Judgement

Consolidated Appeal and Cross-Appeal (No. 106 of 1929) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province (October 12, 1928), reversing a decree of the District Judge of Peshawar (January 31, 1928).

The consolidated appeal arose out of a suit instituted in 1927 by the above named Mst. Koklan, claiming that under the will of her husband, Mul Chand, who died in 1899, she was entitled upon the death in 1918 of her son Tara Chand to a half share in property disposed of by the will. The plaintiff prayed for a declaration and for partition. The first two defendants were in possession of the other half of the property as grandsons of Mohan Lal, to whom it had been bequeathed by the will. They did not dispute the plaintiffs claim, and they were joined as pro-forma parties to the appeal. The third defendant, Mst. Bolo, the widow of Tara Chand, by her written statement contended (inter alia) that the plaintiff was entitled to no interest under her husbands will.

The material terms of the will and the relevant facts appear from the judgment of the Judicial Committee.

The District Judge of Peshawar dismissed the suit. In view of the importance which Hindus attach to perpetuation of their family in the male line, he was of opinion that the intention of the testator was that there should be a gift over to Mst. Koklan only in the event of his son dying during minority and without issue.

Upon appeal by the plaintiff to the Court of the Judicial Commissioner the learned judges held that the effect of the will was to confer an at solute estate upon the testators son in a quarter share, and a life estate upon the testators widow in a quarter share, and that upon the sons death the plaintiff was entitled to his one-quarter share in the property. They made a decree for partition upon that basis.

1930. May 19, 20, 21, 22. Dunne K.C. and J. Nissim for the defendant, Mst. Bolo. The true effect of the Hindi words translated "jointly with Mst. Koklan" was merely that she was to have the right of maintenance and of guardianship usual in the case of a Hindu widow and minor son. In any case the will should be construed according to the notion and wishes of Hindus, and should therefore be read as devising the half share to the testators widow only if his son died during his minority without issue, or if he so died during the testators life. [Reference was made to Tagore v. Tagore (( 1872) L. R. I. A. Supp. 47, 65.) ; Mahomed Shumsool v. Shewukram (( 1874) L. R. 2 I. A. 7,14,15.) ; and Hirabai v. Lakshmibai. (( 1887) I. L. R. 11 B. 573.)] Further, the plaintiffs claim to the movable property was barred by the Indian Limitation. Act, 1908, Schedule I., art. 120, as the suit was not brought within six years of Tara Chands death. Art. 123 does not apply, as there was no duty on Bolo to distribute the property.

De Gruyther K.C. and Dube for the plaintiff, Mst. Koklan. The will provides in clear terms that in case Tara Chand should die before his mother the latter should be owner of the sons half share. The ordinary wishes of a Hindu as to the devolution of his property cannot be invoked to alter that clearly expressed provision. If art. 120 applies to the claim to the movable property it was not barred, because the right of the plaintiff was not challenged before the suit in 1922. There is no " right to sue " within art. 120 until the right asserted is infringed or challenged Jitendra Nath Ghose v. Monmohan Ghose. (( 1930) L. R. 57 I. A. 214,223.) A suit cannot be brought for a declaration of a right of which the plaintiff is in undisputed enjoyment Specific Relief Act, 1877, s. 42. But it is submitted that the article applicable is either art. 123 or art. 127, and under either the claim was not barred.

Dunne K.C. replied.

July 3. The judgment of their Lordships was delivered by

SIR BINOD MITTER. These are two consolidated appeals, one by the plaintiff, Mst. Koklan, and the other by the defendant, Mst. Bolo, from a j