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1930 Supreme(SC) 61
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, SIR LANCELOT SANDERSON, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
BOLO - Appellant
Versus
KOKLAN - Respondents
On appeal from the Court of the Judicial Commissioner, North-West Frontier Province.
Decided On : July. 3. 1930.
Solicitor for defendant Bolo: H. S. L. Polak. Solicitors for plaintiff: T. L. Wilson & Co.
The court held that the plain meaning of a will's specific terms prevails over general customary preferences. Additionally, under Article 120 of the Limitation Act, the right to sue accrues only upon the infringement or clear threat of infringement of the asserted right.
Headnote:(A) Limitation Act, 1908 - Article 120 - Right to sue - Accrual of cause of action - A suit for which no period of limitation is provided elsewhere in the Schedule is barred after six years from when the right to sue accrues. There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant. In a joint family arrangement where properties are managed jointly, the mere death of a predecessor does not necessarily trigger the limitation period if no infringement of the right occurs.
(B) Wills - Construction - Plain meaning - The primary duty of a court of construction is to give the words of a will their plain and natural meaning. Specific provisions in a will regarding the devolution of property upon the death of a beneficiary during the lifetime of another shall prevail over general customs or ordinary motives of a particular community regarding the perpetuation of the family in the male line.
Facts of the case:
A testator bequeathed half of his self-acquired property to his minor son jointly with his widow, providing that if the son died before the mother, the mother would become the owner of the son's half share. The son died during the mother's lifetime, leaving behind a widow and a son. The mother claimed the half share, while the son's widow contested the claim, arguing the gift over was only applicable if the son died during minority or before the testator. Additionally, it was contended that the claim to movable property was barred by limitation as the suit was filed several years after the son's death.
Findings of Court:
The court found that the specific words of the will meant the mother became the absolute owner of the half share upon the son's death, regardless of whether he had reached majority. Regarding limitation, the court found that since the parties lived as members of a joint family and the property was managed jointly, there was no infringement of the mother's right until a subsequent legal dispute arose.
Issues: (1) Whether the mother became entitled to the half share of the estate upon the death of the son based on the construction of the will; (2) Whether the claim was barred by the limitation period under Article 120 of the Limitation Act, 1908.
Ratio Decidendi: The court held that the plain and natural meaning of the specific terms of a will must be upheld over general customary preferences. Furthermore, the "right to sue" under Article 120 of the Limitation Act only accrues upon the infringement of a right or a clear threat thereof, which does not occur automatically in a joint family management setup until the jointness is disrupted or the right is challenged.
Result: Appeal of the defendant dismissed and appeal of the plaintiff allowed; decree for partition granted.
Legal Category Hierarchy
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succession and wills
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will construction
- interpretation of specific clauses
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will construction
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practice and procedure
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limitation
- accrual of cause of action
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limitation
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family law
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hindu law
- joint family property management
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hindu law
Judgement
Consolidated Appeal and Cross-Appeal (No. 106 of 1929) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province (October 12, 1928), reversing a decree of the District Judge of Peshawar (January 31, 1928).
The consolidated appeal arose out of a suit instituted in 1927 by the above named Mst. Koklan, claiming that under the will of her husband, Mul Chand, who died in 1899, she was entitled upon the death in 1918 of her son Tara Chand to a half share in property disposed of by the will. The plaintiff prayed for a declaration and for partition. The first two defendants were in possession of the other half of the property as grandsons of Mohan Lal, to whom it had been bequeathed by the will. They did not dispute the plaintiffs claim, and they were joined as pro-forma parties to the appeal. The third defendant, Mst. Bolo, the widow of Tara Chand, by her written statement contended (inter alia) that the plaintiff was entitled to no interest under her husbands will.
The material terms of the will and the relevant facts appear from the judgment of the Judicial Committee.
The District Judge of Peshawar dismissed the suit. In view of the importance which Hindus attach to perpetuation of their family in the male line, he was of opinion that the intention of the testator was that there should be a gift over to Mst. Koklan only in the event of his son dying during minority and without issue.
Upon appeal by the plaintiff to the Court of the Judicial Commissioner the learned judges held that the effect of the will was to confer an at solute estate upon the testators son in a quarter share, and a life estate upon the testators widow in a quarter share, and that upon the sons death the plaintiff was entitled to his one-quarter share in the property. They made a decree for partition upon that basis.
1930. May 19, 20, 21, 22. Dunne K.C. and J. Nissim for the defendant, Mst. Bolo. The true effect of the Hindi words translated "jointly with Mst. Koklan" was merely that she was to have the right of maintenance and of guardianship usual in the case of a Hindu widow and minor son. In any case the will should be construed according to the notion and wishes of Hindus, and should therefore be read as devising the half share to the testators widow only if his son died during his minority without issue, or if he so died during the testators life. [Reference was made to Tagore v. Tagore (( 1872) L. R. I. A. Supp. 47, 65.) ; Mahomed Shumsool v. Shewukram (( 1874) L. R. 2 I. A. 7,14,15.) ; and Hirabai v. Lakshmibai . (( 1887) I. L. R. 11 B. 573.)] Further, the plaintiffs claim to the movable property was barred by the Indian Limitation. Act, 1908, Schedule I., art. 120, as the suit was not brought within six years of Tara Chands death. Art. 123 does not apply, as there was no duty on Bolo to distribute the property.
De Gruyther K.C. and Dube for the plaintiff, Mst. Koklan. The will provides in clear terms that in case Tara Chand should die before his mother the latter should be owner of the sons half share. The ordinary wishes of a Hindu as to the devolution of his property cannot be invoked to alter that clearly expressed provision. If art. 120 applies to the claim to the movable property it was not barred, because the right of the plaintiff was not challenged before the suit in 1922. There is no " right to sue " within art. 120 until the right asserted is infringed or challenged Jitendra Nath Ghose v. Monmohan Ghose . (( 1930) L. R. 57 I. A. 214,223.) A suit cannot be brought for a declaration of a right of which the plaintiff is in undisputed enjoyment Specific Relief Act, 1877, s. 42. But it is submitted that the article applicable is either art. 123 or art. 127, and under either the claim was not barred.
Dunne K.C. replied.
July 3. The judgment of their Lordships was delivered by
SIR BINOD MITTER. These are two consolidated appeals, one by the plaintiff, Mst. Koklan, and the other by the defendant, Mst. Bolo, from
