Raj Bajrang Bahadur Singh vs Thakurain Bakhtraj Kuer

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1952 Supreme(SC) 69

SUPREME COURT OF INDIA
7th November 1952
B.K. MUKHERJEA, CHANDRASEKHARA AIYAR AND BHAGWATI, JJ.
Raj Bajrang Bahadur Singh - Appeallant
Versus
Thakurain Bakhtraj Kuer - Respondent
Civil Appeal No. 147 of 1951
Advocates appeared
Shri Onkar Nath Srivastava, Advocate, instructed by Shri Rajinder Narain, Agent - for Appellant, Shri Bishan Singh, Advocate, instructed by Shri C. P. Lal, Agent, for Shri S. S. Shukla, Agent -for Respondent.

Advocates:
BISHAN SINGH, C.P.LAL, OMKAR NATH SRIVASTAV, RAJENDER NARAIN, S.S.SHUKLA

Headnote:Transfer of Property Act (1882), Ss. 13, 15-Creation of interest in favour of unborn person-Gift.
       Held: "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 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 testators death and is invalid as to the rest". (per M ukherjea J.). - Will-Oudh Estates Act (1 of 1869), Ss. 11, 12, 13A and 14Will of Taluqdar-Bequest as " absolute owner" without right to transfer-Validity-Succession to legatee-Whether governed by the Act or ordinary law-Interpretation of "Malik Kamil" and "Naslan bad naslan" -Construction of the will.
       A will made by a taluqudar 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 testators 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 Ds 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: (2) The will did not confer an absolute estate on D and on Ds death the succession was not governed by S. 14 of the Oudh Estates Act and Ds widow was entitled to succeed in preference to Ds elder brother.
       (2) A younger son of taluqdar comes within the purview of S. 13 (A) (l), and if he becomes 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 S. 14 would have no application if the disposition by the will does not make him an absolute owner of the properties and he is given only an interest for life which is followed by subsequent interests created in favour of the other persons.
       (3) It cannot be contended that a taluqudar governed by the Oudh Estates Act cannot convey anything less than his absolute proprietary right in a property by transfer inter vivo or b y will, or that it is not competent for him to create any limited interest or future estate. Apart from the plenary provision contained is S. II, S. 12 of the Act which makes the rule against perpetuity applicable to transfers made by a taluqdar, furnishes It clear indication that the Act does not interdict the creation of future estates and limitations provided they do not transgress the perpetuity rule.
       (4) The words malik kamil (absolute owner) and naslan bad naalan (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.
       (5) 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". -

Judgement

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 4-9-1946, affirming, on appeal those of the Civil Judge, Bahraich passed in Regular Suit No 1 of 1941.

2. 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 Gangwal 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 16-10-1930, 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 11-9-1929, 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 estate went to the plaintiff as his eldest son under the provisions of the Oudh Estates Act and Dhuj Singh got only the 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 hand 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 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., C attached 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.

3. The plaintiff really rested his case on a two-fold ground. 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 s. 14 (b) read with s. 22 (5), Oudh Estates Act.

4. 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 Singh followed by a devise in favour of the widow as his personal heir.

5. The decision of the poin

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