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. 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. 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 judgment and decree, dated October 12, 1928, of the Court of the Judicial Commissioner, North-West Frontier Province, Peshawar, which reversed a judgment and decree, dated January 31, 1928, of the District Judge of Peshawar, and made a decree partly allowing the plaintiffs claim and partly dismissing it. Kanhaya Lal executed his last will and testament on May 27, 1896, and died in the year 1899, leaving surviving his sole widow the plaintiff, Mst. Koklan, his infant son Tara Chand, and his great nephew Mohan Lal, as will appear from the following pedigree — Sultan Singh. | | | | Wisakni Jul Mal Kanhaya Lal = M us ammat Koklan Ram | (died 1899) | (Plaintiff) | | | | | | | | Moti Ram Musammat Musammat Musammat Tara Chand Sarasti Nikki Bhappo (died 1918) married | Musammat Bolo (defendant No. 3) | | 2880| Mohan Lal Mehr Chand (died (died 1910) March, 1927, | aged 10 | years) | Surjan Das (died 1918) | || Sant Ram Hari Ram, (Defendant minor No. 1) (Defendant No. 2) The properties left by Kanhaya Lal consisted of movables and immovables. They were self-acquired and were not ancestral. Two questions are before their Lordships for their decision in this appeal (1.) What is the interest of the plaintiff and the defendant Mst. Bolo in the property left by Kanhaya Lal ? (2.) Is the claim of the plaintiff in this suit barred by limitation ? The important clause in the will is the 4th, and it runs as follows " If I die, my real son—Tara Chand, minor, aged 2 years, may be held and considered as proprietor of half of the whole property specified in the will, jointly with Mst. Koklan, his mother. The important clause in the will is the 4th, and it runs as follows " If I die, my real son—Tara Chand, minor, aged 2 years, may be held and considered as proprietor of half of the whole property specified in the will, jointly with Mst. Koklan, his mother. If, God forbid, the mother of the said Tara Chand minor dies before him, then the said Tara Chand shall become the owner of the said half share and in case Tara Chand minor dies before his mother, then the latter shall be held and considered to be the owner of the said minors half share in the entire property. Mst. Koklan shall act as guardian of the person and property of Tara Chand during his minority. It is further noted here that if Tara Chand is not present, i.e., if he dies, then Mst. Koklan shall be competent in every respect to alienate the said half share in the property by way of Dharam Khata, etc. (i.e., charitable purposes, etc.), but she shall have no power to alienate by gift or by other way any portion of the said property either to her parents or relations on her mothers side. As regards the remaining one-half share of the property noted in the will, it shall go to Mohan Lal, son of Narinjan Das, caste Arora (by profession a physician) of Mohallah Kocchi Khan ilaqa Dabgari gate, Tahsil Peshawar, who is the son of my brothers daughter, and after his death his children shall succeed to this half share of the property." Tara Chand died in 1918, leaving him surviving his sole widow Mst. Bolo and an infant son Mehr Chand. The question for decision is whether on Tara Chands death his mother, Mst. Koklan, became entitled absolutely to a moiety of the estate left by Kanhaya Lal and, if not, then what on the construction of Kanhaya Lal’s will is the interest of Mst. Koklan or of Mst. Bolo. Counsel for Mst. Bolo and an infant son Mehr Chand. The question for decision is whether on Tara Chands death his mother, Mst. Koklan, became entitled absolutely to a moiety of the estate left by Kanhaya Lal and, if not, then what on the construction of Kanhaya Lal’s will is the interest of Mst. Koklan or of Mst. Bolo. Counsel for Mst. Bolo submitted that the testator by the words " In case Tara Chand minor dies before his mother, then the latter shall be held and considered to be the owner of the said minors half share in the entire property," intended that the interest which Tara Chand was to acquire under the will would go over to his mother only if Tara Chand died before the testator or if he died during his minority, but not otherwise. He further submitted that in construing this will, which is the will of a Hindu, it is proper to take into consideration what are known to be the ordinary motives and wishes of a Hindu with respect to the devolution of his property, and that a Hindu, except in rare cases, would not deprive his sons or grandsons of their rights of inheritance, or even curtail the same, for the benefit of his widow. No doubt the submission of the learned counsel is perfectly legitimate and proper, but the primary duty of a Court of construction is to give to the words of the will their plain and natural meaning, and the words of this will are specific. Their Lordships think that, whilst they must give due weight to the submission of the learned counsel, they must construe the words as they find them. They therefore hold that the intention of the testator as expressed was that the defeasance clause would come into operation on the death of Tara Chand, if the same happened during the lifetime of his mother, and cannot be restricted in the way that counsel suggested. The answer to the first question propounded is therefore that on the death of Tara Chand Mst. Koklan became entitled to a moiety of the property left by Kanhaya Lal and that Mst. Bolo has no interest therein. The learned District Judge found the facts as follows " When Kanhaya Lal died, Mohan Lal managed the property. The answer to the first question propounded is therefore that on the death of Tara Chand Mst. Koklan became entitled to a moiety of the property left by Kanhaya Lal and that Mst. Bolo has no interest therein. The learned District Judge found the facts as follows " When Kanhaya Lal died, Mohan Lal managed the property. On his death Surjan Das managed it and a year or two later Tara Chand also took part in the management. On the death of Surjan Das and Tara Chand, agents were appointed under registered powers of attorney by Musammats Sarani and Bolo, the mothers of the minors Sant Ram, Hari Ram, and Mehr Chand, to manage the property and that arrangement has been continuing up to date. The account books of the property show that the income has been credited half and half to the two branches of Sultan Singhs descendants an -allowance of Rs.20 p.m. has been made to Musammat Koklan and it has been debited all along first to Tara Chands account and later to Mehr Chands. Since the death of Surjan Das and Tara Chand the mothers of the minors have been receiving from the property a sum of about Rs.400 a month for their various expenses. Kanhaya Lal’s widow and decendants continued to live jointly until 4 or 5 years ago when Musammat Koklan and Bolo began to live separately." The Court of the Judicial Commissioner did not come to any different finding, and their Lordships accept the finding of the learned District Judge as correct. A suit was filed on July 11, 1922, on behalf of the infant Mehr Chand by his mother Mst. Bolo against the two minor sons of Surjan Das through their mother for partition and possession of the properties left by Kanhaya Lal in equal shares. Mst. Koklan petitioned to be added as defendant, denying that her minor grandson had any right at all and claiming under the will to be the absolute owner of the half share in suit. The suit was subsequently withdrawn with liberty to bring a fresh suit. On these facts the question arises whether the claim of the plaintiff is barred by limitation. Learned counsel for Mst. Bolo argued that art. The suit was subsequently withdrawn with liberty to bring a fresh suit. On these facts the question arises whether the claim of the plaintiff is barred by limitation. Learned counsel for Mst. Bolo argued that art. 120 applies to this suit in respect of the movable properties, and that when Tara Chand died the right to sue accrued to the plaintiff and the suit as regards the movable properties is therefore barred by limitation. Learned counsel for the plaintiff, Mst. Koklan, also submitted that art. 120 of the Limitation Act is applicable, but that the right to sue did not accrue until Mehr Chand on July 11, 1922, instituted the suit which was subsequently withdrawn. He further submitted that if art. 120 did not apply, then art. 127 or 123 is applicable. If art. 127 or 123 is applicable, then the suit is clearly within time, but even if art. 120 applies to this suit, then their Lordships are of opinion that the suit is within time. Art. 120 is as follows — Suit for which no period of Limitation is Six years. When the right to sue provided elsewhere in this Schedule accrues. There can be no " right to sue " until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. No doubt Mst. Koklans right to the property arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of opinion that there was no infringement of, or any clear and unequivocal threat to, her rights till the year 1922, when the suit, as stated above, was instituted. Mst. Koklan was living as a member of a joint family, consisting of herself, her infant grandson, and daughter in law, and they constituted Kanhaya Lal’s branch of the family of Sultan Singh. The grant of powers of attorney by Msts. Sarani and Bolo to a manager to manage the joint property, and the method in which the account books were kept, show the way in which the joint properties were managed. Such methods of management are not uncommon amongst Hindus. Their Lordships therefore hold that the suit is not barred by limitation. They are of opinion that the appeal of Mst. Such methods of management are not uncommon amongst Hindus. Their Lordships therefore hold that the suit is not barred by limitation. They are of opinion that the appeal of Mst. Bolo should be dismissed and that of Mst. Koklan allowed, and that the following declaration should be made That on the true construction of the will the plaintiff is entitled to an absolute interest in the one-half share in which she and Tara Chand were interested at the time of the latter s death, but this declaration is without prejudice to the question whether any, and if so to what extent, the restriction on alienation imposed by the will of Kanhaya Lal is valid. It follows therefore that Mst. Koklan is entitled to a decree for partition and that this suit should be remitted to the learned District Judge to carry out the directions of their Lordships. The appellant, Mst. Bolo, must pay the costs of Mst. Koklan before this Board. There will be no order for costs in the Courts below and any costs paid under any order should be returned to each other respectively. The costs of partition would be dealt with by the learned District Judge. Their Lordships will humbly advise His Majesty accordingly.