Patna High Court
Smt. Talkeshwari Devi vs Ram Ran Bikat Prasad Singh And Anr. on 17 February, 1965
Equivalent citations: AIR1966PAT40, AIR 1966 PATNA 40, ILR 45 PAT 855 1965 BLJR 410, 1965 BLJR 410
JUDGMENT Ramratna Singh, J.
1. The only dispute in this appeal is in respect of the construction of a registered will (Ext. 1) executed by one Raghunath Prasad Singh on the 21st August, 1938, who died a month or two later. He was married to one Srimati Jageshar Kuer and had a son named Sukhdeo Prasad Singh and a daughter, Srimati Satrupa Kuer. The son died in the lifetime, of the father, leaving two daughters, namely, Srimati Talkeshwari Devi (plaintiff appellant), who was married to Awadhesh Prasad Singh of village Barahiya, and Srimati Shivrani Devi, who was married to Ram Ran Bikat Prasad Singh (Defendant. No. 1) of village Hardi Chapra. Defendant No. 2 is the brother of defendant No. 1. Jageshar Kuer died in November, 1948, and Shivrani Devi died on the 1st November, 1949 without leaving any issue. The relevant clauses of the will are reproduced below :
"4. That I the executant am aged 55 years and I am always keeping ill health on account of paralysis and there is no certainty of this transitory life as to when I shall die. Therefore it is the heartfelt desire of me, the executant, to execute a will so that after the death of me, the executant the enemies of me, the executant may not have any chance to raise dispute and the survivors may peacefully enter into possession and occupation of the property of me, the executant and appropriate the income thereof.
5. Therefore, I, the executant, in sound state of my mind body, in enjoyment of my proper senses, of my own free-will and accord, entirely in good faith without coercion and illegal pressure on the part of others execute this will and make the following declaration :
(1) That till my life time I, the executant, shall remain in possession and occupation of the entire property and all the rights and power which I, the executant have got and shall continue to remain peacefully in the same manner.
(2) That after the death of me, the executant, the share in Mauzas Khutauli and Kharagu Bigha and ijaredari jagir interest at Dosannuwa (?), will absolutely belong to Shrimati Jagesar Kuer, wife of me, the executant, and the wife of me, the executant has and shall have the full right and power to make transfer etc., and on the remaining property will remain in possession and occupation of Shrimati Jageshwar Kuer, wife of me the executant, for her life time with limited power and appropriate the income thereof.
(3) That both the grand-daughters are minors and till the life time of wife of me, the executant and the aforesaid grand daughters will remain under the protection and guardianship of their grand-mother.
(4) That after the death of the wife of me, the executant, the entire property will be treated as 16 annas property out of which 5 annas 4 pies (five annas four pies) share constituting proprietary interest will pass to Shrimati Satrupa Kuer alias Nan daughter of me, the executant, and her heirs as absolute owners and the remaining 10 as 8 pies (annas ten and eight pies) share will pass to both the minor grand-daughters, (1) Shrimati Talkeshwari Kuer alias Babu and (2) Srimati Sheorani Kuer alias Bechan in equal share as absolute proprietary interest.
(5) That if one of the two grand daughters named above dies issueless, then under such circumstances the other living grand daughter will enter into possession and occupation of the entire 10 as 8 pies and become the absolute owner thereof."
The subject-matter of the suit, out of which the present appeal arises, does not cover the properties which were given absolutely to Jageshar Kuer under the first part of Sub-clause (2) of Clause 5; but it relates to the remaining property referred to in the second part of Sub-clause (2), which was to remain in her possession for her lifetime with limited power,
2. In accordance with the provisions of the will, Jageshar Kuer came in possession of the properly and continued in possession thereof till her death. Thereafter, 5 anna 4 pies share of that property devolved on Satrupa Kuer and her heirs, while the remaining 10 annas 8 pies share devolved on Talkeshwari and Shivrani in equal shares. By reason of a private partition between the two, the property in suit set out in the schedule to the plaint, viz., a little over 40 acres of kasht land in village Toralpura in Gaya District, besides the sixteen annas milkiat interest of tauzi No. 1596 in the same village was allotted to Shivrani. Shortly after her death, a dispute arose, as the plaintiff claimed to have become the owner of the property allotted to Shivrani, and a proceeding under Section 145 of the Code of Criminal Procedure, to which the parties were the plaintiff on the one side and the defendants on the other, was instituted on 17/12/1953 by the Subdivisional Magistrate of Aurangabad, and it was decided ultimately in favour of the defendants on 11.4.1957. During the period in which the suit property was under attachment in the said proceeding, a sum of Rs. 12,100 was obtained from the produce of the land, and the same is in deposit with the Subdivisional Magistrate.
3. The case of the plaintiff was that, in view of Sub-clause (5) of Clause 5 of the will, she is entitled to the suit property after the death of Shivrani or, in the alternative, a decree for Rs. 33,800, being the value of the said property, and for a declaration that she is entitled to withdraw the said sum of Rs. 12,100. There is a further prayer for an injunction restraining the defendants from withdrawing the aforesaid amount and a claim for mesne profits from the date of the suit to the date of the recovery of possession, besides costs and interest pendente lite. The defence was that, inasmuch as both Talkeshwari and Shivrani were alive at the time of the testator's death as also at the time of the death of Jageshar Kuer, the absolute estate bequeathed to them and each of them got equal share therein absolutely. In other words, the estate which vested in Shivrani was not a life estate, as contended by the plaintiff. In the pleadings, a question has also been raised whether the provisions of Land Reforms Act would affect the suit property; but in the trial Court as well as in this Court, both the parties conceded that this Act was of no consequence in respect of this property. It is also admitted, that the proprietary interest in tauzi No. 1596 vested in the State of Bihar on 26-1-1955; and the present dispute is in respect of the bakasht land which had become kasht since then.
4. At one stage of the arguments, there was some difference between Mr. Lalnarain Sinha, who appeared for the plaintiff, and Mr. S. N. Datta, who appeared for the defendants respondents, in respect of the nature of the estate vesting in Jageshar Kuer. Mr. Sinha submitted that the nature of Jageshar's estate was a Hindu's estate, but Mr. Dutta contended that if was, pure and simple, a life estate. Ultimately, however, both of them agreed that, for the purposes of the instant case, this difference would not matter and. Mr. Sinha also agreed that Jageshwar Kuer's estate in the suit property may be assumed to be a life estate.
5. The only question, therefore, for consideration is the nature of the estate vesting in the testator's grand-daughters namely, Talkeshwari and Shivrani, after the death of Jageshar. Mr. Sinha contended that, reading Sub-clauses (4) and (5) of Clause 5 of the will together, the interpretation of the will would be that it was a joint life estate created in favour of the two grand-daughters and, in the event of the one surviving the other dying issueless, an absolute estate in the survivor. The Court below examined this question with reference to Sections 124 and 131 of the Indian Succession Act. But it was conceded in this Court, that before examining the matter in the light of these provisions of the Act, the intention of the testator had to be gathered from the contents of the will. Now, it is well-settled that the document must be construed as a whole, giving attention to every provision therein; intention of the person making the grant must be gathered from the language employed by the grantor, giving the plain and natural meaning to the words used; and in cases of doubt, the rule is to so construe the document as to lean to vesting, (see Rajes Kanta Roy v. Smt. Shanti Debi; (S) A I R 1957 S C 255 at p. 261).
In support of his contention, Mr. Sinha drew par attention to the difference in the language of the bequest given to Satrupa Kuer and that to the two grand-daughters. By Sub-clause (4) of Clause 5, 5 annas 4 pies share was given to Satrupa 'and her heirs' as absolute owners. The language in respect of the bequest to the two grand-daughters does not contain any expression like the words under-lined (here in ' ') above. Hence, Mr. Sinha submitted that the intention of the testator was to give the property to his own descendants. In support of this contention, he also referred to Clause 3 of the will which says that Satrupa Kuer had been married to one Nand Kishore Prasad Singh, and two sons had been born to her, and certain property in Champaran would go absolutely to one of these sons, namely, Bankey Bihari Singh, after the testator's death. The answer to this argument is that the expression "and her heirs" was used in Sub-clause (4) of Clause 5 because of the fact that she had already two sons named in Clause 3 of the will, while the two grand-daughters were still minors, as stated in Sub-clause (3) of Clause 5. On the other hand, Mr. Datta submitted, and I think rightly, that the crucial portion of the language of the will is that which refers to the devolution of 10 annas 8 pies after the death of Jageshar Kuer. It will be noticed that in Sub-clause (4) of Clause 5 the testator said that the remaining 10 annas 8 pies would pass absolutely in equal shares to the two grand-daughters; and again in Sub-clause (5) of that clause he said that the entire 10 annas 8 pies share would go absolutely to the surviving grand-daughter, if the other grand-daughter died issueless.
It is remarkable that in Sub-clause (5) of Clause 5 it was not stated that 5 annas 4 pies share, that is, the share of one grand-daughter dying issueless would go to the surviving grand-daughter. In other words, the testator did not intend divesting of the interest of one grand-daughter, once it had vested in her. To be more precise, the intention of the testator was that Sub-clause (5) of clauses would take effect, if one of the grand-daughters died issueless in the life time of Jageshar Kuer, but once the interest covered by 10 annas 8 pies share had vested in the two granddaughters in equal shares after the death of Jageshar, there would be no divesting of the interest of either of them, if she died issueless subsequent to the date of the vesting. This is, in my opinion, the correct interpretation of the will, when it is read as a whole.
6. Though the will has to be construed independently of the aforesaid sections of the Succession Act, the aid of the provisions of those sections can be taken, in case two probable interpretations are possible. Assuming, for the sake of argument that two interpretations--one given by Mr. Sinha and the other given by Mr. Datta are possible, let us examine the matter with reference to the provisions of Sections 124 and 131 of the Act. The latter section reads as follows :
"(1) A bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in Sections 120, 121, 122, 123, 124, 125, 126, 127, 128, 129 and 130."
It will be noticed that the ulterior bequest, referred to in Sub-section (2), is subject to the rule contained in Section 124, which enacts :
"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable."
In this connection, illustrations (iv) and (v) to Section 124, which are reproduced below, are important:
"(iv) A legacy is bequeathed to A for life, and, after his death to B, and, 'in case of B's death without children,' to C, The words 'in case of B's death without children are to be understood as meaning in case B dies without children during the lifetime of A".
"(v) A legacy is bequeathed to A for life, and, after his death to B, and, 'in case of B's death,' to C. The words 'in case of B's death' are to be considered as meaning in case B dies in the lifetime of A."
It will be noticed that in both the illustrations the legacy was bequeathed to A for life and, after his death, to B, but in case of B's death without children or in case of B's death, the legacy would go to C. According to the illustrations, the contingency, viz., B's death without children or B's death, as the case may be, is to be understood to mean that the contingent bequest in favour of C would take effect, if the contingency happened during the lifetime of A. In other words, the contingency must occur before the date for the distribution of the bequest. Section 124, which corresponded to Section 111 of the old Indian Succession Act, embodied the rule enunciated in the English case of Edwards v. Edwards, ((1852) 92 E R 464) (see Bhuprendra Krishna Ghose v. Amarendra Nath Day, 45 Ind App 12 : (AIR 1915 P C 101).) The object of this rule appears to have been to avoid a construction so inconvenient as one which must suspend the absolute vesting of the subject of the gift during the whole life of the legatees. In the two illustrations, the gift of the legacy is not immediate, but in remainder after an estate for life, with a bequest over "in case of the death of the legatees."
Inasmuch as the object of every construction of a will is to give effect to the intention of the testator as expressed in or collected from his will, it seems that where the bequest is not immediate, but in remainder, with an executory limitation, in case of the death of the legatee, the relevant expression will be applied to the period when the remainder takes effect in possession, viz., the death of the person taking the preceding interest. In other words, the contingent event will not be confined to the lifetime of the testator but will be continued during the lifetime of the first legatee getting the life interest. In the instant case, Jageshar Kuer may be substituted for A, Shivrani for B and Talkeshwari for C. Hence, the contingent bequest in favour of the surviving grand-daughter would take effect only when the other grand-daughters died during the lifetime of Jageshar Kuer, inasmuch as the date of distribution of the estate would be the date of death of Jageshar Kuer.
7. This view is supported by several decisions. In Norendra Nath Sircar v. Kamalabasini Dasi, I L R 23 Cal 563 (PC), a Hindu who at his death left three sons, the eldest of full age and the other two minors, said in his will :
"My three sons shall be entitled to enjoy all the moveable and immoveable properties left by me equally. Anyone of the sons dying sonless, the surviving sons shall be entitled to all the properties equally."
It was held by the Privy Council that the words gave a legacy to the survivors contingently on the happening of a specified uncertain event which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testator's death. In coming to this decision the Privy Council relied on Section 111 of the Succession Act of 1865, which corresponds to Section 124 of the present Act. In Jehangir Dadabhoy v. Kaikhusru Kavasha, I L R 39 Bom 296 : (A I R 1914 P C 18), the material facts were that the testator executed a will on the 8th August, 1886, and died on the 21st August, 1866, leaving two sons, namely, Pallonji, the elder, and Jehangirji, the younger. By the will, these two sons were declared proprietors of the testator's whole estate, half and half, alike and in equal shares; the elder son being in a confused state of mind, the management of the estate was entrusted to the younger son; at the time when the will was executed the elder sou had no male issue, though he had a daughter; therefore, the testator said that, if the elder son gets a male issue, half of the estate was to be made over to him on his attaining full age.
The younger son, having obtained probate of the will in 1877, entered upon the management of the whole estate, and this state of affairs continued for thirty years, when the elder son died without any son, leaving a widow and other heirs, who instituted the suit, out of which the appeal arose for an account, for an ascertainment of the rights and interests of the parties in the estate and for partition, on the ground that the elder son became the owner of one-half of the estate from the date of the testator's death. This claim was opposed on the ground that the terms of the will were such as to prevent vesting in Pallonji. Their Lordships of the Privy Council, on a construction of the will, came to the conclusion that one-half of the estate had vested in Pallonji after the death of the testator, inasmuch as the destination over to a son, who should take upon attaining twenty-one years of age, was appropriate to the events of the death of Pallonji during the lifetime of the testator and of his having left a son. Their Lordships further said that the same result would be reached by the application of Section 111 of the old Succession Act.
As against these two decisions cited by Mr. Datta, Mr. Sinha relied on a decision of the Privy Council in Indira Rani v. Akhoy Kumar, A I R 1932 P C 269. This was an appeal against a decision of a Division Bench of the Calcutta High Court in Akhoy Kumar v. Indira Rani, A I R 1931 Cal 499. In that case a Hindu inhabitant of Calcutta died on the 26th July, 1904, leaving him surviving his widow and two sons named Sudheswar and Akhoy. He left a will executed by him on the 30th October, 1903, by which after giving certain pecuniary legacies and annuities, the devised and bequeathed the whole of his estate to his two sons who were then infants. Probate of the will was taken out on the 17th August, 1904, The elder son Sidheswar, after attaining majority, applied for and obtained letters of administration de bonis non. Sidheshwar died on the 13th February, 1930, leaving him surviving his widow Indira Rani and a daughter. Thereafter, the younger son Akhoy Kumar, who had meanwhile attained majority, obtained on the 30th May, 1930, representation to the estate of his father. On the 3rd July, 1930, the suit out of which the appeal arose was instituted by Indira Rani, an which she contended that in the events that had happened and on a true construction of the will of the testator, the share which her husband Sidheswar had in the said estate had devolved upon her and that she as his heiress was entitled thereto. The relevant clause of the will read thus:
"Subject to...I devise and bequeath the whole of my estate...to my executors and trustees in trust for such of sons as may be living at my death.. and also for the son of sons of such of my sons as shall then be dead...but nevertheless in the event of my sons or sons' sons dying without leaving lineal male issue him surviving the other of my sons or sons' sons living at the time shall be equally entitled to his or their share of the property...but should I die without lineal male descendants the son or sons to be adopted by my wife shall inherit the whole of my residuary estate ....."
Their Lordships of the Calcutta High Court said that, in view of the clear contentions of the testator that, on his death, his two sons should as between themselves divide his estate half and half and that subsequently if either of the two sons died sonless, the surviving son was to get the share of the son who had died sonless. Hence, it was held that the vested interest that the sons got in the estate of the testator at his death was liable to be divested in case either of them died subsequently without leaving male issue and, inasmuch as Section 131 of the Succession Act applied, the clause of defeasance was valid and the gift over in favour of Akhoy had taken effect.
8. This decision was upheld by the Privy Council. But, as the judgment of the Privy Council shows, the will was interpreted in that manner because of certain important features of the will pointed out in the following passage :
"Three things however may be said of the will, reading it as a whole.
First, the testator plainly contemplates the continuance of the trusts for an indefinite period after his death. An annuity is normally to continue for the life of the annuitant, and there are many annuities : payment for shradhs, remote it may be in time, is to be made. Payments, indefinite, in duration, are to come out of the estate or out of its income. The testator's Benares house must be retained at least so long as his widow lives. Secondly, the testator contemplates in more than one instance the forfeiture in whole or in part of a vested gift, should the donee cease to be an orthodox Hindu of good repute. But. thirdly, and most pointedly of all, the exclusion of every daughter or grand-daughter from any participation in residue is plainly of set purpose. Here is a predominant note in the will. As to a daughter-in-law, she is never once mentioned from beginning to end."
Their Lordships distinguished the decision of the Judicial Committee in the case of Norendra Nath Sircar, ILR 23 Cal 563 (PC) in these words :
"Death in the case cited was clearly on the will confined to 'death' in the testator's lifetime. In the present case however notwithstanding the applicant's original contention to the contrary, it is clear, their Lordships think, that the death of a son or sons referred to in this will is the death of one who has taken something under the original gift contained in it: that is to say, it is a death which must take place after that of the testator. This distinction between the cases is, for the present purpose, vital. It is true that in each the event remains uncertain. In the present case, it not being a case of death simpliciter, it might even after the death of the testator never have happened at all. But was it an uncertain event with reference to which it could be said that 'no time is prescribed in the will for its occurrence'? The answer must, their Lordships think, be in the negative."
Then, their Lordships discussed Sections 124 and 131 of the Succession Act and held that the will before their Lordships was one which amounted to a bequest to a person with a condition superadded, as contemplated by Section 131 but not covered by Section 124. This decision does not, however, assist the appellant in the instant case, because Indira Rani lost her claim, mainly because of the predominant note in the will, excluding a daughter, a grand-daughter or a daughter-in-law from any participation in residue of the estate as also the fact that it was not a case where no time is mentioned in the will for the occurrence of the uncertain event.
9. The view that I have taken of the will in the instant case is also supported by three bench decisions of the Patna High Court. In Kamla Prasad v. Murli Manohar, A I R 1926 Pat 356, the testator, by his will, devised his estate to his widow and his two daughters-in-law and then provided that in case the said three ladies died, his nephew Murli Manohar shall be the heir and possessor of the properties. It was not disputed that all the three ladies survived the testator; and it was held by their Lordships that the estate of the testator was distributable on his death, and, therefore, Section 124 of the Succession Act operated so as to bar the right of Murli Manohar to take under the will. In Bashist Narain v. Sia Ramchandra, AIR 1933 Pat 126, a testator bequeathed some properties to his son Sheoratan and further provided that in the event of Sheoratan's death without issue, the properties would vest absolutely in certain deities. Their Lordships discussed the provisions of Section 124 of the Succession Act along with the decision of the Privy Council in the case of Norendra Nath Sircar, ILR 23 Cal 563 (PC), and held that the vesting of the property in Sheoratan took place soon after the date of distribution that is, the death of the testator. The Lordships clearly said that Sheoratan took an absolute estate indefeasible by the fact that he died issueless after the death of the testator.
In Kamla Prasad v. Murli Manohar, AIR 1934 Pat 398, the will which had been considered in the case of Kamla Prasad, AIR 1926 Pat 356 came to be considered again in a connected proceeding before this Court. Referring to the earlier decision, their Lordships said that, though that decision may or may not De res judicata, it was plainly in accordance with Section 124 of the Succession Act and the decision of the Privy Council in the cases of Norendra Nath Sircar, ILR 23 Cal 563 (PC) and Indira Rani, AIR 1932 P C 269. Their Lordships further added that the will in question in no way indicated any particular time for the occurrence of the uncertain event of the death of the three widows, upon which the gift over to Murli Manohar was to take effect and, therefore, for Murli Manohar to take anything under the will it was necessary that the uncertain event happened before the testator's death.
10. All these decisions support the contention of Mr. Datta. He also cited the decision of Saraju Bala Debi v. Jyotirmoyee Debi, 58 Ind App 270 : (A I R 1931 P C 179), but it does not apply to the facts of the instant case. The question considered there was whether certain conditions in the gift cut down the absolute estate into one for life. The conditions were held to be void and the defeasance clause depending on the indefinite failure of the male issue was, therefore, held to be void.
11. On the other hand, Mr. Sinha relied on a bench decision of this Court in Mt. Rameshwar Kuer v. Shiolal Upadhya. AIR 1935 Pat 401, in which a deed of gift dated 14-10-1917 had to be construed. A woman, who had made a gift of her properties in three equal shares to her three minor daughters, added that they should get their names recorded, under her guardianship, in the Land Registration Office. Thereafter, another sentence occurred to the effect that, if any daughter out of the three died issueless the surviving daughters shall in equal shares be the absolute proprietresses of the properties. The youngest daughter, Dhaneshwari, died in May, 1923, about two years after her marriage, without leaving any issue. The question was whether she took an absolute estate or only a life estate. It was held that the donor intended to make a gift over to the surviving daughters. But, as appears from the judgment of Courtney-Terrell, C. J., this intention of the donor was conceded by the parties in Court; and, on reading the deed of gift as a whole, his Lordship thought that the donor did not intend the property to go to another family, but he intended that it should continue as long as possible in the hands of her daughters and the survivors of them. For this reason, it was construed to be a gift with a condition subsequently superadded ; and thereafter the only question raised and decided was whether the condition subsequent was a repugnant provision or a defeasance provision without violating any rule of law. That is why the case was examined with reference to the terms of only Sections 28 and 31 of the Transfer of Property Act and the decisions bearing on this subject, e. g., 58 Ind App 270 : (A I R 1931 P C 179), Bhoovun Mohini Debia v. Hurrish Chunder Chowdhry, I L R 4 Cal 23 (P C) and Sreemutty Soorjeemoney Dossoy v. Denobundoo Mullick, 9 Moo Ind App 123 (P C). Even Dhavle, J., who agreed with the learned Chief Justice, referred to only those sections and decisions which had been referred to in the judgment of the learned Chief Justice. It may be recalled that in the case of Bashista Narain, AIR 1933 Pat 126, the judgment of which was delivered by Courtney-Terrell, C. J. (Fazl Ali), agreeing with him), their Lordships relied on Section 124 of the Succession Act as also on the Privy Council decision in the case of Norendra Nath Sircar, ILR 23 Cal 563 (P C) for construction of the will. But neither of these decisions was referred to in the later decision in the case of Mt. Rameshwar Kuer, A I R 1935 Pat 401.
12. The next decision relied on by Mr. Sinha is Parvathi Bhavani v. Valayudhan Govindan, AIR 1957 Trav-Co 167 is also based on Sections 28 and 126 of the Transfer of Property Act and deals with a gift of an interest in favour of a donee subject to the condition that if the donee died during his minority or before he was married, the interest shall pass to another person. The last decision is that of a single Judge in Ramadasa Kamath v. M. Kalliani, AIR 1960 Ker 183. Both these decisions have relied on "the Patna decision in Mt. Rameshwar Kuer's case A I R 1935 Pat 401. But in these decisions too, neither the Privy Council decision nor Section 124 of the Succession Act and Section 21 of the Transfer of Property Act have been considered. Thus, all the cases relied on by Mr. Sinha are distinguishable.
13. On a review of the authorities and the relevant provisions of the two Acts, the correct legal position is this. If the interest created in favour of a person should take effect on the happening of an event which must happen, it is a vested interest; but if it is to take effect on the happening of a specified uncertain event which may or may not happen, the interest is a contingent one. The death of a life tenant is an event not contingent but certain, still it is by no means certain that the subsequent legatees will survive the life tenant. Hence, where the legacy is to go subsequently to those persons who survive the life tenant, the interest vests in the survivors only after the death of the life tenant. If thereafter the will contains a defeasance clause for divesting of the interest of one of those subsequent legatees on the happening of any specified uncertain event, the defeasance clause would be valid on the basis of the provision contained in Sub-section (1) of Section 131 of the Succession Act. But this sub-section is subject to the rule contained in Section 124 (see Sub-section (2) of Section 131) ; and Section 124 applies when no time is mentioned for the occurrence of the specified uncertain event or contingency. The position with regard to a gift is similar in the Transfer of Property Act. Section 28 of this Act, which corresponds to Section 131 of the Succession Act, is subject to the rule contained in Section 23 (corresponding to Section 124 of the Succession Act). The true test, therefore, is whether any time is mentioned or not for the occurrence of the specified uncertain event.
14. In the instant case, therefore, 10 annas 8 pies share of the property vested in Talkeshwari and Shivrani, in equal shares, after the death of the life tenant, Jageshar Kuer. Then, the question is whether the interest which vested in Shivrani could be divested on account of her death without any issue. In other words, was the grant of the absolute estate to Shivrani subject to defeasance on the happening of the contingency, namely, her death without issue ? In view of the provisions contained in Sub-section (1) of Section 131 of the Succession Act, the defeasance clause would be valid; and the interest of Shivram would vest after her death in Talkeshwari after Shivrani's death. But Sub-section (2) controls Sub-section (1), the provision of which is subject to the provisions contained in Section 124. Both Sections 124 and 131(1) speak of a specified uncertain event, but Section 124 contains the further condition that "no time is mentioned in the will for the occurrence of that event." In the instant case, the will does not mention the time for the occurrence of the subsequent event, namely, the death of Shivrani without any issue. Hence, Section 124 applies and the subsequent legacy in favour of Talkeshwari could not take effect unless Shivrani died issueless before the bequeathed fund or estate became payable, before the death of Jageshar Kuer. But Shivrani died long after Jageshar Kuer and, therefore, she got an absolute estate in 5 annas 4 pies share and Talkeshwari Kuer is not entitled to the same after her death.
15. There is thus no merit in the appeal, and it is dismissed with costs.
Bahadur, J.
16. I agree.