Judgement

Appeal (No. 58 of 1945) from a judgment and decree of the former Court of the Judicial Commissioner of Oudh (June 4, 1918) as amended by Its successor the Chief Court of Oudh by its order (November 18, 1941) which modified a decree of the Subordinate Judge of Mohanlalganj (March 18,, 1916).

The following facts are taken from the judgment of the Judicial Committee. This appeal raised the question what, on the true construction of the will of Raj Gobardhan Singh, was the interest of the appellant thereunder in certain villages in the Kheri District in Oudh, and whether it was proper for the court to make a declaration in regard thereto.

Raj Gobardhan Singh, hereinafter called the testator." was a taluqdar owning lage estates in Oudh including ten villages with which the present appeal was concerned, hereinafter referred to as "the ten villages.” He executed his last will on November 13, 1903. At that time he had three Ranis and one child only, a daughter named Musammat Raj Kunwar who was then childless. His nearest male collateral was his nephew Raj Bachan Singh. On June 24, 1904, the testators daughter gave birth to a son, Raj Shatranjai, the appellant, and on July 26, 1904, she died. The testator died on March 8, 1905. He was survived by his three widows, and by the appellant and Raj Bachan Singh.

In his will the testator stated that he was the taluqdar of Mohals Bijwa Bhira Ramnagar Kalan and Nighasan and Daulatapur, and that he executed his will to avoid disputes about his estate. He then provided life interests for his three Ranis and proceeded after the death, of all three Ranis the male issue of my daughter Musammat Raj Kunwar……..shall be the owner in possession of the estate and if there be no such male issue then my aforesaid daughter shall be owner in possession of the estate." The result of the will up to that point was that the whole of the estate, including the said ten villages, was given to the appellant, after the death of the three Ranis. The will then proceeded “All the afore-mentioned terms of this will shall be subject to this condition that if by the grace of God a son is born to me, then he shall after my death be the owner in possession of the entire taluqa. Out of the entire taluqa the villages (the testator then named the ten villages) are bequeathed by me in favour of my nephew Bhaiya Raj Bachan Singh for his life after the death of all three Ranis. If there be any male issue to Bhaiya Raj Bachan Singh he shall be the owner of the afore-mentioned villages after the death of Bhaiya Raj Bachan Singh otherwise the afore-mentioned villages shall be included in the taluqa after the death of Bhaiya Raj Bachan Singh and my daughter shall be the "owner of the afore-mentioned villages also. "

Raj Bachan Singh having in certain proceedings questioned the validity of that will, the appellant on November 17, 1914, commenced against him in the Court of the Subordinate Judge, Mohanlalganj, the suit out of which this appeal arose, claiming a declaration as to the validity of the will and that, under it he was the absolute proprietor of the estates and entitled to possession after the death of the Ranis, and (by amendment) that he was entitled to absolute ownership of the ten villages after the death of Raj Bachan Singh if he did not beget male children. On the question of construction it was urged by the defendant Raj Bachan Singh that in the event of his not having a son the ten villages were undisposed of after the death of the three Ranis and his own death, and on behalf of the appellant that they would be included in the estate of which he was to be the owner in possession. On that issue the learned Subordinate Judge found in favour of the appellant, holding that he acquired a contingent remainder at least in the ten villages. He further decided that the case was one in which it was proper for him in the exercise of his discretion to make a declaration of the appellants title. Accordingly the learned Jud