Shanti Swaroop Dhavan, J. - (1.)This is a second appeal filed by Smt. Brahmani Devi and her minor son Ganesh Shanker from the decree of the Civil Judge, Etawah affirming that of the Munsif of Etawah dismissing their suit for a declaration that a house attached by the State Under Sec. 88 of the Code of Criminal Procedure does not belong to the Respondent but to her.
(2.)One Ram Nath, the husband of the Plaintiff -Appellant, did not appear in answer to a summons by the criminal Court in a complaint filed against him. He was proclaimed an absconder Under Sec. 87 Code of Criminal Procedure and subsequently his one third share in the house in dispute was attached Under Sec. 88 Code of Criminal Procedure. The Appellant Smt. Brahmani Devi filed an objection which was summarily rejected. She then filed the present suit for a declaration of her title to her property. She alleged that the house originally belonged to one Gokul Prasad who was her father -in -law and the father of her husband Ram Nath. He made a Will in the year 1940 bequeathing the house to his wife Smt. Kalawati and his daughter Smt. Naraini Devi, with a provision that on the death of either of them the survivor would become the owner and with a further provision that neither Kalawati nor Naraini Devi would have the right to alienate or transfer the house and that after the death of both it would devolve on his six sons, one of whom Ram Nath. The Appellant further alleged in her plaint that after the death of Gokul Prasad his widow Smt. Kalawati and daughter Naraini Devi became the joint owners of the house and after the death of Smt. Naraini Devi, the widow became the absolute owner of the house. She further alleged that, on 11 -4 -1944, Smt. Kalawati on the advice and with the consent of her sons who were alive four having died during Kalawati's lifetime -made a Will in favour of three persons, namely, the Plaintiff Brahmani, a grand -son Vishnu Babu (son of Jugal Kishore deceased) and daughter -in -law Smt. Mahtabo (the wife of the son Jhunni lal who was alive at that time). The Plaintiff contended that this Will was acted upon immediately after the death of Smt. Kalawati and the three legatees under the Will took possession of the property to the exclusion of all other heirs of the ancestor Gokal Prasad but with their consent. She alleged that under this arrangement she and other two legatees remained in possession without interruption for the next ten years and continued to enjoy the possession and profits of the house. She contended that in these circumstances Ram Nath had no share in the house in dispute and the State could not attach his share in it for the simple reason that he had none.
(3.)The suit was contested by the State. Very briefly the defence was that the will executed by Smt. Kalawati was null and void and did not have the effect of conferring any title on the other two legatees because Smt. Kalawati had only a life -interest in the house. The State contended that Smt. Kalawati having got only a life -interest in the property could not disturb the order of succession as provided in the will of Gokul Prasad and on her death her interest came to an end and Gokul Prasad's sons became the absolute owners joint) of the house. Therefore (the State pleaded) Ram Nath had a one third share in the house in dispute at the time when the attachment Under Sec. 88 Code of Criminal Procedure was made.