' sons from first wife Smt. Surja Devi were not entitled to inherit the property. The appeal preferred by the plaintiffs-respondents was also dismissed by the first appellate Court and decree of the trial Court was affirmed. However, in the second appeal, filed by the plaintiffs-respondents, the High Court came to the view that under the Will Smt. Sona Devi got only restricted or limited right and, therefore, after her death all the daughters' sons from his first wife as well as his second wife were entitled to inherit the property. In that view of the matter, the second appeal was allowed and the suit stood decreed. It is against the said judgment of the High Court, the appellants are in appeal by way of special leave petition.
(3.)The case of the appellants is that under the Will, Smt. Sona Devi acquired an absolute estate and any subsequent bequeath in the same Will in favour of the daughters' sons was repugnant to the absolute interest created in favour of Smt. Sona Devi and, therefore, invalid. On the other hand, it was argued on behalf of the respondents that the Will has to be read as a whole and an effort should be made to give effect the wishes of the testator and, in that view of the matter, all the sons of the daughters of Jamuna Prasad would inherit the property left by Jamuna Prasad.