Sarabjit Pande and Others vs Raj Kumar Pande

Ross, J.—This is an appeal by the plaintiffs. The Bait was brought for a declaration that a deed executed by Fakira Pande in favour of his wife conveyed only a life estate and the subsequent alienation made by her is without effect as against the plaintiffs who are the reversioners of Fakira Pandey. The Trial Court, holding that only a life estate was given, decreed the suit. The Subordinate Judge on appeal took the opposite view, and the only question is, whether the deed, referred to in the plaint, executed by Fakira on the 1st of January 1903 conveyed to his wife an absolute estate or only a life estate.

The deed must be construed as a whole. It begins by reciting that the executant is the only member of his family and is separate and has no concern with any other person except his wife. As he has no expectation of children and is afraid that after his death his wife may be put to trouble and his property wasted, therefore, in order to preserve his property he makes his wife the permanent and full owner, malik mustakil kamil of the property. Later on, the phrase is used again "malik mustakil kamil jaidad muhuba," The dead then goes on to say that neither the declarant nor his heirs or representative will have any right or title or claim against the said Musammat or her heirs and legal representatives in respect of the properties, and that it is proper that the Musammat, remaining in possession of the properties, may utilise the in some as a matter of right. The last clause is that in the event of a son or daughter being born to the Musammat by the executant, and living at her death, then that son or daughter will be the permanent and full owner.

The clause which refers to "the Musammat or her heirs and legal representatives" may Seem to present difficulty in the way of construing this deed as the grant of a life estate only. Bat it is contended that this clause is common form; that it must be read with its context and that what it refers to is simply the possession of the properties. In my opinion if the deed had stopped there, there could have been no question that an absolute estate was conferred. But the succeeding clause makes specific reference to the income as that which the lady is to utilize and there is the further clause that if a child should be born the property should belong to that child. These two clauses seem to me inconsistent with the construction of the deed as conferring an absolute estate and to indicate what the real intention of the grantor was; and, construing the deed as a whole. I would read it as conferring a life interest only.

I would, therefore, allow this appeal, set '' aside the decree of the learned Subordinate Judge and restore that of the Munsif with costs to the plaintiffs throughout.

Coutts, J.

I agree.