Bhanwar Singh vs Bagh Singh and others

Nigam, J.C.

Bhanwar Singh filed Civil Suit No. 414 of 1949 against Bagh Singh and two others praying for a decree setting aside the order of the Collector and for an order allowing redemption of the suit lands on payment of Rs. 500/-. The plaintiff alleged that he was the owner of the two plots measuring 7 Bighas which were in suit and had been mortgaged on 17-2-1914 by Zor Singh in favour of the three defendants for a sum of Rs. 500/-. The plaintiff claimed the light to redeem as the legal representative of the mortgagor. The suit was contested and the learned Subordinate Judge decreed the plaintiff''s suit for redemption of the suit lands and directed the preparation of the usual mortgage decree directing payment within six months. Against that judgment and decree, Marjad Singh and Bagh Singh, two of the defendants, appealed to the District Judge. The learned District Judge held that the plaintiff had no right to sue and accordingly dismissed the suit. Now the plaintiff Bhanwar Singh has come up in second appeal. I have heard the learned counsel for the parties.

According to the will annexed to probate Ex. 10 (marked Ex. 11) Bhanwar Singh was bequeathed all the properties, movable and immovable, belonging to the testator Zor Singh. At the foot of the will details of the residential properties and tenancy properties were given. No details of the movable properties were given in the will. In the tenancy property, the two plots in suit were excluded, though another plot in the same khata 285 was specifically mentioned.

The first contention of the learned counsel for the appellant is that even though the two plots were not specifically mentioned in the will, Bhanwar Singh was the legatee in respect of all the properties left by Zor Singh. I am unable to permit this argument at this stage. The learned District Judge has stated that before him the plaintiff did not challenge the finding that he was not an heir or a legatee of the mortgagor Zor Singh. The learned counsel has urged that it was not necessary for the plaintiff who was a respondent in the court of the District Judge to have raised any points which were not specifically raised by the appellant in that court. It appears to me that before the District Judge, the plaintiff did not challenge the finding recorded against him that the will did not bequeath the property in suit to him. As such, I am unable to let this contention be raised at this stage.

The second contention of the learned counsel for the appellant is that in any case under the provisions of Ss. 211 & 216, Indian Succession Act, the plaintiff being the executor of the will of Zor Singh is entitled to deal with all the property belonging to Zor Singh. The contention of the learned counsel for respondents 1 and 2 (respondent No. 3 is present in person and has made no submission) is that the will is not in respect of this property and the executor can deal only with the property which is bequeathed with the will. I am unable to agree with this contention. In my opinion the words of S. 211 are clear. Section 211 (1) reads:

The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

In my opinion, the property passing through the will vests in the executor under the terms of the will and he is an active trustee in respect of that property. The other properties, not mentioned in the will, vest in the executor or administrator, as the case may be, under the provisions of S. 211, Indian Succession Act and in respect of these properties, the executor or the administrator is a bare trustee. The learned counsel for the parties have not drawn my attention to any ruling directly applicable to the facts of the case. I, however, think that my conclusions are supported by the view taken in - Azimunnisa Begum Vs. Sirdar Ali Khan, .

No other point has been pressed before me.

I, accordingly accept this appeal and holding that the plaintiff was entitled to redeem the mortgage in question being the executor of the will of Zor Singh, restore the decree of the learned Subordinate Judge setting aside the decree granted by the learned District Judge. In this Court, the parties will bear their own costs. The plain tiff will get his costs in the two courts below.