Raj Bajrang Bahadur Singh Vs.
Thakurain Bakhtraj Kuer  INSC 56 (7 November 1952)
AIYAR, N. CHANDRASEKHARA BHAGWATI, NATWARLAL
CITATION: 1953 AIR 7 1953 SCR 232
CITATOR INFO :
RF 1963 SC 890 (17) R 1976 SC 794 (8)
Oudh Estates Act (I of 1869) s. 14- Will of
Taluqdar Bequest as absolute owner" without right to transfer-Validity-
Succession to legatee whether governed by Act or ordinary law-Creation of
successive estates - Validity-Rule against perpetuities-Construction
-"Malik Kamil", "Naslan bad naslan".
The Oudh Estates Act (Act I of 1869) does not
interdict the creation of future estates and limitations provided they do not
transgress the rule of perpetuities and where a disposition by a will made by a
taluqdar does not make the legatee an absolute owner but gives him only an
interest for life which is followed by subsequent interests created in favour
of other persons the rule of succession laid down in s. 14 of the Act will not
apply on the death of the donee and the property bequeathed to him will pass
according to the will to the next person entitled to it under the will, 233 The
words malik kamil (absolute owner) and naslan bad naslan (generation after
generation) are descriptive of a heritable and alienable estate in the donee
and they connote full proprietary rights unless there is something in the
context or in the surrounding circumstances which indicate that absolute rights
were not intended to be conferred. In all such cases 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.
In cases where the intention of the testator
is to grant an absolute estate, an attempt to reduce the powers of the owner by
imposing restraint on alienation would be repelled on the ground of repugnancy;
but where the restrictions are the primary things which the testator desires
and they are consistent with the whole tenor of the will, it is a material
circumstance to be relied on for displacing the presumption of absolute
ownership implied in the use of the word malik.
Though under the rule laid down in Tagore v.
Tagore (18 W.R., 369) no interest could be created in favour of unborn persons,
yet when a gift is made to a class or series of persons, some of whom are in
existence at the time of the testator's death and some are not, it does not
fail in its entirety ; it will be valid with regard to the persons who are in
existence at the time of the testator's death and invalid as to the rest.
A will made by a taluqdar of Oudh recited
that with a view that after his death his younger son D and his heirs and
successors, -generation after generation, may not feel any trouble or create
any quarrel, D shall after the testator's death remain in possession of
-certain villages as absolute owner, with the reservation that he will have no
right to transfer, that if D may not be living at the time of his death D's son
or whoever may be his male heir or widow may remain in possession and that
although D and his heirs are not given the power of transfer they will exercise
all other rights of absolute ownership: Held, that the will did not confer an absolute
estate on D and on D's death the succession was not governed by s. 14 of the
Oudh Estates Act and D's widow was entitled to succeed in preference to D's
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 147 of 1951.
Appeal from the Judgment and Decree dated
September 4, 1946, of the late Chief Court of Oudh- (now the High Court of
Judicature at Allahabad, Lucknow Bench) (Misra and Wallford JJ.) in First Civil
Appeal No. 139 of 1941, arising out of the Judgment,and Decree dated October 23,
1941, of the Court of the Civil Judge, Bahraich, in Regular Suit No. I of 1941.
234 Onkar Nath Srivastava for the appellant.
Bishan Singh for the respondent.
1952. November 7. The Judgment of the Court
was delivered by MUKHERJEA J.-This appeal is on behalf of the plaintiff and is
directed against a judgment and decree of the Chief Court of Avadh dated
September 4, 1946, affirming, on appeal, those of the Civil Judge, Bahraich,
passed in Regular Suit No. 1 of 1941.
To appreciate the controversy between the
parties to this appeal it would be necessary to state a few facts. One Raja
Bisheshwar Bux Singh, the father of the plaintiff and of the defendant's
husband, was a taluqdar of Oudh, and the estate known as Gangwat Estate, to
which he succeeded in 1925 on the death of the widow of the last holder, is one
to which the Oudh Estates Act (I of,1869) applies. Raja Bisheshwar died on 16th
October, 1930, leaving behind him two sons, the elder of whom, Bajrang Bahadur,
is the plaintiff in the present litigation, while the younger, whose name was
Dhuj Singh, has died since then, being survived by his widow Bakhtraj Kuer. who
is the defendant in the suit. Shortly before his death Raja Bisheshwar executed
a will dated 11th September, 1929, by which five properties, described in lists
A and B attached to the plaint, were bequeathed to Dhuj Singh, the younger son,
by way of making provisions for the maintenance of the said son and his heirs.
On the death of Raja Bisheshwar,the estatement to the plaintiff as his eldest
son under the provisions of the Oudh Estates Act and Dhuj Singh got only he
five properties mentioned above under the terms of his father's will. Dhuj
Singh had no issue of his own and on his death in 1940 disputes arose in
respect of these properties between the plaintiff on the one land and Dhuj
Singh's widow on the other. The plaintiff succeeded at first in having his name
mutated as owner of these properties in the revenue records in place of his
deceased brother, but the appellate 235 revenue authority ultimately set aside
this order and directed mutation to be made in the name of the defendant.
The plaintiff thereupon commenced the suit
out of which this appeal arises, praying for declaration of his title to the
five properties mentioned above on the allegation that they vested in him on
the death of Dhuj Singh and that the defendant could not) in law, assert any
right to, the same.
It may be stated here that four out of these
five properties have been described in list A to the plaint and there is no
dispute that they are taluqdari properties. The fifth item is set out in list B
and admittedly this property is not taluqdari in its character. Besides lists A
and B there is a third list, viz., Catached to the plaint, which mentions two
other properties as being in possession of the defendant and in the plaint a
claim was made on behalf of the plaintiff in respect to these properties as
well, although they were not covered by the will of Bisheshwar. This claim,
however, was abandoned in course of the trial and we are not concerned with it
in the present appeal.
The plaintiff really rested his case on a
It was averred in the first place that Dhuj
Singh had only a life interest in the properties bequeathed to him by
Bisheshwar and on the termination of his life interest, the property vested in
the plaintiff as the heir of the late Raja. In the alternative the case put
forward was that even if Dhuj Singh had an absolute interest created in his
favour under the terms of his father's will, the plaintiff was entitled to
succeed to the taluqdari properties at any rate, under the provision of section
14(b) read with section 22 (5) of the Oudh Estates Act.
The defendant in her written statement
resisted the plaintiff's claim primarily on the ground that Bisheshwar Bux
Singh, as the full owner of the properties, was competent to dispose of them in
any way he liked and under his will it was the defendant and not the plaintiff
in whom the properties vested after the death of Dhuj Singh. The contention, in
. substance, was that the will created a life estate for Dhuj 236 Singh
followed by a devise in favour of the widow as his personal heir.
The decision of the point in dispute between
the parties thus hinges on the proper construction of the will left by
Bisheshwar. The trial court after an elaborate consideration of the different
portions of the will, viewed in the light of surrounding circumstances, came to
the conclusion that Dhuj Singh got a life interest in the devised properties
but there were similar life estates created in favour of his personal heirs in
succession, the ultimate remainder being given to the holder of the estate when
the line of personal heirs would become extinct. The defendant, therefore, was
held entitled to the suit properties so long as she was alive and in that view
the plaintiff's suit was dismissed. Against this decision, the plaintiff took
an appeal to the Chief Court of Avadh and the Chief Court affirmed the decision
of the trial judge and dismissed the appeal. The plaintiff has now come, up to
this court on the strength of a certificate granted by the High Court of
Allahabad with which the Chief Court of Avadh was amalgamated sometime after
the disposal of this case.
The learned counsel appearing for the
appellant first of all drew our attention to the provisions contained in
certain sections of the Oudh Estates Act and it was urged by him on the basis
of these provisions that as Dhuj Singh, who got the suit properties under the
will of his father, the late. Taluqdar, came within the category of persons
enumerated in clause (1) of section 13-A, Oudh Estates Act, he could, under
section 14 of the Act, hold the properties subject to the same conditions and
the same rules of succession as were applicable to the, taluqdari himself. In
these circumstances, it is said that the provisions of section 22 (5) of the
Act would be attracted to the facts of this case and the plaintiff, as the
brother of Dhuj Siugh, would be entitled to succeed to the properties of the
latter in preference to his widow.
The argument formulated in this way does not
I appear to us to be helpful to the appellant. Section. 11 237 of the Oudh
Estates Act confers very wide powers of disposition upon a taluqdar and he is
competent under the section "to transfer the whole or any portion of his
estate, or of his right and interest therein, during his lifetime, by sale,
exchange, mortgage, lease or gift, and to bequeath by his will to any person
the whole or any portion of such estate, and interest." Sections 13 and
13-A make certain special provisions in cases of transfers by way of gift and
bequest in favour of certain specified persons and lay down the formalities
which are to be complied with in such cases.
Section 14 then provides that "if any
taluqdar or grantee, or his heir or legatee, shall heretofore have transferred
or bequeathed, or if any taluqdar:or grantee, or his heir or legatee shall
hereafter transfer or bequeath the whole or any portion of his estate- (a)
(b) to any of the persons mentioned in
clauses (1) and (2) of section. 13-A, the transferee or legatee and his heirs
and legatees shall have same rights and powers in regard to the property to
which he or they may have become entitled under or by virtue of such transfer
or bequest, and shall hold the same subject to the same conditions and to the
same rules of succession as the transferor or testator." It is true that
Dhuj Singh being a younger son of the testator came within the purview of
clause (1) of section 13-A of the Oudh Estates Act and if he became full owner
of the properties under the will of his father, succession to such properties
after his death would certainly be regulated by the special rules of succession
laid down in the Oudh Estates Act, and not by the ordinary law of inheritance.
But section 14 would have no application if
the disposition by the will did not make Dhuj Singh an absolute owner of the
properties and he was given only an interest for life which was followed by
subsequent interests created in favour of 31 238 It cannot also be contended
that a taluqdar governed by the Oudh Estates Act cannot convey anything less
than his absolute proprietary right in a property by transfer inter vivos or by
will, or that 'it is not competent for him to create any limited interest or
future estate. Apart from the plenary provision contained in section 11,
section 12 of the Act which makes the rule against perpetuity applicable to
transfers made by a taluqdar, furnishes a clear indication that the Act does
not interdict the creation of future; estates and limitations provided they do
not trans- gress the perpetuity rule.
The questions, therefore, which require
consideration in this case are really two in number. The first is whether Dhuj
Singh got an absolute estate or an estate for life in the properties given to,
him by the will of Raja Bisheshwar? If he got an absolute estate, the
contention of the appellant should undoubtedly prevail with regard to the
taluqdari properties specified in list A of the plaint. If, on the other hand,,
the interest was one which was to inure only for the period of his life, the
further question would arise as to whether any subsequent interest was validly
created by the will in favour of the widow on the strength of which she can
resist the plaintiff's claim. If the life estate was created in favour of Dhuj
Singh alone, obviously the plaintiff as the heir of the grantor would be
entitled to come in as reversioner after his death .
The answers to both the questions would have
to be given on a proper construction of the will left by Raja Bisheshwar. The
will has been rightly described by the trial judge as a most inartistic
document with no pretension to any precision of language, and apparently it was
drawn up by a man who was not acquainted with legal phraseology. The Civil
Judge himself made a translation of the document, dividing its contents into
several paragraphs and this was found useful and convenient by the learned
Judges of the Chief Court. The material portions of the will, as translated by
the -trial judge, may be set out as follows:- 239 "As I have become
sufficiently old and no reliance can be placed on life, by God's grace I have
got two sons namely, Bajrang Bahadur Singh, the elder, and Dhuj Singh the
younger. After my death the elder son would according to rule, become the Raja,
the younger one is simply entitled to maintenance.
1. Consequently with a view that after my
death the younger son and his heirs and successors, generation after
generation, may not feel any trouble and that there may not be any quarrel
2. I have decided after a full consideration
that I should execute a will in favour of Dhuj Singh with respect to the
villages detailed below.
3. So that after my death Dhuj Singh may
remain in possession of those villages as an absolute owner with the
reservation that he will have no right of transfer.
4. If God forbid, Dhuj Singh may not be
living a the time of my death, his son or whoever may be his male heir or widow
may remain in possession of the said villages on payment of the Government
revenue as an absolute owner.
5. The liability for the land revenue of the
said villages will be with Dhuj Singh and his heirs and successors; the estate
will have no concern with it.
6. Although Dhuj Singh and his heirs are not
given: the power of transfer, they will exercise all other rights of absolute
ownership that is to say, the result is that the proprietor of the estate or my
other heirs and successors will not eject Dhuj Singh or his heirs or successors
in any way.
7. Of course if Dhuj Singh or his heirs
become ever heirless then the said villages will not escheat to the Government
but will revert and form part of the estate.
8. Hence with the soundness of my mind
without any force or pressure and after having fully under-, stood and also
having thought it proper I execute this will in favour of Dhuj Singh, my own
;on, with the above-mentioned terms." 240 The learned counsel for the
appellant naturally lays stress upon the words "absolute owner "
(Malik kamil) and "'generation after generation?' (naslan bad naslan) used
in reference to the interest which Dhuj Singh was to, take under the will.
These words, it cannot be, disputed, are descriptive of a heritable and
alienable estate in the donee, and they connote full proprietary rights unless
there is something in the context or in the surrounding circumstances which
indicate that absolute rights were not intended to, be conferred. In all such
cases the true intention of the testor 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.
"The object of the testator in executing
the will clearly set out in the preamble to the document and in spite of the
somewhat clumsy drafting that object to have been kept in view by the testator
throughout, in making the provisions.
The language and tenor of the document leave
no doubt in OUT minds that the dominant intention of the testator was to make
provision not for Dhuj Singh alone but for the benefit of his heirs and
successors, " generation after generation " as the expression -has
been used. The expression " heirs" in this context obviously means
and refers to the personal heirs of Dhuj Singh determined according to the,
general law of inheritance and not the successors to the estate under the
special provisions of the Oudh Estates Act, for paragraph 6 of the will
mentioned above is expressly intended to protect the personal heirs of Dhuj Singh
from eviction from the properties in question by the future holders of the
Thus the beneficiaries under the will are
Dhuj Singh himself and his-heirs in succession and to each such heir or set of
heirs the rights of malik are given but without any power of alienation. On the
total, extinction of this line of heirs the properties affected by-the will are
to revert to the estate. As it was the intention of the testator that the
properties should 241 remain intact till the line of Dhuj Singh was exhausted
and each successor was to enjoy and hold the properties without any power of
alienation, obviously what the testator wanted was to create a series of life
estates one after another, the ultimate reversion being given to the parent
estate when there was a complete failure of heirs. To what extent such
intention could be, given effect to by law is another matter and that we shall
consider presently. But it can be said without hesitation that it was not the
intention of the testator to confer anything but a life estate upon Dhuj Singh
in respect of the properties covered by the will. The clause in the will
imposing total restraint -on alienation is also a pointer in the same
direction. In cases where the intention of the testator is to grant an absolute
estate, an attempt to reduce the powers of the owner by imposing restraint on
alienation would certainly be repelled on the ground 'of repugnancy; but where
the restrictions are the primary things which the testator desires and they are
consistent with the whole tenor of the Will, it is a material circumstance to
be relied upon for displacing the presumption of absolute ownership implied in
the use of the word "malik". We hold, therefore, that the courts
below were right in holding that Dhuj Singh had only a life interest in the
properties under the terms of his father's will.
Of course this by itself gives no comfort to
she has to establish, in order that she may
be able to resist the plaintiff's claim, that the will created an independent interest
in her favour following the death of Dhuj Singh. As we have said already, the
testator did intend to create successive life estates in favour of the
successive heirs of Dhuj Singh. This, it is contended by the Appellant is not
permissible in law and he relies on the case of Tagore v. Tagore(1). It is
quite true that no interest could be created in favour of an unborn person but
when the gift is made to a class or series of persons, some of (1) 18 Weekly
242 whom are in existence and some are not,
it does not fail in its entirety; it is valid with regard to the persons who
are in existence at the time of the testator's death and is invalid as to the
rest. The Widow, who is the next heir of Dhuj Singh, was in existence when the
testator died and the life interest created in her favour should certainly
take- effect. She thus acquired under the will an interest in the suit
properties after the death of her husband, commensurate with the period of her
own natural life and the plaintiff consequently has no present right to,
possession. The result, therefore, is that the appeal fails and is dismissed
Agent for the appellant Rajinder Narain.
Agent for the respondent: S. S. Shukla.