Judgment

SUBBA RAO, J. : This appeal raises the question of the construction of a will executed by one Girdhari Lal in the year 1897.

2. Girdhari Lal, a resident of Delhi executed a will dated February 8, 1897, bequeathing his property, both movable and immovable, to his wife, Mst. Kishen Dei, and adopted son. The adopted son predeceased Girdhari Lal. After the death of Girdhari Lal in 1923, Mst. Kishen Dei executed a will dated October 8, 1941, bequeathing the property in dispute i.e., house No. 2045, situate in Delhi, to her brother s grandson, Rameshwar Dass. One Peareylal, who is the defendant in this case, has been in occupation of a portion of the said house. After the death of Mt. Kishen Dei Peareylal refused to execute a lease deed in favour of Rameshwar Dass or pay him the rent in respect of the portion of the house occupied by him. Rameshwar Dass had therefore to file a suit in the Court of the Subordinate Judge Delhi, for evicting the defendant from the portion of the house occupied by him. The defendant, inter alia, pleaded that the plaintiff had no title to the said property, as Mst. Kishen Dei did not get an absolute interest therein under the will of her husband; he further pleaded that Girdhari Lal during his lifetime dedicate d the said house under a will executed by him to Shiv Temple in Gali Patashe Minor and appointed him to be trustee of said house. The learned Subordinate Judge found that under the will executed by Girdhari Lal, Mst. Kishen Dei got an absolute interest in the house. He further found that the will set up by the defendant whereunder he claimed that the house was dedicated to the said minor had not been proved and that on the date when it was alleged to have been executed, Girdhari Lal was not of sound mind. In the result, he made a decree in favour of the Plaintiff. on appeal the learned District Judge field that under the will of 1897 executed by Girdhari Lal, Kishen Dei got only a limited estate and, therefore, she could not under a will confer any interest on the plaintiff. In that view, he did not give his finding on the question whether the will set up by the defendant was true and valid. The decree of the learned Subordinate Judge was set aside and the suit was dismissed. The plaintiff preferred a second appeal to the High Court of East Punjab at Simla. Khosla, J., held, on construction of the will of 1897, that under the said will the testator pave a life interest to Mst. Kishen Dei and made a gift over to the adopted son; but as the gift over failed, the life estate became an absolute estate under Section 1l2 of the Indian Succession Act. Alternatively he also fouled that on the wording of the will Mst. Kishen Dei got an absolute interest in the property. In the result he set aside the decree of the district Judge and restored that of the Subordinate Judge. It may be noticed this stage that no argument was made before Khosla, J., that the defendant acquired a title to the portion of the house under a subsequent will executed by Girdhari Lal; presumably in view of the finding given by the learned Subordinate Judge that the executant was not of sound mind at the time the will was alleged to have been executed, no attempt was made to sustain its execution or validity. The defendant preferred a Letters Patent Appeal against the said judgment to a Division Bench of the same High Court. The said appeal was disposed of by Weston, C. J. and Falshaw, J. Weston, C. J., who delivered the Judgment on behalf of the Bench, held on a construction of the will of 1897 that the intention of the testator should be taken to be that at any rate on failure of the bequest to Nathi Mal, the testator s widow Mst. Kishen Dei should take an absolute interest in his property. The Division Bench confirmed the Judgment of Khosla, J. It may again be noticed that even not rely upon the will alleged to have been executed by Girdhari Lal in his favour. The present appeal has been filed by special leave against the sai