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CASE NO.: Appeal (civil)  1854 of 2003

PETITIONER: SADHU SINGH

RESPONDENT: GURDWARA SAHIB NARIKE & ORS.

DATE OF JUDGMENT: 08/09/2006

BENCH: B.P. SINGH & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

1.              One Ralla Singh held some property.  It was self- acquired. Isher Kaur was his wife.  They had no children.   On 7.10.1968, Ralla Singh executed a will.  Ralla Singh died  on 19.3.1977.  His widow Isher Kaur on 21.1.1980,  purported to gift the property in favour of a Gurdwara.  The  appellant filed a suit challenging the deed of gift.  He also  prayed for recovery of possession after the death of Isher  Kaur.  The appellant claimed that under the will of Ralla  Singh, Isher Kaur  took only a life estate and the properties  were to vest in the appellant and his brother.  On the terms  of the will under which she took the properties, Isher Kaur  had no right to gift the property to the Gurdwara. She was  bound by the terms of the bequest.  Isher Kaur and the  Gurdwara, contended that the property received by Isher  Kaur on the death of her husband was as his heir and it was  taken by her absolutely and she was competent to deal with  the property.  It was pleaded that in any event, Section 14(1)  of the Hindu Succession Act entitled her to deal with the  property as an absolute owner.  The appellant countered that  Isher Kaur having taken the property under the disposition  of her husband, was bound by its terms and she had only a  life estate and no competence to donate the property.  It was  a case to which Section 14(2) of the Hindu Succession Act  applied and the limitation on rights imposed by the will was  binding on Isher Kaur.  Her estate could not get enlarged  under Section 14(1) of the Act.  

2.              The trial court held that the will propounded by  the appellant was not genuine.  On that basis, it dismissed  the suit holding that Isher Kaur had taken the property  absolutely on the death of her husband as an heir and under  the circumstances she was entitled to donate the property to  the Gurdwara.  The appellant filed an appeal.  Pending the  appeal, on 17.6.1996, Isher Kaur died.  The lower appellate  court held that the will propounded by the appellant was  proved to be the last will and testament of Ralla Singh.  The  appellant had proved its due and valid execution.  The will  was thus upheld.  The Court held that on the terms of the  Will, Isher Kaur had only a life estate or limited interest in  the property and she had no right to transfer the property by  way of gift.  Since Isher Kaur had taken the property under  the will which placed a restriction on her right, Section 14(2)  of the Hindu Succession Act applied.  Consequently, the

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appellant as the legatee under the will was entitled to recover  possession of the property on the termination of the life  estate of Isher Kaur.  Thus the trial court decree was  reversed and the suit decreed.  On behalf of the donee  Gurdwara, a Second Appeal was filed in the High Court.  The  High Court, by what can even charitably only be called a  thoroughly unsatisfactory judgment, reversed the decision of  the lower appellate court.  It did not strain its thought  process.   Purporting to apply the ratio of the decision of this  Court in V. Tulasamma Vs. V. Shesha Reddi [(1977) 3 SCR  261] and Raghubar Singh Vs. Gulab Singh [AIR 1998 SC  2401] that court held that Section 14(1) of the Act applied to  the case.  It did not refer to the decisions relied on, on behalf  of the appellant herein.  Though it accepted the finding of the  appellate court on the genuineness and due execution of the  will by Ralla Singh, it did not specifically deal with the  question whether Section 14(2) of the Act was attracted to  the case.  Thus, reversing the decision of the lower appellate  court, the High Court dismissed the suit.  The appellant \026  plaintiff, is before us challenging the decision in Second  Appeal.  

3.              The finding that Ralla Singh had executed a will  on 7.10.1968 rendered by the lower appellate court has not  been upset by the Second Appellate Court.  In fact, it has  considered the Second Appeal on the basis that the will has  been executed and the property came to Isher Kaur on the  basis of that Will.  What it has presumably held is that Isher  Kaur had pre-existing right in the property and consequently  the limitation placed on her rights in the Will, could not  prevail in view of Section 14(1) of the Hindu Succession Act.   It did not bear in mind that the property was the separate  property or self-acquired property of Ralla Singh and his  widow, though might have succeeded to the property as an  absolute and sole heir if Ralla Singh had died intestate on  19.3.1977, had no pre-existing right as such.  The widow  had, at best, only a right to maintenance and at best could  have secured a charge by the process of court for her  maintenance under the Hindu Adoptions and Maintenance  Act in the separate property of her husband.  May be, in  terms of Section 39 of the Transfer of Property Act, she could  have also enforced the charge even as against an alienee  from her husband.  Unlike in a case where the widow was in  possession of the property on the date of the coming into  force of the Act in which she had a pre-existing right at least  to maintenance, a situation covered by Section 14(1) of the  Hindu Succession Act, if his separate property is disposed of  by a Hindu male by way of testamentary disposition, placing  a restriction on the right given to the widow, the question  whether Section 14(2) would not be attracted, was not  considered at all by the High Court.  It proceeded as if the  ratio of V. Tulasamma (supra) would preclude any enquiry  in that line.   

4.              Under Section 18 of the Hindu Adoptions and  Maintenance Act, a Hindu wife is entitled to be maintained  by her husband during her life time, subject to her not  incurring the disqualifications provided for in sub-Section (3)  of that Section.  The widow is in the list of dependants as  defined in Section 21 of the Act.  The widow remains a  dependant so long as she does not remarry.   Under Section  22, an obligation is cast on the heirs of the deceased Hindu  to maintain the dependant of the deceased out of the estate

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inherited by them from the deceased.  Under sub-Section (2),  where a dependant has not obtained by testamentary or  intestate succession, any share in the estate of a Hindu  dying after the commencement of the Act, the dependant  would be entitled, but subject to the provisions of the Act, to  maintenance from those who take the estate.  It is seen that  neither Section 18 relating to a wife nor Section 21 dealing  with a widow, provides for any charge for the maintenance  on the property of the husband.  To the contrary, Section 27  specifies that a dependant’s claim for maintenance under  that Act, shall not be a charge on the estate of the deceased  unless one would have been created by the will of the  deceased, by a decree of court, by an agreement between the  dependant and the owner of the estate or otherwise.  Thus a  widow has no charge on the property of the husband.   Section 28 provides that where a dependant had a right to  receive maintenance out of an estate, that right could be  enforced even against a transferee of the property if the  transferee had notice of the right, or if the transfer is  gratuitous, but not against a transferee for consideration  without notice of the right.  Section 28 is in pari materia with  Section 39 of the Transfer of Property Act.  The Kerala High  Court in Kaveri Amma Vs. Parameswari Amma & Ors. [AIR  1971 Kerala 216] has liberally interpreted the expression  "right to receive maintenance" occurring in the section as  including a right to claim enhanced maintenance against the  transferee.  The sum and sub-total of the right under the  Hindu Adoptions and Maintenance Act is only to claim  maintenance and the right to receive it even against a  transferee.  In the absence of any instrument or decree  providing for it, no charge for such maintenance is created in  the separate properties of the husband.   

5.              In the case on hand, since the properties  admittedly were the separate properties of Ralla Singh, all  that Isher Kaur could claim de hors the will, is a right to  maintenance and could possibly proceed against the  property even in the hands of a transferee from her husband  who had notice of her right to maintenance under the Hindu  Adoptions and Maintenance Act.  No doubt, but for the  devise, she would have obtained the property absolutely as  an heir, being a Class I heir.  But, since the devise has  intervened, the question that arises has to be considered in  the light of this position.  

6.              Learned counsel for the respondent relied heavily  on the decision in V. Tulasamma Vs. V. Shesha Reddi  (supra).  To understand the ratio of that decision, it is  necessary to notice the facts that were available in that case.   The husband of Tulasamma had died in the year 1931 in a  state of jointness with his step-brother, leaving Tulasamma   as his widow.  Tulasamma approached the court in the year  1944 claiming maintenance against the step-brother of her  husband.  Her claim was decreed.  She put the decree in  execution and at the stage of execution, on 30.7.1949, a  compromise was entered into.  Under the compromise,  Tulasamma  was allotted the properties but she was to enjoy  only a limited interest therein, with no power of alienation.   Tulasamma alienated the property, a portion by way of lease  and another portion by way of sale.  These transactions were  challenged by Sesha Reddi on the ground that Tulasamma   had only a restricted estate under the terms of the  compromise and her interest could not be enlarged into an

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absolute estate by virtue of Section 14(1) of the Act in view of  Section 14(2) of the Act.  The alienees from Tulasamma  pleaded that the estate Tulasamma possessed as on the date  of the coming into force of the Act had ripened into an  absolute estate in view of Section 14(1) of the Hindu  Succession Act and Section 14(2) cannot be invoked to  restrict her right.  It was in that context that this Court held  that it was a case where Tulasamma  possessed the property  on the date of the coming into force of the Act as a limited  owner having acquired the same by virtue of a compromise  and in the light of the explanation to sub-Section (1) of  Section 14, it was a case to which Section 14(1) applied and  Section 14(2) could not be relied on to override the effect of  Section 14(1).  The Court held that Tulasamma  had a pre- existing right in the properties of the joint family since she  had a right to be maintained and it was in view of that pre- existing right and the decree obtained by her in that case  that the compromise came into existence and she was put in  possession of the property involved in that suit. The  properties were to revert to the step-brother of her husband  after the death of Tulasamma.  Tulasamma  was thus in  possession of the property on the day the Hindu Succession  Act came into force.  Thus, she was a Hindu female who  possessed the property at the commencement of the Act but  with a restricted right under a compromise.  It was therefore  a case where a female Hindu possessed the property on the  date of the Act in which she had a pre-existing right though  limited and in such circumstances Section 14(1) had  operation to convert her limited estate into an absolute one  and Section 14(2) could not be relied on for taking the case  out of Section 14(1) of the Act on the basis that the property  was put in her possession on the basis of a compromise.  

7.              Now, it is clear from the section and implicit from  the decisions of this Court, that for Section 14(1) of the Act  to get attracted, the property must be possessed by the  female Hindu on the coming into force of the Hindu  Succession Act.   In Mayne on Hindu Law, 15th Edn., page  1171, it is stated: "on a reading of sub-Section (1) with  Explanation, it is clear that wherever the  property was possessed by a female Hindu as a  limited estate, it would become on and from  the date of commencement of the Act her  absolute property.  However, if she acquires  property after the Act with a restricted estate,  sub-Section (2) applies.   Such acquisition may  be under the terms of a gift, will or other  instrument or a decree or order or award."

8.              In Gummalapura Taggina Matada Kotturuswami  Vs. Setra Veeravva and others [(1959) Supp. 1 S.C.R. 968],  this Court quoted with approval the following words of  Justice P.N.  Mookherjee, in Gostha Behari vs. Haridas  Samanta [A.I.R. 1957 Calcutta 557, at 559]: "The opening words in "property possessed by  a female Hindu" obviously mean that to come  within the purview of the section the property  must be in possession of the female  concerned at the date of the commencement  of the Act. They clearly contemplate the  female’s possession when the Act came into  force. That possession might have been either  actual or constructive or in any form

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recognised by law, but unless the female  Hindu, whose limited estate in the disputed  property is claimed to have been transformed  into absolute estate under this particular  section, was at least in such possession,  taking the word "possession" in its widest  connotation, when the Act came into force,  the section would not apply."

and added: "In our opinion, the view expressed above is  the correct view as to how the words "any  property possessed by a female Hindu"  should be interpreted."

9.              In Eramma Vs. Verrupanna & Ors. [(1966) 2 SCR  626], this Court emphasized that the property possessed by  a female Hindu as contemplated in the Section is clearly the  property to which she has acquired some kind of title  whether before or after the commencement of the Act and  negatived a claim under Section 14(1) of the Act in view of  the fact that the female Hindu possessed the property on the  date of the Act by way of a trespass after she had validly  gifted away the property.  The need for possession with a  semblance of right as on the date of the coming into force of  the Hindu Succession Act was thus emphasized.    

10.             In Dindyal & Anr. Vs. Rajaram [(1971) 1 SCR  298], this Court again noticed that, "\005\005\005before any property can be said to be  "possessed" by a Hindu woman as provided  in Section 14(1) of the Hindu Succession Act,  two things are necessary (a) she must have a  right to the possession of that property and  (b) she must have been in possession of that  property either actually or constructively."

This Court relied on the decisions in S.S. Munnia Lal Vs.  S.S. Rajkumar & Ors. [(1962) Supp. 3 S.C.R. 418] and  Kuldip Singh & Ors. Vs. Surain Singh & Ors. [Civil Appeal  No. 138 of 1964] in support.

11.             On the wording of the section and in the context of  these decisions, it is clear that the ratio in V. Tulasamma  Vs. V. Shesha Reddi (supra) has application only when a  female Hindu is possessed of the property on the date of the  Act under semblance of a right, whether it be a limited or a  pre-existing right to maintenance in lieu of which she was  put in possession of the property.  The Tulasamma ratio  cannot be applied ignoring the requirement of the female  Hindu having to be in possession of the property either  directly or constructively as on the date of the Act, though  she may acquire a right to it even after the Act.  The same is  the position in Raghubar Singh Vs. Gulab Singh (supra)  wherein the testamentary succession was before the Act.   The widow had obtained possession under a Will.  A suit was  filed challenging the Will.  The suit was compromised.  The  compromise sought to restrict the right of the widow.  This  Court held that since the widow was in possession of the  property on the date of the Act under the will as of right and  since the compromise decree created no new or independent  right in her, Section 14(2) of the Act had no application and

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Section 14(1) governed the case, her right to maintenance  being a pre-existing right.   In Mst. Karmi Vs. Amru & Ors.  [AIR 1971 SC 745], the owner of the property executed a will  in respect of a self-acquired property.  The testamentary  succession opened in favour of the wife in the year 1938.   But it restricted her right.  Thus, though she was in  possession of the property on the date of the Act, this Court  held that the life estate given to her under the will cannot  become an absolute estate under the provisions of the Act.   This can only be on the premise that the widow had no pre- existing right in the self-acquired property of her husband.   In a case where a Hindu female was in possession of the  property as on the date of the coming into force of the Act,  the same being bequeathed to her by her father under a will,  this Court in Bhura & Ors. Vs. Kashi Ram [(1994) 2 SCC  111], after finding on a construction of the will that it only  conferred a restricted right in the property in her, held that  Section 14(2) of the Act was attracted and it was not a case  in which by virtue of the operation of Section 14(1) of the Act,  her right would get enlarged into an absolute estate.  This  again could only be on the basis that she had no pre-existing  right in the property.  In Sharad Subramanyan Vs. Soumi  Mazumdar & Ors. [JT 2006 (11) SC 535] this Court held that  since the legatee under the will in that case, did not have a  pre-existing right in the property, she would not be entitled  to rely on Section 14(1) of the Act to claim an absolute estate  in the property bequeathed to her and her rights were  controlled by the terms of the will and Section 14(2) of the  Act.  This Court in the said decision has made a survey of  the earlier decisions including the one in Tulasamma.  Thus,  it is seen that the antecedents of the property, the  possession of the property as on the date of the Act and the  existence of a right in the female over it, however limited it  may be, are the essential ingredients in determining whether  sub-Section (1) of Section 14 of the Act would come into play.   What emerges according to us is that any acquisition of  possession of property (not right) by a female Hindu after the  coming into force of the Act, cannot normally attract Section  14(1) of the Act.  It would depend on the nature of the right  acquired by her.  If she takes it as an heir under the Act, she  takes it absolutely.  If while getting possession of the  property after the Act, under a devise, gift or other  transaction, any restriction is placed on her right, the  restriction will have play in view of Section 14(2) of the Act.  

12.             When a male Hindu dies possessed of property  after the coming into force of the Hindu Succession Act, his  heirs as per the schedule, take it in terms of Section 8 of the  Act.  The heir or heirs take it absolutely.  There is no  question of any limited estate descending to the heir or heirs.   Therefore, when a male Hindu dies after 17.6.1956 leaving  his widow as his sole heir, she gets the property as class I  heir and there is no limit to her estate or limitation on her  title.  In such circumstances, Section 14(1) of the Act would  not apply on succession after the Act, or it has no scope for  operation.  Or, in other words, even without calling in aid  Section 14(1) of the Act, she gets an absolute estate.

13.             An owner of property has normally the right to  deal with that property including the right to devise or  bequeath the property.  He could thus dispose it of by a  testament.  Section 30 of the Act, not only does not curtail or  affect this right, it actually reaffirms that right.  Thus, a  Hindu male could testamentarily dispose of his property.   When he does that, a succession under the Act stands

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excluded and the property passes to the testamentary heirs.   Hence, when a male Hindu executes a will bequeathing the  properties, the legatees take it subject to the terms of the will  unless of course, any stipulation therein is found invalid.   Therefore, there is nothing in the Act which affects the right  of a male Hindu to dispose of his property by providing only  a life estate or limited estate for his widow.  The Act does not  stand in the way of his separate properties being dealt with  by him as he deems fit.   His will hence could not be  challenged as being hit by the Act.  

14.             When he thus validly disposes of his property by  providing for a limited estate to his heir, the wife, the wife or  widow has to take it as the estate falls.  This restriction on  her right so provided, is really respected by the Act.  It  provides in Section 14(2) of the Act, that in such a case, the  widow is bound by the limitation on her right and she cannot  claim any higher right by invoking Section 14(1) of the Act.   In other words, conferment of a limited estate which is  otherwise valid in law is reinforced by this Act by the  introduction of Section 14(2) of the Act and excluding the  operation of Section 14(1) of the Act, even if that provision is  held to be attracted in the case of a succession under the  Act.  Invocation of Section 14(1) of the Act in the case of a  testamentary disposition taking effect after the Act, would  make Sections 30 and 14(2) redundant or otios.   It will also  make redundant, the expression ’property possessed by a  female Hindu’ occurring in Section 14(1) of the Act.  An  interpretation that leads to such a result cannot certainly be  accepted.  Surely, there is nothing in the Act compelling  such an interpretation.   Sections 14 and 30 both have play.   Section 14(1) applies in a case where the female had received  the property prior to the Act being entitled to it as a matter of  right, even if the right be to a limited estate under the  Mitakshara law or the right to maintenance.  

15.             Dealing with the legal position established by the  decisions in Tulasamma (supra) and Bai Vijaya Vs.  Thakurbai [(1979) 2 SCC 300], the position regarding the  application of Section 14(2) of the Act is summed up in  Mayne on Hindu Law thus: "Sub-section (2) of Section 14 applies to  instruments decrees, awards, gifts etc., which  create independent and new title in favour of  females for the first time and has no  application where the instruments concerned  merely seek to confirm, endorse, declare or  recognize pre-existing rights.  The creation of  a restricted estate in favour of a female is  legally permissible and Section 14(1) will not  operate in such a case.  Where property is  allotted or transferred to a female in lieu of  maintenance or a share at partition the  instrument is taken out of the ambit of sub- section (2) and would be governed by section  14(1) despite any restrictions placed on the  powers of the transferee."

               (See page 1172 of the 15th Edition) 16.             Here, Ralla Singh has validly disposed of his  separate property by a Will.  This is permissible as he has  the capacity to so dispose it of.  He is also enabled to do so  by Section 30 of the Hindu Succession Act.  He is thus

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entitled to interfere with the succession that would have  ensued if he had died intestate.  In the context of the will  executed by him the question is what has he bequeathed to  his wife and whether he had placed any restriction on her  estate so bequeathed. The corollary would be whether the  appellant is entitled to the decree sought for by him in the  context of Section 14(2) of the Hindu Succession Act.   

17.             We shall now construe the will of Ralla Singh.  He  says in the will that he is 73 years old.  He has no progeny.   Only his wife and his two nephews (sister’s son) are alive and  he wants to dispose of the property during his life time.  He  was absolute owner of the properties.  He wants to provide  for management of the properties in such a manner that  after his death his wife so long as she remains alive will be  the absolute owner and party in possession of all his  properties and after her death, the rights over the property  would be inherited by his two nephews.  He is hence  executing the will in favour of his wife in respect of all his  properties moveable and immovable so that she will be the  absolute owner and party in possession after his death.  So  long as he was alive he will be the owner of his properties  and after his death his wife would be the owner of his  properties.  So long as his wife was alive she will be owner of  the properties and after her death his nephews will take the  property in equal shares and during her lifetime his wife  Isher Kaur will not transfer the properties to any other heirs  by way of any Will.   He has also added a note to the effect  that his wife after his death will not be entitled to mortgage  or sell the properties during her life time.   

18.             Going by the terms of the will, initially, Ralla  Singh has conferred an absolute estate on his wife subject to  the restriction that she shall not dispose of the same by a  will to any other heirs.  The will also says that after the death  of Isher Kaur, the two nephews Pritam Singh and Sadhu  Singh would take the properties in equal shares.  Thus, what  is seen is that an apparent absolute estate has been  conferred on Isher Kaur but with a stipulation that on her  death the property will devolve on his two nephews and with  an interdict that she shall not dispose of the property by  testamentary disposition in favour of any other heir.  It is  stated that Isher Kaur will be the owner of the moveable and  immoveable properties after the death of the testator.  But at  the end, the will has also stipulated that Isher Kaur will not  be entitled to mortgage or sell the properties during her life  time.   

19.             What the court has to attempt is a harmonious  construction so as to give effect to all the terms of the will if  it is in any manner possible.  While attempting such a  construction, the rules are settled.  Unlike in the case of a  transfer in presenti wherein the first clause of the  conveyance would prevail over anything that may be found to  be repugnant to it later, in the case of a will, every effort  must be made to harmonize the various clauses and if that is  not possible, it will be last clause that will prevail over the  former and giving way to the intention expressed therein.  In  Ramchandra Shenoy and Another Vs. Mrs. Hilda Brite  and others [(1964) 2 S.C.R. 722], this Court held:

"It is one of the cardinal principles of  construction of wills that to the extent that it  is legally possible effect should be given to

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every disposition contained in the will unless  the law prevents effect being given to it.  Of  course, if there are two repugnant provisions  conferring successive interests, if the first  interest created is valid the subsequent  interest cannot take effect but a Court of  construction will proceed to the farthest  extent to avoid repugnancy, so that effect  could be given as far as possible to every  testamentary intention contained in the will.   It is for this reason that where there is a  bequest to A even though it be in terms  apparently absolute followed by a gift of the  same to B absolutely "on"  or "after" or "at"  A’s death,  A is prima facie held to take a life  interest and B an interest in remainder, the  apparently absolute interest of A being cut  down to accommodate the interest created in  favour of B."

20.             Thus the first attempt must be to reconcile all the  clauses in the will and give effect to all of them.  When we  make that attempt in the context of what this Court had  indicated in the decision quoted above, we find that the  apparent absolute estate given to his wife by the testator is  sought to be cut down by the stipulations that the property  must go to his nephews after the death of the wife, that the  wife cannot testamentarily dispose of the property in favour  of any one else and the further interdict in the note that the  wife during her life time would not be entitled to mortgage or  sell the properties.  Thus on reconciling the various clauses  in the will and the destination for the properties that the  testator had in mind, we have no hesitation in coming to the  conclusion that the apparent absolute estate in favour of  Isher Kaur has to be cut down to a life estate so as to  accommodate the estate conferred on the nephews.  

21.             Thus understood, it has necessarily to be held, as  was held by the first appellate court, that Isher Kaur was not  competent to gift away the properties in favour of the  Gurdwara as she had done.  Even if the gift were to be  treated as valid, the donee thereunder cannot resist the  claim for eviction by the legatees under the will, the nephews  of Ralla Singh, on the cessation of the life estate of Isher  Kaur.  Admittedly, that life estate has ceased and once it is  found that the plaintiff has acquired a title to the property as  a legatee under the will, he would be entitled for and on  behalf of himself and his brother to recover possession of the  property from the Gurdwara in view of the death of Isher  Kaur.  

 22.             An attempt was made to argue that on the death  of Ralla Singh the mutation had been effected in favour of  the widow Isher Kaur and in the face of it the title of Isher  Kaur will have to be found to be absolute.   It was also faintly  suggested that logically at that time the plaintiff should have  put forward the will and the non-propounding of the will at  that time is a circumstance militating against the acceptance  of the will.  We are not able to find any merit in this  submission.   Merely because mutation was effected, it would  not lead to the loss of the title if the plaintiff had otherwise  acquired title under the will and the right to possession on

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the death of Isher Kaur which, obviously occurred after the  mutation.   On the materials available, including the clear  evidence in proof of the will propounded by the plaintiff and  upheld by the first appellate court, which finding was  accepted by the second appellate court, we are satisfied that  the fact that at the time of mutation, the plaintiff did not  raise an objection on the strength of the will is not a  circumstance that would justify the discarding of the will  or  the effect of it.

23.             It was then argued that a substantial part of the  properties had been given to the plaintiff on his filing the  Suit No.485 of 1977.   An extent of 77 bighas and 9 biswas of  land was taken by the nephews leaving the rest for Isher  Kaur.   The validity or the enforceability of the will executed  by Ralla Singh and the bequest flowing therefrom cannot be  held to be affected by the filing of the suit No.485 of 1977 or  the obtaining of the 77 bighas and 9 biswas of the land by  the plaintiff during the life time of Isher Kaur.   The  defendant Gurdwara is a donee from Isher Kaur and its title  would depend on the title Isher Kaur had.   Obviously, Isher  Kaur could not confer a larger title than she herself had.  On  a true construction of the will we have found that Isher Kaur  had only a life estate in the properties.  Hence, the gift  executed by her cannot survive the cessation of the life estate  or stand in the way of the ultimate beneficiary recovering  possession on the strength of the bequest in his favour on  the coming to an end of the intervening life estate.

24.             Thus, on a consideration of all the relevant  aspects we have no hesitation in setting aside the judgment  and decree of the High Court and in passing a decree in  favour of the plaintiff for recovery of possession of the  property from the Gurdwara, the donee from Isher Kaur, and  any one claiming under or through it, on the strength of his  title and to hold it for himself and in his brother.  The suit  filed by the plaintiff is therefore decreed for recovery of  possession.  Since the donee from Isher Kaur was a  Gurdwara and Isher Kaur died only during the pendency of  the First Appeal, we hold that the plaintiff would not be  entitled to any mesne profits if the properties are  surrendered to him by the Gurdwara pursuant to this  decree, within a period of six months from today.  But, if the  Gurdwara does not surrender the property pursuant to this  decree within the time stipulated and the plaintiff is  compelled to initiate proceedings in execution, the Gurdwara  would be liable for mesne profits from the date of the decree  of the first appellate court till recovery of possession at the  rate to be determined by the executing court after first  delivering the property to the decree holder pursuant to this  decree.   

25.             The appeal is, thus, allowed.  We make no orders  as to costs 28019