Judgement

Consolidated Appeals (No. 59 of 1929) from four decrees of the Chief Court (three dated November 9, 1926, being in execution cases, and one dated March 9, 1928, in a suit upon a mortgage) ; each of the decrees affirmed a decision of the Subordinate Judge of Fyzabad.

The appeals related to the will of a taluqdar whose estate was included in lists 1 and 5 prepared under s. 8 of the Oudh Estates Act, 1869. In each of the appeals the question for determination was whether in respect of property mentioned in clause 4 of the will the testators son Sitapat Ram took an absolute or life estate.

Both Courts in India held that he took an absolute estate.

Clauses 3 and 4 of the will were as follows "3. Taluqa Rasulpur in which are comprised the villages entered in list III. at the foot of this deed and which I got after the death of my father according to the rule of succession given in Act I. of 1869 and which I have made secure for ever under the Oudh Settled Estates Act, i.e., Act II. of 1900. My eldest son, Sitapat Ram, and his eldest son shall get the said taluqa under the rule of succession laid down in Act I. of 1869. 4. Besides the villages comprised in Taluqa Rasulpur entered in list III. other villages and shares in villages entered in list IV. given at the foot of this deed, shall pass to the said Sitapat Ram and after him to his eldest son under the rules of succession laid down in Act I. of 1869." The terms of other clauses of the will are referred to in the judgment of the Judicial Committee.

1933. Dec. 12. Wallach for the appellant contended that only a life estate was taken; he referred to Skinner v. Naunihal Singh (( 1913) L. R. 40 I. A. 105.) ; Lal Ram Singh v. Deputy Commissioner, Partabgarh (( 1923) L. R. 50 I. A. 265.) ; Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh (( 1929) L. R. 56 I. A. 372.) ; and Nisar Ali Khan v. Mohammad Ali Khan. (( 1932) L. R. 59 I. A. 268.)

Dunne K.C. and Jinnah for the respondent in the first appeal were not called upon.

The respondents in the other appeals did not appear.

The judgment of their Lordships was delivered by

LORD MACMILLAN. Their Lordships do not think it necessary to call upon counsel for the appearing respondent.

In these consolidated appeals from the Chief Court of Oudh at Lucknow the sole question for decision arises with regard to the terms of a paragraph in the will of Rai Bahadur Sri Ram. The will is dated May 22, 1911, and the clause to be interpreted reads as follows “Besides the villages comprised in Taluqa Rasulpur entered in list III. other villages and shares in villages entered in list IV. given at the foot of this deed, shall pass to the said Sitapat Ram and after him to his eldest son under the rules of succession laid down in Act I. of 1869."

The question is whether by this provision the testator conferred on his son, Sitapat Ram, an absolute right of property in the villages and shares in villages comprised in list IV. or only a life interest. The question has become of material importance, because during his lifetime Sitapat Ram apparently incurred debts to a large amount and his creditors have sought to do execution against the properties, or some of them. f If the interest of Sitapat Ram in the villages was limited to a mere life interest, then, of course, the creditors could only attach such life interest. He also, apparently, granted a mortgage purporting to affect one or more of these villages, and in this instance also it is obviously of importance to decide whether he was entitled to grant such a mortgage as owner.

The matter comes before their Lordships in the form of appeals from four decrees of the Chief Court of Oudh. Three of these relate to judgment debts and execution decrees. In these instances the appeals are ex parte ; in the fourth instance, which is the decree relating to the mortgage, there is an appearance for the respondent, Kushal Chand, the mortgagee. The Courts below have unanimously held that Sitapat Ram took an