BISHUN SINGH ALIAS BABU SINGH Vs. THAKURJI MANGLA NAIN BHAGWAN

JUDGEMENT

(1.) These are consolidated appeals from a judgment and three decrees of the High Court of Judicature at Allahabad dated 80 October 1935 which set aside a decree of the Subordinate Judge of Cawnpore dated 2nd January 1932 and dismissed the 'plaintiffs' suit as against all the present respondents. The appellants are the plaintiffs. Appellant 1 claimed the properties in suit as the nearest reversioner of one Pohkar Singh deceased; and appellant 2, is a transferee of half of the properties from appellant 1. Stated generally, the respondents all derived their title directly or indirectly from the transfers of the property made by Mt. Gambhiri, the wife of Pohkar Singh, who survived him and died in 1919. The following pedigree set out in the plaint explains the relationship of the principal parties : The last male holder of the properties in question was Pohkar Singh, who died in 1900. He was separate from his brother Koklat Singh. He had three daughters, one of whom, Man Kunwar, had died before 1 October 1895 leaving a widower Gauri Shankar. Of the other daughters, Ram Piari, who died in 1918, was married to Shiam Lal (defendant 1), and Indramati was a minor unmarried. On 1 October 1895 Pohkar Singh executed a document purporting to be "a deed of gift" in favour of Gauri Shankar and others. The question for decision before the board is, what rights were conferred by this document on his widow by Pohkar Singh. After the death of her husband, Mt. Gambhiri executed the three following documents: (1) On 22 May, 1903 a deed of gift of certain properties in favour of her daughter Mt. Ram Piari. The latter died childless in 1915, and she made a deed of gift in favour of her husband Shiam Lal. (2) On 28 July 1914 a sale deed of a village and a shop in favour of the father of defendant 2. (3) On 26 September 1917 a deed of gift in favour of Shiam Lal. There have been subsequent transfers by the transferees from Mt. Gambhiri Kunwar.

(2.) The suit out of which this appeal arises was instituted by the appellants to set aside the alienations of the suit properties made by Mt. Gambhiri and her transferees, on the ground that Mt. Gambhiri had no power to make the said alienations as she took only the limited estate of a Hindu widow in the properties left by her husband, and that the alienations were not made for legal necessity. The respondents pleaded that the deed of gift above referred to, amounted also to a "will" in favour of Mt. Gambhiri by virtue of which she became the absolute owner of the properties in question and she had, therefore, every right to alienate them, the appellants' contention on these points being that the "deed" does not amount to a " will " as there are no words of bequest in it and that it should be ignored altogether, as it confers on Mt. Gambhiri nothing more than a widow's estate on the properties which as the widow of Pohkar she would ordinarily have. The deed of gift continuous in its narration of facts, consists in substance of two parts. By its first part, Pohkar Singh gifted a 16-annas share in Mauza Malkanpur and a 12-annas share in Mauza Deomai to Gauri Shankar, Ram Piari and Indramati in equal shares reserving to himself the remaining 4-annas share in Mauza Deomai. The relevant portions of the second part of the document run as follows: "The transferees, aforesaid, shall have, as proprietors, all powers, like myself to make all kinds of transfers and I have transferred the property, made gift of, with all sorts of interest relating thereto, just like myself, in favour of the transferees without the exception of anything and any interest and after the registration of this document I shall get the mutation of names effected, as required, in favour of the transferees." "as regards other property with 4-anna zamindari share in mauza Deomai, which is in my possession and which under this document has not been transferred, I shall have power of transfer and after my death my wife Mt. Gambhiri Kunwar shall have power of transfer in respect of the remaining property of all kinds" [or as Shyam Lal contends "shall have power of making every kind of transfer of the remaining property."] "For the present I do not make any arrangement or transfer regarding that property. If I the executant or my wife die without making (any) arrangement or transfer, then my property shall according to shastra devolve on my daughters who are alive or on their descendants, entitled to it. Therefore I and my heirs and representatives shall have no objection to it, and if they do so, it shall not be heard, and will be null and void. Hence I have executed these few presents by way of a deed of gift so that it may remain as evidence and be of use when needed."

(3.) It may be mentioned in passing, that the document is written in the vernacular language of the parties; and there was dispute with regard to the translation of that part of it corresponding in the original to what has been enclosed within brackets in para. 2 of the extract given above. The board following the usual practice have adopted the translation accepted as correct by the High Court. Nothing arises in this appeal regarding the construction or subject-matter of the first part of the document. It is admittedly, what it purports to be, viz., a deed of gift. The dispute between the parties relates to the construction of its latter portion and the nature of this dispute has been already referred to. The contentions of the parties with respect to it were raised in the material portion of issue 2, and issue 3, which are as follows : Issue 2.-"Whether Pohkar Singh made any 'will' by means of the deed of gift of 1895......or he died intestate ?" Issue 3-"Was Mt. Gambhiri the absolute owner of the properties by virtue of the 'will' of Pohkar Singh as alleged by the defendants ?" The Subordinate Judge held that the "deed" constituted also a "will" in favour of Mt. Gambhiri, but according to him, there was nothing in its provisions "to show that Pohkar Singh intended to confer an absolute estate, or anything more than a limited estate on his wife, or that he wanted to alter the course of inheritance in any way."