Judgment Das, J. 1. This is a second appeal by the plaintiffs and arises out of a suit for a declaration that a sale-deed dated 27th August 1936, executed by defendants 1 and 2 in favour of defendant 3 was without consideration, not justified by legal necessity and therefore, not binding on the plaintiffs. I shall presently refer to the findings of the Courts below on the facts in issue between the parties, but it would be convenient to state at the very beginning that the main question involved in the appeal is one of limitation, the only ground on which the Courts below have dismissed the action. There is also a cross-objection by respondent 3, who was defendant 3 in action, which raises the question of the interpretation of the terms of a will executed by one Ramnihora Tiwari on 22nd June 1923, Therefore, the two questions for decision in this appeal are, (1) whether the suit of the plaintiffs, appellants was barred by time, and (2) what right two widows, defendants 1 and 2 in the action, got under the said will. 2. The facts are the following. Ramnihora Tiwari was admittedly the last male owner of the property in question. He executed a will dated 22nd June 1929, in favour of defendants 1 and 2. Defendant 1 was his daughter and defendant 2 was the widow of his nephew Bam Nandan Tiwari. Both these ladies were widows at the time when the will was executed, and were apparently dependent on Ramnihora for maintenance. Ramnihora died in 1930, and the widows came in possession on taking probate of the will. The appellants alleged that they were the next reversioners to the estate of Ramnihora. They said that the two widows had a life estate under the terms of the will. The widows had been executing several documents to fritter away the estate without any valid necessity, and on 27th August 1996, they executed a sale-deed in favour of defendant 3 in respect of 5.82 acres of laud. This sale-deed the appellants challenged as being without consideration and not justified by legal necessity. The defence raised several pleas--challenging the claim of the appellants to the reversionary right, also challenging the appellants interpretation of the terms of the will, etc.
This sale-deed the appellants challenged as being without consideration and not justified by legal necessity. The defence raised several pleas--challenging the claim of the appellants to the reversionary right, also challenging the appellants interpretation of the terms of the will, etc. One of the pleas raised was that the suit was barred by limitation having been brought in 1944, about six years after the execution of the sale-deed. 3. The Courts below concurrently found that (a) the appellants are the next reversioner to the estate of Ramnihora; (b) under the will the two widows got nothing more than a life estate ; and (c) the sale-deed in question was without consideration and not justified by legal necessity. These three findings were in favour of the appellants, but on the question of limitation the Courts below held that the action was barred by time. Hence the second appeal by the appellants. As already stated, respondent 3 the purchaser under the sale-deed of 27th August 1936, has preferred a cross-objection challenging the finding of the Courts below that under the will the widows got a life estate only. The contention of respondent 3 is that the ladies got an absolute estate in the property in question under the terms of the will. 4. It would, I think, be convenient to examine the terms of the will first; for, if it is found that the two ladies got an absolute estate under the terms of the will, then no other question need be considered and the suit of the appellants must fail on that ground only. We have had the will translated by an official translator of this Court. The particular terms of the will on which learned counsel for the respondents has placed great reliance are the following; "Therefore, I, the executant of my own accord and free will, in sound state of my body and mind, in perfect enjoyment of my senses, after fully understanding everything and after getting the contents of the will read over to me execute this will without any force or pressure in favour of Mt. Keshari Kueri widow of Ramanand Tiwari and Mt. Baohni Kueri, my daughter, residents of mauza Patarkona, pargana Bhojpur, district Shahabad, thana Dumraon, Sub-registry Office Buxar, District Sub-registry Office Shahabad, by caste Brahman, by occupation cultivators with this stipulation that after the death of me the executant Mt. Keshri Kueri and Mt.
Keshari Kueri widow of Ramanand Tiwari and Mt. Baohni Kueri, my daughter, residents of mauza Patarkona, pargana Bhojpur, district Shahabad, thana Dumraon, Sub-registry Office Buxar, District Sub-registry Office Shahabad, by caste Brahman, by occupation cultivators with this stipulation that after the death of me the executant Mt. Keshri Kueri and Mt. Bachni shall enter in possession and occupation of my entire movable and immovable properties in half and half share and they shall remain in possession and occupation in absolute right. In case any of the two musammats dies in my life-time the surviving musammat shall enter in possession of the entire properties." If the aforesaid official translation is correct, then there can be no doubt that the two ladies obtained an absolute estate under the will. The official translation has, however, been very seriously challenged by the appellants, and the official translator has been examined in this Court by both parties, with particular reference to the actual words occurring in the will. The deposition of the official translator shows that actual words used in the will are "Bahaisiyat Mushtaquil Kabiz Dakhil Rahenge." There is no such word as "Malik" following the word "Mushtaquil." The official translator admits that "Mustaquil" merely means "permanent, fixed, immovable, stable, firm, constant" etc. That is also the meaning of the word as given in Fallons Dictionary. It is clear, therefore, that the word "Mushtaquil" by itself will not mean an absolute interest, unless it is coupled with some other word such as "Malik." The words "Mushtaquil Kabiz Dakhil Rahenge" would literally mean that they would remain in possession permanently; the word permanently qualifying, and in the context of, possession can only mean poseesaion as long as they would be alive. There was some discussion before us as to whether the use of the word "Bahaisiyat" preceding "Mushtaquil" showed that the word "Malik" was omitted by the draftsman through inadvertence. "Bahaisiyat" will literally mean "by way of" or "according to." The official translator admitted, to a question put by this Court, that there was no word in the whole of the document which would convey the sense of giving a "right" as distinguished from mere "possession." He further admitted that in his translation he not merely translated the words used, but interpretad the document according to bis light.
It is clear that the interpretation of a document is not the duty of the translator and is the business of the Court. 5 Having given my best consideration to the terms of the will as a whole, I am unable to accept the contention of learned counsel for the respondents that the ladies got an absolute estate under it. It is mentioned in the will that Mt. Keshari Kueri was living jointly with the executant and was getting maintenance. It is further stated that the daughter, Mt. Bachni, was a widow and had long ago severed her connection with the place of her husband and was maintained by the executant. It was stated that Mt. Bachni got no property from her husband. It is obvious from the aforesaid statements in the will that the intention of Ramnihora was to provide for the maintenance of the widows during their life-time, and for that reason he gave the widows the right to remain in possession during their life time and each was to get half share. There was a stipulation that if any of the two ladies died in the life time of the executant, then the surviving lady would enter in possession of the entire property. Every where the document talks of possession and not of any other right. Nothing is stated as to what would happen after the death of the two ladies; in the absence of any such stipulation it would be difficult, indeed, to hold that Ramnihora intended that the property should be inherited by strangers to the family. On a careful consideration of the terms of the will in their entirety, I am of the opinion that the Courts below were right in holding that under the will the two widows got nothing more than the right to remain in possession during their lifetime. In other words, Mt. Bachni, daughter of Ramnihora, got nothing more under the will than what she was entitled to as a Hindu female under Hindu law. Mb. Keshri got merely the right to remain in possession of half share during her life time.
In other words, Mt. Bachni, daughter of Ramnihora, got nothing more under the will than what she was entitled to as a Hindu female under Hindu law. Mb. Keshri got merely the right to remain in possession of half share during her life time. I have construed the terms of the will as they atand, and in so doing I have not been unmindful of the principles laid down by their Lordships of the Judicial Committee, the principles being (a) that it is always dangerous to construe the words of one will by the construction of more or less similar words in a different will which was adopted by a Court in another case ; (b) that the meaning of every word in an Indian will must always depend upon the setting in which it is placed the subject to which it is related and the locality of the testator from which it may receive its true shade of meaning ; and (c) that the will should be read as a whole, and all the clauses must be considered to find out the intention of the testator. (See Mt. Sasiman V/s. Shib Narain, 26 C. W. N. 426 ; (A. I. R. (9) 1922 P. C. 63) and the decisions referred to therein). Keeping in mind the aforesaid principles, I think, the only true construction of the will is what I have indicated above. 6. I now turn to the question of limitation, The question is if Article 125 or Article 120, Schedule II, Limitation Act, applies in this case. The Courts below have held that Article 120 applies and not Article 125. It is not in dispute that if Article 126 applies, then the suit was in time. The Courts below have relied on a decision of this Court in Kanhaya Lal V/s. Mt. Hira Bibi, 15 Pat 151 : (A. I. R. (23) 1936 Pat. 323), in which it was observed that Article 125 applies when the possession is that of a Hindu or Muhammadan female as such, that is to say, by virtue of her being a Hindu or Muhammadan, and does not apply if her possession is by virtue of a grant or transfer made inter vivos or by virtue of a bequest, or in other words, when her possession is irrespective of her being a Hindu or Muhammadan female.
Their Lordships differed from the view expressed in Mt. Nandan V/s. Wazira, 8 Lah, 215 : (A.i. R. (14) 1937 Lah. 198) and followed and decision in Girijanand Datta V/s. Sailajanand Datta, 23 Cal. 645, in which Act. 128, providing a period of limitation for a suit by a Hindu for arrears of maintenance, was similarly interpreted. Learned counsel for the appellants has drawn our attention to a Fall Bench decision of the Lahore High Court in Arura Mal V/s. Mt. Sandhuran, A. I. R. (34) 1947 Lab. 200 : (49 P. L. R. 167), where the aforesaid Patna view has been accepted, and it has been held that Article 125, does not govern the case where a female is in possession of the property under a gift inter vivos or by bequest, and a suit for a declaration in respect of an alienation made by such a female is governed by Article 120 and not 126. There is, I think, a danger of misunder. standing the observations made above, unless they are appreciated with reference to the context in which they were made. In Kanhya Lal Missirs case, 16 Pat. 151 : (A. I. R. (23) 1936 Pat. 323), one Madan Mohan Lall executed the will by which he bequeathed his estate to Mt. Ratan Kuer, widow of his paternal couain Ghanshyam Das Missir, for her life time and after her death to her daughter, Mt. Hira Bibi, and her children successively one after another. There was a proviso that in case a son was born to Mb. Hira Bibi, he would take the estate absolutely. It was not disputed that only a life estate was given to Mt. Ratan Kuer and the son of Mt. Hira Bibi was to get an absolute estate but the nature of the estate given to Hira Bibi and her children, if she had no son, was one of the matters in controversy in the suit. It is to be observed that neither Ratan Kuer nor Hira Bibi were heirs of Madan Mohau under Hindu law; therefore, their possession of the property was not possession as Hindu female. The auit was brought by a person who claimed to be the sisters son of Madan Mohan for a declaration that alienations of Madan Mohans properties by some of the defendants including Hira Bibi were not binding on him.
The auit was brought by a person who claimed to be the sisters son of Madan Mohan for a declaration that alienations of Madan Mohans properties by some of the defendants including Hira Bibi were not binding on him. In those circumstances, it was held that Article 125 did not apply, and as no other Article applied the Court had to fall back on residuary Article 120 of Schedule II, Limitation Act. 7. In the case before us, Mt. Bachni was the heir of Ramnihora under Hindu law, and I have already found that she got nothing more under the will than what she was entitled to under Hindu law. It is clear, therefore, that she held possession as a Hindu female as such. The will made no difference to her status as a Hindu female with limited powers of alienation. As to the other widow, the was no heir, but as was observed in Aruna Mals case, A. I. R. (34) 1947 Lah. 290 : (49 P. L. B. 167 F. B.), Article 125, in plain terms contemplates a case where an alienation has to be declared void except for the life time of the female. Mt. Keshri Kuer did not get anything more than a life estate ; therefore, no question of any alienation made by her enuring beyond her life time could arise, and there could not be any necessity or bringing a suit for a declaration that an alienation mado by her was not binding on the appellants affer her death. It was rightly pointed out in the Full Bench decision of the Lahore High Court that it must be presumed that the applicability of Article 126 was limited to cases where an alienation is good so long as the alienator is alive; therefore, the Article could not apply to cases where the alienation was ab initio void, or where it was not neceasary to bring a suit to set aside Such an alienation. Article 125, however, contemplates cases of alienations by female holders which cannot be ignored by reversioners and which are good unless they are set aside either on grounds of want of consideration or legal necessity or on other grounds. In the case before us, it was necessary for the reversioners to bring the suit for a declaration that the alienation made by Mt.
In the case before us, it was necessary for the reversioners to bring the suit for a declaration that the alienation made by Mt. Bachni was without consideration and not justified by legal necessity. As reversioners the appellants could not ignore the alienation made by Mt. Bachni who could, under Hind a law, make an alienation under certain circumstances which would be binding even after her death. It was necessary for the appellants to get this obstacle out of their way and the suit was brought on the footing that Mt. Bachni held the property as a Hindu female. In this view of the matter, Article 126 clearly applied even on the principle laid down in Kanhya Lal Missirs case (15 pat. 161). In my opinion, the Courts below were wrong in holding that the suit was barred by time. The other concurrent findings of the Courts below on question of fact are in favour of the appellants, and cannot be challenged. 8. For the reasons given above, I would allow the appeal, set aside the decision of the Courts below and decree the suit of the appellants. The appellants will get their costs throughout. The cross-objection of respondent 3 is dismissed. Mahabir Prasad, J. 9 I agree. In considering the question of limitation, arising in this case, what has to be borne in mind is that a suit for a declaration that an alienation made by a limited owner is not binding on a person who is entitled to succeed on the death of such an owner can be raised only when the property alienated is a part of an estate held by such an owner as a Hindu female or a Muhammadan female who by custom is governed by law of property applicable to Hindus. For, only such an owner and no other limited owner can make alienation for legal necessity binding beyond her or his life time. If in the present case, the contention of Mr. Jha for the respondents, that the daughter in question was not holding the estate as a Hindu female bub that, failing to hold as an absolute owner, was only a life tenant under the will, is accepted, the declaration sought for by the appellants becomes unnecessary.
If in the present case, the contention of Mr. Jha for the respondents, that the daughter in question was not holding the estate as a Hindu female bub that, failing to hold as an absolute owner, was only a life tenant under the will, is accepted, the declaration sought for by the appellants becomes unnecessary. The impugned alienation in that event, cannot be binding on the appellants even if it be for legal necessity, and even if the suit be dismissed on that finding, either as not being maintainable or barred by limitation, the purpose for which the suit is brought will be achieved. The reason why Article 125 limits itself to suits for declaration that an alienation made by a Hindu or a Muhammadan female is not binding on the reversioners, is, that a suit for such a declaration in regard to alienation of other life tenants cannot possibly arise. Such an alienation can under no circumstances be good after the death of the life owner making the alienation.