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1944 Supreme(SC) 22
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PORTER, LORD GODDARD AND SIR MADHAVAN NAIR.
RAJA JWALESHWARI PRATAP NARAIN SINGH - Appellant
Versus
BABU PARCHAND BIR SINGH - Respondents
On appeal from the High Court at Allahabad.
Decided On : July. 24. 1944.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for respondent: Hy. S. L. Polak & Co.
When a will mandates the transfer of property yielding a specific income upon a certain event, the income is determined based on actual realization at the time of that event, with subsequent risks of income fluctuation borne by the parties.
Headnote:(A) Tenancy Act, 1926 - Section 73 - Code of Civil Procedure - Order 45, Rules 1 to 5 - Interpretation of will - Transfer of property yielding specific income - Calculation of income at the date of partition - Where a will directs that property yielding a specific monthly profit be allotted to a beneficiary upon their separation from the estate, the income of such property is to be ascertained at the moment of separation - The obligation is to transfer property producing the specified income at the date when the duty to transfer arises, rather than to guarantee a fixed income regardless of fluctuations - The transferor bears the risk of a future rise in income, and the transferee bears the risk of further remissions. (Paras 74-75)
(B) Appeal - Scope - A party cannot raise a point in the higher court that was not specifically challenged in the application for leave to appeal or the grounds of appeal, particularly when the decree being appealed from does not affirm the portion of the lower court's decree being contested. (Para 74)
Facts of the case:
A testator's will provided that upon the separation of the younger sons from the eldest son, the eldest son should transfer property yielding a specific monthly income for their maintenance. A dispute arose as to whether the income should be calculated based on original rents or actual rents realized at the date of partition, given that certain rent remissions had been granted under the applicable tenancy legislation.
Findings of Court:
The court held that the language of the will indicated an intention that the income be calculated with reference to the date of separation. The duty was to transfer property producing the specified income at that time.
Issues: Whether the income of the property to be transferred under a will should be calculated based on original rents or actual realization at the date of partition, and whether the appellant was procedurally barred from challenging the quantum of the monthly allowance.
Ratio Decidendi: The court reasoned that the provision to separate such property and place it in charge of the beneficiaries implies that the property's value is determined at the moment of separation. The obligation is to transfer property producing the specified income at the date the duty arises; consequently, the transferor takes the risk of a future rise and the transferee the risk of a further remission.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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succession
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wills
- interpretation of wills
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wills
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property law
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land tenure
- rent remissions
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land tenure
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practice and procedure
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appeals
- scope of appeal
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appeals
Judgement
Appeal (No. 59 of 1942) from a decree of the High Court (January 24, 1940), which in part affirmed and in part modified a decree of the court of the Subordinate Judge of Basti (June 1, 1936).
The following facts are taken from the judgment of the Judicial Committee The parties were sons of the late Raja Pateshwari Pratap Singh, who was proprietor of Basti Raj, and died on March 19, 1928.
1 Law. Rep. 71 Ind. App. 178 ( 1943- 1944) Raja Jwaleshwari Pratap v. Babu Parchand Bir Singh
72
The Rajah made his will on July 16, 1927, and, after summarizing the state of his family, stated that by way of a precautionary measure he considered it desirable to make proper arrangement for the maintenance allowance to his two younger sonsi the respondent and Babu Bijai Bir Singh, as follows —" After my death Lal Jwaleshwari " Pratap Narain Singh my eldest son shall be the Raja for " the time and the absolute owner of the entire movable and " immovable property appertaining to Basti Raj. He shall " continue to support as heretofore and meet all reasonable " needs of his two brothers Babu Parchand Bir Singh and " Babu Bijai Bir Singh so long as the latter two Babu Sahebs " live in agreement with Lal Jwaleshwari Pratap Narain " Singh and act for the betterment and improvement of the " Raj as desired by the latter. When the Babu Sahebs aforesaid or one of the babus do not want to work and look after " the management under the orders of Lal Jwaleshwari Pratap " Narain Singh or if for some reason they want to become " separate and live separately they shall be entitled to babuai " rights subject to all the conditions relating to the property of " Babus all along obtaining to this estate and it shall be the " duty of Lal Jwaleshwari Pratap Narain Singh to give property " yielding Rs. 500 per mensem as profits, i.e. Rs. 6,000 per " annum for the maintenance of his two brothers as per detail " given below. He should separate such property from his " management and place it in charge of the babus aforesaid " who shall be responsible for payment of Government revenue " and other zamindari matter in respect of the property " aforesaid." He then proceeded to provide for the male descendants of his sons, and for the construction of a residence for his younger sons. The will then proceeded as follows — " In view of the fact that for various reasons I could not make " proper arrangements for the education and future maintenance of Babu Parchand Bir Singh, I have considered it " proper and have after full consideration come to the decision " that in addition to the babuai rights of maintenance mentioned above, property yielding Rs. 100 per mensem as " profits should further be allotted to him subject to all the " conditions of babuai rights. I hereby direct that when " Babu Parchand Bir Singh separates, Lal Jwaleshwari " Prasad Singh should give him property yielding profits to " the extent noted above. At the time of allotment of this " property also, all the conditions relating to the selection of " property as mentioned above should be borne in mind. " I have, therefore, executed these few presents by way of " a will so that it may serve as evidence and be of use when " required.
" Written on July 16, 1927.
" Detail of maintenance allowance amounting to Rs. 500 per " mensem which comes to Rs. 6,000 per annum. Babu Parchand Bir Singh—Rs. 300 per mensem.
" Babu Bijai Bir Singh—Rs. 200 per mensem.”
At the date of the will, and at his death, the testator had three sons, the appellant, the respondent and Babu Bijai Bir Singh. The last-named was joined merely as a formal party interested under the will and was not otherwise concerned in these proceedings. Differences having arisen between the parties, the respondent separated from the appellant in 1934, and the respondent thereupon claimed from the appellant a sum of Rs. 2,500 mentioned in the will and, in effect, a decree awarding possession over such villages as would yield an income of Rs. 400 a mont
