Judgement

KHANNA, J.:- This is an appeal by special leave against the judgment of the Allahabad High Court reported in AIR 1973 All 249 affirming on appeal the decision of the trial court whereby a decree for possession of the property in dispute had been awarded in favour of Capt. J. N. Mitra deceased-plaintiff, now represented by Rma Krishna Mission and other respondents, against Smt. Dayali Devi and Smt. Deva Devi deceased-defendants, now represented by Sant Narain Mathur and other appellants. Although the question involved in appeal lies within a narrow compass, 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, 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 Deve Devi and Lachmi Devi. Dayali Devi was the wife of Shamsher Singh. On March 26, 1897 Dr. Chandan Singh executed a will. 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 lifetime 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, n the income of the estate left by me for their lifetime : 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. In case one of the brothers dies issueless and the other brother may be alive at that time, (i.e., after the death of the former), then the deceased brother s wife shall be entitled to receive maintenance allowance only and the property shall vest in the surviving brother. Should both of them the issueless, their legal heirs shall become entitled to all as mentioned above, at the most, to the extent of one-half share.

Chandan Singh died on April 1, 1897, Tegh Singh, elder son of Chandan Singh, died issueless in 1908. On July 14, 1944 Shamsher Singh, Younger son of Chandan Singh, executed a will. Shamsher Sing before that had been married to Dayali Devi but he had no issue from her. 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. By this will Shamsher Singh appointed Capt, J. N. Mitra as the executor of his estate. Shamsher Singh gave a right of residence and maintenance to his wife Dayali Devi. He also made provision for the residence and maintenance of his sister Deva Devi. The entire estate was bequeathed to Ram Krishna Mission and the bequest was to take effect after the death of Dayali Devi. Shamsher Singh died issueless on January 20, 1946 leaving behind his widow Dayali Devi and sister Deva Devi.

2. On December 10, 1946 Capt. J. N. Mitra applied for grant of probate of the will of Shamsher Singh in the Allahabad High Court. Dayali Devi contested the aforesaid petition and also set up a rival will. The High Court did not accept the plea of Dayali Devi regarding the rival will. Probate was granted to Capt. Mitra on March 18, 1949, Dayali Devi filed Letters Patent Appeal against the order of the single Judge granting probate to Capt. Mitra but her appeal was dismissed on March 14, 1952.

3. On July 15, 1952 Dayali Devi filed civil suit No. 54 of 1952 against Capt. Mitra, Rama Krishna Mission and Deva Devi in the court 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. According to the claim of Dayali Devi s, as the legal heir of Shamsher Singh she became entitled to the aforesaid properties under the will of Chandan Singh. Dayali Devi suit was dismissed by the trial court on N