Mani & Ors Vs. Jagdish Prasad & Ors  Insc 31 (23 January 2002)
Khare & Ashok Bhan V. N. Khare, J.
Prasad was the owner of a house as well as certain other properties including Bhumadhari
land, situated at village Kakhra Kaurd, Pargana Naugarh, District Basti. Jamuna
Prasad had two wives - Smt Suraja Devi and Smt. Sona Devi. Jamuna Prasad
married Smt. Sona Devi after the death of his first wife Smt. Suraja Devi. Jamuna
Prasad had no male issue. He had three daughters from his first wife Smt. Surja
Devi Smt. Mishara, Smt. Partapa and Smt. Dulari. From second wife Smt. Sona Devi,
Jamuna Prasad had also three daughters Smt. Gunjan Devi, Smt. Ram Sanwari and Smt.
Dhupa. Smt. Mishara has a son Chandrakant. Smt. Partapa has three sons Ram Sureman,
Ram Ujagar and Ram Millan. Smt. Dulari has two sons Sesh Chandra and Ram
Chandra. Smt. Gunjan Devi daughter of Smt. Sona Devi, has a son Balbhaddar. Smt.
Ram Sanwari has a son Ram Kirpal and Smt. Dhupa has a son Bindhabasni.
the Hindu Succession Act came into force, Jamuna Prasad executed a Will dated
3.7.1956 bequeathing his entire property in favour of his second wife Smt. Sona
Devi and after her death subsequent bequeath was in favour of his daughters'
son (s) from both the wives. Jamuna Prasad died in 1961, whereas Smt. Sona Devi
died in 1964. On 4.9.1964, plaintiff nos. 1 to 3 who are respondents herein,
purchased the land through a sale deed from Ram Sureman, Ram Ujagar and Ram Millan
sons of Smt. Partapa. In the said sale deed, Smt. Partapa also joined as
vendor. On 24.3.1965, plaintiff no. 6 obtained sale deed from defendant no. 11 Chandrakant
in respect of his share in the property. On 4.2.1966, plaintiff nos. 4 and 5
who are respondents herein, obtained sale deed from defendant Sesh Chandra in
respect of his share in the property.
1.6.1966, the plaintiffs who were purchasers of the shares in the land filed a
suit out of which the present appeal arises, praying therein for a decree for a
sum of Rs. 1946.66 against defendant I and II sets by way of damages on account
of the defendants having wrongfully cut away the crop and, in the alternative,
for mesne profits - Rs. 330/- as damages in lieu of their share and for
partition of 4/9th share in the disputed house and for joint possession to the
extent of their shares in the disputed Bhumidhari lands.
plaintiffs' case was that Smt. Sona Devi obtained a limited estate on the death
of Jamuna Prasad under the will and after her death, all the nine sons of the
daughters from both the wives inherited the property in accordance with the
provisions of the Will. Defendant nos. 1 to 10 contested the suit.
case was that Smt. Sona Devi second wife of Jamuna Prasad, through the Will
obtained an absolute estate and became full owner of the property on the death
of Jamuna Prasad, and in that view of the matter, any subsequent bequeath in
the same Will in favour of daughters' sons was invalid. It was also their case
that after the death of Smt. Sona Devi, her daughters succeeded to her interest
in respect of Bhumadhari plots under Section 174 of U.P. Zamindari Abolition
& Land Reforms Act, 1950 (hereinafter referred to as the Act). The trial
court was of the view that Smt. Sona Devi having obtained an absolute estate
under the Will executed by Jamuna Prasad, the subsequent bequeath in the said
Will in favour of daughters' sons was invalid and, therefore, the daughters'
sons from first wife Smt. Surja Devi were not entitled to inherit the property.
The appeal preferred by the plaintiffs-respondents was also dismissed by the
first appellate court and decree of the trial court was affirmed. However, in
the second appeal, filed by the plaintiffs-respondents, the High Court came to
the view that under the Will Smt. Sona Devi got only restricted or limited
right and, therefore, after her death all the daughters' sons from his first
wife as well as his second wife were entitled to inherit the property. In that
view of the matter, the second appeal was allowed and the suit stood decreed.
It is against the said judgment of the High Court, the appellants are in appeal
by way of special leave petition.
case of the appellants is that under the Will, Smt.Sona Devi acquired an
absolute estate and any subsequent bequeath in the same Will in favour of the
daughters' sons was repugnant to the absolute interest created in favour of Smt.
Sona Devi and, therefore, invalid. On the other hand, it was argued on behalf
of the respondents that the Will has to be read as a whole and an effort should
be made to give effect the wishes of the testator and, in that view of the
matter, all the sons of the daughters of Jamuna Prasad would inherit the
property left by Jamuna Prasad.
argument of learned counsel for the parties, the questions that arise for
consideration are these:
under the Will Jamuna Prasad bequeathed an absolute estate in favour of his
second wife Smt. Sona Devi or restricted right;
whether the subsequent bequeath in the Will in favour of the sons of the
daughters of Jamuna Prasad is invalid if it is found that Jamuna Prasad
bequeathed an absolute interest in the property in favour of his second wife Smt.
Sona Devi; and
whether all the sons of all the daughters of Jamuna Prasad would inherit under
the Act, if it is found that Jamuna Prasad bequeathed an absolute estate in favour
of his second wife Smt. Sona Devi.
first and the second question are overlapping and, we shall, therefore,
consider both the questions together. Ordinarily, the rule of construction of a
Will is that a Will (bequeath) has to be read in its entirety and effort should
be made that no part of it is excluded or made redundant.
other words, it is the duty of the Court to reconcile if there is any apparent
inconsistency in a Will. In Radha Sundar Dutta vs. Mohd. Jahadur Rahim and
others 1959 SCR 1309, it was held that if there be admissible two constructions
of a document, one of which will give effect to all the clauses therein while
the other will render one or more of them nugatory, it is the former that
should be adopted on the principle expressed in the maxim 'ut res magis valeat quam
shall now look into the Will in the light of the rule of construction
propounded by this Court in Radha Sundar Dutta vs. Mohd. Jahadur Rahim (supra).
The relevant clause of the Will is as under:
nama haza iqrar karte vo likh dete hai ki bad vafat Mukir mere Jumla tarka mol mankoola
vo ghair mankoola vo jumla asasulbat vo arazi sir vo khudkast vo makan vo bag bagaicha
gharz jo kuch bhi maujood rahe uske pane ki musthak phalay jauza mukir ba akhtiyar
intakal hogi jiska nam Sona Devi hai vo bad wafat Sona Devi ke Ram Sureman vo
ram ujagair vo Ram Milan haikki hamare hai, honge." The English
translation of first part of Will is :
testator is wife whose name is Smt. Sona Devi, would be entitled to the entire
assets and properties with the right of transfer and after death of Sona Devi.."
The first part of the Will provided that after the death of the testator or
author of the Will, his wife whose name is Smt. Sona Devi would be entitled to
the entire assets and properties of Jamuna Prasad with the right of transfer.
The second part of the Will is that after the death of Smt. Sona Devi nine sons
of daughters' would inherit the property. Here what we are concerned with is
whether Smt. Sona Devi has acquired an absolute estate or a limited estate
under the Will. In this connection the employment of words "Pane ki Musthak"
and "ba Akhtiar Intakal" in the Will which means entitlement of
properties with the right of transfer are very relevant. It is obvious from the
aforesaid clause that the testator conferred on an estate by providing that the
wife would be entitled to get the property with right of alienation. Where the
property has been given by a testator to the devisee with a right of alienation
such bequeath is a conferment of an absolute estate. Thus the first devisee was
to get the property with a right of transfer under the Will and under
subsequent clause the very same property was to go to the nine sons of the
daughters after the death of the first devisee. The Will, therefore, gave in
the express term inheritable estate with power of alienation to Smt. Sona Devi.
We are, therefore, very clear in our mind that what was given to Smt. Sona Devi
was an unlimited and an absolute estate.
next question that arises for consideration is, the validity of the second part
of the Will whereby and whereunder the testator gave the very same property to
nine sons of his daughters.
and another vs. Kamalnarayan 1963 Suppl. (2) SCR 417, it was held that in a
disposition of properties, if there is a clear conflict between what is said in
one part of the document and in another where in an earlier part of the
document some property is given absolutely to one person but later on, other
directions about the same property are given which conflict with and take away
from the absolute title given in the earlier portion, in such a conflict the
earlier disposition of absolute title should prevail and the later directions
of disposition should be disregarded. In was held where there is conflict
between the earlier clause and the later clauses and it is not possible to give
effect to all of them, then the rule of construction is well established that it
is the earlier clause that must override the later clauses and not vice versa.
In Rameshwar Bakhsh Singh and others vs. Balraj Kuar and others AIR 1935 Privy
Council 187, it was laid down that where an absolute estate is created by Will
in favour of devisee, the clauses in the Will which are repugnant to such
absolute estate cannot cut down the estate; but they must be held to be
the decisions referred to above, the legal principle that emerges, inter alia,
are - 1) where under a Will, a testator has bequeathed his an absolute interest
in the property in favour of his wife, any subsequent bequeath which is
repugnant to the first bequeath would be invalid; and 2) where a testator has
given a restricted or limited right in his property to his widow, it is open to
the testator to bequeath the property after the death of his wife in the same
view of the aforesaid principles that once the testator has given an absolute
right and interest in his entire property to a devisee it is not open to the
testator to further bequeath the same property in favour of second set of
persons in the same Will. A testator cannot create successive legatees in his
will. The object behind is that once an absolute right is vested in the first
devisee the testator cannot change the line of succession of first devisee.
a testator having conferred an absolute right on anyone the subsequent bequeath
for the same property in favour of other persons would be repugnant to the
first bequeath in the Will and has to be held invalid. In the present case the
testator Jamuna Prasad under the Will had bequeath his entire estate movable
and immovable property including the land in self- cultivation, house and
groves etc. to his wife Smt. Sona Devi and thereafter by subsequent bequeath
the testator gave the same very properties to nine sons of of his daughters
which was not permissible. We have already recorded a finding that under the
Will Smt. Sona Devi had got an absolute estate and, therefore, subsequent
bequeath in the Will by Jamuna Prasad in favour of nine daughters' sons was
repugnant to the first bequeath and, therefore, invalid. We are, therefore, of
the view that once the testator has given an absolute estate in favour of first
devisee it is not open to him to further bequeath the same very property in favour
of second set of persons.
to the third question. Under Section 169 of the Act, a Bhumidhar with a
transferable right is entitle to bequeath his holdings or any part thereof in favour
of any one except as what is provided therein. In the present case, Jamuna
Prasad by virtue of his Will has bequeathed an absolute interest in the Bhumadhari
land in favour of Smt. Sona Devi and by virtue of the said Will, Smt. Sona Devi
being a legatee acquired Bhumidari rights after the death of Jamuna Prasad. It
is true that under Section 171(2) (g) of the Act, the married daughters of Jamuna
Prasad were entitled to succeed to the Bhumidhari plots of land. But in the
present case, Smt. Sona Devi did not inherit the property (Bhumadhari land) as
a widow of Jamuna Prasad but succeeded to the Bhumidhari land as legatee of Jamuna
Prasad in pursuance of the Will dated 3.7.1958. The law does not permit a Bhumidhar
to create successive legatees under a Will. It is open to him to make a
bequeath of his Bhumadhari land in favour of whomsoever he wants but he cannot
create further succession contrary to the provisions of the Act. The second
part of the Will created succession in favour of daughters' sons which was
contrary and repugnant to the provisions of the Act. In the present case, Smt. Sona
Devi having obtained an absolute estate (interest in the Bhumadhari land) under
the Will and not as a widow of Jamuna Prasad, the succession to such holding
after the death of Smt. Sona Devi shall be governed by the provisions of
Section 174 of the Act and not under Section 172 of the Act.
that view of the matter, after the death of Smt. Sona Devi, her daughters' and
thereafter their sons would succeed to the holding and not all daughters' sons
of Jamuna Prasad.
the aforesaid reasons, this appeal deserves to succeed. The judgments under
challenge is set aside. The appeal is allowed. There shall be no order as to