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1981 Supreme(Cal) 430
High Court Of Calcutta
Amitabha Dutta
KALI SADHAN BANERJEE - Appellant
Versus
K.K.BANERJI - Respondent
S. A. 1471 Of 1973
Decided On : 12/17/1981
Kali Das Basu, Nanda Lal Shaw, Robindra Nath Seal
A subsequent clause in a deed of settlement providing for the reversion of the absolute estate to the settlor upon the death of the grantee before the settlor is a defeasance clause and not a repugnant clause, and hence, the absolute estate granted to the grantee is defeated upon the happening of the contingency.
Headnote:
DEFEASANCE CLAUSE - INTERPRETATION - SECTION 31 OF THE TRANSFER OF PROPERTY ACT, 1882 - APPLICATION - A subsequent clause in a deed of settlement providing for the reversion of the absolute estate to the settlor upon the death of the grantee before the settlor is a defeasance clause and not a repugnant clause, and hence, the absolute estate granted to the grantee is defeated upon the happening of the contingency.
Fact of the Case:
A deed of settlement transferred properties to the settlor's wife for her life and thereafter to his son absolutely with right to transfer by way of sale or gift. In case both the wife and the son died during the settlor's lifetime, the properties would revert to the settlor. The wife died, then the son died leaving a minor son. The settlor transferred 8 annas share in the disputed tank to his brother by a registered kobala. The brother died leaving a will bequeathing his property including the disputed tank to his four sons who sold the suit property to the defendants. The plaintiff, the son of the settlor's son, claimed the suit property on the basis of the deed of settlement.
Finding of the Court:
The court held that the subsequent clause in the deed of settlement providing for the reversion of the absolute estate to the settlor upon the death of the grantee before the settlor is a defeasance clause and not a repugnant clause. Therefore, the absolute estate granted to the grantee was defeated upon the happening of the contingency, and the settlor became the absolute owner of the property and was competent to transfer it to his brother.
Issues: Whether the subsequent clause in the deed of settlement is a defeasance clause or a repugnant clause.
Ratio Decidendi: A defeasance clause is one that defeats or extinguishes an absolute estate on the happening of a contingency, while a repugnant clause is one that adds restrictions in derogation of the incidents of absolute ownership. The intention of the donor or testator is crucial in determining the nature of the clause. In this case, the subsequent clause in the deed of settlement intended to defeat the absolute estate granted to the grantee upon the happening of the contingency of his death before the settlor, and hence, it is a defeasance clause.
Final Decision: The appeal was allowed, the judgment and decree of the court below were set aside, and the suit was dismissed on contest.
( 1 ) THIS is an appeal from the decision of the learned Additional District Judge at Suri in Title Appeal No. 59 of 1971 affirming the judgment and decree of the learned Munsiff. First Court at Rampurhat by which he has decreed the Title Suit No. 163 of 1968 for a declaration of title and permanent injunction.
( 2 ) THE only point that arises in this appeal relates to the construction of the terms of a deed of settlement. Admittedly the disputed tank in plot No. 1390 of Mouza Karkariya. 8 annas share in which is the subject matter of the suit, originally belonged to Janaki and Aghor Nath Baneriees who were two brothers. Janaki executed a deed of settlement dated 25th Aug. 1918 (8th Bhadra 1325 B. S.) in respect of his 8 annas share in the disputed tank and other properties in favour of his wife Brojendra Bala and son Dhwajadhari. The relevant recitals in the said deed of settlement are as follows:--"tumi Srimati Brojendra Bala Debi Adya Nija Jibankal Parjanta Nicher Likhita Sampattite Swatwabati Thakia Tahar Jabatiya Utpanna Grahanadi Jadechcha Bhog Dakhal Karibe 0 Tomar Ante Oi Sakal Sampattite Amar Putra Tomi Sriman Dhwajadhari Bandyopadhyay Dan Bikrayadi Hastantar Karaniya Dattaswatwa Malik Haia Pctrapautradi Wariskrame Jadechcha Bhog Dakhal Karibe Tahate Amar Kono Ojar Apatta Chalibe Ne Adya Haite Ami Nicher Likhita Sampattite Niswatwa Hailam. Iswar Na Karen Amar Jibitakale Tomader Ubhayer Lokantar Ghatile Nicher Likhita Sampatti Amake Arshibe. O Taha Ami Jadechcha Byabahar O Dan Bikrayadi Karite Pariba. Ar Tumi Srimati Brojendra Bala Jibjtakale Sriman Dhwajadhari Baba Jibaner Lokantar Ghatile Tumi Srimati Brojendra Bala Debi Nicher Likhita Sampattite Dan Bikroyadir Hastantar Karaner Swatwasaha Sampurna Malik Haibe. "thus according to the terms of the deed of settlement the settlor transferred the properties to his wife Brojendra Bala for her life and thereafter to his son Dhwajadhari absolutely with right to transfer by way of sale or gift and enjoy the properties in any manner he liked being succeeded by his heirs from generation to generation. Then the deed provided that in case both the wife and the son of the settlor died during the settlor's lifetime, in that event the properties would revert to the settlor and the settlor would be free to enjoy the properties with right to transfer them by sale or gift. The deed further provided that in the event of the death of the settlor's son during the lifetime of the settlor's wife, she will become absolute owner of the properties with right to transfer them by way of sale, gift, etc. It has been found by the courts below that the deed of settlement was properly executed and was acted upon. These findings of fact are not challenged in second appeal. It is in evidence that Brojendra Bala died in 1329 B. S. and thereafter Dhwajdhari died in 1332 B. S. leaving his minor son Kamakshya who is the plaintiff and widow Anna Kali. Janaki, the settlor survived both the settlees as he died sometime after 1347 B. S. Before his death Janaki transferred 8 annas share in the disputed tank to his brother Aghore Nath by a registered kobala dated 21st Jaistha 1347 B. S. (Ext. A-2 ). Aghore Nath died in 1367 B. S. leaving a will which was duly probated and by which he bequeathed his property including the disputed tank to his four sons the defendants Nos. 1 to 4 who subsequently sold the suit property to the defendants Nos. 5 and 6 by two registered kobalas dated 8-4-68 and 15-4-68 respectively. The plaintiff has claimed the suit property on the basis of the deed of settlement of 1325 B. S. and his case is that the vested interest transferred to Dhwajadhari under the said deed devolved on him as the other clauses in the deed of settlement were invalid as they were repugnant to the grant of absolute interest to his father. On the other hand, the contesting defendants have resisted the plaintiff's claim on the ground that the absolute interest created under the deed of settle
