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Kamla Devi W/O. Banarsi Dass and ors. Vs. Kishori Lal Labhu Ram and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 346 of 1960
Reported inAIR1962P& H196
ActsIndian Succession Act, 1925 - Sections 63; Hindu Succession Act, 1956
AppellantKamla Devi W/O. Banarsi Dass and ors.
RespondentKishori Lal Labhu Ram and ors.
Cases ReferredKamakshi Ammal v. Krishnammal
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....tek chand, j.(1) this is a regular first appeal filed by the plaintiffs from the decree and judgment of the senior sub-judge. ferozepore, dismissing their suit with costs. plaintiff no. 1 was ordered to pay count-fees of rs. 1953.60 as the suit had been brought in forma pauperis. the following pedigree-table will indicate the relationship of the parties with banarsi dass deceased.jai dial mal______________________|_____________________| |labhu ram banarsi dassdeft. no. 1 two wives.(died during the suit). ______________|______________|_____________________ | || | jamna devi kamla devichampa devi kishore lal (dead). plff.deft. no. 4 deft. no. 2 | _________________|| | || kamlesh pup alias| plff.2 wap. plff 3.____________|____________| |mehma devi kesra devideft. 3. deft. 5.(2) jamna devi.....

Tek Chand, J.

(1) This is a regular first appeal filed by the plaintiffs from the decree and judgment of the Senior Sub-Judge. Ferozepore, dismissing their suit with costs. Plaintiff No. 1 was ordered to pay count-fees of Rs. 1953.60 as the suit had been brought in forma pauperis. The following pedigree-table will indicate the relationship of the parties with Banarsi Dass deceased.

JAI DIAL MAL______________________|_____________________| |Labhu Ram Banarsi DassDeft. No. 1 Two Wives.(died during the suit). ______________|______________|_____________________ | || | Jamna Devi Kamla DeviChampa Devi Kishore Lal (dead). Plff.Deft. No. 4 Deft. No. 2 | _________________|| | || Kamlesh Pup alias| Plff.2 Wap. Plff 3.____________|____________| |Mehma Devi Kesra DeviDeft. 3. Deft. 5.

(2) Jamna Devi died during the life-time of Banarsi Dass and she had borne to him two daughters Mehma Devi and Kesra Devi, both of whom are married. On the death of Jamna Devi, Banarsi married Kamala Devi, plaintiff No. 1, who bore to him two daughters, Kamlesh and Pup, who are minors. Labhu Ram was the brothers of Banarsi Dass and he had been impleaded as defendant No. 1 and his son Kishori Lal as defendant No. 2. During the pendency of the suit, Labhu Ram died and is represented by Kishori Lal his so, who has been a defendant from the beginning. Champa Devi is Labhu Ram's daughter who is married. The three plaintiffs that is, Kamla Devi and her two minor daughters, were allowed to sue as paupers. The petition to sue in forma pauperis was made on 30th December, 1957, but, as amended, it was filed on 30th December, 1957, but, as amended, it was filed on 8th January, 1960. Originally, Champa Devi had not been impleaded as a defendant, but she was included as defendant No. 4 at the time of the filing of the amended petition of plaint. She is the wife of Tek Chand of Zira.

(3) Banarsi Dass owned three shops in Zira and four houses. He also owned agricultural land measuring 65 kanals in the area of Tavandi Jale Khan and 92 kanals 9 marlas in the area of Karhewala, Tehsil Zira, district Ferozepore. It is alleged in the plaint that Kamala Devi the first plaintiff, was married to Banarsi Das 16-17 years ago and as a result of the marriage they had two daughters who were aged 13 years and 11 years, their respective dates of birth being 21st may, 1945 and 12th November 1947. Besides the immovable property, Banarsi Dass left ornaments of gola utensils and other household effects. Banarsi Das has been ill for a year and-a half before his death. According to the plaint, his wife Kamala Devi had been getting him medically treated as Amritsar and at other places, but as Banarsi Dass was an doctors at Amritsar held out no hope for his recovery and in the month of March, 1954 his wife brought him to Patiala. There too the doctors were not willing to admit him in view of his critical condition, but they were ultimately prevailed upon to do so, but he showed no signs of recovery. According to the plaint, he died in the hospital on 22nd April 1954, though the doctors continued to give him injections and made every kind of effort to revive him. He was declared to be dead on 23rd April, 1954. He was suffering from uremia. He had been operated upon earlier in April 1954. The plaintiffs alleged that on the death of Banarsi Dass, the defendants took illegal possession of all movable and immovable property though the plaintiff alone had title to it. The plaintiff prayed for a decree for possession of the houses, shops and lands.

(4) In the written statements filed by the defendants the relationship of Kamla Devi widow of Banarsi Dass and of plaintiffs Nos. 2 and 3 as his minor daughters was not denied. It was pleaded that before his death Banarsi Dass had executed a will in respect of his property on 27th March, 1954 which was registered by the Sub-Registrar on 31st March 1954 on the application of Banarsi Dass dated 29th March, 1954. By this will Exhibit D. 1, plaintiff No. 1 was disinherited on the ground that she was not leading a moral life. Under that will, the two minor daughters, Kamlesh and Pup, were left in equal shares one house in the agricultural land. He bequeathed to his daughter Mst. Mehma, wife of Jagminder Lal, one double-storeyed house and one-third share in the agricultural land. To his other daughter Kesra Devi wife of Sita Ram, he gave a single-storeyed house.

He set apart his other immovable property for Jain religion and provided that his brother Labhu Ram will sell that property and pay the amount realized to Tek Chand son of Wishnu Dass Jain, who would spend the amount on religious work at some place of pilgrimage of Jains, as he might think proper. It was also directed in that will that his brother Labhu Ram and his son-in-law Jagminder Lal were to be the guardians of the minor daughters on his death and only they would be entitled to bring up the minors and to perform their marriages, and that Kamla Devi, his wife, would have no right to interfere in this matter. It was also stated that Kamla Devi being a woman of loose character would not touch his movable property or have right of residence in any immovable property of his. His brother Labhu Ram, and his son-in-law Jagminder Lal were appointed administrators for getting the will acted upon. This will was scribed at Patiala by Bedi Balwant Singh, petition-writer, D.W. 1, and was attested by his two sons-in-law. Jagminder Lal D.W. 3 and Tek Chand D.W. 4 Kalu Ram, D.W. 2, who is a clerk of a lawyer, also attested the will.

It is stated in the written statement that Banarsi Dass, about four months before his death, used to get himself treated at the house of his daughter Kesra Devi at Samana where she was serving her father. Then he was treated for about two months in a private rented house at Patiala. A few days before his death on the advice of the doctors that he would recover by operation, Banarsi Dass was admitted in Rajindra Hospital as an indoor patient. Plaintiff No. 1 did not serve him during his illness and that he dead on 24th April, 1954. In the written statement of Kesra Devi, there is no mention of the second will of Banarsi Dass which, as will be presently seen, is the real bone of contention. In the written statement, dated 27th July 1956 which was filed by Labhu Ram, Kishori Lal, Mehma Devi and Champa Devi it was alleged that the plaintiff was not of sound moral character from the very beginning and that it had been learnt that she was pregnant even then.

Banarsi Dass died on 24th April 1954, and not on 22nd April, 1954, as stated in the plaint. The relationship of the plaintiffs was not denied. It was then alleged that Banarsi Dass had executed a will on 23rd April, 1954, in respect of his entire immovable property and the three plaintiffs had been disinherited. The subsequent will is Exhibit D. 2. It was stated in this will that his previous will on 27th March 1954, was being cancelled that Plaintiff No. 1 had left him for the last many days and taken the two minor daughters along with her whose ages were eight years and six years respectively. As Kamla Devi was a woman of loose character, and was not an obedient wife he could not pull on with her. The testator feared that after his death she would become still more loose and would not be able to perform the marriages of his minor daughters from his first wife and their husbands, Jagmider Lal and Sita Ram had rendered good service to him and were getting him medically treated at Patiala. he therefore, bequeathed his property to his two married daughters and his niece Champa Devi.

It is not necessary to give the details of the various parcels of the property so bequeathed except that it was specifically mentioned that Mst. Kamla Devi would not have any share either in movable or immovable property and she was excluded even from the right of residence. He also set apart some immovable property for being utilised for purpose of Jain religion. Regarding his gold ornaments, he said that they would be divided equally between the four legatees. This will Ex. D. 2, was also scribed by Bedi Balwant Singh D.W. 1 and was attested by the testator's two sons-in-law Jagminder Lal and Tek Chand and by his brother Labhu Ram. Dr. Mohinder Singh Nanda D.W. 8, had also put his signatures. This will bore the thumb-impression of Banarsi Dass thought admittedly he was literate and had signed his earlier will, Exhibit D. 1.

(5) On the above pleadings the trial Court framed the following issues:

1. Whether Banarsi Dass deceased was the owner of two shops mentioned at No. 1 in the heading of the plaint?

2. Did Banarsi Dass deceased bequeath the house mentioned at No. 6 in the heading of the plaint in favour of Mst. Kesra Devi?

3. Whether Banarsi Dass deceased bequeathed the properties mentioned at Nos. 3, 4 and 5 in favour of Labhu Ram for using the same for religious purposes, if so what is its effect?

4. Whether Banarsi Dass deceased bequeathed the remaining property in favour of Kishori Lal, Champa Devi and Mst. Mehma Devi?

5. Is the order permitting the plaintiffs to sue in forma pauperis without jurisdiction if so, what is its effect?

6. Relief.

(6) The first issue was answered in the negative and second, third and fourth issues in the affirmative. The fifth issue was held in the negative. The trail Court expressed the view that the testator's thumb-impression on the will had been affixed as on account of his weakness and also due to administration of glucose in his right arm he could not sign the will though he was of sound and disposing mind. The trail Court thought that the will had not resulted from any force or undue influence and the testator was in his full senses and had executed the testament as a result of his own volition and free will. According to the learned trial Judge, Jagminder Lal, husband of Mehma Devi, and Tek Chand, husband of Champa Devi were not interested witnesses, though their respective wives were beneficiaries under the will. Reliance was placed upon the statements of the scribe D.W. 1 and Dr. Mohinder Singh D.W. 8, who were found to be independent witnesses. Morphia was given to Banarsi Dass by injection on 23rd April, 1954, at 10.30 p.m. but, according to the trial Court that would not incapacitate him from executing the will. He has also given coramine at 4.15 a.m. on 23rd April, 1954, as he was suffering from depression and had become debilitated. Though the wife and the two minor daughters had been disinherited the learned trial Judge though that the will was genuine nevertheless. The statement of Kamla Devi, that she was given bearing by the married daughters of the deceased and was then turned out while Banarsi Dass was receiving treatment as an indoor patient, was disbelieved. Upon these findings, the suit was dismissed.

(7) Before examining the arguments addressed at the Bar, a resume of the statements of the several witnesses may be given.

(After discussing the evidence His Lordship continued as under);

(8-23) I may now advert to the principles of law which guide the Courts under such circumstances.

(24) The first duty of the Court is to take note of the setting in which the will was made by the testator. This is also known as the 'arm-chair' rule. In other words so far as permitted by the evidence, the Court should place itself in the testator's arm-chair at the time he executed the will and find out how the testator regarded the affairs, and what feelings he had, in respect of the persons, he was benefiting or disinheriting. The Court has then to ascertain if the testator was in a position to understand the nature of the act and its effects the extent of the property which he was disposing of and whether, he was able to apprehend and appreciate the claims to which he had to give effect.

The Court should be astute in ascertaining if any disorder of the mind had poisoned his affections perverted his sense of right, or prevented the exercise of his natural faculties. If the Court is satisfied that the will is genuine it is bound to give effect to it even if some of its provisions are extraordinary, unnatural, unreasonable, or iniquitous. In so far as the will is a legal declaration of a man's intention as to how he wants the disposition to be made of his property after his death, his declared intentions must be given effect to, unless forbidden by law. In this matter the primary function and duty of the Court, therefore, is to ascertain the intention of the testator as to the disposition of his property and to give effect to it, if it is in accordance with law. The Court has to interpret the will from the testator's point of view, and not to make a new one in conformity with its own notions of how the testator's property ought to be equitably distributed. The Court cannot superimpose its discretion, or its sense of what is equitable, as against the testator's true intention.

In construing a will, the all-important consideration is ascertainment and effectuation of the testatorial intention so far as legally possible. Passions and prejudice, and even the obsessions, of the testator have to be taken account of. His prejudice against a near relative by itself is no ground for invalidating his will even if such a prejudice is ill-founded or unreasonable. The testator is at liberty to omit his relations for reasons that may be bad, and this will not deprive him of the testatorial power. It is, of course, different if the prejudice borders upon a delusion which would certainly undermine his testamenti factio. Because a testator has hatred for a particular relation, or suspects him of disloyalty or infidelity, he is not thereby deprived of mental capacity to make a will, and the law given him a right to make a will which, according to others, may be unjust unjudicious, or unreasonable.

A testator is entitled to express his personal opinion, even though erroneous, that particular relatives have not treated him with affection or have not manifested gratitude towards him which, he thought, he deserved. A groundless prejudice of a testator against a relative will not be a good reason for setting aside his will unless it can be shown that the prejudice rests on some mental aberration. There may however, be cases where testator's antipathy towards a near relative may be so extravagant and so manifestly baseless as to amount to an affection of the mind, depriving him of his normal faculties and thus preventing him from knowing the natural objects of his bounty.

(8) The law casts burden of proof of the validity of a testament upon the propounder. The party who puts forward the document, as a will of a testator, must establish that the testator was competent to make a will when he executed it. A will is a very solemn document by which a dead man entrusts to the living the effectuation of his wishes. Being ambulatory, it takes effect on the death of the testator, when the genuineness of the will or the testamentary capacity of its maker is contested. When the will is propounded, the testator is not there to prove or deny his signatures, or to explain the circumstances of its execution. It is, therefore, incumbent upon the propounder to adduce adequate and trust-wrothy evidence to show that there has been full compliance with the requirements of law. The conscience of the Court has to be satisfied as to the genuineness of the will where which is being set up and that it is the last testament of a free and capable testator.

Inter alia, the mental soundness and the physical fitness of the testator is an important circumstances when the testatorial capacity is being scrutinised. The fact that the testator who was literate and could sign his testament, has thumb-marked it is a circumstance which calls for an explanation. The fact that the will is unnatural, unreasonable and improper calls for close examination and particularly so where the will is not only inofficious but also unregistered, and make when the testator was physically and mentally feeble and near his end. It has to be remembered that in the present case the will, Exhibit D. 2, was presented for registration by Jagminder Lal on 24th May, 1954, month after the testator's death. An inofficious will-testamentum inofficiosum is an instrument which is obvious to moral claims upon the testator which are suggested by the ties of kinship. Where there is a clear disregard by a testator of a child, more so if such a child is helpless by reason of infancy or disease and in favour of a remote relation, or a stranger, the Court, while allowing that a man can do as he pleases with his property will be alert in looking for the presence of some improper influence which might have warped the judgment of the testator.

The Court will presume that such a testamentary act is not likely to the product of a healthy and independent mind. The very omission of a close dependant from the bounty of the testator raises a presumption in favour of some undue influence. The probative force of such a testament rises and falls in inverse ratio to its unreasonableness. The more unreasonable an instrument is, the less probative value it carries. Where the propounder of a will takes a pecuniary benefit under it, the Court's suspicion is justly roused. Where circumstances are such as to excite the suspicion of the Court the evidence in support of the instrument must pass the test of jealous scrutiny, till the suspicion so stirred is removed by clear problem as regards the sound disposing mind of the testator being free from undue influence.

(9) As to the mental condition of the testator in order to give validity to his last will, the incapacity or the impairment of the mental faculties need not approximate to insanity or absolute imbecility. There are degrees of mental weakness as of mental acumen. If a testator understands in a general way the nature and extent of his properties and his relation to those who have a natural claim to his bounty, and he further possesses a general understanding of the practical effect of the will be is said to be of sound mind. By itself, old age debility of body, or infirmity through disease is not a conclusive factor for determining incapacity. An enfeebled frame, impaired by age or disease may still retain a mind sufficiently alert for disposition of the property by will.

There are, however factors which may be taken into consideration for determining sufficient testamentary capacity. The testator's age disease and mental weakness are important considerations in determining if the will had been got executed as a result of importunity or undue influence, with a view to find out, if the testator was in a position to offer resistance or to oppose such influences. Such debility, physical or mental, militates strongly against the voluntary character of the will. The combination of circumstances such as age, disease, mental and physical weakness, and above all, an unnatural will to the extent that minor children of tender years are left absolutely unprovided for, and comparatively remote relations, like a nephew and niece, become recipients of the bounty, raise a presumption of undue influence.

(10) Applying the above tests the last will Exhibit D. 2, was grossly unreasonable in its provisions and plainly inconsistent with the testator's duty to his family. Whatever offence, if any, might have been given by his wife to merit disherison, the two children, aged eight years and six years at that time were in the largest measure entitled to be benefited by the will of the father who was aware if his obligation towards them. The other two natural beneficiaries were his two married daughters who were living with their husbands and as such they had comparatively a lesser claim to his benevolence. The married niece and the major nephew had scant claim in the presence of the minor daughters. There is no reasonable explanation for the exclusion of the latter from the testator's property both movable and immovable. No explanation, whatsoever, is forthcoming in the will for their exclusion from the list of beneficiaries.

This will is inofficious with a vengeance. The unnatural bequest, combined with the testator's weakened mental condition and bodily debility, warrants a conclusion in favour of the exercise of undue influence on the mind of the testator. Having regard to the unfair, unnatural, and unreasonable character of this will the enfeebled state of mind and body of the testator, the fact of being surrounded by the beneficiaries and the propounders of the will; the inference of importunity and undue influence cannot be resisted. Under somewhat similar circumstances, the following observations were made by the Privy Council in Tayammaul v. Sashachalla Naiker, (1863-66) 10 Moo Ind App 429 (435):

'How it is possible that a person in such a condition could be capable of any act requiring judgment and reflection especially one to which no antecedent circumstances appear to have led, and for which the enfeebled and scarcely conscious mind was unprepared. In such a state as that described, even if the mind were passively awake to the suggestion made to it, it would naturally cling to repose and yield for the sake of it, to any external suggestion. Viewing the adoption and the will together, they present every appearance of a concerted family arrangement. As an adopted child passes into a new family, his natural relations become, as it were strangers and the association of the boy's natural uncle with the father of the adopting mother for which the Will provides, must be regarded as a contemporaneous and concurrent act with the adoption. If the law were to countenance acts of this description, performed at such a time and under such circumstances without the clearest and most cogent evidence to establish their validity, relations and managers would be encouraged to advance their own private notions of what might be advisable to be done for the good of the family, and to ascribed acts to a dying man in which he would have been the merely passive instrument to prolong their own gain and authority'.

(11) In a recent case in Venkatachala Iyengar v. Thimmajamma, AIR 1959 SC 443, leading authorities were considered and the Supreme Court laid down the principles which the Courts should apply when called upon to give effect to contested wills. The Supreme Court observed:

'There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind any appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose any other infirmity. Propounders themselves take prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence'.

In Vallaswami Servai v. Sivaraman Servai, AIR 1930 PC 24 which was a case of probate, the propounder of the will was the principal beneficiary under it and he had taken a leading part in giving instructions for the execution of the will and procuring its registration. It was observed that these circumstances would excite the suspicion of any probate Court and required it to examine the evidence in support of the will with great vigilance and scrutiny. The propounder was not entitled to probate unless the evidence removed such suspicion and clearly proved that the testator had approved of the will.

(12) The facts and circumstances of this case, in my view, justify an inference against the genuineness of the will, Exhibit D. 2, and after making allowance for the findings of the trial Court, who had the advantage of seeing the witnesses and watch their demeanour, this will has been upheld on entirely erroneous grounds and in disregard of the cardinal principles of law applicable to the construction of wills; and, accordingly. I find against the genuineness and due execution of this will.

(13) Regarding Exhibit D. 1, the earlier will, executed on 27th March 1954, I am of the view that it does not suffer from any flaw. It was executed at a time when the mental faculties of the testator were not impaired and though physically unwell he was not in articulo mortis as he died nearly a month later. There does not appear to be any domination over his mind by any relation who sought any benefit for himself. This will was also scribed by Bedi Balwant Singh and it was attested also by Kalu Ram. Tek Chand and Jagminder Lal. This will bore the signatures of Banarsi Dass and was presented for registration by him to the Sub-Registrar on 29th March 1954. No attempt has been made to show that the signatures on the will Exhibit D. 1 are not those of Banarsi Dass or that some other person had presented the document for registration to the Sub-Registrar. These are strong circumstances indicating the genuineness of this will. Its attestation in accordance with the requirements of S. 63, Indian Succession Act, has also been satisfactorily proved. The will is also natural in the sense that the beneficiaries are the four daughters and not strangers. It is true that the claim of the wife has been ignored, but for that there is a clearly expressed reason on the face of the will namely, that Banarsi Dass thought that his wife was of loose character and he did not have any confidence in her capacity to look after the minor daughters or to have them suitably married when they come of age.

It is also true that no material has been placed upon the record from which it can be gathered that suspicion attaching to the morals of Kamla Devi, in the mind of her husband, was based on facts and not fancy. The belief of Banarsi Dass that Kamla Devi was not faithful to her martial obligations was however, firm. Even if this belief was without adequate basis and had rested on an unreasoning and jealous disposition that factor alone would not be sufficient to destroy his testatorial capacity. The false belief in the infidelity of the wife, not being delusioned, cannot be a good ground for not giving effect to the first will.

One distinguishing feature of this will is that no person who was not the natural object of his bounty was benefited, and further the will was not executed near death. I am, therefore, unable to find that the first will suffers from any infirmity.

The Court must, therefore, give effect to the clearly expressed intention of the testator and, if he is clearly determined to exclude a near relation even on unjust grounds, the Court cannot acts as the testator and recast the will, and this matter is clearly outside the scope of the 'arm-chair' rule. Where the testator was not overcome by any abnormality of the brain his single-minded determination to exclude a particular relation ordinarily entitled to his munificence must be respected; and the motivating prejudices and passions against a near relative would not suffice to vitiate the will.

(14) The result therefore, is that subsequent will, Exhibit D. 2, is struck down, but the prior will, Exhibit D. 1 stands revived and is effective Plaintiffs Nos. 2 and 3 are entitled to take possession of the properties falling to their share in accordance with the will Exhibit D. 1.

(15) Mr. Y. P. Gandhi has also raised a new point, namely, that the testator's will is subject to the claims of persons who are entitled to maintenance and on these grounds he contends that Kamla Devi the testator's widow, having been completely disinherited under the will is entitled in law to be maintained and the will Exhibit D. 1 is subject to that claim of her's. It is a settled rule of Hindu Law unaffected by the Hindu Succession Act, 1956, that a Hindu cannot by will so dispose of his property as to defeat the legal right of his wife or of any other person entitled to maintenance. If a person disposes of his entire property, whether by gift or by devise, the maintenance holder has the right to enforce his or her claim against the donee or the devisee as the case may be. Accordingly, the legatees under the will must provide for the maintenance of the dependants of the testator.

It is provided in Schedule II, Rule 1 of the Indian Succession Act 1925, that a testator cannot bequeath his property so as to deprive a person of any right of maintenance. A learned Single Judge of Madras High Court in Kamakshi Ammal v. Krishnammal, AIR 1938 Mad 340 remarked that the right to maintenance possessed by a Hindu widow cannot be taken away by any disposition made by her husband, and a devise under the will was bound to provide for her maintenance where the husband under his will had granted some property to his widow, and the rest to other donee and if the property granted to her is insufficient for her maintenance she can retain that property and can also claim in addition maintenance from other donees.

It is however not necessary to decide this matter, as it had never been raised at any stage, either in the pleadings or in the grounds of appeal. Moreover, the suit had been instituted on a totally distinct cause of action. Kamla Devi may, if she likes, have her claim for maintenance examined by a separate suit instituted against the legatees who would also include her two minor daughters. In that event she and the girls having a conflicting interest cannot be ranged on the same side but have to be impleaded as defendants. In this suit, among other reasons, it is not possible for Kamla Devi, plaintiff No. 1 to seek relief inter alia against her two daughters plaintiffs Nos. 2 and 3. The argument of the learned counsel, on the basis of the will being subject to the right of the first plaintiff, cannot therefore, prevail in these proceedings.

(16) On the above discussion plaintiffs Nos. 2 and 3, minor daughters of Kamla Devi, plaintiff No. 1 and of deceased Banarsi Dass, are entitled to a decree for possession in respect of properties bequeathed in their favour under their father's will, Exhibit D. 1, dated 27th March, 1954 and are granted the same. The suit of plaintiff No. 1 fails and is dismissed. The court-fee in both courts shall be payable by the defendants. In the circumstances of the case, the parties are left to bear their own costs of both the courts.

K.L. Gosain, J.

(17) I agree.

(18) Order accordingly.

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