JUDGMENT
1. This is plaintiff’s first appeal. In this appeal, the appellant has called in question the correctness of the judgment and decree dated 29th August, 1994 made in O.S. No. 61 of 1992 by the Court of Principal Civil Judge and C.J.M., Mangalore.
2. The parties to this appeal will hereinafter be referred to with reference to their ranking before the lower Court.
3. The plaintiff is the daughter of one late Denis A.J. Saldanha. The plaintiff and her brother, one late Francis M.B. Saldanha, who is the husband of the second defendant, were the only children to the said Denis A.J. Saldanha. Mrs. Rosalie Saldanha was the wife of the said Denis A.J. Saldanha.
4. Denis A.J. Saldanha had executed his last Will and testimony on 25th of December, 1972. He expired on 6th April, 1975. The Will executed by him was probated as P and SC No. 47 of 1975, on the file of the Court of District Judge, Dakshina Kannada, Mangalore. Late Francis M.B. Saldanha was the executor named in the Will. Probate dated 28th of October, 1975 was granted in the name of Francis M.B. Saldanha. As per the terms of the Will (Exhibit P. 1), late Denis A.J. Saldanha had bequeathed immovable property in all measuring 30 cents in R.S. No. 837 and T.S. No. 651, which is the subject-matter of dispute in this
appeal, in favour of his son, late Francis M.E. Saldanha subject to certain terms and conditions. The said Francis M.B. Saldanha and his mother, late Mrs. Rosaline Saldanha, by means of registered sale deed dated 28th of February, 1981, sold an extent of land measuring 20.75 cents out of 30 cents of land in R.S. No. 837 and T.S. No, 651, to first defendant-Mervyin J.A. Menezes. The said immovable property has been shown as Item No. I, in the Schedule given to the plaint and the remaining 9.25 cents of land in R.S. No. 837 has been shown as Item No. II in the Schedule given to the plaint.
5. The plaintiff filed suit O.S. No. 61 of 1992 before the Court of Civil Judge and CJM., Mangalore, seeking for a declaration that she is the absolute owner of Item No. I of the plaint schedule property as per the last Will and testimony of late Denis A. J. Saldanha dated 25th December, 1972 (Exhibit P. 1) and reversionary right insofar as Item No. II of the plaint schedule; and for payment of mesne profits. According to the averments made by the plaintiff, neither her brother, late Francis M.B. Saldanha nor her mother, Mrs. Rosaline Saldanha had any alienable right over the suit schedule property; and as such, the sale of Item No. I of the suit schedule property by means of sale deed dated 28th of February, 1982, is void in law and not binding on the plaintiff. It is her further case that since Francis M.B. Saldanha died without issue, in view of the specific clause in the Will that the property should go to the plaintiff if the said Francis M.B. Saldanha died issueless, the sale of Item No. I of the plaint schedule property is void and not binding on her.
6. The claim of the plaintiff was resisted by the defendants. It is their case that the bequest made to the plaintiff was contingent on the occurrence of an uncertain event, namely, the death of late Francis M.B. Saldanha without any issue; and since no time was mentioned in the Will for occurrence of the event and the event did not happen before the testator’s death, the testator’s son, the aforesaid Francis M.B. Saldanha having survived the testator and the contingency of his death without any issue having occurred after the absolute bequest to him had taken effect, there was no occasion for the contingent bequest to become operative in favour of the plaintiff.
7. On the basis of the pleadings of the parties, the Trial Court framed as many as nine Issues including two additional issues. However, since Issue Nos. 1 and 2 and additional Issue Nos. 1 and 2 are relevant for the purpose of disposal of this appeal, it is useful to extract the same. They read as hereunder:
Main Issues:
(1) Whether the plaintiff proves that she is the absolute owner of Item No. 1 of the plaint schedule property as per the Will and testament of her father, Denis A.J. Saldanha dated 25-12-1972?
(2) Whether plaintiff proves that she has got reversionary right in respect of Item No. II of plaint schedule property as per the Will and testament of her father, Denis A.J. Saldanha dated 25-12-
1972?
Additional Issues:
(1) Whether the defendants prove that the bequest under the Will dated 25-12-1972 of late Denis A.J. Saldanha in favour of late Francis M.B. Saldanha was an absolute bequest as contended by them in para 5 of the written statement?
(2) Whether the sale deed dated 28-2-1981 executed by late Francis M.B. Saldanha and late Mrs. Rosaline Saldanha in favour of the 1st defendant is not valid and binding on the plaintiff?
In the course of the trial, the plaintiff examined herself as P.W. 1 and got marked seven documents as Exhibits P, 1 to P. 7. However, the defendant did not lead any evidence. The Trial Court, on the basis of the material on record and interpretation of Sections 124 and 131 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”) held Issue Nos. 1 and 2 and Additional Issue Nos. \ and 2 against the plaintiff; and consequently, dismissed the suit, by its judgment and decree dated 29th August, 1994. Aggrieved by the said judgment and decree, this appeal is presented.
8. Sri Rajanna, learned Counsel appearing for the appellant, challenging the correctness of the judgment and decree passed by the Trial Court, contended that in view of the stipulation in the Will (Exhibit P. 1) that in the event of death of Francis M.B. Saldanha without an issue, the property must be inherited by the appellant after the death of the widow of the said Francis M.B. Saldanha; and as a matter of fact, since Francis M.B. Saldanha died without any issue, the appellant gets right in the suit schedule property after the death of the second defendant, who is the widow of the said Francis M.B. Saldanha. It is his submission that the Trial Court has misunderstood and misread the stipulations in the Will and failed to give effect to the intention of the testator of the Will. He also contended that the interpretation placed by the Trial Court on Sections 124 and 131 of the Act is erroneous in law. In support of his submission, he relied upon the decision of the Supreme Court in the case of Ramachandra Shenoy and Another v Mrs. Hilda Brite and Others,
9. Learned Counsel appearing for the respondents supported the judgment and decree passed by the Trial Court. He relied upon the decision of the Supreme Court in the case of Smt. Talkeshwari Devi v Ram Ran Bikat Prasad Singh and Another and that of the Madras High Court in the case of Papammal (died) by L.Rs and Others v K. Kuppuswamy.
10. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the only question that would arise for our consideration in this appeal, is-
“Whether, since Francis M.B. Saldanha died issueless, in terms of the stipulation in the Will (Exhibit P. 1), the plaintiff-appellant
inherits the suit schedule property absolutely after the lifetime of the second defendant-respondent, who is the widow of late Francis M.B. Saldanha; and whether the sale of Item No. I of the suit schedule property is void in law and not binding on the plaintiff-appellant”?
11. Before we proceed to consider the question that has arisen for our consideration in this appeal, it may be useful to refer to two important stipulations in the Will (Exhibit P. 1), on which both the parties have strongly relied upon. They are-
“(1) I bequeath all my immovable property situated in Attavar Village to my son, Francis absolutely subject to full life interest in the above said property to my wife, Rosalie who is free to enjoy the income derived from it and look after the property during her lifetime, and the payment of her debt stated above.
(2) Jn case my son, Francis dies without an issue, the property must be inherited by my daughter after the death of my son’s widow. If she re-marries she has no right to the property etc., stated to this Will”.
It may also be useful to refer to Section 124 and illustration (ii) given to Sections 124 and 131 of the Act.
(a) Section 124 of the Act reads as follows:
“124. Bequests contingent upon specified uncertain event and no time being mentioned for its occurrence.–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”.
(b) Illustration (ii) given to Section 124 reads thus:
“(ii) A legacy is bequeathed to A, and in 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”.
(c) Section 131 of the Act reads as follows:
“131. Bequest over, conditional upon happening or not happening of specified uncertain event.–(1) A bequest 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“.
12. The undisputed facts disclose that the testator of the Will, the aforesaid Denis A.J. Saldanha expired on 6th of April, 1975. The bequest to the plaintiff in the Will was made contingent on the occurrence of an
uncertain event, namely, the death of her brother, Francis M.B, Saldanha without issues. However, no time was mentioned in the Will for the occurrence of that event. Admittedly, the event did not happen before the testator’s death and the testator’s son, the aforesaid Francis M.B. Saldanha survived the testator; and contingency of his death without issue occurred after the absolute bequest to him had taken effect. Illustration (ii) given to Section 124 of the Act fully applies to the facts of the present case. The moment the testator died, in the absence of any specific time prescribed for the happening of the contingent event, the property absolutely stood vested with late Francis M.B. Saldanha, the son of the testator, late Denis A. J. Saldanha. Section 124 of the Act has to be given effect to. Then the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the death of the testator. Therefore, the clause in the will which states that in case of Francis Saldanha dying without an issue, the property must be inherited by the daughter of the testator after the death of his son’s widow, is of no consequence; and cannot be given effect to and the said stipulation will not confer any right on the plaintiff. On the basis of the said stipulation in the Will, the plaintiff does not get any right to the suit schedule property. It is not a case of conflict of two clauses in a Will as contended by the learned Counsel for the appellant. It is a question of interpreting the recitals in the Will in the backdrop of Section 124 of the Act. Therefore, we do not find any merit in the submission of the learned Counsel for the appellant that in view of Section 88 of the Act, which provides that where two clauses in a Will are irreconcilable, so that they cannot possibly stand together, the last clause in the Will must prevail. As noticed by us earlier, the provisions contained in Section 124 of the Act govern the rights of the parties where a legacy of the nature contained in the present Will, Exhibit P. 1, is given. Therefore, we do not find any error in the conclusion reached by the Trial Court. The Supreme Court, in the case of Smt. Talkeshwari Devi, supra, while considering the similar question, has, at paragraphs 9, 10 and 11, observed as follows:
“9. If Section 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 Section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is Section 131. That section says:
‘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’.
10. This section provides for the divestment of an estate which 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.
11. 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 v Kamal Basini Dasi. 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 moveable 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 Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 of the Indian Succession Act, 1925″.
In our view, the principle enunciated by the Supreme Court, referred to above, fully applies to the facts of the present case.
13. In the light of the discussion made above, the appeal is liable to be rejected and accordingly, it is rejected.
14. However, no order is made as to costs.