Patna High Court
Gauri Shanker Sah And Ors. vs Ramchander Sah And Ors. on 18 April, 1969
Equivalent citations: AIR1970PAT144, AIR 1970 PATNA 144, ILR 48 PAT 683
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by the plaintiffs arises out of a suit for a declaration that the house including the site and Sahan appertaining thereto specified in schedule No. 2 of the plaint as well as the moveable properties kept in that house, as mentioned in schedule No. 3 of the plaint, belonged to them and that they were entitled to recover possession thereof by evicting the defendants therefrom. The plaintiffs made a prayer for allowing mesne profits and for permanently restraining the defendants from interfering with their possession after the granting of the said declaration. In the alternative, the plaintiffs asked, for a decree for a sum of Rs. 1000 as the price of the moveable properties specified in schedule No. 3, in case they were not able to get a decree for recovery of possession of those moveables.
2. The plaintiffs' case was that one Mathura Ram left two sons, Gauri Shanker Sah (plaintiff No. 1) and Bhagwan Lal. Plaintiffs 2 to 5 are the sons of plaintiff No. 1, plaintiff No. 6 is the son of plaintiff No. 3, and plaintiff No. 7 the wife of plaintiff No. 1. Ramrati Kuer was the widow of Bhagwan Lal. Mathura Ram had a sister named Janki Kuer and she was married to Bisheshwar Sah son of Gurudeyal Sah of village Godana. Bisheshwar had no issue, either male or female, and so he kept Bhagwan Lal with himself. He executed a will in respect of his moveable and immoveable properties on 2-7-1893 and this will was a registered one. He provided in that will that he would remain the absolute owner of all the properties till his death but, after his death, his wife, Janki Kuer, would remain in possession of those properties; but she would have no right to transfer them. There was a further provision that after the death of Janki Kuer, Bhagwan Lal would become the absolute owner in respect of those properties and, after the death of Bhagwan and his wife, the son of Bhagwan would be the absolute owner of those properties. But if Bhagwan as well as his male issue would die without leaving behind any male issue, then the agnates of Bisheshwar Sah would be the absolute owners of those properties.
The plaintiffs alleged that the last clause of the will giving the properties to the agnates was repugnant and void and it could not curtail in any manner the absolute interest given to Bhagwan Lal in dear and unambiguous terms. After the death of Bisheshwar Sah and Janki Kuer, all his properties came in possession of Bhagwan Lal as an absolute owner and he obtained a probate of the said will from the District Judge of Saran on 8-7-1901
3. The case of the plaintiffs further was that apart from other houses, orchards and lands, Bisheshwar Sah (was?) the owner of a north facing residential house in village Godana, covering an area of about 1 katha 10 dhurs described in schedule No. 1 of the plaint. There was a Parti land measuring about 2 kathas adjacent east of the said house and that land belonged to one Jagdish Bhagat alias Jaggu Bhagat, but it was purchased by one Ramnandan Gir in a Court sale held in an execution case, and the said purchaser sold that land to Bhagwan Lal orally for a sum of Rs. 50. Ramnandan Gir executed an unregistered sale deed in respect of that land in favour of Bhagwan Lal on 25-12-1911. There was another piece of land measuring about 15 dhurs adjacent south of the aforesaid house and that land belonged to one Ganaur Mahto, but he sold it to Bhagwan Lal orally for a sum of Rs. 15. In this manner, Bhagwan Lal came in possession of those lands lying adjacent to east and south of the house of Bisheshwar Sah and he made some extensions in the said house towards the east by making certain constructions, He further constructed a verandah and a latrine on the southern Parti land. The house and the Sahan including the original house of Bisheshwar as well as the subsequent acquisitions and additions made by Bhagwan Lal were described in schedule No. 2 Bhagwan died on 15-9-1925 and then his widow, Ramrati Kuer, came in possession of that house and other properties of Bisheshwar, except the orchard and the land which were dedicated orally by Bisheshwar for Dharamshala and celebration of Annakut.
Ramrati Kuer executed a gift in respect of all the properties on 11-4-1958 in favour of plaintiff No. 4, as a result of which the plaintiffs came in possession of those properties as donees. Ramrati died on 13-4-1958. The plaintiffs were the preferential heirs of Bhagwan Lal and Ramrati Kuer, and in that capacity as well they were the owners of the estate which at one time belonged to Bhagwan and his widow. Plaintiff No. 1 was duly recorded in the municipality in respect of the disputed house which was given to him by Ramrati Kuer. The defendants (agnates of Bisheshwar Sah) were anxious to usurp the properties left behind by Bisheshwar and they embarked on a frivolous litigation with Ramrati Kuer and plaintiff No. 1 in the year 1927 which continued even up to the High Court, but they were unsuccessful throughout. On 10-7-1958 defendants 1 to 5 forcibly entered in the disputed house in which plaintiff No. 7 alone was living on that date and they took forcible and wrongful possession of the moveables kept in that house. Plaintiff No. 2 was seriously assaulted by defendants 2 to 5 and there was a criminal case against them which ended in acquittal on 31-3-1959. This emboldened them and they continued their possession wrongfully.
Apart from the title referred to above, the plaintiffs had acquired title in respect of the disputed properties even on the basis of adverse possession in respect of those properties. The plaintiffs thus filed the suit on 11-7-1959 for the reliefs indicated above.
4. The plea of defendants 1 to 6 was that the suit was barred by limitation and they alleged that, according to the said will of Bisheshwar Sah, Janki Kuer got a life estate only and, similarly on her death, Bhagwan Lal as well got a life estate, and on his death, Ramrati Kuer also got a similar estate. Bhagwan had left no male issue and, even if he would have any, he also would have got a limited interest till his life, but that contingency did not arise at all and as such, after the death of Bhagwan Lal without a male issue, the defendants (agnates) were entitled to all the properties as absolute owners thereof. Their case further was that Bhagwan did not make any construction and as such the plaintiffs were not entitled to claim any portion of the disputed land and house as belonging to Bhagwan Lal. They, however, admitted that the entire land and the house as described in schedule No. 2 of the plaint belonged to Bisheshwar Sah and the same devolved on Bhagwan Lal as a legatee, but for his lifetime only according to the will.
Ramrati Kuer did not get the properties as an heir of Bhagwan, but whatever right she had, it was under the will and the gift executed by her in favour of plaintiff No. 4 was a fraudulent one, inasmuch as she was extremely weak and was unconscious for several days before her death which took place on 13-4-1958. The plaintiffs were never in possession of the disputed house and they never paid any tax or rent in respect thereof. According to them, Gurudeyal Sah was their ancestor as well as that of Bisheshwar Sah and they were the descendants of Agandh Sah who was one of the two sons of Gurudeyal Sah. They denied the claim of the plaintiffs regarding adverse possession and alleged that they were entitled to the properties absolutely as being agnates of Bisheshwar Sah. There was a formal written statement by the guardian ad litem of minor defendants 7 and 8.
5. The Additional Subordinate Judge held that Bhagwan Lal got an absolute interest in the properties of Bisheshwar Sah by the will dated 2-7-1893 and not a life interest. Ramrati Kuer and the plaintiffs had acquired title by adverse possession in respect of a portion of the suit properties. The portion of land described in Schedule No. 2 was acquired by Bhagwan Lal and the plaintiffs were entitled to it, but their case that the defendants had wrongfully carried away the moveables worth Rs. 1000 was not correct.
He found that the deed of gift dated 11-4-1958 executed by Ramrati Kuer in favour of plaintiff No. 4 was neither valid nor genuine, and hence plaintiff No. 4 did not acquire any title on the basis of that deed. He held that the suit was maintainable and it was not barred by limitation. In view of these findings, he decreed the suit in part and declared the plaintiffs' title in respect of the properties described in schedules 1 and 2 and granted them a decree for recovery of possession thereof.
6. Defendants 1 to 6 filed an appeal against the aforesaid decree. The Additional District Judge held that the estate conferred on Bhagwan Lal was not an absolute estate and as such, after the death of Bhagwan Lal on 15-9-1925, the estate which came to Ramrati Kuer was only a life estate and not an absolute estate. The plaintiffs failed to prove their title by adverse possession. They further failed to establish as to which portion of the disputed land described in schedule No. 2 was purchased by Bhagwan Lal and even the factum of sale of that portion or the identity thereof was not proved by them. He allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the plaintiffs' suit. Hence, the plaintiffs have filed this second appeal.
7. Learned Counsel for the appellants submitted that the learned Additional District Judge had misconstrued the terms of the will (Ext. 9) dated 2-7-1893, and according to the true conception, Bhagwan Lal had acquired an absolute interest and not only a limited one. He contended that the last clause of the will giving an absolute interest to the agnates was repugnant, inoperative and void and the absolute interest given to Bhagwan Lal could not be curtailed by that clause. He further contended that even Ramrati Kuer had acquired an absolute interest, after her death the plaintiffs who were the heirs of Bhagwan Lal were entitled to the properties in suit as absolute owners. Learned counsel for the respondents, on the other hand, submitted that the will had to be read as a whole and all the terms or clauses should be taken into account in order to determine the intention of the testator and no clause of it should be held to be repugnant or void. He submitted that it was true that according to the tenor of the will Bhagwan Lal was given an absolute interest and the agnates of Bisheswar Sah also were given absolute interest after the death of Bhagwan and that of his son, if any dying without leaving any male issue, but the real intention of the testator was to give only a life interest to Bhagwan Lal and not an absolute one. The interpretation of the will in this manner alone would be consistent, workable and reconcilable of all the terms.
8. In order to appreciate the respective contentions it is necessary to refer to the various terms of the will (Ext. 9) executed by Bisheshwar Sah. The relevant terms, as translated, can be classfied in the following heads:
"(a) I, the executant, have no male or female issue. . . .Hence I, the executant with the idea in view that my name and trace may be perpetuated, have kept with me and brought up and maintained Bhagwan Lal. . . .who is related to me, the executant, as my nephew (Sarhbeta), since his childhood, with the consent of his mother and father and performed his marriage and Duragawan ceremonies."
"(b) Hence I, the executant, of my own accord and free will, in a sound state of my body and mind, with a view to avoid dispute in future execute this will, in favour of Bhagwan Lal, aforesaid and declare that till my death I, the executant shall remain in possession, occupation and appropriation of the entire immovable properties, mentioned below, moveable household goods, cash and ornaments as an absolute owner as usual ....."
(c) After the death of me, the executant, Mossammat Janki Kuer, wife of me. the executant, shall remain in possession, occupation and appropriation of the produce thereof, without the right of transfer thereof."
"(d) After the death of Mossammat Janki Kuer, aforesaid, the said Bhagwan Lal shall enter into possession, occupation and appropriation thereof as son, legal heir and an absolute owner."
(e) "After the death of Bhagwan Lal and his wife his legitimate male issue shall enter into possession and occupation thereof, as an absolute owner."
(f) "In case the said Bhagwan Lal as well as his male issue die without leaving behind any legitimate male issue in that case (illeg) agnate of me, the executant out of the agnates of me, the executant, shall enter into possession and appropriation, as an absolute owner of the entire properties entered in this will i.e., cash, ornaments and moveable properties."
"(g) In case son is born to me, the executant, the sons fsic) if they are at all born to me, the executant, and the legatee shall partition among themselves in equal shares the entire moveable and immoveable properties, ornaments and cash. The stipulations which have been entered (in this deed) concerning the agnates of me the executant, in case of Bhagwan Lal aforesaid being issueless shall hold good for the sons of me, the executant."
"(h) . . son if born to me, the executant, the agnate of me, the executant shall have no connection and concern with it (sic)."
9. There is no controversy between the parties that the testator, Bisheshwar San, was the absolute owner of the properties till his death and later on his widow, Janki Kuer got a limited interest. Besides this, it is the admitted case of the parties that Bhagwan Lal came in possession of the properties after the death of Janki Kuer. It is further clear that Bhagwan did not leave any male issue and, therefore, the question of his son getting interest of one kind or the other does not arise at all. The substantial dispute between the parties, however, is with regard to the interest acquired by Bhagwan Lal. According to the plaintiffs, Bhagwan Lal became absolute owner as mentioned in clear terms in the will, but, according to the defendants, the absolute interest must be deemed to be the limited interest, inasmuch as two absolute interests cannot be created in favour of Bhagwan Lal as well as the agnates of Bisheshwar Sah. In case Bhagwan got an absolute interest, then the plaintiffs would be entitled to the disputed properties, but in the event of his getting only a limited interest, the defendants would be entitled to the properties in the capacity of agnates of Bisheshwar Sah.
10. Learned counsel for the appellants relied, at first, on the provisions of Section 95 of the Indian Succession Act which reads thus:
"Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him."
He contended that Bhagwan Lal having been made the absolute owner his interest as such was not restricted in any manner by the aforesaid will and, even if there was a restriction, that must be held to be repugnant and void. He then referred to Section 131 of the very same Act, and it reads thus:
"131 (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, 129 and 130."
This section, however, has to be read in conjunction with Section 124 which is the first one in Chapter X which deals with contingent bequests. Section 124 is in the following terms:
"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."
Learned counsel relied on Illustrations (iv) and (v) of this section. He contended that a legacy was no doubt given to the agnates of Bisheshwar Sah, but the passing of the legacy to them was dependent on the death of either Bhagwan Lal without leaving a male issue or his son dying without leaving a male issue. (These were the specified uncertain events for the occurrence of which no tune was mentioned.). Bhagwan Lal had left no male issue, but he had not died during the lifetime of Janki Kuer and as such the specified uncertain events had not occurred at the time the properties bequeathed became either payable or distributable. That being the situation, his argument was that the legacy in favour of the agnates could not take effect according to the provisions of Section 124. In other words, if Bhagwan Lal had died during the lifetime of Janki Kuer then only the legacy could be acquired by the agnates (defendants).
11. Learned counsel for the appellants referred to Tiruchendur Sri Subramaniaswami Temple v. P. Ramaswami Pillai, AIR 1950 PC 32 to support his contention that absolute interest had been given to Bhagwan Lal by the testator. In the case relied upon, the will of the testator dated 20th May, 1919, read as follows:
". . . .I have bequeathed to my son, Picha Pillai the right to all my properties and moneys, etc., and he shall solely enjoy them. If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur."
The said son entered into possession of the estate and enjoyed it until his death. He died on 10-12-1927, without issue. Thereupon his reversioners took possession of the properties. The appellant, Tiruchendur Sri Subramaniaswami Temple, instituted the suit on 10-11-1932 (giving rise to that appeal) against defendants 1 to 22 as being in possession of different parts of the estate, and defendant No. 23 was impleaded as an alienee of a part of the estate. The appellant claimed that on the death of Picha Pillai he became entitled to the entire estate. The Subordinate Judge held that Picha Pillai took an absolute estate, notwithstanding the direction that if he or his son had no child the properties should pass to the temple, and the bequest to the temple was bad as contravening the rule against perpetuities to be found in Section 5, Madras Act, I of 1914 (reenacted as Section 114, Succession Act, 1925)". He thus dismissed the suit as against the contesting defendants and also against a few others. The learned Judge who heard the appeal against that decree agreed with the trial court that the bequest to the son was unconditional and, therefore, conferred upon him an absolute estate.
For the appellant, it was urged that the Courts below had erred in their interpretation of the will, inasmuch as the bequest to the son, Picha Pillai was curtailed, as there were qualifying words in the will providing that if the said son or his son had no child, the said properties shall pass to Subramaniaswami. It was further urged that if the will was read as a whole the effect was of creating an interest in favour of the deity of the temple in the event of Picha Pillai! dying childless. Their Lordships referred to the provisions of Section 95 of the Indian Succession Act and held that the additional qualifying words did not restrict the interest given to Picha Pillai. In other words, the testator did not in any way limit either the character of the estate that was given by the earlier bequest in favour of the son or made it conditional and liable to be divested at his death without issue. This decision is not exactly on the point which arises for consideration in this appeal, but apart from this, the recitals in a will in each case have to be considered in order to determine as to whether the interest created in favour of one person or the other was an absolute one or a limited one.
12. There are, however, some cardinal principles which should be kept in view while considering the effect of a will. The will has to be read as a whole, meaning thereby that the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory, (vide Bajrang Bahadur Singh v. Bakhtraj Kuer, AIR 1953 SC 7 and Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703).
Moreover, another cardinal principle of construction of a will was that effect should be given to every disposition contained in the will as far as it is legally possible unless the law prevents effect being given to it. But if there were two repugnant provisions conferring successive interests, a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given to every testamentary intention contained in the will, see Ramchandra Shenoy v. Mrs. Hilda Brite, AIR 1964 SC 1323.
These principles could not be contested by either side, but learned counsel for the appellants strenuously pressed that the legacy in favour of the agnates (defendants) could not take effect in view of the provisions of Section 131 read with Section 124 of the Indian Succession Act. He relied on Tarkeshwari Devi v. Ram Ran Bikat Prasad Singh, AIR 1966 Pat 40 in which the provisions of Sections 124 and 131 were considered fully. The registered will (Ext. 1) in that case was executed by one Raghunath Prasad Singh on 21-8-1938, who died a month or two later. He was married to one Srimati Jageshwar 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 Tarkeshwari Devi (plaintiff appellant), who was married to Awadhesh Prasad Singh and Srimati Shivrani Devi, who was married to Ram Ran Bikat Prasad Singh (defendant No. 1). Defendant No. 2 was the brother of defendant No. 1. Jageshwar Kuer died in November, 1948 and Shivrani Devi died on 1-11-1949 without leaving any issue. The will provided that till his lifetime the executant shall remain in possession and occupation of the entire property, but after his death the shares in certain villages would absolutely belong to his wife, Srimati Jageshwar Kuer, who will have the full rights and power to make transfer, etc., but the remaining property would remain in her possession for her lifetime with limited power to appropriate the income thereof.
Both the granddaughters were minors and till the lifetime of Jageshwar Kuer she would be their guardian. The testator further provided that after the death of Jageshwar Kuer the entire property would be treated as 16 annas property, out of which 5 annas 4 pies share constituting proprietary interest would pass to Srimati Satrupa Kuer and her heirs as absolute owners and the remaining 10 annas 8 pies share would pass to both the minor granddaughters, (1) Srimati Tarkeshwari Kuer and (2) Srimati Shivrani Kuer in equal share as absolute proprietary interest; but if one of the two granddaughters died issueless then the other living granddaughter would enter into possession and occupation of the entire 10 annas 8 pies share and would become the absolute owner thereof. The subject-matter of the suit related to the remaining property which was given to Jageshwar Kuer for her lifetime with a limited power. In accordance with the provisions of the will, Jageshwar Kuer came in possession of the property and continued in possession thereof till her death. Thereafter, 5 annas 4 pies share of that property devolved on Satrupa Kuer and the remaining 10 annas 8 pies share devolved on Tarkeshwari and Shivrani in equal shares.
By a private partition between the two, the property in suit, i.e., a little over 40 acres of kasht land in village Toralpura besides the 16 annas milkiat interest in a certain tauzi in the same village were 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 the case of the plaintiff was that in view of the aforesaid provisions in the will she was entitled to the suit property after the death of Shivrani or, in the alternative, a decree for Rupees 33,800, being the value of the suit property. The defence was that inasmuch as both Tarkeshwari and Shivrani were alive at the time of the testator's death as also at the time of the death of Jageshwar Kuer, the absolute estate was bequeathed to them and each of them got equal shares in them absolutely. In other words, the estate which vested in Shivrani was not a life estate, as contended by the plaintiff. The question for consideration in the appeal was the nature of the estate which vested in the two granddaughters after the death of Jageshwar Kuer. It was contended on behalf of the plaintiff appellant that a joint life estate was created in favour of the two granddaughters and in the event of the one surviving the other dying issueless, an absolute estate came to the survivor. Ramratna Singh, J., who delivered the main judgment, pointed out that the testator did not intend to divest the interest of one granddaughter, once it had vested in her. Their Lordships considered the provisions of Sections 124 and 131 of the Act On a review of the various authorities, including Indira Rani v. Akhoy Kumar, 59 Ind App 419 = (AIR 1932 PC 269), the correct legal position was stated in the following manner:
"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".
In that case, their Lordships held, applying the provisions of Section 124, that the subsequent legacy in favour of Tarkeshwari Kuer could not take effect unless Shivrani died issueless before the bequeathed fund became payable, before the death of Jageshwar Kuer. Shivrani died long after Jageshwar Kuer and, therefore, she (Shivrani) got an absolute estate in 5 annas 4 pies share and Tarkeshwari Kuer was not entitled to the same after her death. Learned counsel for the appellants, relying on this decision, submitted that the provisions of Section 124 were fully attracted so far as the non-passing of the legacy in favour of the defendants (agnates) was concerned.
13. Learned counsel for the appellants referred to Kamla Prasad v. Murli Manohar, AIR 1926 Pat 356. The testator in that case devised his estate by his will to his widow and his two daughters-in-law and then provided that in case the said three Musammats would die, Murli Manohar, son of Ram Charan Lal, his brother's son, shall be the heir and possessor of the properties. It was contended on behalf of the appellants in that case that Section 124 of the Indian Succession Act was directly applicable and that the bequest in favour of Murli Manohar could not take effect as the uncertain event specified in the will did not happen before the period when the 'fund' bequeathed was payable or distributable.
The 'fund' in that case, the estate of the testator, was distributable on his death and it was not disputed that all the three ladies survived him. Their Lordships observed that the rule enunciated in Section 124 of the Succession Act was a rule of law and not a rule of construction, and although it was not necessary for them to decide that point, it appeared that Section 124 operated so as to bar the right of Murli Manohar to take under the will. This opinion of their Lordships, however, did not decide that appeal and as such it may be said that that opinion was in the nature of an obiter.
He "then referred to Bashist Narain Sahi v. Sia Ramchandra, AIR 1933 Pat 126. In that case one Chengan Sahi left a widow, Mt. Rajo Kuer, and a son Sheoratan. Chengan executed a will bequeathing three properties to the deities and they were to be managed by his widow as Shebait, and after her death (which had not yet occurred) by his son Sheoratan (who, however, died in 1908). He bequeathed the residue of his properties to Sheoratan, but in the event of Sheoratan'a death without issue, the legacy was to pass on to the aforesaid deities absolutely, and in those circumstances the entire income of the estate was to be applied to various charitable, educational and religious purposes. One question which arose for decision was as to whether or not the legacy of the entire estate to the deities had failed due to the fact that Sheoratan had survived the testator. It was contended that Sheoratan took an absolute estate on the death of the testator and subsequently, after the death of Shecratan without leaving any issue, the estate would devolve upon the deities. This contention did not impress their Lordships and they referred to the provisions of Section 124 of the Indian Succession Act, 1925, which corresponded to Section 111 of the Indian Succession Act, 1865. Illustrations (i) and (ii) of that Section also were referred to, and it was pointed out that Section 124 specifically prevented the legacy, even if made, from taking effect unless the event happened before the period when the fund bequeathed was payable or distributable.
Their Lordships relied on Norendra Nath Sircar v. Kamalbasini Dasi, (1896) ILR 23 Cal 563 (PC), and observed that the 'period' referred to in Section 124 did not mean an indefinite period after the testator's death during which the contingency of the death issueless might occur, but the lawful period for distribution by the executor, and "before the period" meant "before the commencement of such period". Their Lordships held that Sheoratan took an absolute estate indefeasible by the fact that he died issueless after the death of the testator.
14. Section 124 of the present Indian Succession Act which corresponds to Section 111 of the Succession Act of 1865 deals with contingent bequests, meaning thereby that the bequest would take effect only if the contingency happened before the period of distribution. When death is spoken of as a contingency, it must be construed to mean death before the period of distribution. Illustration (iv) reads thus:
"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'."
I would refer to Monohur Mukerjee v. Kasiswar Mukerjee, (1899) 3 Cal WN 478, in which it was held that Section 111 of the then Succession Act laid down a hard and fast rule regulating the validity of certain classes of contingent bequests which, to use the words of their Lordships of the Judicial Committee in the case of Norendra Nath Sircar, (1896) ILR 23 Cal 563 (PC), 'must be applied wherever it is applicable, without speculating on the intention of the testator'. Their Lordships held in that case that they were bound to apply the provisions of Section 111 to that case to which its plain language made it applicable; and applying that section, the gift over to Monohur Mukherjee did not take effect and that the plaintiff had taken an absolute and indefeasible estate in the properties mentioned in Schedule 3 of the will (in that case). Turning once again to the facts of the present case, it appears undoubtedly by the will in question that a bequest was made in favour of Bhagwan Lal, but a condition was superadded that if he as well as his male issue would die without leaving behind any legitimate male issue, then the agnates of the testator would get the properties as absolute owners. An estate was no doubt conferred on Bhagwan Lal but it was subjected by the said condition. The event of his death or that of his son, if any, was undoubtedly specified, but the happenings thereof were uncertain. On the happening of the said event or events, the properties bequeathed were to go to the agnates.
These aspects of the will in question attract the provisions of Section 131 (1) of the Indian Succession Act and, according to Sub-section (2) of that section the ulterior bequest (in this case, to the agnates) would be subject to the rules contained in Section 124. The latter section definitely provides that the legacy cannot take effect unless the specified uncertain event would happen before the period when the fund beqeathed became payable or distributable. Applying that section to the facts of the present case, the position is that unless Bhagwan Lal died during the lifetime of Janki Kuer (which was the specified uncertain event), the legacy in favour of the defendants (agnates) cannot take effect. The bequest to the agnates was a contingent one, and there is no escape from the conclusion that the provisions of Section 124 are fully attracted in respect of the present will (Ext. 9).
15. I would not refer to the provisions of the Succession Act and the various decisions relied upon by Mr. Prem Lall appearing for the major respondents. He first referred to Section 75 of the present Succession Act which gives a power to the Court to determine questions as to the object or subject of the will. This section, however, is not relevant. The other section relied upon is Section 82. It provides that the meaning of any clause in a will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other. In other words, according to this section, the will has to be construed as a whole in order to determine the intention of the testator, and whenever any question arises as to the meaning of any particular clause, that has to be gathered from a conspectus of the entire will so that all the parts of the will can be construed with reference to each other in order to reconcile and harmonise the different parts. I have already referred to the decisions laying down that the will has to be construed as a whole. Mr. Prem Lall at first, referred to Gulbaji Ajisiji and Co. v. Rustomjf Kharshedji, ILR ' 49 Bom 478 = (AIR 1925 Bom 282 (2)) in support of his contention that the bequest to Bhagwan Lall was a limited one and not an absolute one, but the will dated May 6, 1870, in that case was of a different nature. Clause 8 of the will in that case executed by Kharsedji Jamasji Banatwalla provided inter alia as follows:
"...... This is given as a gift to Chi. Rustomji. After my decease, the income of the ground that is the rent is to be collected from those persons who are possessed thereof and credited to the name of the Chi. Rustomji in (the books of) the shop. For Chi. Rustomji is now seventeen years old when, therefore, he shall arrive at the age of 21, twenty-one years, the said ground is to be made over to him, and as to the moneys which may have been collected and credited, the principal together with interest thereon at the rate of 5 five per cent, is to be paid over to Chi. Rustomji. It is to be paid over by Chi. Edulji".
Clause 10 read thus:
"The property which is in the above eighth clause directed to be given to Chi. Rustomji is to be given (to him) in accordance therewith. And afterwards should my son, Chi. Rustomji die, which God forbid, and should he then leave a son, such his son shall afterwards be the owner thereof. Should he however, leave daughters, an estimate is to be formed of the value of the said estate at that time and out of the same four annas in the rupee are to be paid to his daughters. And should he have no children, two annas in the rupee is to be paid to his widow. And as to the whole residue which should then remain Chi. Edulji and his heirs are to become the owners thereof".
It was first contended that Clause 10 was repugnant and void as being contrary to the terms of Clause 8 whereby the property was gifted to the first "defendant. The second contention was that Section 111 of the Indian Succession Act applied so that the gifts over bequeathed by Clause 10 could only take effect if the first defendant had died in the lifetime of the testator. A question arose as to whether, Rustomji was given a life interest or an absolute one according to Clause 8. The provisions of Section 111 of the Indian Succession Act were referred to but their Lordships held that that section had no bearing in the construction of that will and Clauses 8, 9 and 10 of that will had to be read together. The important distinction between the recitals in the will of that case and those in the will of the present case is that there was no contingent bequest in the case relied upon. The will in that case definitely provided that the property mentioned in the 8th Clause was given to Chi. Rustomji and Rustomji did come in possession of that property. The passing of the legacy, either in part or in whole, to the daughters of Rustomji was not dependent on the death of Rustomji. In fact this position was made absolutely clear by Crump, J., in the following words:
"The question, therefore, is whether on the words of that section it appears from this will that only a restricted interest was intended for him (Rustomji). That question must be answered by reading paras 8 and 10 together. The first sentence of para 10 refers to the directions in para 8, and reaffirms those directions. The testator had in mind that point of time when those directions had been carried into effect, that is to say, that Rustomji had attained the age of twenty-one years, and had been put in possession of the property. The will then proceeds and afterwards should my son Rustomji die, which God forbid, and should he then leave a son, such his son shall afterwards be the owner thereof. I agree with the learned trial Judge that the words 'should my son Rustomji die which God forbid' are no more than an euphemism and that the plain meaning is on the death of my son Rustomji'. The meaning is in substance 'after the death of Rustomji if he leaves a son his son shall be the owner of the property.'"
It was held that the testator intended only a life interest for Rustomji.
16. Mr. Prem Lall referred to Nisar Ali Khan v. Mohammad Ali Khan, 59 Ind App 268 = (AIR 1932 PC 172). In that case Haji Nawab Nasir Ali Khan executed two wills on 15-7-1896, one relating to the Oudh property and the other relating to the Punjab properties, Juliana and Rakh Khamba. These wills were, with one exception, identical mutatis mutandis. He appointed Nawab Fateh Ali Khan, son of his late brother, Nawab Nisar Ali Khan, as successor and executor of all his taluqdari estate giving him all the powers of an owner which he himself had after his death, provided the executor would remain alive. He further provided that after the lifetime of Nawab Fateh Ali Khan, his son Nawab Mohammad Ali Khan, should if alive, be his successor and he should also have the very same powers as had been bestowed on Nawab Fateh Ali Khan. After the lifetime of Nawab Mohammad Ali Khan, Nawab Hidayat Ali Khan, son of the other brother of the testator should be the successor of Nawab Mohammad Ali Khan, provided he be alive. After all those successors the fit amongst the descendants of the successors would have the right to succeed and the last legatee should have the power to nominate anyone as his successor whom he considered fit from amongst the descendants of each of the three successors; and if the last legatee would die without nominating his successor, the male descendants of each of the three successors were given the power to appoint as successor whomsoever they considered fit and superior amongst themselves.
The trial Judge held that upon the true construction of the wills Nawab Fateh Ali Khan took a life interest only and that after his death the respondent, Mohammad Ali Khan succeeded to the properties which the wills affected either as next tenant for life or as heir of Nawab Nasir. His conclusion, therefore, was that the respondent had made out his title to the Oudh and Juliana properties and he thus made a declaration of the respondent's right to possession of those properties. On appeal to the Chief Court of Oudh, the judgment of the trial Court was affirmed as to the Oudh and Juliana properties but it was reversed as to the Rakh Khamba and Khalikabad properties.
There was a deed of endowment on June 17, 1892, by Nasir Ali Khan in respect of the Khalikabad property. Both parties appealed to His Majesty in Council, and it was argued by the defendant appellant (Nisar Ali Khan) that the Courts below were wrong with regard to the Oudh and Juliana properties because the wills of Nawab Nasir upon their true construction conferred a series of absolute interests, and, therefore, that Nawab Fateh Ali Khan took absolutely as the taker of the first absolute interest, all subsequent interests and provisions being repugnant and bad.
Their Lordships of the Judicial Committee gave the opinion that the dominant intention of the testator as displayed by each of the wills was that the property should pass to three persons in succession and thereafter to someone or more persons selected in a specified manner. This intention was inconsistent with the idea of a series of absolute interests and could only be given effect to with such a series if each taker voluntarily denied himself the exercise of all power of alienation, inter vivos, and disposed of the property testamentarily to the next taker in accordance with the testator's scheme. Without a succession of limited interests the dominant intention could not have effect, and regarding each will as a whole their Lordships were of opinion that life interests only were conferred. This view received additional support from the fact that the gift to each subsequent taker was expressed to be to him if alive or provided he be alive and after the life-time of the previous taker and that the testator referred to all three named takers as his successors. The position thus is that the properties in question were to be taken by each successive legatee but after the death of the previous legatee. In other words, the successor legatee was to get the property after the death of the previous legatee. In view of those terms in the wills the provisions of Section 124 of the Succession Act were not at all applicable and there was no contingent bequest, as envisaged by that section.
17. Learned counsel then referred to Habibullah v. Ananga Mohan Roy, AIR 1942 Cal 571. One Abinash was married twice, and by his first wife who predeceased him he had a son named Abani. Ananga was the only son of Abani. The name of the second wife was Kumudini and she survived her husband, but she was childless, Abinash executed a will on 10-7-1909 disinheriting his only son Abani and making his second wife executrix. He gave the whole of his estate, moveable and immoveable including his eight annas share in the tenure, taluk Bishwanath Roy, to the second wife and made provisions for the devolution of his whole estate after her death. His grandson, Ananga, was to take that estate, according to the terms of the will, after Kumudini's death. The most important controversy in the suit and the appeal was about the nature of the estate conferred by the will on Kumudini, namely, whether it was a life estate or an absolute estate. The will consisted of 13 paragraphs and the interest of Kumudini was defined in one of the parts of paragraph 5 (indicated by their Lordships as paragraph 5 (b)). Some of the expressions used in that sub-paragraph seemed to be sufficient to confer an absolute estate on her, but in the other part of the same paragraph (marked sub-paragraph (c) of paragraph 5), the testator provided that after the death of his wife his grandson Ananga would take all his properties, if he did not forsake his religion. In that sub-paragraph words were used which conferred an absolute estate on Ananga. Relying upon the case of Nisar Ali Khan, 59 Ind App 268 = (AIR 1932 PC 172), their Lordships held that Kumudini bad only a life estate notwithstanding the terms of paragraph 5 (b) of the will and as such she had no power to make a will in respect of the tenure taluk Bishwanath Roy or to dedicate it to the deity. In that case the properties were first given to Kumudini, and after her Ananga was to take those properties I wish to point out that there was no contingent bequest which could attract the provisions of Section 124 of the Succession Act. Learned counsel referred to another decision of the Privy Council in 59 Ind App 419 = (AIR 1932 PC 269). The testator, one Romanath Ghose governed by the Bengal School of Hindu Law, died on 26-7-1904 leaving behind his widow and two sons, Sidheshwar Ghose and Akhoy Kumar Ghose, both of them at his death being infants of tender years. Romanath Ghose had executed a will on 30-10-1903 appointing his son-in-law (as he had a daughter as well), his widow and her brother and another named person and such and so many of his sons attaining the age of 22 years as shall be orthodox Hindus of good repute as the executors and trustees of his estate. In Clause 14 of the said will the testator provided as follows:
"......... I devise and bequeath the whole of my estate real or personal of any kind or description whatsoever and wheresoever situate to my said executors and trustees in trust for such of my sons as shall be living at my death or come into existence within twelve months after my death and also for the son or sons of such of my sons as shall then be dead (such son or sons taking the share their or his father would have taken hereunder had they or he been then alive) provided the said sons or son's sons shall be orthodox Hindus of good repute equally as tenants-in-common and the said sons or sons of my sons taking equally per stirpes as tenants-in-common, but nevertheless in the event of any sons or son's sons dying without leaving lineal male issue him surviving the other of my son or sons or son's sons living at the time shall be equally entitled to his or their share of the property as he or they would inherit under the Hindu Law, but should die without lineal male descendants the son or sons to be adopted by my wife shall inherit the whole of my residuary estate, but he shall not be put in possession until he attains the age of twenty-one years, and should any of my heirs or residuary legatees cease to be orthodox Hindus of good repute he shall forfeit a moiety of his share, which shall go to my other qualified heirs according to their respective shares".
The appellant's contention was that the terms of Clause 14 of the will in so far as the gift over was concerned were governed by the provisions of Section 124 of the Indian Succession Act. But this contention was negatived. Their Lordships pointed out that the death of a son or son's son referred to in that Clause was the death of one who had taken something under the original gift contained in it; that is to say, it was a death which must take place after that of the testator. This distinction was vital, and the application of Section 124 was ruled out, inasmuch as the testator had provided in Clause 14 for the possibility of a son dying without issue after his death, which was the period of distribution. This decision as well is of no assistance to the defendants.
18. Learned counsel referred to AIR 1963 SC 1703, and this was relied upon even by the learned Additional District Judge. In that case Girdharilal executed a will dated February 8, 1897, bequeathing his property, both moveable and immoveable, to his wife Mst. Kishen Del and adopted son. The adopted son predeceased Girdharilal. After the death of Girdharilal in the year 1923, Mst. Kishen Dei executed a will dated October 8, 1943, bequeathing the property in dispute, i. e., a house in Delhi to her brother's grandson Rameshwar Dass. A question arose as to whether under that will Mst. Kishen Dei got an absolute interest in the house. The Subordinate Judge held that she got an absolute interest, but on appeal the District Judge held that she got only a limited estate and therefore, she could not under a will confer any interest on the plaintiff respondent Rameshwar Dass. The plaintiff preferred a second appeal to the High Court of East Punjab at Simla. Khosla J. held that under the said will the testator gave a life interest to Mst. Kishen Dei and made a gift over to the adopted son, hut as the gift over failed the life estate became an absolute estate under Section 112 of the Indian Succession Act.
Alternatively, he also found that on the wording of the will Mst. Kishen Dei got an absolute interest in the property. In the result, his Lordship set aside the decree of the District Judge and restored that of the Subordinate Judge. The defendant preferred a Letters Patent Appeal against the said judgment, and it was held by a Division Bench that the Intention of the testator was that at any rate on the failure of the bequest to Nathi Mal (the adopted son) the testator's Widow Mst. Kishen Dei should take an absolute interest in his property. The Division Bench confirmed the judgment of Khosla, J. The defendant preferred an appeal in the Supreme Court. It was urged on behalf of the appellant that Mst. Kishen Dei was given only a life estate and, therefore, the plaintiff did not acquire any title to the property in question Their Lordships dealing with this contention observed as follows:
"These two bequests prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible: one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and, full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction the statement in the will relied upon by learned counsel for the appellant could also be reconciled with such a bequest".
Their Lordships dismissed the appeal. This case as well did not attract the provisions of Section 124. inasmuch as the bequest was at first to the wife and after her death to the adopted son, Nathi Mal.
19. Learned counsel referred to AIR 1964 SC 1323. (This was also relied upon by the learned Additional District Judge). Mrs. Mary Magdelene Coelho was the testatrix and she provided in Clause 3 (c) of the will executed by her on 25-7-1907 as follows:
"3 (c) All kinds of moveable properties that shall be in my possession and authority at the time of my death, i. e., all kinds of moveable properties inclusive of the amounts that shall be got from others and the cash; -- all these my eldest daughter Severina Sabina Coelho shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right ....."
The short question for decision in the appeal was whether under that clause the interest which the eldest daughter Severina took under the bequest was absolute or whether she had merely a life interest with the absolute remainder vesting in her male issues. The original will was in Canarese language. The learned Single Judge in the High Court accepted the following as the correct translation.
"All these (properties) shall after me be enjoyed by my eldest daughter Severina Sabina and after her life time by her male children too as permanent and absolute Hukdars".
It was pointed out that the bequest to Severina was 'to enjoy', and the testatrix proceeded to add that after the lifetime of Severina, her male issues were 'to have permanent and absolute rights in the same'. In other words, the very contrast in the phraseology led one irresistibly to the conclusion that the nature or quantum of Severina's interest was different from that of those who took after 'her lifetime'. It was held that the dominant intention of the testatrix was to confer a permanent and absolute remainder on the male issue of the daughter of the testatrix after the lifetime of the first donee and the words used were apt and capable of supporting such construction. The facts of that case also did not attract the provisions of Section 124 of the Indian Succession Act.
20. Learned counsel referred to Anukul Chandra Haldar v. Gurupada Haldar, AIR 1936 Cal 643. In that case Kinuram Haldar had executed a will by which he bequeathed the moveable and immoveable properties, ancestral and selfacquired, and the Government promissory notes, and the bonded warehouse shares and the money lying in deposit in the Savings Bank and all the other (properties) barring of course the properties described in the second paragraph of that will to his son Gurupada Haldar born of the womb of his third wife and gave his son absolute right and he was to enjoy the same down to his sons, grandsons and so on and heirs in succession (Clause 3 of the will). Clause 5 of that will, however, provided that out of the income of the properties left by him the expenses of the Seva of certain deities established by his ancestors shall be borne. According to Clause 3, there was an absolute bequest in favour of Gurupada of the properties mentioned therein. But it was contended on the basis of Clause 5 that the property was Debottar. In other words, the clause which gave absolute interest to Gurupada had practically been superseded by the subsequent clause, viz., Clause 5. This contention was repelled, and it was held that there was nothing in Clause 5 to sustain the contention that that clause gave any of the properties to any deity, and all that could be said was that the properties left by Kinuram should be charged with the worship of those deities.
This decision as well does not improve the case of the defendants. He then relied on N. Ramadasa Kamath v. M. Kalliani, AIR 1960 Ker 183. Vittappa had executed a will on 17-12-1931 dividing his estate under three lists. He bequeathed List 1 properties to Ganapathy, List 2 properties to Ramdas, Narasimha and Achutha along with other sons to be born of Mukunda and finally list 3 properties to his three daughters by his concubine subject in respect of all to certain terms and conditions detailed. The vital clause of the said will was that Ganapathy had then no male children and if no male children would be begotten by him until his death List 1 properties would alter his death devolve on List 2 legatees absolutely. Ganpathy died on 3-8-1951 without leaving any issue, but he left his widow Sharada. A controversy arose soon after between Sharada on the one side and Ramadas and his brothers on the other as to who should succeed to List 1 properties. The Courts below had come to the conclusion that the property devolved upon the second defendant, widow of Ganapathy and hence the plaintiff (N. Ramadasa Kamath) had filed several second appeals arising out of the various suits. It was contended on his behalf that there was an absolute bequest to Ganapathy regarding List 1 properties, but subject to a defeasance in the event of a contemplated contingency provided for in Section 131 of the Succession Act, corresponding to Section 28 of the Transfer of Property Act.
N. Varadaraja Iyengar, J., sitting singly, quoted the provisions of Section 131. His Lordship noted the distinction between a repugnant provision and a defeasance provision which was sometimes subtle and referred to a decision of this Court as well in Rameshwar Kuer v. Shiolal Upadhaya, AIR 1935 Pat 401. His Lordship held that the absolute estate of Ganapathy in respect of List I properties under the will was reduced to a mere life estate on the non-happening of the event of the birth of a male child to him and the estate went over to the plaintiff and his brother, holders of list 2 properties. It is true that the said will provided that if Ganapathy would not beget male children until his death, in that case list 1 properties were to devolve on List 2 legatees absolutely, but for the begetting of the male children a time limit was fixed, i.e., till the death of Ganapathy. The facts of that case did not exactly attract the provisions of Section 124 of the Indian Succession Act.
21. Learned counsel, lastly, referred to AIR 1935 Pat 401 in which the question of interpretation of a deed of gift dated 14-10-1917 executed by Mt. Ganga Kuer arose. She had only three daughters She provided that after her death "the three daughters aforesaid shall be the share-holders proprietresses of the properties gifted". According to that deed, all the three daughters had, in proportion to their respective shares, acquired full and absolute title with rights of transfer in respect of those properties. If the agreement had terminated at that point, each of the three daughters would be the absolute owner of one-third share in the estate given. The difficulty, however, arose by the concluding sentence at that deed which read thus:
"If any daughter, out of the three, dies Issueless the surviving daughters shall in equal shares be the absolute proprietresses of the properties specified below. I have therefore executed this deed of gift, so that it may be of use when required,"
Dhaneshar Kuer was the youngest of the daughters and she married the plaintiff in the year 1921, but later on she died without leaving an issue in May, 1923. The plaintiff sued the two surviving daughters, Rameshwar Kuer and Parmeshwar Kuer. for a declaration that the deceased Dhaneshar Kuer became the absolute owner of the share of the property transferred to her by the deed of gift. That claim was resisted by the defendants on the ground that upon the death of Dhaneshwar Kuer her share passed on to them. The contention of the defendants appellants was that the deed had to be read as a whole and the effect of that deed was to confer upon each of the daughters, in the first instance, a life estate, meaning thereby that if any daughter would die without leaving an issue, her life estate would terminate and pass on to the surviving daughters. On the other hand, the plaintiff contended that each of the daughters took an absolute estate and the last clause was mainly an attempt to change the course of inheritance. Courtney Terrell, C. J. (who presided in the Division Bench) noted in the judgment as follows:
"It is conceded however that the intention of the donor was as the construction proposed by the defendants would suggest, that is to say, that the donor intended to make a gift over to the surviving daughters if one of them should die issue-less."
Thereafter, his Lordship referred to the provisions of sections 28 and 31 of the Transfer of Property Act and also to those of Section 131 of the Succession Act, and held that the donor did not intend that the property should go to another family but should continue as long as possible in the hands of her daughters and the survivors of them and it could not have been in contemplation that either of the daughters would be at liberty so to dispose of her share of the property in her lifetime as to defeat the intention expressed in the last clause. The result was that those daughters took only life estate. In the first place, I have already referred to the concessions which were made on behalf of the plaintiff in that case that the intention was to make a gift over to the surviving daughters if one of them died issueless. In the second place, the case of AIR 1933 Pat 126, the judgment of which was delivered by Courtney Terrell, C. J. (Fazl Ali, J. agreeing with him), in which their Lordships relied on Section 124 of the Succession Act, does not seem to have been brought to their Lordships' notice in the case of Mt Rameshwar Kuer, AIR 1935 Pat 401 aforesaid. In the present appeal, the question is as to how the will of Bisheswar Sah is to be interpreted and understood, and for this purpose the case of Bashist Narain Sahi, AIR 1933 Pat 126 is relevant. The decision in Mt. Rameshwar Kuer, AIR 1935 Pat 401 has been noted in AIR 1966 Pat 40 which has already been referred to above.
22. On a careful consideration of the points urged by learned counsel for the parties I am of the view that there is no escape from the conclusion that the terms of the will in question do attract the provisions of Sections 124 and 131 of the Succession Act and Bhagwan Lal, not having died during the lifetime of Janki Kuer, the ultimate bequest in favour of the agnates (defendants) cannot take effect. The position thus is that Bhagwan Lal got an absolute interest by the said will and after the death of Bhagwan and his wife, the plaintiffs (who are the heirs of Bhagwan) are entitled to the properties mentioned in the will. The finding of the learned Additional District Judge that Bhagwan had only a life interest must be reversed for the reasons stated above.
23. Mr. J. C. Sinha for the appellants raised an alternative contention that Ramrati Kuer did not get any interest either limited or absolute by the said will, but she had remained in continuous possession of the house described in schedule No. 1 of the plaint since the death of Bhagwanlal and as such that possession must be deemed to be adverse. He further urged that after the death of Ramrati Kuer the plaintiffs were entitled to that house as being the heirs of Bhagwanlal. This contention cannot be, however, accepted for the simple reason that the testator himself has provided in the will that "after the death of Bhagwanlal and his wife" his legitimate issue shall enter into possession and occupation of the properties. In other words, the wife Ramrati Kuer was given a life interest and it was on that basis that she came in possession of the said house. Her possession cannot be deemed to be adverse during that period.
24. Mr. Nageshwar Saran (learned counsel for the appellants) while replying to the contentions advanced on behalf of the respondents submitted that Ramrati Kuer being in continuous possession of the disputed house after the death of her husband had acquired an absolute interest in the same, according to the provisions of Section 14 of the Hindu Succession Act. There is, however, one fallacy in this contention of learned counsel, inasmuch as absolute interest was in no event given to Ramrati Kuer by the will. The recital that "after the death of Bhagwanlal and his wife his legitimate male issue shall enter into possession and occupation thereof, as an absolute owner" cannot lead to the conelusion that the wife Ramrati Kuer got an absolute interest. It is true that Section 14 (1) of the Hindu Succession Act, 1956, provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as limited owner. But according to Sub-section (2) of that section, nothing contained in Sub-section (1) shall apply to any property acquired under a will prescribing a restricted estate in such property. The object of Sub-section (2) is that any such restricted estate created prior to the commencement of the aforesaid Act cannot be enlarged into full ownership by operation of Sub-section (1). I am thus of the view that Ramrati Kuer did not acquire an absolute interest, and her interest was a limited one. The plaintiffs thus cannot take any advantage on account of the possession of Ramrati Kuer in respect of the disputed property described in schedule No. 2 of the plaint, and the finding of the learned Additional District Judge in this respect must be held to be correct,
25. Lastly, learned counsel for the appellants submitted that the learned Additional District Judge had erred in holding that the acquisition by Bhagwan Lal of the southern and eastern portions which were parti lands had not been established. He made a grievance that the finding of the trial Court arrived at on a full consideration of the oral and documentary evidence adduced by the plaintiffs to the effect that Bhagwan had acquired those portions had been reversed summarily without dealing with the evidence on that point. The case of the plaintiffs was that Bhagwan had acquired those portions and had made some constructions with the result that the house of Bisheshwar Sah mentioned in schedule No. 1 of the plaint, and the portions acquired formed one compact block which was mentioned in schedule No. 2 of the plaint. In other words, the house mentioned in schedule No. 1 was included in schedule No. 2. In the trial Court issue No. 5 was as to whether any portion of the land mentioned in schedule No. 2 of the plaint was acquired by Bhagwanlal, and the Court held that that portion of land was acquired by him. In the appeal before the Additional District Judge only three points were argued by the learned Advocate for the appellants (of that appeal) and it will be relevant to quote the second point;
"......... on the evidence on the record it has been established that the part of Schedule 2 lands had been acquired by Bhagwan Lal and only Schedule 1 land was the property of Bisheshwar Sah but the same were so blended that the one could not be separated from the other".
(This appears from the judgment itself). The position appears to be that the acquisition of the portion of Schedule No. 2 lands by Bhagwan Lal was conceded by the learned Advocate and he did not at all challenge the finding of the trial Court in that respect which was in favour of the plaintiffs. The only contention raised by him was that on account of the blending of those parts of Schedule No. 2 lands with the land mentioned in Schedule No. 1, those parts could not be separated from the other.
26. I would now refer to the conclusion of the learned Additional District Judge on this point:
"The north facing residential house in village Godana belonged to Bisheshwar Sah and stood on holding No. 1079 and all these facts are gathered from the schedules of the properties attached to the present will. There is no doubt therefore that the plaintiff's case that it was Bhagwan Lal who had acquired the lands of Jagu and Ganduar Mahto finds established by the schedule of the will. There is no doubt that the circumstances mentioned aforesaid support the case of the plaintiff but in the absence of even any sale deed obtained from Gandaur Mahto and Ramnandan Gir it cannot be held specifically as to what area had been purchased by Bhagwan Lal. It was always for the plaintiffs to prove their claim with respect to the suit properties and in the absence of any conclusive evidence it cannot be held definitely that as to what portion has been purchased by Bhagwan Lal. Even the factum of sale has not been proved by the plaintiff nor the exact location of the land so purchased have been established by cogent and reliable evidence nor the identity of the purchased land could be ascertained in the absence of any conclusive evidence".
In the passage quoted above, the learned Additional District Judge seems to have believed the plaintiff's case that Bhagwan Lal had acquired the lands of Jaggu and Ganaur Mahto. In any event, the finding of the trial Court with regard to the acquisition was not challenged in the lower appellate Court and as such, the learned Judge unnecessarily looked for any evidence or conclusive evidence for establishing as to what portion was purchased by Bhagwan Lal. The finding regarding acquisition having been accepted, there was absoutely no question of proving the factum of sale. So far as the location of the lands acquired is concerned, it was made clear that on the eastern and southern portions of the house of Bisheshwar Sah some parti lands lay which were acquired by Bhagwan Lal. The position was that Bhagwan acquired title to the house of Bisheshwar by the will and apart from that he acquired those portions (all these were mentioned in schedule No. 2 of the plaint), with a total area of 4 kathas 5 dhurs. This entire area being in possession of Bhagwan at one time and later on in possession of his wife Ramrati Kuer, the question of inheritance arose after the death of Ramrati Kuer on 13-4-1958. There is no dispute that the plaintiffs are the heirs of Bhagwan and as such they are entitled to a decree in respect of schedule No. 2 lands. The trial Court was not right in mentioning in the order portion of the judgment that the plaintiffs' right, title and interest over Schedules 1 and 2 properties of the plaint were being declared. Relief had been asked for in respect of schedule No. 2 properties alone, inasmuch as that schedule included the house mentioned in schedule No. 1. The learned Additional District Judge was entirely wrong in not granting a decree to the plaintiffs in respect of schedule No. 2 lands.
27. In the result, the appeal is allowed in part and the judgments and decrees of the Courts below are modified. The suit of the plaintiffs is decreed in part as against the defendants to this extent that the title of the plaintiffs is declared in respect of the properties described in schedule No. 2 of the plaint and they are entitled to recover possession of the same with past mesne profits (as mentioned in Schedule IV of the plaint). The plaintiffs are entitled to the costs throughout in proportion to their success.
Dutta, J.
28. I agree.