Talkeshwari Devi Vs. Ram Ran Bikat
Prasad Singh & ANR [1972] INSC 12 (12 January 1972)
HEGDE, K.S.
HEGDE, K.S.
REDDY, P. JAGANMOHAN PALEKAR, D.G.
CITATION: 1972 AIR 639 1972 SCR (3) 71
ACT:
Indian Succession Act 1925-Ss. 124,
131-Scope-Will, construction of.
HEADNOTE:
By clause 4 of a will the testator bequeathed
to his granddaughters T and S an absolute right in the properties that were to
devolve on them after the death of his wife., Clause 5 further provided that if
one of the two granddaughters were to die issueless the other living grand
daughter was to enter into possession of the entire property as absolute owner.
After the death of the testator's wife T and S divided the properties which
devolved on them in equal shares. On S dying issueless T instituted a suit for
possession of the properties that fell to the share of S basing her claim on
clause 5 of the will. The suit was dismissed. Dismissing the appeal,
HELD : Clause 5 of the will relates to
devolution, it does not provide for any divestment of an estate which had
vested. The estate that vested in S under clause 4 of the will was not a
conditional estate, it was an absolute one.
The will does not provide for the divestment
of that estate.
Clause 5 would have come into operation if
the contingency mentioned therein had happened before the properties absolutely
devolved on T and S. What the testator intended was that if any of his granddaughters
died issueless before the devolution took place then the entire property should
go to another granddaughter. The intention of the testator is plain from the
language of the will. [73 E] Section 124 of the Indian Succession Act, 1925
applies to the facts of the case and not s. 131. The legacy claimed by the
appellant is unavailable as the contemplated contingency did not occur before
the fund bequeathed was payable or distributable. Section 131 provides for the
divestment of an estate which had already vested; it speaks of an estate going
over to another person. [74B] Norendra Nath Sircar and anr. v. Kamal Basini
Dasi, I.L.R.
23, Cal. 563, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 213 of 1967.
Appeal from the Judgment and order dated
February, 17th 1965 of the Patna High Court in First Appeal No. 113 of 1960.
M. C. Chagla, D. P. Singh, S. C. Agarwal, V.
J. Francis, R. Goburdhun and D. Goburdhun, for the appellant.
M. C. Setalvad, Sarjoo Prasad, A. G.
Ratnaparkhi and Rajiv Shah, for respondent No. 1.
The Judgment of the Court-was decided by
Hegde, J. In this appeal by certificate we are to consider the effect of the
will executed by one Raghunath Prasad Singh, on August 31, 1938. The said
testator died very soon after the execution of the will leaving behind him his
widow Jageshwar Kuer, 72 his daughter Satrupa Kuer and his two granddaughters
Talkeshwari Devi (the appellant herein) and Sheorani. The appellant and
Sheorani are the daughters of Sukhdeo Prasad Singh, the son of the testator who
had predeceased the testator. Jageshwar Kuer died in November 1948 and Sheorani
Devi on November 1, 1949 without leaving any issue. The dispute in this case is
as to who is entitled to the properties devolved on Sheorani under the
provisions of the will left by the testator. For deciding that question we have
to refer to the relevant provisions of the will. the genuineness or validity of
which is not in dispute.
The will in question provides that after the
death of the testator a portion of his properties (detailed in the will) was to
devolve on Jageshwar Kuer absolutely and the remaining properties are also to
devolve on her but therein she was to have only a life interest. The will
further provides that after her death "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 annas 8 pies (annas ten and eight pies) share will pass to both
the minor granddaughters, (1) Shrimati Talkeshwari Kuer alias Babu and (2)
Shrimati Sheorani Kuer alias Bachan in equal shares as absolute proprietary
interest" (cf. 4 of the will). Clause 5 of the will says :
"That if one of the two granddaughters
named above, dies issueless, then under such circumstances the other living granddaughter
will enter into possession and occupation of the entire 10 annas 8 pies and
become the absolute owner thereof." At the time of the death of the
testator, the appellant as well as Sheorani Kuer were minors. After the death
of Jageshwar Kuer, the appellant and her sister Sheorani Kuer divided the ten
annas eight pies share of the properties which devolved on them in equal shares
and each one came into possession of her share of the properties.
Immediately after the death of Sheorani Kuer,
the appellant instituted a suit for possession of the properties that fell to
the share of Sheorani Kuer purporting to base her claim on clause 5 of the will
to which we have earlier made reference. That suit was resisted by the first
defendant, the husband of Sheorani. He claimed that he was entitled to those
properties as the heir of his wife. The trial court dismissed the plaintiff's
suit and the decision of the trial court was upheld by the High Court.
It was contended on behalf of the appellant
that in view of clause 5 of the will, the appellant is entitled to the suit
properties 73 as Sheorani Kuer had died issueless. This contention, as
mentioned earlier, did not find favour either with the trial court or with the
appellate court. They have held that on a proper leading of the will as a
whole, it is clear that clause 5 ceased to be operative on the death of
Jageshwar Kuer, thereafter caluse 4 of the will was the only operative clause
so far as the rights of the appellant and Sheorani ware concerned.
It is undisputed that the duty of the court
is to find out the intention of the testator but that intention has to be
gathered from the language of the will read as a whole. I+ is clear from clause
4 of the will that the testator wanted to give to his grant-daughters an
absolute right in the properties that were to devolve on them after the death
of his wife, Jageshwar Kuer. The estate bequeathed under clause 4 of the will
is not a conditional estate. Clause 5 of the will relates to devolution and it
does not provide for any divestment of an estate which had vested. The estate
that vested on Sheorani was an absolute one. The will does not provide for the
divestment of that estate. It is plain from the language of clause 5 of the
will that it refers to the devolution, which means when the properties devolved
on the two sisters on the death of Jageshwar Kuer.
We are, unable to accept the contention of
Mr. M. C. Chagla, learned Counsel for the appellant that there is an-,-
conflict between clause 4 and clause 5 of the will. Clause 5 in our judgment
would have come into force if the contingency mentioned therein had happened
before the properties absolutely devoted on the two sisters. Clause 5 cannot be
considered as a defeasance clause. If the testator wanted that the bequest made
to any of his grand- daughters should stand divested on the happening of any
contingency, then he would have said so in the will, assuming that he could have
made such a provision. But the will nowhere says that the properties bequeathed
to the appellant and her sister should cease to be their properties on their
dying issueless. Obviously what the testator intended was that if any of his
grand-daughters dies issueless before the devolution took place then the entire
property should go to the other granddaughter. To our mind the intention of the
testator is plain from the language of the will.
To find out the effect of the will before us
we have to look to ss. 1-4 and 131 of the Indian Succession Act, 1925.
Section 124 says :
"Where a legacy is given if a specified
uncertain event shall happen and no time is mentioned in the will or be occurrence
of that event, the legacy cannot take effect, unless such event happens before
the period when the fund bequeathed is payable or distributable." -L864
Sup.CI/72 74 Illustration (ii) to that section says "A legacy is
bequeathed to A, and in the case of his death without children, to B. If A
survives the testator or dies in his lifetime leaving a child, the legacy to B
does not take effect." If s. 124 applies to the facts of the case, as we
think it does, then it is clear that the legacy claimed by the appellant is
unavailable as the contemplated contingency did not occur before the fund
bequeathed was payable or distributable. Section 124 deals with devolution. But
as we shall presently see s. 131 deals with divestment of an estate that had
vested. Mr. Chagla contends that the governing provision is S. 131. That
section says:
"A bequest may be made to any person
with the condition super added 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." had already vested. It speaks of an estate going over
to another person. As seen earlier clause 5 of the will is not a defeasance
clause.
A case somewhat similar to the one before us
came up for consideration before the Judicial Committee of the Privy Council in
Norendra Nath Sircar and anr. v. Kamal Basini Dasi(1) Therein a Hindu at his
death left three sons, the eldest of full age and the other two minors. In his
will were the directions "My three sons shall be entitled to enjoy all the
movable and immoveable properties left by me equally. Any one of the sons dying
sonless, the surviving son shall be entitled to all the properties equally".
Interpreting this clause the Judicial
Committee held that those 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 arriving at this
conclusion, the Judicial Committee relied on s. 111 of the Indian Succession
Act, 1865. That provision is similar to s. 124 of the Indian Succession Act,
1925.
For the reasons mentioned above we are in
agreement with the courts below that the suit brought by the appellant is un-
sustainable. This appeal is accordingly dismissed with costs.
Appeal dismissed.
K.B.N. Appeal dismissed.
(1) I.L.R. 23, Cal, 563
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