R.C. Mitter, J.
1. This appeal is on behalf of the plaintiffs and arises out of a suit for a declaration that they are entitled to the whole of the properties in suit and that the mortgage which defendant 1 had obtained from one Abdul Mataleb and the decree obtained therein is not binding on them. For the purpose of following, controversy between the parties the following genealogy is material:
MEHER ALI (died 3-4-1908), w. KARIMANNESSA.
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Abdul Mataleb Abdul Rahman Abdul Khalque Marium Fatema Amina
died 31-10-1915 died 30-4-1924 Plff. 1. Plff. 2. Plff. 3. Plff. 4.
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Md. Taher, Deft. 3. Samsul, Deft. 4. Sara Bibi, Deft. 5. Abu Baker, Plff. 5.
2. The property belonged to Meher Ali who died on 3rd April 1908. Just before his death, that is to say on 7th March 1908, he executed a will by which he appointed his wife Karimannessa executrix to his estate. In para. 1 of the will he states that 'you shall as owner enjoy during your life-time all the moveable and immoveable properties described in the schedule and boundaries given below lying in village Mominpur, etc.' In para 3 he says 'no one shall be entitled to make any claims during your life-time to the moveable and immoveable properties to which you are appointed executrix by this will or to get a share in them or to claim any profit or income arising out of them. No one except yourself shall be entitled to realise those moneys or to take them.' Para. 4 of the will is in these terms:
I have at present three sons alive of whom the eldest is Abdul Mataleb Mondal, the second Abdul Rahman Mondal, and the youngest Abdul Khaleque Mondal. They shall not get any share or income of the aforesaid moveable and immoveable properties during your lifetime. They shall get immoveable properties, due shares in them, after your death according to the Mahomedan law. During your lifetime they shall not be entitled to claim any property or any share in it nor shall they be entitled to realise and to appropriate any income relating to the properties. They shall live as members of the family and get their regular food and clothing. If they do not live in the family or do not live in the same mess and remove elsewhere they shall not get their food and clothing from the estate and would not be entitled to claim it.
3. Then in the subsequent paragraphs the testator recites that he had three daughters and that they had given up all their claims to his properties and that they would not be entitled to any share of the properties left by him. Para. 9 of the will is as follows:
Whatever kind of income the aforesaid moveable and immoveable properties may yield shall remain in your custody. You shall be entitled to spend the whole amount of the said income according to your will and discretion and you shall discharge the family expenses with it; no one shall be entitled to demand any account of it from you and you shall not be bound to render any account to any one and you shall not be liable for that money to any one. Para. 10 is in these terms After my death you shall out of the income of the properties left by me spend such sum as you think proper for my spiritual benefit.
4. Para. 14 is in these terms:
If money is required for any particularly necessary business and if the income of the estate is not sufficient to meet the requirement you shall be entitled to do the business by mortgage or sale of any property included in the estate of any share thereof as you think proper, etc.;
5. and Para. 15 provides for the case of acquisition by the Government of any property under the provisions of the Land Acquisition Act. It says that Karimannessa would be entitled to take the compensation money that might be awarded on such acquisition. Shortly after the death of Meher Ali, Abdul Mataleb, his eldest son, borrowed money from defendant 1 mortgaging the 1/3rd share of the properties which belonged to his father Meher Ali. This was on 5th July 1910. This transaction was followed by two other mortgages executed by Abdul Mataleb in favour of defendant 1 on 29th September 1910 and 21st January 1911 respectively. Defendant 1 instituted a suit on his mortgages and has recovered a decree. It is just after this event that the present suit was instituted by Abdul Khaleque, the youngest son of Meher Ali and the heirs and legal representatives of the other son Abdul Rahaman Mondal and also by the daughters of Meher Ali. This suit was brought in the year 1930 after the death of Karimannessa which took place in the year 1922. In the plaint the plaintiffs recited the fact of the aforesaid will executed by Meher Ali and said that although the will was in favour of the heirs of Meher Ali the will was validated by the consent given by all the heirs of Meher Ali after his death. The whole of the plaint proceeds upon the footing that Meher Ali died testate and the will had effectively disposed of all his properties. Then in the plaint it is stated that according to the rules of Mahomedan law Karimannessa got by the will an absolute property in the subject-matter of the suit. It then recites the death of Karimannessa and states that the plaintiffs are the heirs of Karimannessa and it is in that character they instituted the suit. They say that Abdul Mataleb according to the will did not get any interest in the property because an absolute interest was in effect conferred upon Karimannessa by the terms of the will and they further state that by the mortgages defendant 1 had acquired nothing. On these allegations the plaintiffs instituted the suit for the declaration that the mortgages executed by Abdul Mataleb in favour of defendant 1 did not pass any title to the property and that the plaintiffs are not affected either by the mortgages or by the decree obtained thereon by defendant 1.
6. Both the Courts below have dismissed the suit. Mr. Dass appearing on behalf of the plaintiffs-appellants urges before us that although by the terms of the will a life estate was conferred by Meher Ali on his wife Karimannessa under the rules of Mahomedan law, Karimanessa became entitled to the estate absolutely. For the purpose of supporting this contention he says that a life estate is unknown by the Hanafi Law by which the parties in the present case are governed and if a life estate is conferred by a will or by a gift inter vivos the Hanafi Jurists consider it to be the gift of the corpus subject to a condition limiting the enjoyment for life; and says Mr. Dass that the condition is always regarded as void by the Hanafi Jurists. He accordingly says that by the aforesaid rule of Mahomedan law what is in terms the gift of a life estate is in reality an absolute estate. This is how he puts his first part of his argument. His second case is that even if it be held that the gift in favour of Karimanessa was invalid then there was intestacy and Abdul Mataleb was entitled to 7/36 share and the mortgages and the mortgage decree which defendant 1 has obtained against the heirs of Abdul Mataleb can only operate upon 7/36th share of the properties in suit. We can at once overrule the second contention urged by Mr. Dass. This is not the case which is pleaded in the plaint. The plaint proceeds upon the footing that Meher Ali died not intestate but testate. The will is recited. Then there is a further recital that after the death of Meher Ali all the heirs of Meher Ali assented to the will, and it is stated that Karimannessa obtained under the will an absolute estate and that the title on which the plaintiffs are suing is stated to be on the footing that they are the heirs of Karimannessa and not the heirs of Meher Ali. We hold that it is not open to the plaintiffs to come in and ask for relief on the footing that Meher Ali died intestate. That would be certainly a new case which is absolutely inconsistent with the case in the plaint. The principle governing such cases are formulated by Sir Asutosh Mookerjee in Hemendra Nath Roy v. Upendra Narain Roy 1916 Cal 829, at p. 451. The passage is as follows:
The only other question for consideration is whether a declaration should be granted in the suit as framed. Here, I think, the Court should be guided by well settled principles now embodied in Rule 7, Order 7 of the Code of 1908. The principle is best stated in the words of Lord Erskine in Hiren v. Mill (1806) 13 Ves 114. The rule is that if the bill contains charges putting facts in issue that are material the plaintiff is entitled to relief which those facts will sustain under the general prayer; but he cannot desert specific relief prayed and, under the general prayer, ask specific relief of another description, unless the facts and circumstances charged by the bill will consistently with the rules of the Court maintain that relief. This formulation of the rule, it may be parenthetically observed, is attributed per incuriam to Lord Eldon by Baron Parke in Cockerell v. Dicken (1837-41) 2 M I A 353. In the application of this salutory rule, the test is whether the defendant will be taken by surprise: Stevens v. Guppy (1826) 3 Russel 171, and there can be no surprise, if the deficient relief not specifically claimed but supplied as the Courts think just, is consistent with the relief specifically claimed as well as with the case raised by the pleadings: Cargill v. Bower (1878) 10 Ch D 502. This rule has been repeatedly recognised and approved by the Judicial Committee, Cockerell v. Dicken (1837-41) 2 M I A 353, Durga Prosad v. Bhajanlal (1904) 31 Cal 614 and Gopi Narain v. Banshidhar (1905) 27 All 325. The decision in Wallihan v. Joggeswar (1908) 35 Cal 189 is not really opposed to this view, and only illustrates the position that to entitle plaintiff to judgment under the claim for general relief, different from that specifically claimed, the allegations relied upon must not only be such as to afford a ground for relief claimed, but they must have been introduced for the purpose of showing a right to relief and not to the more purpose of corroborating the plaintiff's right to the specific relief claimed.
7. If the plaintiffs had put forward an alternative claim based on intestacy of Meher Ali, it would have been open to defendant 1 to meet that case by showing that the daughters of Meher Ali had relinquished their shares. It would be unjust, in our opinion, in these circumstances to rob defendant 1 of that specified defence by allowing the plaintiffs now in this Court to base their claim on the footing that there was no effective will by Meher Ali and that he died intestate. So on this ground we overrule the second contention urged before us by Mr. Dass. Regarding the first point the position seems to us to be this: By taking into consideration all the material terms in the will it seems to us that there was a gift of the income of the properties in favour of Karimannessa by Meher Ali. At least when this will came up for consideration before this Court on a previous occasion that was the view taken by this Court of this particular will. No doubt in that case the parties were not the same as in the present case, but we mention that case because our view of the terms of the will agree with that which was taken by a Division Bench of this Court. There cannot at any rate be any doubt that only a life estate was intended to be conferred upon her. In fact Mr. Dass admitted that on the terms of the will, and apart from any rule of Mahomedan law, only a life estate was conferred upon Karimannessa. If that be so Mr. Dass's clients are in a difficulty.
8. In the case in Amjad Khan v. Ashraf Khan 1929 P C 149, where the facts were almost similar to the facts of the present case, their Lordships of the Judicial Committee of the Privy Council put the case in an alternative form. They stated that if a life estate conferred by a will or a gift is an estate recognised by Mahomedan law then the plaintiffs claiming as heirs of the donee in that case could not claim anything because the donee had only a life estate. Their Lordships of the Judicial Committee further stated that if the life estate is not recognised by the Mahomedan law then the donee did not get anything, and the plaintiffs claiming as heirs of the donee got nothing. In that view of the matter the donee herself got nothing by the will. The facts of the present case are precisely similar, as we have stated above, to the facts of the suit before the Judicial Committee. Here the only case, which is in the plaint, that the plaintiffs are the heirs of Karimannessa, if Karimannessa got a life estate which was valid according to the Mahomedan law then the plaintiffs cannot get anything as her heirs because she had not a heritable estate. If the life estate which was conferred on Karimannessa by the terms of the will is an estate not recognised by the Mahomedan law then in that case the gift in favour of Karimannessa was an invalid gift and the plaintiffs' claim as heirs of Karimannessa cannot succeed. In this view of the matter we do not think that the plaintiffs are entitled to any relief. The result is that this appeal fails and is dismissed with costs.
M.C. Ghose, J.
9. I agree.