Kanhya Lal Missir vs Mt. Hira Bibi and Others

This appeal arises out of a suit instituted by the plaintiff appellant who claims to be the sister''s son of one Madan Mohan Lal for a declaration that the alienations of Madan Mohan Lal''s properties by defendants 1 to 6 are not binding on him. Madan Mohan Lal, who was the treasurer of the Patna Branch of the Bank of Bangal (now incorporated with the Imperial Bank), died on 30th January 1882, leaving a will, dated 21st December 1881, of which probate was obtained by Baijnath Prasad Sarma, defendant 6, the executor named in the will. By this will Madan Mohan Lal bequeathed his estate to Mt. Ratan Kuar, widow of his paternal cousin Ghanshyam Das Missir, for her life and after her death to her daughter Mt. Hira Bibi (defendant 1) and her "children (aulad) successively one after another". There was, however, a proviso that in case a son was born to Hira Bibi he would take the estate absolutely. It is not disputed that only a life estate was given to Katan Kuar and that a son of Hira Bibi was to get an absolute estate, but the nature of the estate given to Hira Bibi and her children if she had no son is one of the matters of controversy in the suit.

The plaintiff''s case is that the will does not give more than a life estate to her and that the bequest in favour of her children failed on account of her having had no child during the lifetime of the testator; that therefore there will be an intestacy on the death of Hira Bibi and as he, being the sister''s son of Madan Mohan Lal, got a vested interest in the estate on Madan Mohan Lal''s death subject to any life estate created by the will, he will succeed to the estate on the death of Hira Bibi. He alleges that Hira Bibi, her sons and her husband, defendants 1 to 6, have made various transfers of the properties, a list of which has been given in Schedule 2, of the plaint, and he seeks a declaration that these transactions will not be binding upon him when he will succeed to the estate of Madan Mohan Lal on the termination of the life estate of Hira Bibi. Defendants 7 to 18 are the transferees against whom the declaration is sought. Though it is not in the pleadings it was also contended by Mr. Mullick for the plaintiff appellant as an alternative case that even if any daughter or daughters of Hira Bibi was or were in existence at the time of the testator''s death, she or they also will take only a life estate and there will be an intestacy thereafter, as only a son of Hira Bibi was to get an absolute estate.

Though written statements were filed by defendants 1,3, 4 and 5, the main contest was on behalf of defendants 7 to 10, 11, 12, 14, 17 and 18 who are transferees of the disputed properties. Defendants 15 and 16 compromised the suit and it was dismissed as against them. The defences with which we are concerned in this appeal are: (1) that the plaintiff is not the sister''s son of Madan Mohan Lal and has no right to his estate; (2) that Hira Bibi gave birth to a son (Anant Prasad, defendant (2), during the lifetime of the testator and that he took an absolute estate under the will and therefore the plaintiff has no right to question the transfers; (3) that by the will Hira Bibi was given an absolute estate and, therefore, the plaintiff has no right to the estate even if Hira Bibi had no son at the time of the death of Madan Mohan Lal, and (4) that the plaintiff''s suit in respect of some of the transactions is barred by limitation under Article 125, Schedule 2, Lim. Act. The transferee defendants further allege that the plaintiff whose daughter was admittedly married to Basant Prasad (defendant 3), a son of defendant 1, has been set up by defendants 1 to 6 to lay claim to the properties in order to regain them after they had transferred them.

The learned Subordinate Judge has held that the plaintiff is the sister''s son of Madan Mohan Lal and that Hira Bibi had no son during the lifetime of Madan Mohan Lal. On the construction of the will, however, he has held that Hira Bibi was given an absolute estate and he has therefore dismissed the plaintiff''s suit. He has also held that the suit in respect of some of the transactions was barred under Article 125, Lim. Act. The plaintiff has preferred this appeal. Defendants 1, 7 to 10, 12, 14, 17 and 18 are represented in this appeal, but there is no appearance on behalf of defendants 2 to 6, 11 and 13. There is no appearance also on behalf of defendants 15 and 16 against whom, as we have stated, the suit was dismissed. The contesting defendants have questioned before us the findings of the learned Subordinate Judge that the plaintiff is the nephew of Madan Mohan Lal and that Hira Bibi did not give birth to a son during the lifetime of Madan Mohan Lal.

We shall first deal with the two issues concerning the relationship of the plaintiff with Madan Mohan Lal and the birth of a son to Hira Bibi during the lifetime of the testator which were decided by the learned Subordinate Judge in favour of the plaintiff. The evidence given by the plaintiff to establish his relationship with Madan Mohan Lal consists of his own testimony and that of three witnesses Palakdhari Tiwari, Bindeshwari Dutt Shukul and Chaturbhuj Tiwari, and some letters. We shall take the oral evidence first. The plaintiff, who stated his age to be 69 years when he was examined in 1931, deposes that he is the nephew of Madan Mohan Lal being the son of his sister Hito Bibi. But there are inherent improbabilities in his story. He says that Madan Mohan Lal acquired extensive properties. In the plaint they have been valued at about one lakh of rupees. If the plaintiff is his nephew he was his next heir in case of intestacy. His home is in Benares and he is in the service of the Gwalior State, but he deposes that he came to Patna within a month of Madan Mohan Lal''s death and found Ratan Kuar in possession of his properties as malik (proprietress). He also came to Patna on other occasions during the lifetime of Ratan Kuar. Curiously enough, however, he does not seem to have made any enquiry whatsoever as to the claim of Ratan Kuar to succeed to the properties. From the letters produced by the plaintiff, with which we shall deal later, it appears that there was constant correspondence between Madan Mohan Lal and the plaintiff''s father, and therefore the plaintiff and his father must have known that Madan Mohan Lal was possessed of properties of considerable value. The natural conduct of the plaintiff then would have been to ascertain the circumstances in which Ratan Kaur, who was not an heiress of Madan Mohan Lal, came to take possession of his properties. He came again to Patna about one month and a half after Ratan Kuar''s death, which took place in 1903, 21 years after the death of Madan Mohan Lal, and even then he did not make any attempt to claim the properties which he found in possession of Hira Bibi as malik, the reason as he says being that there was a will. He says that he came to know of the will after Ratan Kuar''s death, but he does not recollect whether he had heard of it before that, though as we have said, he came to Patna after Madan Mohan Lal''s death and also subsequently during the lifetime of Ratan Kuar and stayed with her as her guest. He was astonished to hear of the will as he was the heir, but still he made no attempt even to take a copy of it or in any other way to make himself acquainted with its terms. He says that he did not know that the will was in favour of the children of Hira Bibi. He had no talk whatsoever either with Hira Bibi or with Ratan Kuar about the will. Up to the date of his deposition he did not know whether a copy of the will had been taken on his behalf. The will had not even been read over to him till then. The indifference he thus displayed throughout a long period, and his omission to assert his claim on the two occasions, the death of Madan Mohan Lal and the death of Ratan Kuar when dispositions made in the will were given effect to, would not be natural in the case of a man who was, and knew himself to be, the next heir to a valuable estate. It was urged that the plaintiff allowed Hira Bibi to remain in possession of the estate on account of the marriage of his daughter to her son, but the marriage took place, according to the plaintiff, in 1960 or 1961 Sambat (corresponding to 1903 or 1904), that is about the time when Ratan Kuar died. If the plaintiff had had any intention to claim the estate he would have been expected to take some interest in the management of it. He appears to have taken none. There was litigation in 1900 between Ratan Kuar and defendant 6 and some of his sons regarding succession to the estate and there were mortgage suits in one of which an appeal was preferred to His Majesty in Council. The bulk of the estate was being alienated and there was an acquisition of land by the Government for which a sum of Rs. 36,000 was paid. Yet the plaintiff, if he is to be believed, had no knowledge of any of these transactions until he was told about them by his nephew at the end of 1927.

The next witness is Palakdhari Tiwari who claims to be the priest of Madan Mohan Lal''s family. In cross-examination he betrays ignorance with regard to the family of Madan Mohan Lal. His evidence is not at all convincing. He says that he officiated as priest at the marriages of Hira Bibi and Madan Mohan Lal. In 1931 he stated his age to be 75 years. Madan Mohan Lal''s age at the time of his death in January 1882 was, according to the plaintiff, about 50 years and according to the plaintiff''s witness Chaturbhuj 60 to 65 years. If he was only 50 years of age when he died, he was born about the year 1832 and must have been about 24 years older than Palakdhari Tiwari if the latter has stated his own age correctly. As Hindus are married early, it is probable that Madan Mohan Lal was married long before this witness was born. Even if he married very late in life, say at the age of 25 or 30 years, this witness could not have officiated as priest at the marriage. He claims also to have celebrated the marriage of Hira Bibi''s father Ghanshyam Missir when he could not have been more than three years old, for he stated that he is about four years older than Hira Bibi. We are unable to believe this witness. The next witness is Bindeshwari Shukul, who is a practising pleader at Siwan in this Province. He never saw Madan Mohan Lal tout heard of him at about the time of an incident to which he referred. He says that he saw the plaintiff at Benares, about 29 years before he gave his evidence, at the house of his relative Mathura Tiwari who introduced the plaintiff to him as a nephew of Madan Mohan Lal, the treasurer of Patna, and the son of Paryag Dutt Missir of Benares, and stated that he too was related to Madan Mohan Lal though he did not say what the relationship was Mathura Tiwari, according to this witness, died about three years later. We are not at all impressed by his evidence. It does not seem natural that Mathura Tiwari should introduce the plaintiff to him by mentioning his relationship with Madan Mohan Lal who had died 20 years earlier and with whom the witness had not been acquainted. To a question put to him whether he made any enquiry in order to satisfy himself that the information given to him by Mathura Tiwari was correct he gave a reply that indicates that he is not an unbiased witness. The reply to be expected from a disinterested witness would have been that he did not try to get the information verified as it was not a matter that concerned him, for he had met the plaintiff only once or twice since then. But the reason he assigned for not having made any enquiry was that he had full confidence in Mathura Tiwari. He stated that when he received a summons he did not know what evidence he would be called upon to give though he suspected that he would be asked about the relationship of the plaintiff with Madan Mohan Lal. This shows that the witness is not truthful. Nobody cites a witness without first ascertaining from him what he was going to depose. It is difficult to believe that the plaintiff himself remembered that 29 years earlier he had been introduced to Bindeshwari Dutt Shukul as the nephew of Madan Mohan Lal, and impossible to believe that he was sufficiently sure of Bindeshwari Shukul''s recollection of so trivial an incident so as to cite him as a witness of it without asking him whether he remembered it. A grandson of the plaintiff has been married to a granddaughter of a cousin of this witness.

The third and last witness is Chaturbhuj Tiwari. He only says that the plaintiff used to address Madan Mohan Lal as "mama" (maternal uncle). This does not prove much. Among the Indians even a mother''s distant cousin is addressed as "mama." The learned Subordinate Judge has however disbelieved this witness. The documentary evidence consists of eleven letters purporting to have been sent by Madan Mohan Lal to Paryag Dutt Missir, father of the plaintiff, one letter (Ex. 3) supposed to have been written by Gobindram Missir, an uncle of the plaintiff, to Paryag Dutt Missir and another letter (Ex. 4) is supposed to have been written by Gopinath Missir, a cousin of Madan Mohan Lal, to the same Paryag Dutt Missir. There is no reason to doubt the genuineness of these letters except, two to which we shall refer later. Of these 13 letters only three have any value as evidence of any relationship between the family of Madan Mohan Lal and the father of the plaintiff. The rest only show that Madan Mohan Lal and Paryag Dutt Missir were friends and regular correspondents. Ear from proving relationship they seem to us to indicate that none existed, or if it did exist it was not a close relationship. Madan Mohan Lal did not in any of them address Paryag Dutt Missir as an Indian would address a near relation. In none of them is there any enquiry, as is usual among the Indians, about his sister and the children. No respects or blessings are conveyed to them. In fact they are not referred to at all. The plaintiff however relied upon four letters. They are Exs. 3, 2(f), 2(h) and 2(j). Ex. 3 is a letter purporting to be from Gobindram, uncle of Madan Mohan Lal, to Paryag Dutt Missir.

It is dated Pous Badi 1, 1896 (21st December 1839). The letter informs Paryag Dutt Missir of the illness of a lady described as "your wife, my niece" and says that he has been doing everything he could do for her and with it is sent her horoscope which he asks Paryag Dutt to show to the Brahmins at Benares. According to the horoscope she was born in 1815. The letter, if it is genuine would be about 96 years old, but its appearance does not satisfy us that it is so old. The paper is not as brittle as the paper of other letters and the ink has not faded. It was produced late and not with other letters. According to the genealogy given by the plaintiff Gobindram had no niece other than Hito Bibi, the plaintiff''s mother, who was the wife of Paryag Dutt Missir. Therefore the additional designation of the lady as "your wife" was superfluous and the double description seems unnatural. On the other hand it was essential if the letter was to be of value to the plaintiff. There is another reason for doubting the genuineness of this letter. The date of the birth of Hito Bibi, according to the horoscope given in the letter, is 1815 A.D. The plaintiff deposing in 1931 gave his age as 69 years. He was present in this Court and did not appear to be older than that. If he stated his age correctly he must have been born about the year 1862 when, if the horoscope is genuine, Hito Bibi was about 47 years old, a somewhat advanced age for an Indian lady to give birth to a child.

The next letter on which the plaintiff relies is Ex. 2(j) which shows that Madan Mohan Lal sent Rs. 15 as a wedding present for clothes when the plaintiff and his elder brother were about to be married. This letter does not prove anything useful to the plaintiff. The sending of presents does not show that there was any relationship, for friends as well as relations send presents on such occasions. Much less does this letter show the plaintiff to be the sister''s son of Madan Mohan Lal.

There remain two letters, Exs. 2(h) and 2(f). One of them (Ex. 2-h) has been relied upon by the learned Subordinate Judge. At the end of this letter there is this message: "Please convey the blessings of Buaji to Jiji". ''Buaji'' is a term by which aunts are addressed, and ''Jiji'' is the mode of addressing an elder sister. An aunt of Madan Mohan was sending her blessings to her "sister". It is not clear whether they were being sent to her own sister or to his sister. The genealogy does not show that Madan Mohan Lal had any aunt, and it has not been explained who was the lady to whom she was sending the blessings. It is, however, curious that while Madan Mohan Lal was sending the blessings of his aunt to somebody spoken of as ''Jiji'' he was not sending his own respects to Hito Bibi if "Jiji" referred to her as suggested by the plaintiff. In our opinion this letter does not improve the plaintiff''s case. The other letter relied upon by the plaintiff is, as we have said Ex. 2-(f). This refers to a contemplated marriage of some girl in the family of Madan Mohan Lal. It is suggested that the girl to be married was Hira Bibi. Perhaps it was so. The words relied upon by the plaintiff are: "Send Hito Jiji," and it is urged that Madan Mohan Lal referred to Hito Bibi as "Jiji," a term as we have said applied to an elder sister. But this term can equally be applied to a cousin, as there is no special word for cousin among Indians. Cousins-are all referred to as brothers and sisters. "We have examined this letter and we find that the letters ''to'' of the word "Hito" look very suspicious. The ink is thicker and they appear to have been superimposed on other letters.

The official translator has put a mark of interrogation after this word in the translation. It would be remarkable if it is merely by chance that a suspicious-appearance is presented by the only word in the entire letter to which any importance attaches. But even if there has been no interpolation, the letter does not prove that Hito was the full sister of Madan Mohan Lal. If she was related to him at all she may have been a cousin by distant relationship, perhaps through Madan Mohan Lal''s maternal family of which we know nothing for no witness was able to give the Court any information in this connection. If Ex. 3 is genuine and Hito Bibi was born in 1815, the plaintiff might have been a son of Paryag Dutt Missir by another wife. Having regard to all the circumstances, we are of opinion that whatever the relationship of the plaintiff with Madan Mohan Lal may have been, he has failed to establish that he is the sister''s son of Madan Mohan Lal. "We are not in a position to declare positively that the plaintiff is not his nephew. We can only say that the evidence adduced is not of such a quality as to convince us that he is so related. The learned Advocate for the appellant has urged that this being a question of fact, and the learned Subordinate Judge having held that the relationship has been established, we should be reluctant to upset that finding. We appreciate the force of this contention, but unfortunately the learned Subordinate Judge has not scrutinised critically either the oral or the documentary evidence on which he based his finding. No doubt the evidence adduced by the defendants to rebut the plaintiff''s evidence with regard to relationship is not at all satisfactory, but it must be borne in mind that the contesting defendants are strangers to the family. Some of them are purchasers at the auction sale. The plaintiff on the other hand has not brought any of his relations to give evidence for him nor has their absence from the witness-box been explained. The plaintiff''s home is in Benares. He must have some relations there. The fact that Madan Mohan Lal ignored the plaintiff in his will is also a point against him. Disinheriting his own sister''s son in favour of a cousin''s daughter and her children is not a very natural act. If cognatic relations had to be chosen the plaintiff on his allegation was nearer to him.

It is an admitted fact that the plaintiff''s daughter was married to defendant 3, a son of Hira Bibi. The girl is now dead. This fact is relied upon by the defendants as showing that the plaintiff could not have been the sister''s son of Madan Mohan Lal, as in that case his daughter was within the prohibited degrees of matrimony. It cannot be disputed that if the genealogy given by the plaintiff is correct this marriage was within the prohibited degrees under the strict shastric rules; but the learned Subordinate Judge has not attached weight to this consideration for the reason that the rule so far as cognatic relations are concerned is not strictly observed and sanadh brahmans, to which community the plaintiff belongs, being few in number, intermarriage is inevitable. This may be so and by itself the degree of relationship of the plaintiff''s daughter to defendant 3, would not be a ground for rejecting his claim to be the nephew of Madan Mohan Lal; but as the evidence of the latter relationship is not satisfactory, it is a consideration that cannot be left altogether out of account. The conduct of the plaintiff in this litigation has not inspired us with confidence in his honesty in bringing the suit. The contesting defendants urge that the plaintiff has been set up by defendants 1 to 6 to claim the properties of Madan Mohan Lal for their benefit and it is an attempt to regain the properties that have been lost. There seems to us to be a good deal of force in this suggestion. The plaintiff has been reticent with regard to important facts. Though the plaint mentions that Hira Bibi bore no son during the lifetime of Madan Mohan Lal, it is silent about the birth of any daughter. Even according to the plaintiff, if there was any daughter or there were daughters of Hira Bibi living at the time of the testator''s death, she or they took a life interest in the estate of Madan Mohan Lal.

Therefore, a clear statement about daughters was necessary. As we have said, there is no reference to daughters in the plaint. The plaintiff and his witnesses in their depositions contented themselves by simply saying that there-was no daughter of Hira Bibi born in the lifetime of the testator; but it seems that during the hearing of the suit in the lower Court the plaintiff conceded that there were at least two daughters who were born during Madan Mohan Lal''s lifetime and the learned Subordinate Judge seems to have decided the case on that assumption. It is clear from his judgment that he took it for granted that there were daughters living then. It seems that during the course of argument in the lower Court reliance was placed on behalf of the plaintiff upon Section 115, Indian Succession Act, prior to its amendment in 1929 and it was contended on his behalf that as the bequest to the daughters of Hira Bibi was a bequest to a class and as some of them were not born during the testator''s lifetime the bequest was wholly void and the learned Subordinate Judge referred to the amendment of 1929 which was to the effect that the bequest will be void in regard to those persons only who were not born then and not in regard to the whole class. The grounds of appeal to this Court also assume that there were daughters born during the lifetime of the testator (see grounds Nos. 12, 13, 14, 15 and 19); but curiously enough up till now we have no definite case as to the number of daughters of Hira Bibi now living and which of them was born during the lifetime of the testator. Daughters were carefully kept out of the picture. They were not made parties to this suit, which is virtually a suit for construction of the will, a will in which those at any rate of the daughters of Hira Bibi, who were born during the lifetime of the testator, were vitally interested. The plaintiff''s witness Chaturbhuj has clearly stated that at least one daughter of Hira Bibi is living whose name is Lali Bibi. According to Hira Bibi she had two daughters living.

There is no reason to disbelieve her in this respect. The contesting defendants suggest that the daughters have been purposely left out so that in case the plaintiff fails in his suit there may be a second litigation on their behalf, and that this has been done in the interest of Hira Bibi and her children. It seems to us that this suggestion is not without foundation. It cannot be a matter of indifference to a true heir that another life estate will intervene between an existing life estate and his own succession; yet by omitting to implead the daughters of Hira Bibi he has run the risk of one or more of them succeeding in establishing in another suit a right to succeed to the estate on Hira Bibi''s death. The next question to be considered is the defence of the contesting defendants that Hira Bibi gave birth to a son during the lifetime of Madan Mohan Lal. The defendant''s evidence in this connection is not at all satisfactory. It consists of the testimony of defendants'' witnesses Gur Bakhsh Lal and Gurprasad Lal. They depose that defendant 2, Anant Prasad, was born about fifteen days before the death of Madan Mohan Lal. The learned Subordinate Judge has rightly disbelieved this story. It will be recalled that the will was executed by Madan Mohan Lal only about six weeks before his death.

Madan Mohan Lal had the clearest intention of giving an absolute estate to a son of Hira Bibi, and if therefore the birth of a child had been imminent one would have expected a reference in the will to the expected event, or the execution of the will might have been delayed till the child was born, or at any rate the will would have been changed after the birth of a son. The most competent witness on this point would of course have been Hira Bibi herself who was examined on her own behalf, but her evidence is unfortunately very unsatisfactory. Either she was not speaking the truth or old age has impaired her intellect. In her examination in chief she said that Anant Prasad was born two or three years after the death of Madan Mohan Lal and that she had only a daughter at that time. Later, in cross-examination, she stated that she had altogether four daughters, two of whom were dead, that one of the two daughters who died was older and one was younger than Anant Prasad, and that the younger was an infant in arms when Madan Mohan Lal died, implying by that statement that Anant Prasad was born during the lifetime of Madan Mohan Lal. Then she said that she had three daughters when Madan Mohan Lal died. She again stated that the daughter which she had in her lap when Madan Mohan died was younger than Anant Prasad. The question was repeated three times and she gave the same answer each time. She was examined in 1917 and then she stated that Anant Prasad was born during the life time of Madan Mohan.

It is difficult, therefore, to place any reliance upon her evidence, as she has made so many contradictory statements. The real fact seems to be that during the later part of the life of Ratan Kuer in about 1901 a dispute arose between her on the one hand and Hira Bibi and her husband, defendant 6, on the other, and at that time Baijnath Prasad Sarma, defendant 6, put forward a claim that his son Anant Prasad, defendant 2, was born during the life time of Madan Mohan Lal. The learned Subordinate Judge has rightly pointed out that if Anant Prasad was born during the lifetime of Madan Mohan, according to the terms of the will, the properties would have been recorded in his name and Ratan Kuer would not have been allowed to succeed. Be that as it may, the onus of proving the birth of Anant Prasad during the lifetime of Madan Mohan was upon the defendants and they have not been able to discharge It. The next question for consideration is the plea of limitation. The learned Subordinate Judge has applied Article 125, Schedule 2, Lim. Act, and has held that the claim for a declaration in respect of the ijara of 17th August 1906, and the mortgage dated 7th March 1912, was barred by limitation. The article may at first sight seem to support the view taken by the learned Subordinate Judge. It runs thus:

Suit during the life of a Hindu or Mahomedan female by a Hindu or Mahomedan who, if the female died at the date of instituting the suit, would be entitled to the possession of land, to have an alienation of such land made by the female declared to be void except for her life or until her re-marriage.

It was contended on behalf of the defendants that the present suit comes within the four corners of this article as the plaintiff is a Hindu who claims a right to succeed on the death of a Hindu female and seeks a declaration that the alienations made by her are void. In our opinion, however, this article applies when the possession is that of a Hindu or Mahomedan female as such, that is to say by virtue of her being a Hindu or Mahomedan, and does not apply if her possession is by virtue of a grant or transfer made inter vivos or by virtue of a bequest, or, in other words, when her possession is irrespective of her being a Hindu or Mahomedan female. It is inconceivable that the legislature would have provided periods of limitation depending solely upon the sex of the parties or upon their religious persuasions irrespective of the nature of the property involved in the suit or of the nature of the possession. For instance, we may suppose that either by grants or bequests one life estate has been created in favour of a Hindu or a Mahomedan female, another in favour of a Christian female and a third in favour of a male person, the remaindermen being persons professing different faiths. If the contention of the defendants be accepted, the result would be that there would be varying periods of limitation for suits to avoid alienations that may have been made by the several life estate holders on the same date and the period in each case would depend upon the sex and the religions of the plaintiff and of the alienor. Thus, if the suit be by the remainderman who is a Hindu male, to avoid alienations by the Hindu female, this article will apply; but if the suit be by the same Hindu to avoid the alienation by the Christian female, this article will not apply nor will it apply if the plaintiff is not a Hindu but the alienation sought to be avoided was by the Hindu female holder of the life estate, nor if the life estate holder is a male of whatever religious persuasion.

The result too would be that a change of religion by any of these persons might entail a change in the period of limitation applicable to the case., We are supported in this view by a decision of the Calcutta High Court in Girijanund Datta Jha v. Sailajanund Dutta Jha (1896) 23 Cal 645, in which Article 128, providing a period of limitation for a suit by a Hindu for arrears of maintenance, was interpreted. It was held that the word "Hindu" in that article must be taken to mean a person claiming under the Hindu law. We are of opinion that this article also refers to cases in which the claim of the Hindu is based upon his right as a Hindu to avoid an alienation by a female who is in possession as a Hindu, and does not apply to cases where the possession and the claim are independent of the status of the parties as is the case here. It is purely accidental in this case that the life estate holder is a Hindu female and the plaintiff is also a Hindu. The learned Advocate for the defendants has relied upon a decision of the Lahore High Court in Mt. Nandan v. Wazira 1927 Lah 198, where religion and sex were taken to be the sole factors determining the application of the articles. With the greatest respect to the learned Judges of the Lahore High Court we must differ from them. The reason on which the decision was based was that though a Hindu female takes an estate according to the Hindu law, a Mahomedan female does not do so under Mahomedan law, and therefore, if the interpretation-which was sought to be put on the article in that case which is in accordance with the view that we take, the word "Mahomedan" would be superfluous. It was not considered, however, that among the Mahomedans also those who are governed by customary laws (as in some cases in the Punjab and the cases of Mahomedans who are governed by the Hindu law as for instance the Khojas of Bombay), females do take a life interest in the property of their husbands and that it was in order to bring the law into conformity with the law governing the Hindus that the word "Mahomedan" was added by the Act of 1877.

In our opinion, therefore, Article 125 does not apply, and as no other article applies we have to fall back upon the residuary Article 120, Schedule 2, Lim. Act, under which the period of limitation will be six years from the time when the right to sue accrued. Now the question is when did the cause of action accrue in this case? The plaintiff wants declarations in respect of various mortgages and also in respect of the sales held under some of them and also in respect of some private sales. The alienations are described in Schedule 2 of the plaint. No date has been given in Schedule 2 in respect of the sale deeds in favour of Kishun Gope and Sugembar Gope, defendants 15 and 16. This however is immaterial as the plaintiff compromised the suit with them and it has been dismissed so far as they are concerned. There is an omission of the date also in respect of the two sale deeds mentioned in the schedule in favour of Mahadeo Missir, defendant 13. This defendant did not put in a written statement or appear in the suit and as the date of the sale in his favour cannot be ascertained from the record, we are unable to say whether or not the plaintiff''s suit in respect of these two properties is barred by limitation. It is however again immaterial as the entire suit has been dismissed on other grounds and we also propose to dismiss the appeal. There remain those transactions of which the dates have been given. In the view we have taken, the plaintiff''s suit in respect of the ijara, dated 17th August 1906, in favour of Ramdhan Lal, is obviously barred by limitation. The remaining transactions are as follows:

(1) A mortgage, dated 17th August 1906, in favour of Ramdhan Lal under which a sale took place on 17th May 1926; (2) a mortgage, dated 17th August 1906, in favour of the same Earn Lal in execution of which a sale took place on 17th May 1926; (3) security deeds, dated 9th May 1923, and 7th May 1925, in favour of Earn Hari Lal in which sales took place on 16th May 1927; and (4) a mortgage dated 7th March 1912, in favour of Rai Bahadur Harihar Prasad in which sales took place on 21st June 1928 after the institution of the suit which necessitated the adding of defendants 17 and 18 as parties to the suit: see Ex. A-13.

In three of these cases the plaintiff''s suit for a declaration that the mortgages are void is barred by limitation, but it has been contended on his behalf that the sales held under those mortgages are within six years of the date of institution of the suit and that these sales gave the plaintiff a fresh right to sue. We agree with this contention. The plaintiff''s right to sue accrued not only when the properties were mortgaged but also when the mortgagees brought them to sale and the sales, in our opinion, gave the plaintiff a fresh cause of action. In Bolo v. Koklam 1930 PC 270 their Lordships of the Judicial Committee observed:

There can be no ''right to sue'' until there is an accrual of the light asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.

The plaintiff seeks declaration against those defendants who have purchased the property in the execution sale and therefore his right to sue against them accrued when they purchased it. We are therefore of opinion that, though the plaintiff''s suit in respect of the three mortgages themselves is barred by limitation, the suit in respect of the sales held on 16th and 17th May 1926 and 21st June 1928 are not barred by limitation. The most important question is whether the will gave an absolute estates to Hira Bibi. The plaintiff''s contention is that it gave her only a life estate and further that if she had any daughters born during the lifetime of the testator, they also took a life estate and that there will be intestacy either on the death of Hira Bibi or on the death of such of her daughters as were born while the testator was alive. The case of the contesting defendants, on the other hand, is that upon a true construction of the will Hira Bibi took an absolute estate. We have already noted that the daughters of Hira Bibi have not been made parties to the suit, though two appear to be living, and the plaintiff seems to have conceded before the lower Court that two were born before the death of Madan Mohan Lal. They clearly ought to have been joined as parties when the decision of the case mainly depended on the construction of a will in which they were interested, though the suit cannot be dismissed on this ground.

In support of their respective interpretations of the will, the learned advocates of the parties have relied upon a number of decisions of the Judicial Committee in which their Lordships construed the particular wills before them. Some of these will be noticed later, but we do not propose to examine all of them. In Mt. Sasiman Chowdhurain v. Shib Narayan 1922 PC 63 their Lordships of the Judicial Committee observed that:

It is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in another case.

What is needed is that the Court should read the will as a whole and consider all the clauses and the circumstances and find out the intention of the testator and give effect to it as far as the law permits. Importance should not be attached to isolated expressions. If there are words here and there which are repugnant to words by which an intention is clearly expressed they have to be discarded. Now it is clear from the will that the testator wanted to give the properties to Hira Bibi and her children or descendants. Even if the plaintiff was his nephew, he does not seem to have had any regard for him. This position has been conceded by the learned advocate for the appellant. But he contended that the intention of the testator to be gathered from the language he used was that in case Hira Bibi should not give birth to a son, the property was to remain tied up in her family and that he wanted to create successive life estates unknown to the Hindu law. The bequest, therefore, in favour of such of the children of Hira Bibi as were not born in the lifetime of the testator is void. Let us now examine the will. First of all it says that on the death of the testator his sister-in-law (cousin''s wife) Mt. Ratan Kuar, widow of Ghanshyam, shall be deemed to be his legal heir and after her death Mt. Hira Bibi and her children successively one after another shall be treated as "heirs". After a few sentences with which we shall deal presently, the will provides that:

Should the aforesaid Mt. Hira Bibi, wife of the said son-in-law Babu Baijnath Prasad give birth to a child, in that case that child, i.e. the said grandson (daughter''s son) after payment of the allowances to the allowance holders mentioned below, shall be treated as, heir to and absolute owner of all the nami benami, moveable and Immovable properties and lands left (by me) and shall appropriate all the collected amount, etc.

It has been contended on behalf of the appellant that the words "absolute owner" with reference to a son of Hira Bibi and the omission of these words where provision is made for succession by Hira Bibi and her "aulad" signify an intention to give to the former an absolute estate and to the latter, Hira Bibi and her daughters, only life estates. We shall consider the difference in the phraseology later but, apart from it there are difficulties in the way of accepting the view that only a life estate was given to Hira Bibi. First, if the testator''s intention was not to give an absolute estate to Hira Bibi, or her daughters, he would have made some provision for succession to the properties on their death. Nobody is mentioned who would take the properties after the termination of the life estates and it is inconceivable that he left the estate undisposed of after giving only a life estate to Hira Bibi or to her daughters, having regard especially to his avowed purpose in making the will

to make arrangements for the maintenance and preservation of the name, fame, prestige and custom of the family....

Nor are we prepared to accept the contention that the words of bequest in favour of Hira Bibi indicate that the testator wanted to create perpetual successive life estates each child or each generation taking an independent bequest from the testator. The words "and her children successively one after another" are, in our opinion, words of inheritance prescribing the course of succession and are what is technically called words of limitation; they are not words of purchase. The vernacular words are (the will is in Urdu) "wo unki aulad silsilewar yoke bad digare warisa qarar pate jayenge." It is to be noted that in the copy before us the word is warisa which means heiress and that the verb can be read both as "pate jaenge," plural masculine gender, or "pati jaengi" feminine plural in conformity with the noun "warisa." We shall discuss the effect of the different readings later, but on the face of it the bequest is to Hira Bibi and her descendants. "Aulad" does not necessarily mean children; it means descendants and progeny as well. Human beings are called Aulad-e-Adam. The words in our opinion mean generation after generation.

No doubt the words used when giving an absolute estate to a son of Hira Bibi are different from the words of inheritance applied to her and her daughters, but we do not consider that the difference was meant to indicate a distinction in the character of the bequest, assuming that "Aulad" refers to her daughters. The reading of the will as a whole shows that in the event of her having a son, he would take the properties at once even during the life of Ratan Kuar. The word "waris" or "warisa" is, in our opinion, sufficient to denote that the person so described was to get an absolute estate unless a contrary intention appears from the text of the will as is the casein the bequest to Ratan Kuar: see Saligram v. Chirangit Lal 1930 PC 289, where the word heir (waris) was held to be sufficient to give an absolute estate. Stress has been laid upon the words "warisa qarar pati jaengi" which have been translated as "shall be treated as heiress." It is contended that what the testator wanted was that each of the children or descendants of Hira Bibi should one after the other be treated as his heiress, that is, her children one after the other would take the estate independently under the will as heiress of the testator himself, and therefore the bequest to Hira Bibi and her successors must be construed as conveying a life estate so that a remainder may be left to go to the next successor.

It is argued that the word "warisa" (feminine gender singular) has been purposely used to refer to each heiress, that is to say Hira Bibi and her daughters as the testator later on provided for the son, if born, giving him an absolute estate. Stress is also laid upon the tense used in the words "qarar pati jaengi" which mean "shall go on being treated" i.e. a continuous future tense meaning that each will take after the other and be treated as his heiress. We are unable to accept this construction. In the first place, according to the plaintiff''s evidence, Hira, Bibi had no daughter when the will was executed. It is true that the word "warisa" is singular feminine, but there is no reason to suppose that the testator expected that in the line of Hira Bibi there would be only one female child and no more, and that there would be no male issue in the line. In our opinion, either the word "warisa" is a mistake for "waris" (we have only got a copy of the will and not the original) or the word has been inadvertently used "waris" (masculine singular) has been used in, respect of Ratan Kuar, a female. If, however, there is any significance in the word "warisa" and the verb is also feminine and should be read as pati jaengi, feminine plural, and not as "pate jaenge" (masculine plural), the implication could only be that there was at least one daughter of Hira Bibi in existence when the will was executed. In that case the testator was providing for a contingency which might arise if Hira Bibi was not living when Ratan Kuar died, the provision being that her daughters seriatim one after the other would take the estate. Serially is one of the meanings of silsilewar. The bequest in that case was in the alternative as contemplated by Section 96, Succession Act, of 1925 (corresponding to Section 83, Act 10 of 1865.)

Section 115, Succession Act, as it stood before the amendment of 1929 is clearly inapplicable. If the will be construed as making a bequest to a class, that bequest was in case the bequest to Hira Bibi failed. It did not fail in the present case. Besides, Hira Bibi being still alive, if the daughters come in after her the law applicable will be the amended section and those of the daughters if any who may have been born in the lifetime of the testator will come in, as an absolute owner in the absence of any words showing that the testator intended that either Hira Bibi or in her absence her daughters in turn would take only a life estate. No word of limitation is necessary to convey an absolute estate. Section 95, Succession Act, which corresponds to Section 82 Act 10 of 1865, applies to Hindus.

The learned Advocate for the appellant contended that the Hindus are averse to giving an absolute estate to females He relied upon the case of Mahomed Shumsool Hooda v. Sheukram (1876) 2 IA 7. Their Lordships in that case observed that:

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family, and it may be assumed that a Hindu knows that as a general rule at all events, women do not take absolute estates of inheritance which they are enabled to alienate.

This proposition is not however of universal application. In the present case the testator had no male relation. "We have already stated that even if the plaintiff was his nephew, he has been entirely ignored in the will. Hira Bibi was the object of the testator''s affection. Even according to the plaintiff he got her married and she, her husband and her children, if any, were living with him and he clearly wanted the estate to go in her line which was the line of his cousin, Hira Bibi being the daughter of his deceased paternal cousin. In Juttendro Mohun Tagore v. Ganendra Mohun Tagore IA Supp 47, where the bequest in favour of two ladies was under consideration, their Lordships of the Judicial Committee observed: ''

We must hold that the gift in question was an absolute gift unless it can be shown that by the Hindu law gift to a female means a limited gift or carries with it the effect of creating an estate exactly similar to the ''widow''s estate'' tinder the law of inheritance. I am not aware of any such pro-vision in the Hindu Law nor have we been referred to any authority in support of it.

This observation was referred to in Mt. Surjamani v. Rabinath Ojha (1908) 30 All 84. In Lalit Mohun Singh v. Chukun Lal (1897) 24 Cal 834 the word "enjoy" (in connexion with the phrase "son, grandson and so on in succession") was being construed and the Judicial Committee observed that the words ware very frequently used in Hindu wills, and have acquired the force of technical words conveying a heritable and alienable estate. We have now to notice a few cases relied on by the learned Advocates for the parties. The decision in Basanta Kumari Debi v. Kamikshya Kumari Debi (1906) 33 Cal 23 was relied upon by the respondents, where words somewhat similar to those used in the present will were held to give an absolute estate. The words there were "on your death your husband, sons, grandsons, and other heirs in succession will continue to enjoy and possess. The power to dispose of by gift or sale will successively vest in your husband, sons, grandsons, and others." The word "succession" was not taken to imply a limited estate for life. In another case of Lalit Mohun Singh v. Chukun Lal (1897) 24 Cal 834 the words "enjoy," "with son," "grandson," and so on, in succession (putra putrade krame) were held to be proof of an intention to give absolute estates. The Urdu words used in the present will, in our opinion, convey the same meaning. The learned Advocate for the appellant relied upon Gopal Chunder Bose v. Kartick Chunder Dey (1902) 29 Cal 716. In that case the Judicial Committee agreed with the High Court on the construction of the will and had held that the shebaitship devised by it on a "daughter and her husband and their male children successively" was not a perpetual estate and stress was laid upon the word "successively." But there is a good deal of difference between the present will and the will in that case. There the daughter, her husband and their children in the male line are specifically mentioned before the word "successively." Here we have only "Hira Bibi and her aulad."

We do not propose, as we have said, to discuss these cases in detail or to refer to other cases cited. They cannot be a safe guide to a proper construction of the present will. We have referred to some of them only in order to show that words like those used in the present will have been held to signify an intention to bequeath an absolute estate. Let us now see how far our construction is consistent with what follows in the will. Immediately after the words of bequest the testator proceeds to say that it was necessary to make provisions for the preservation of the name, fame, prestige and custom of the family and for the management of the properties, and he therefore appointed his son-in-law Baij Nath Prasad, husband of Hira Bibi, as an executor, giving him a salary and enjoining upon him to pay certain annuities. Then follows a bequest in favour of a son of Hira Bibi. It is contended on behalf of the appellant that the provision for an executor and manager, which has been made immediately after the bequest in favour of Hira Bibi, shows that she did not take an absolute estate. We do not think so. The legatees, Ratan Kuar and Hira Bibi, and for the matter of that her daughters, were all females. Debts had to be collected, the properties had to be managed, and therefore the appointment of an executor for those purposes was considered desirable. The appointment of an executor is in no way inconsistent with the giving of an absolute estate to Hira Bibi. Our attention has been drawn to the list of annuities given at the end of the will. Among the persons who were to be paid annuities are Ratan Kuar and Hira Bibi themselves and it is therefore argued that had Hira Bibi been given an absolute estate an annuity would not have been provided for her. No such intention can be inferred from the provisions regarding the annuities. The will is not artistically drafted and it seems that for convenience, in order to avoid repetition and to save space, only one comprehensive list of persons to receive annuities was drawn up and designed to serve the purpose of all the contingencies the testator had in view, instead of separate lists applicable to the several contingencies.

The list is to be read mutatis mutandis in accordance with the occurrence of events for which provision is made by the will. The provision of an annuity for Ratan Kuar and Hira Bibi is inconsistent with the taking of even a life estate by these ladies. What the testator wanted was that Ratan Kuar while holding a life estate should pay an annuity to Hira Bibi and in the event of Hira Bibi''s giving birth to a son and his taking the estate immediately, or as he was intended to do, an annuity was to be paid to Ratan Kuar (if living then) and to Hira Bibi. After making an absolute gift in favour of a son of Hira Bibi, who might be born, the will gives the executor Baijnath Prasad power to withdraw a promissory note from the Bank of Bengal and to sell it and do with it whatever he might think proper, or give it as security on his being appointed to any post in the Bank. This of course was a bequest of the promissory note to him. Then it gives him power to realise the debts due to the testator. Some such arrangement was expedient as the immediate successors of the testator were pardanashin ladies. So far there is nothing which can be said to be inconsistent with an absolute gift to Hira Bibi. Then follows a passage that has been relied upon by the learned Advocate for the appellant. It runs thus:

It will be necessary for and incumbent upon the said manager and the heirs mentioned above to manage all the affairs aforesaid with the advice and in concurrence and consultation with Lala Janki Prasad and Babu Sanwal Bihari (grandsons) of Babu Ram Chandraji. They should spend the surplus money on charity and on improvement of the property. The said heir and the manager shall have no exclusive right to execute any (deed) in any matter without the consent of the two persons mentioned above. Such writings shall, in such matter, be deemed to be void in Court. Be it noted that I also have been doing all works and management in consultation with the two aforesaid persons. Likewise in future also my heirs and manager will act and carry out (all works) with their permission and they shall have regard and respect for them as I have had for them.

The learned Advocate for the appellant contended that these restrictions apply only to Ratan Kuar and Hira Bibi, and not to her son who was to take an absolute estate, and they show that an absolute bequest was not intended to be made to either Ratan Kuar or Hira Bibi. Now, so far as Ratan Kuar is concerned, there is no question that she was given a life estate, as the property on her death was to go to Hira Bibi and her children. The question is how far these provisions indicate the bequest of only a life estate in favour of Hira Bibi. They occur not immediately after the bequest to Ratan Kuar and Hira Bibi, which was their proper place if they had reference only to that bequest, but after an absolute gift had been made to Hira Bibi''s son. Therefore the heirs to which they refer cannot be only Ratan Bibi and Hira Bibi. They equally apply to Hira Bibi''s son. What the learned Advocate wants us to do is to take out the passage making an absolute bequest to Hira Bibi''s son from the place where it occurs and insert it at the end of the passage quoted above. This cannot be done. All the restrictions, except the restriction on sale, are, in our opinion, recommendatory, and not mandatory. Sales have been permitted but with the advice of the two persons named, and his purpose was, in our opinion, that these two gentlemen might remain associated with the management of the properties. In the earlier part of the will the testator has expressly stated that he was going to make provision so that the name and fame of the family might continue and he may have thought it expedient that, as he was to be succeeded by ladies, Hira Bibi and her husband being young and her son to whom an absolute estate was given was not yet born, he provided that transactions should be conducted with the advice of the two tried men who had been his own advisers. It is not disputed that the clause restricting sales, if applicable to a son of Hira Bibi, is repugnant and therefore cannot be given effect to and, in our opinion, it is also repugnant to the bequest in favour of Hira Bibi and her children. To sum up our decision on this point: the only clause which can be said in any way to be inconsistent with an absolute bequest is the restriction upon sales, but that clause in our opinion equally applies to a son of Hira Bibi who was given an absolute estate in the most unequivocal terms. It is, therefore, of no effect in either case.

The result is that in disagreement with the learned Subordinate Judge we hold that the plaintiff has not established that fee is the nephew of the deceased Madan Mohan Lal. We also disagree with his view that Article 125, Lim Act, applied to this suit. In our opinion, all the claims for a declaration, except in respect of the usufructuary mortgage of 17th August 1906, are within time. The plaintiff''s suit, however, fails on the construction of the will and on his failure to establish the relationship to Madan Mohan Lal that he asserted, and has been rightly dismissed. We dismiss this appeal with costs in favour of defendants 7 to 10, 12, 14, 17 and 18; one set to be equally divided among those who have separately appeared.