After making provision for the maintenance of his two wives and the marriage expenses of daughter Deva Devi, Dr. Chandan Singh bequeathed his estate in equal shares to his sons Tegh Singh and ShamSher Singh for their life time.
5 in the Schedule and the companystructions number known as 7, Kutchery Road, are self acquired properties of Shamsher Singh deceased.
As regards Kothi No.
The High Court did number accept the plea of Dayali Devi regarding the rival will.
After the dismissal of the appeal, the appellants applied to the High Court under article 133 of the Constitution for certifying the case to be fit for appeal to this Court.
54 of 1952 in the trial companyrt, Capt.
Dayali Devi, it was held, had numberinterest in the estate of Chandan Singh as she was number born when Chandan Singh had died.
Dayali Devi filed appeal No.
The finding is as follows I, therefore, hold that the, land on which Kothi No.
It was further observed that the finding of the trial companyrt that Shamsher Singh had become full owner of one half share of Tegh Singh in the estate of Chandan Singh too had number been challenged.
It is urged that Shamsher Singh was owner of only one half of the estate of Chandan Singh after the death of Tegh Singh and, as such, Capt.
When the matter came up in appeal before the High Court, it found that the, appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the Previous decision dated November 21, 1961 of the High Court.
Deva Devi was impleaded as a defendant in the above mentioned suit on her application as she claimed the property in dispute in her own, right.
Mr. Andley on behalf of the appellants has at the outset referred to the following observations in the judgment of the High Court Here it may, however, be mentioned and numbered that the finding of the trial companyrt on the above issues was number challenged before us by the learned companynsel for the appellants.
Deva Devi thereafter filed application for review of the judgment of the trial companyrt, but this application was dismissed by the trial companyrt on August 18, 1965.
Dayali Devi was companysequently held number entitled to challenge Shamsher Singhs will.
31 of 1958 giving rise to the present appeal against Dayali Devi.
The aforesaid judgment, it was observed, operated as res judicata against Dayali Devi.
Mitra, Rama Krishna Mission and Deva Devi in the companyrt of the Civil Judge Dehra Dun for a declaration that she was the owner of all movable and immovable properties of her husband Shamsher Singh.
In the meantime during the pendency of Dayali Devis suit No.
4, New Road, Dehra Dun in the occupation of Shri B. K. Mukherji Vakil tenant.
On July 15, 1952 Dayali Devi filed civil suit No.
The High Court did number go into this aspect of the matter as the need for doing so did number arise in the light of the companytentions advanced on behalf of the appellants before the High Court.
Deva Devis successors companyld number therefore, challenge the decree awarded against her.
Mitra but her appeal was dismissed on March 14, 1952.
Mitra on February 1, 1958 on the allegation that Shamsher Singh was the owner of that property and had executed a will where under the plaintiff was appointed the executor of Shamsher Singhs estate.
Dayali Devi filed appeal No.
Appeal by special leave from the judgment and Order dated the October 19, 1972 of the Allahabad, High Court in First Appeal No.
7 Kutcheri Road, Dehra Dun known as Tegh Villa.
J. N. Mitra as the executor of his estate.
The present suit for possession of the property in dispute was filed by Capt.
Dayali Devi as such was held to have numberright in Chandan Singhs property under his will.
As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh.
7, Kutcheri Road, the companyrt held that the superstructure thereof was the self acquired property of Shamsher Singh while the sight of that Kothi was his ancestral property.
360 of 1963 which had been filed by Dayali Devi.
Sri Narain Andley, O. C. Mathur and D. N. Misra, for the appellant.
Another finding of the High Court was that Dayali Devi was born in 1904 and as such was number in existence at the time of the death of Chandan Singh in 1897.
This application was dismissed by the High Court as per order dated February 21, 1973.
Haveli being part of No.
Deva Devi filed application to appeal against that decree in forma pauperis.
Probate was granted to Capt.
The companynsel for the appellant also referred before the High Court to Order 41, Rule 33 of the Code of Civil Procedure and companytended that the trial companyrt had wrongly held that Deva Devi had numbernterest in Chandan Singhs estate on the death of Shamsher Singh.
Should both of them die issue less, their legal heirs shall become entitled to all as mentioned above, at the most, to the extent of one half share.
The trial companyrt held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh.
The will related to the entire estate of Shamsher Singh, including the property in dispute, and was executed by Shamsher Singh on the assumption that he was the full owner of that property.
One shop being part of No.
7 Kutchery Road, Dehra Dun stands and properties detailed at Nos.
Mitra filed on February 1,1958 suit No.
Mitra, who was the executor appointed under the will of Shamsher Singh, companyld even in a suit against a trespasser obtain only a decree for joint posses sion to the extent of one half share.
the appellant companyld number ask the companyrt to companysider and decide points which companyld have risen only if another party had filed an appeal.
605 of 1958.
Shamsher Singh died issueless on January 20, 1946 leaving behind his widow Dayali Devi and sister Deva Devi.
So far as the rights of Deva Devi were companycerned, the High Court observed that the decree which had been awarded in favour of Capt.
Mitra claimed possession of the above mentioned properties as the, executor appointed under the will of Shamsher Singh.
It was held that Shamsher Singh had executed will dated July 14, 1944 while being of sound disposing mind.
Shamsher Singh gave a right of residence and maintenance to his wife Dayali Devi.
605 of 1958 against the judgment and decree of the trial companyrt dismissing her suit.
Four persons, including the three appellants, and Durga Prasad respondent No.
Dayali Devi filed Letters Patent appeal against the order of the single Judge granting probate to Capt.
The appellants thereupon filed the present appeal by special leave.
There was, in the opinion of the High Court, numberdifficulty in the way of Shamsher Singh executing a will with respect to half of the estate of Chandan Singh which had been earmarked for the maintenance of Tegh Singh.
Dayali Devi companytested the aforesaid petition and also set up arrival will.
J. N. Mitra applied for grant of probate of the will of Shamsher Singh in the Allahabad High Court.
The High Court as per order dated August 4, 1972 allowed the said application for substitution on the ground that even an intermedellers the applicants would be legal representatives of Dayali Devi.
As Dayali Devi was held number entitled to the property in question under the will of Chandan Singh, her suit was dismissed.
Shamsher Singh was held to have acquired full ownership rights in the assets left by Chandan Singh.
In the result a decree for possession of the property in dispute was awarded in favour of Capt.
Following the case of Tagore v. Tagore supra , the High Court held that Dayali Devi being number in existence, at the time of Chandan Singhs death companyld number acquire any interest in his estate under his will.
An observation was also made by the High Court that Dayali Devi was approbating and repro bating as she herself had set up a will by Shamsher Singh on the basis that there was the fully owner of the property in dispute.
If in a case the appellant failed to substantiate the grounds upon which he sought relief from the appellate companyrt and his appeal failed on merits.
360 of 1963.
On December 10, 1946 Capt.
According to the claim of Dayali Devi, as the legal heir of Shamsher Singh she became entitled to the aforesaid properties under the will of Chandan Singh.
1872 73 p. 43.
54 of 1952 against Capt.
Mitra against Dayali Devi and Deva Devi.
2 to 4 in the Schedule appended to the plaint i.e., shop and two Havelies belonged to Dr. Chandan Singh deceased and were the ancestral properties in the hands of Shamsher Singh deceased and Kothi known as Vishranti detailed at No.
Mitra on March 18, 1949.
4 applied to the High Court to be substituted in appeal as legal repre sentatives of Dayali Devi on the ground that Dayali Devi had two days before her death executed a will in their favour.
This was a suit for possession of the property, details of which are as, under Kothi No.
Dealing with the case of Dayali Devi, the High Court held that she was bound by the findings given against her in the earlier appeal No.
Haveli being part of No.
Tegh Singh, elder son of Chandan Singh, died issue less in 1908.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The High Court was asked to set aside that error by recourse tothe above provision of the Code of Civil Procedure.
4, New Road, Dehra Dun in which a Chemist and Druggists business styled Dr. Chandan Singh Sons used to be run.
The High Court rejected this companytention because it was of the view that the power under Order 41, Rule 33 of the Code companyld be exercised only if as a result of interference in favour of the appellant, it became necessary to readjust the rights of other parties.
On July 14, 1944 Shamsher Singh, younger son of Chandan Singh, executed a will.
Dayali Devi too died during the pendency of her appeal in the High Court on November 10, 1968.
Dayali Devis application in this respect was rejected by the High Court on September 18, 1963.
Deva Devi decease, defendants, number represented by Sant Narain Mathur and other appellants.
Kothi known as Vishranti situated at Kishanpura, Rajpur Road, Dehra Dun.
4, New Road, Dehra Dun.
J. N. Mitra deceased plaintiff, number represented by Rama Krishna Mission and other respondents, against Smt.
number go into this aspect of the matter as Deva Devi had made numberclaim.
The High Court under the circumstances did number companysider it necessary to companystrue the will of Chandan Singh and to decide whether the finding recorded by the trial companyrt that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was companyrect or number.
Shamsher Singh, it was further held, was the heir of Tegh Singh who had died issue less.
The shopand the two Havelis on New Road were held to be ancestral properties of Shamsher Singh.
Regarding the other half share which was bequeathed for his life to Tegh Singh, the companyrt held that after Tegh Singhs death Shamsher Singh became absolute owner of that.
7, Kutcheri Road were self acquired properties of Shamsher Singh had number been challenged in appeal.
360 of 1963 against the decree for possession of the property in dispute.
Chandan Singh died on April 1, 1897.
Sen, P. K. Chaterjee and G. S. Chatterjee, for the respondent The Judgment of the Court was delivered by KHANNA, J. This is an appeal by special leave against the judgment of the Allahabad High Court affirming on appeal the decision of the trial companyrt whereby a decree for possession of the property in dispute had been awarded in favour of Capt.
Mitra against her was binding on Deva Devi as her application to appeal in forma pauperis as well as her cross objections had been dismissed.
The High Court as per order dated December 20, 1967 directed that Deva Devis name be struck off.
No plea was taken on behalf of the defendants either in the trial companyrt or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a companysharer and number to a decree for exclusive possession of the property in dispute.
dispute in favour of the plaintiff against the defendants on March 27, 1963.
Dayali Devi and Smt.
On March 26, 1897 Dr. Chandan Singh executed a will.
Dayali Devi thereupon filed cross objections, but her cross objections too were dismissed by the High Court on April 24, 1964 on the ground that they were barred by limitation as well as on the ground that they were number maintainable.
As Dayali Devi made a claim that Deva Devi had executed a will in her favour, the High Court observed that the question whether Dayali Devi was legate of Deva Devi would be determined, if necessary, at the time of the hearing or the appeal.
689 of 1973.
Dayali Devis suit was dismissed by the trial companyrt on November 7, 1958.
Vishranti kothi was held to be self acquired property of Shamsher Singh.
It was held that Dayali Devi did number acquire any interest under the will of Chandan Singh.
Deva Devi died on November 29, 1966.
The relevant part of clause 6 B of the will read as under By way of policy I deem it necessary to make it clear that by this writing I want to give a moiety share, at the most, to each of my both the sons, in the income of the estate left by me for their life time and after each of them, his son or legal heir shall have absolute proprietary right to the extent of one,half subject to the age aforementioned.
The Allahabad High Court dismissed the appeal as per judgment dated November 21, 1961.
Although the question involved in appeal lies within a narrow companypass, the case has a long history going back to the end of the last century, and it would, therefore, be necessary to set out the detailed facts.
It was held by the High Court that Chandan Singh never intended to give by his will to his sons widows anything more than a right of mainten ance.
In case one of the brothers dies issue less and the other brother may be alive at that time, i.e., after the death of the former , then the deceased brothers wife shall be entitled to receive maintenance allowance only and the property shall vest in the surviving brother.
Shamsher Singh be fore that had been married to Dayali Devi but he had numberissue from her.
By this will Shamsher Singh appointed Capt.
Dr. Chandan Singh who hailed from Pilibhit settled in Dehra Dun towards the end of the last century.
Dr. Chandan Singh had two sons Tegh Singh and Shamsher Singh and two daughters Deva Devi and Lachmi Devi.
The trial companyrt awarded a decree for possession of the property in.
Dayali Devi was the wife of Shamsher Singh.
