PETITIONER: TALKESHWARI DEVI Vs. RESPONDENT: RAM RAN BIKAT PRASAD SINGH & ANR. DATE OF JUDGMENT12/01/1972 BENCH: HEGDE, K.S. BENCH: 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 grand daughters 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 grand daughters 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 grand daughters died issueless before the devolution took place then the entire property should go to another grand daughter. 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. JUDGMENT:
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,
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his daughter Satrupa Kuer and his two grand daughters
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 grand
daughters, (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 grand daughters named
above, dies issueless, then under such
circumstances the other living grand daughter
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
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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 for 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
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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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