Hon'ble Judges/Coram:
Jayakar, Russell of Killowen, Romer, Lancelot Sanderson and George Rankin

JUDGMENT

Jayakar, J.

1. This is an appeal from a decree of the High Court at Allahabad, dated 30th April 1934, which varied a decree of the Court of the Subordinate Judge at Saharanpur dated 29th April 1929. The appeal arises out of a suit by respondent 1 suing as the chela and successor under the terms of a will, for a declaration of his title and for possession and mesne profits of a certain immovable property, being a building situated in the Hindu Shrine of Hardwar, called Haveli Buriawali and certain rooms or outhouses appertaining to it. It appears that there was a gift of this property at some ancient time to one Atma Earn who apparently held it as his own property. After his death it went to his chela, Ashtabakar (it is not clear whether by will or by operation of" law). After him it descended to his gurubhai or brother disciple Dhian Das and after his death it again went to the latter's chela Kishen Das. During his lifetime, Kishen Das held and enjoyed the property as his private and personal property. He took one Saheb Das, an infant of about 21 years, as a chela. Kishen Das died in 1904, leaving Atar Kunwar (defendant l) as his widow. It is not clear from the proceedings what the exact relations of this lady were with Kishen Das, whether she was his lawfully wedded wife, or only a mistress, but in the view that their Lordships take of this case, this question is not material. Kishen Das left a will dated 19th February 1904, and as the main question in this case relates to the construction of its terms it is necessary to set them out in detail.

I, Mahant Kishen Das, chela of Mahant Dhian Das, caste Sadhu Udasi, resident of qasba Hardwar, thana Jwalapur, District Saharanpur, declare as follows: I am about 35 years of age and I often remain ill, being subject to several diseases and life is borrowed and now Saheb Das, minor, aged about two years and a half, is my chela. Therefore I while in a sound state of mind and body, have given the whole of my property moveable and immovable of which I am myself the owner in possession to Saheb Das aforesaid my chela and have made him mahant and successor in my place and have made my wife Mt. Atar Kunwar, guardian and heir of the said Mahant. God forbid, if Mahant Saheb Das should die, then Mt. Atar Kunwar shall, in consultation with Mahant Prem Singh, Mahant Kan Das, Lala Earn Prasad, Chaudhri Sarjun Singh and Dr. Lena Singh, the raises of the Kasba of Hardwar, have power to appoint another person as a ehela. As this property is my personal property and as I have complete power in respect of it, I make a will by this writing that Mahant Saheb Das and the said Musammat guardian of Mahant Saheb Das, shall at no time have power to sell or mortgage my property and the bhelc also shall have no concern with my property. If after my death the bhelc should bring any claim whatever against my property, then it would be considered invalid in face of this writing. I have therefore executed these few presents by way of a will, in order that they may serve as evidence when needed.

2. After Kishen Das's death, Atar Kunwar managed the property, apparently on behalf of the infant Saheb Das, who died in the year 1907. Thereafter she continued to hold and enjoy the property as before. On 17th October 1923 Atar Kunwar nominated the plaintiff, Dayal Das (respondent 1) as a chela to Kishen Das, according to the terms of the will, but it appears that in spite of this nomination, she remained, as before, in possession and enjoyment of the said property. Thereafter disputes began to arise between the plaintiff Dayal Das and Atar Kunwar and it is sufficient to mention, without wading through the details of their quarrels, that Atar Kunwar ev........