IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 443 of 2000 along with Cross Objections No. 628 of 2000 Decided on: 5.4.2010 Kumari Bindu ……………Appellant Versus Smt. Gudoo Devi and Others ……………Respondents Coram The Hon’ble Mr.Justice Surjit Singh, J. Whether approved for reporting?Yes. For the appellant : Mr. K.D. Sood, Advocate. For the respondent : Mr. Bhupinder Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. Surjit Singh, J.( oral) This Regular Second Appeal filed by late Shri Inder Singh, one of the defendants in the suit, instituted in the trial Court, was admitted on the following substantial question of law:- “Whether the findings of the District Judge on Issue No. 4A are based on misconstruction and misreading of Will Ex.P dated 26.7.89 executed by Durga Singh and the conditions contained therein are legal and enforceable?” 2. Facts relevant for the disposal of appeal may be noticed. A suit was filed by Guddo Devi, respondent 2 No. 1 herein, for declaration that she had succeeded to half of the estate of late Shri Durga Singh, her father-in- law on the strength of Will dated 18.8.1988 Ext.PW2/A, subject to certain conditions contained therein. Description of the property was given in the plaint. It was pleaded that late Shri Dugra Singh had two sons, namely defendant Surinder Singh and defendant Ram Inder Singh. Plaintiff was married to Ram Inder Singh, who was of low I.Q. Durga Singh made a Will Ext.PW2/A bequeathing half of his property to defendant Surinder Singh and the remaining of the half to the plaintiff. It was stated that Durga Singh died on 5.9.1989. Plaintiff thereafter approached the Municipal Committee for giving effect to the Will by incorporating her name as owner of the property bequeathed to her, but she was told by the Municipal Authorities that a Will dated 26.7.1989 had already been submitted by Surinder Singh defendant and that in terms of that Will the plaintiff had not been bequeathed any property. She pleaded that the Will dated 26.7.1989 set up by defendant Surinder Singh was not valid. 3 3. Suit was contested by defendant Surinder Singh and his son Vikrant Singh, who was also impleaded as defendant because in Will dated 26.7.1989 his name also figured as a contingent legatee. These two defendants pleaded that Durga Singh had executed a Will dated 26.7.1989 in which he had bequeathed some of the property to Surinder Singh and some other to his son Ram Inder Singh, till his life time, and that on the death of Inder Singh the properties bequeathed to him were to be succeeded by Vikrant Singh in case Inder Singh did not beget any male issue or issues from his existing wife Guddo, the plaintiff. 4. Following issues were framed, on the pleading so the parties, by the trial Court:- 1. Whether the deceased Durga Singh executed a valid will dated 18.8.1989 as alleged? OPP 2. Whether deceased Durga Singh executed his last and valid will dated 26.7.1989 as alleged? If so, its effect? OPD. 3. Whether the will dated 26.7.1989 is the result of fraud and mis-representation and undue influence as alleged? OPD 4. Whether the plaintiff has no locus standi to file the suit as alleged? OPD 4 4-A. Whether the conditions imposed in the Will dated 26.7.1989 ware valid or otherwise and as to whether defendant Ram Inder Singh will be deemed to have become absolute owner of the suit property by virtue of the will or he has only a life interest therein? OPD 5. Relief. 5. Trial Court came to the conclusion that Will set up by the plaintiff had been superseded by Durga Singh, by the Will dated 26.7.1989 set up by the defendant which is Ext.P. Learned trial Court while dealing with Issue No. 4-A concluded that the conditions imposed in the Will with regard to the property bequeathed to Ram Inder Singh were unreasonable, as such conditions changed the natural course of succession. Consequently, the suit was dismissed. 6. Appeal was filed in the Court of District Judge by Vikrant Singh respondent, who had been impleaded as defendant. He challenged the finding of the trial Court on Issue No. 4-A. District Judge accepted the appeal and concluded that Ram Inder Singh got only life estate in the property bequeathed to him by Durga Singh, his father. It was held that on the death of Ram Inder Singh, the property was to be succeeded by Vikrant Singh appellant- 5 defendant in case Ram Inder Singh did not beget any male issue from plaintiff Guddo. It is against the aforesaid finding of the learned District Judge that the present appeal is directed. 7. Cross objections have been filed by the respondent Vikrant Singh. According to him, when the first appellate Court had accepted his plea that the disposition in favour of Ram Inder Singh was not absolute, appeal ought to have been allowed, but the learned District Judge dismissed it. So his prayer is for passing appropriate orders so that appeal filed by Vikrant Singh before the District Judge is accepted. 8. I have heard the learned counsel for the parties and gone through the pleadings and the evidence. 9. Will Ext.P set up by the defendants has been read repeatedly by the counsel for the parties. The relevant portion of the Will regarding disposition in favour of Inder Singh, when translated into English reads somewhat is as follows:- “xxxxxxxxx And my one and half storeyed house (surrounded by four sides, description given) shall be absolutely owned and possessed as heir by my son Ram Inder 6 Singh; provided he begets male issue/issues from his existing wife Guddo Devi and in that situation such male issue/issues shall be the legatee of the property bequeathed to Ram Inder Singh. However if Ram Inder Singh does not beget any male issue/issues as aforesaid, in that situation, on his death, the property bequeathed to him, shall be succeeded by Vikrant Singh son of Surinder Singh, grand son of the testator on the condition that he (Vikrant) will be liable to arrange for and expend on the marriage of his (testator’s) grand daughter Bindu (daughter of Ram Inder Singh and plaintiff Guddo Devi) and Guddo Devi plaintiff shall have the right of residence in the bequeathed house, till her death; provided she remained of good conduct and character.” 10. Learned counsel for the appellant relying upon a full Bench judgment of the Gujarat High Court in Shantilal Babubhai and others v. Bai Chhani and others, AIR 1973 Gujarat 146 has argued that the bequest in favour of Ram Inder Singh is absolute, as the Will reads that he will get the bequeathed house as absolute owner and possess it as a “Waras” (heir). In the case before the Gujarat High Court, reliance upon which 7 has been placed by the learned counsel for the appellant, no doubt words like absolute owner and “Waras” had been used for the legatee and interpreting those words the full Bench of Gujarat High Court concluded that the bequest was absolute but in that Will conditions like the ones which are there in Will Ex.P were not there. 11. In the Will Ext.P set up by the defendants bequest is not unconditional or absolute. As is clear from the relevant portion, translated hereinabove, the Will is in fact in favour of the male issue/issues, which Ram Inder Singh could have begotten from his wife and he was given the right to hold the bequeathed property in the interregnum. The Will further provides that in the event of Ram Inder Singh, dying without begetting any male issue/issues from his wife Guddo, in that event, on the death of Inder Singh, testator’s grand son Vikrant Singh, son of another son of the testator, will get the bequest subject to the conditions that he arranges the marriage of Bindu, daughter of Ram Inder Singh and also meets the expenses on such marriage and that Guddo, the widow of Ram Inder Singh shall have the right of 8 residence in the bequeathed property, during her life time, if she remains of good conduct and character. 12. In view of the above stated position, substantial question of law on which the appeal was admitted is answered against the appellant. It may be stated that during the pendency of the present appeal Ram Inder Singh appellant died and his daughter Bindu had been brought on record as his legal representative, whose name now figures as appellant in the memo of parties. 13. In view of the above state position, the appeal is dismissed. 14. Cross objections filed by the respondent are accepted and it is ordered that in view of the finding on issue No. 4-A returned by the first Appellate Court, appeal filed by respondent Vikrant Singh is accepted and the decree of the first Appellate Court dismissing the appeal is set aside. (Surjit Singh) April 5, 2010 Judge. (vs)