1. This is a plaintiffs' appeal against a judgment and decree of Mr. Sansar Chand Senior Subordinate Judge, Hoshiarpur, allowing an appeal against the decree of the Subordinate Judge.
2. The facts which have given rise to this appeal are as follows. Ishar Das acquired the property in dispute. He had a son Miri Mal who predeceased him leaving a widow Koklan who is the plaintiff, and Paro and Melo were Ishar Das's daughters. The former had three sons Maharaj Kishen, Om Parkash and Udho Ram. Kaka defendant No. 3 is the son of Udho Ram. Melo has a son Pindi Das.
3. On the 29th June 1933 Ishar Das made a registered gift of two portions of land measuring 165 'kanals' 8 'marlas' and 423 'kanals' 18 'marlas' in favour of his wife Pali 'alias' Khushali. The gift is in the following terms:
'I.....have made a gift in favour ofmy wife Pali 'alias' Khushali who has been serving me and have given her possession as from to-day. She will, like myself, now be the owner in possession and I will have no concern with the property. She has the power to alienate by sale or mortgage but she will not be entitled to make a gift.'
On the same day Ishar Das made a will of 100 'kanals' 5 'marlas' of land in favour of his wife Pali 'alias' Khushali and his daughter-in-law Koklan to be taken equally by them. On the death of one the survivor was to get the other half. The words used in this will are:
'I make a declaration by this will that after my death of all my property -- movable and immovable.....Koklan, my daughter-in-law,and Pali, my wife, shall be 'malik' and 'qabiz' and they will be entitled to the income of the property during their lifetime but will not have the power of making an alienation, and after their death whoever is my lawful heir will be entitled to all my property.'
4. Mutation of gift was sanctioned on the 12th October 1938.
5. In May 1941 Ishar Das made an oral gift of the land mentioned in the will to Pali and Koklan in equal shares. For the purpose of getting a mutation entered he made an application Ex. P. 3 on the 10th May 1941 in which he stated that his wife and his daughter-in-law had been serving him and therefore he was very pleased with them and he wanted to provide for their maintenance (parwrish) and he had therefore made a gift of the property in their favour and he wanted a mutation to be entered. This mutation was sanctioned on the 30th July 1941. On the 2nd October 1941 Ishar Das died.
6. On the 26th January 1942 Pali is stated to have made a will in favour of Koklan of all her property. This will is attested byHatarn Jang (P. W. 1), Parduman Singh (P. W. 2) and Jamna Das (P. W. 8). This js Ex. P. 1. Because of the ink being spilt on it, it had become a little spoilt; another will is then alleged to have been executed by Pali in favour of Kpklan on the 14th February 1942. Of this will the attesting witnesses are Hatam Jang (P. W. 1), Parduman Singh (P. W. 2) and Lachhman Singh who is not a witness. On the same day an application was made to the Registrar to come to the house of the testatrix and register the document. For some reason or another he could not come that day and came on the 16th February 1942, on which day the testatrix was too ill to present the will and therefore it was not registered. Pali died on the 19th February 1942. Ex. P. 9 is an extract from the register of deaths in regard to her death. In this document her age is stated to be 85 years and she is stated to have died as a result of fever and cough. The will was registered under Section 40 of the Registration Act on the 24th February 1942. On the 3rd July 1942 Koklan made a gift pf a portion of the property which she had got under the will to the Sanatan Dharam Sabha. Hoshiarpur.
7. On the 11th September 1942 mutation was sanctioned in favour of Koklan but on appeal this order was reversed on the 12th September 1944. But on further appeal the mutation was sanctioned by the Commissioner on the 14th April 1945.
8. After the Collector had reversed the order of mutation in favour of Koklan a suit was brought for declaration and injunction by Koklan and the Sanatan Dharam Sabha claiming that the plaintiffs were the absolute owners of the property. The suit was resisted by the grandsons of Ishar Das, being daughters' sons, who contraverted the allegation made in the plaint. The trial Court held that Pali 'alias' Khushali was the absolute owner under the deed of gift Ex. P. 4 and therefore could alienate the property, but she was only a limited owner in regard to the property she got under the Will Ex. P-5, and also that a valid will had been executed by her and therefore decreed the suit in regard to the property gifted but not in regard to the property willed. Both sides appealed to the Senior Judge who held that the estate taken under the deed of gift was not a full estate and that the wills propounded by Koklan were not genuine and therefore he allowed the defendants' appeal and dismissed the plaintiffs' suit. The plaintiffs have come up in second appeal to this Court.
9. In appeal the first submission made by counsel is that the estate which was given to Pali 'alias' Khushali was a full estate and not merely a life estate. The words of the deed of gift have already been given above and counsel contends that the use of the words ' 'malik' like myself and the power of making alienation by sale of mortgage' are sufficient to give the full estate and he has relied on a passage in Mulla's Hindu Law at page 487 where it is stated:
'The word 'malik' (owner) imports full proprietary rights 'including a full right of alienation unless there, is something in the context or in the surrounding circumstances to indicate that full proprietary rights were not intended to be conferred. Hence it has been held that words of disposition in adeed or gift or will that the donee shall 'become 'malik' (owner) of all my properties', or similar words, confer an heritable and alienable estate in the absence of a context which indicates a different meaning.'
Nothing has been shown in the present case that the intention of the donor was to cut down the estate which had been indicated by the words 'malik like myself'. Respondents' counsel submits that the fact that Pali was not given the right to gift away the property is sufficient indication of that fact, but as against this there is the fact that on that very day another document was executed by Ishar Das and this was a will by which he gave another portion of his estate to his wife and his daughter-in-law in equal shares, but he clearly indicated that that was for the purpose of their maintenance without any right of alienation. The difference in the language of the two documents executed on the same day is in my opinion clear indication of the fact that Ishar Das was aware of the distinction between a full estate and a widow's estate and that his intention was to give a full estate and not a widow's estate by means of the gift that he made. In 'Bishunath Prasad v. Chandika Prasad Kumari', 55 All 61, a Hindu executed a registered deed of gift in favour of his daughter-in-law as he desired to provide for her support and maintenance. He declared that she should remain absolute owner (Malik Mustaqil) of the property and pay the Government revenue. It was held that this conferred an absolute, estate. The exact words of this deed of gift were:
'As it is my desire to make some arrangement for the support and maintenance of Mt. Balraj Kunwar, my daughter-in-law, I, the executant, have.....made a gift of theentire above-mentioned property.....to mydaughter-in-law.....for her support andmaintenance. I declare and give it in writing that the said Musammat should remain absolute owner of this property under this deed of gift.....'
The words used in the deed of gift now before me are stronger and I therefore am of opinion that the learned Judge was in error in holding that under this deed of gift only a life estate had been given and not a full estate.
10. The next question to be decided is as to whether the will which was made in favour of Pali and Koklan conferred a full estate or a life estate. It appears to me that that will did really confer only a life estate because the testator clearly stated that the property had been given for maintenance and that Pali and Koklan would not have any right of alienating the property devised.
11. The question then to be decided is whether the will which was made by Pali has been proved to have been made by her and is a genuine document. The learned appellate Judge started with the initial mistake that in Ex. P. 9, the death certificate, it was stated that Pali had been suffering from fever and cough for a month. There is no mention of any period of iliness in that document, and therefore from this alone the finding of the learned Judge that Pali became and continued-to be ill on or about the 19th January 1942 and thereafter does not seem to be justified.
12. The learned Judge also seems to have been affected by the statements of D. W. 3 and D. W. 4 and it is for that reason that he hasdisbelieved the evidence of the witnesses P.W. 1 and P. W. 2. In my opinion the learned Judge has misread the evidence of these two witnesses. I have had the evidence of D. W. 3 and D. W. 4 read out to me. (His Lordship considered the evidence of D. W. 3 and proceeded :) I am not prepared to place any reliance on the testimony of this witness.
13. The other witness on whom the learned Judge has relied upon is Mukand Lal, D. W. 4. (After considering the evidence of this witness, His Lordship held that his testimony was no better than that of D. W. 3 :)
14. It is true that it is the duty of the first appellate Court to appraise evidence, but where the Court misreads the evidence it becomes the duty of the second appellate Court to go into the evidence and give its own findings. According to the learned Senior Subordinate Judge the evidence of D. W. 3 and D. W. 4 shows that Pali was not in a conscious state for the month of January 1942. As I have shown above this the witnesses do not say. In view of this I am of the opinion that the finding given by the learned Judge in regard to the witnesses for the plaintiff must be ignored and I have therefore proceeded to look into the evidence myself.
15. and 16. The first will by Pali is dated the 26th of January 1942, (His Lordship considered external & internal evidence on the question of the genuineness of the will, and, the disposing mind of the testatrix and proceeded :) I hold therefore that the will Ex. P. 1 is a perfectly genuine document and there is nothing which would take away from its genuineness, and if that is a genuine document under that will Koklan would he entitled to the whole of the property which was gifted by Ishar Das in favour of his wife Pali in 1938.
17. In view of this it is not really necessary to give any finding on the genuineness of Ex. P. 2. but if it was I would have no hesitation in saying that it is a genuine document. Besides the evidence which goes in support of it and which also is the evidence in support of Ex. P. 1, the first will, there is the additional fact that on the 14th of February 1942 plaintiff Koklan applied to the Registrar to come to the house for the purpose of the registration of the will and he did come on the 18th of February. This is not the conduct of persons who wish to fabricate documents. For the purpose of fabrication people do not call sub-Registrars to come and register. It is an unfortunate circumstance that on the day when, the Registrar came, the testatrix was too ill to make the presentation required under the law, but the circumstance does not go against the genuineness of the will; it is a fact in favour of it. It was then submitted that an attempt had been made by Koklan to get a will prepared by another deed writer Kishori Lal, P. W. 5. After reading his evidence I am of the opinion that it is wholly false and is not worth the paper on which it is written and the learned Judge in my opinion erroneously fhought that this was evidence by which the plaintiff was bound.
18. If for any reason it is to be taken that the will Ex. P. l is revoked by the document Ex. P. 2, and it is necessary to give a finding then in my opinion the second will must be held to be a genuine will.
19. I am therefore of the opinion that the learned Judge was in error in holding (1) that under the deed of gift of 1938 Ishar Das only gave a life estate to his wife and (2) that the wills Ex. P. 1 and P. 2 are not genuine. In the result I allow this appeal, set aside the judgment and decree of the appellate Court and restore that of the trial Court. The appellants will have their costs in this Court and in the Courts below.