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PETITIONER: TALKESHWARI DEVI

       Vs.

RESPONDENT: RAM RAN BIKAT PRASAD SINGH & ANR.

DATE OF JUDGMENT12/01/1972

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. REDDY, P. JAGANMOHAN PALEKAR, D.G.

CITATION:  1972 AIR  639            1972 SCR  (3)  71

ACT: Indian   Succession   Act  1925-Ss.   124,   131-Scope-Will, construction of.

HEADNOTE: By  clause 4 of a will the testator bequeathed to his  grand daughters  T and S an absolute right in the properties  that were to devolve on them after the death of his wife., Clause 5  further provided that if one of the two  grand  daughters were to die issueless the other living grand daughter was to enter  into  possession of the entire property  as  absolute owner.   After  the  death of the testator’s wife  T  and  S divided  the  properties  which devolved on  them  in  equal shares.   On  S  dying issueless T  instituted  a  suit  for possession  of  the properties that fell to the share  of  S basing  her  claim on clause 5 of the will.   The  suit  was dismissed.  Dismissing the appeal, HELD  : Clause 5 of the will relates to devolution, it  does not  provide  for  any divestment of  an  estate  which  had vested.   The estate that vested in S under clause 4 of  the will  was not a conditional estate, it was an absolute  one. The will does not provide for the divestment of that estate. Clause  5 would have come into operation if the  contingency mentioned   therein  had  happened  before  the   properties absolutely  devolved on T and S. What the testator  intended was that if any of his grand daughters died issueless before the devolution took place then the entire property should go to another grand daughter.  The intention of the testator is plain from the language of the will. [73 E] Section  124 of the Indian Succession Act, 1925  applies  to the facts of the case and not s. 131.  The legacy claimed by the appellant is unavailable as the contemplated contingency did  not  occur before the fund bequeathed  was  payable  or distributable.   Section 131 provides for the divestment  of an  estate which had already vested; it speaks of an  estate going over to another person. [74B] Norendra  Nath Sircar and anr. v. Kamal Basini Dasi,  I.L.R. 23, Cal. 563, referred to.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 213 of 1967. Appeal from the Judgment and order dated February, 17th 1965 of the Patna High Court in First Appeal No. 113 of 1960. M.   C.  Chagla, D. P. Singh, S. C. Agarwal, V. J.  Francis, R.   Goburdhun and D. Goburdhun, for the appellant. M.   C. Setalvad, Sarjoo Prasad, A. G. Ratnaparkhi and Rajiv Shah, for respondent No. 1. The Judgment of the Court-was decided by Hegde,  J. In this appeal by certificate we are to  consider the  effect  of the will executed by  one  Raghunath  Prasad Singh, on August 31, 1938.  The said testator died very soon after the execution of the will leaving behind him his widow Jageshwar Kuer, 72 his  daughter  Satrupa  Kuer and  his  two  grand  daughters Talkeshwari  Devi (the appellant herein) and Sheorani.   The appellant  and Sheorani are the daughters of Sukhdeo  Prasad Singh,  the  son  of the testator who  had  predeceased  the testator.  Jageshwar Kuer died in November 1948 and Sheorani Devi  on  November 1, 1949 without leaving any  issue.   The dispute  in  this  case  is as to who  is  entitled  to  the properties devolved on Sheorani under the provisions of  the will  left by the testator.  For deciding that  question  we have  to refer to the relevant provisions of the  will.  the genuineness or validity of which is not in dispute. The  will in question provides that after the death  of  the testator a portion of his properties (detailed in the  will) was  to  devolve  on  Jageshwar  Kuer  absolutely  and   the remaining properties are also to devolve on her but  therein she  was  to  have only a life interest.  The  will  further provides  that after her death "the entire property will  be treated  as  16  annas  property out  of  which  5  annas  4 pies(five  annas four pies) share  constituting  proprietary interest  will  pass  to Shrimati  Satrupa  Kuer  alias  Nan daughter  of  me, the executant and her  heirs  as  absolute owners  and  the remaining 10 annas 8 pies  (annas  ten  and eight  pies)  share  will  pass  to  both  the  minor  grand daughters, (1) Shrimati Talkeshwari Kuer alias Babu and  (2) Shrimati  Sheorani  Kuer  alias Bachan in  equal  shares  as absolute proprietary interest" (cf. 4 of the will).   Clause 5 of the will says :               "That if one of the two grand daughters  named               above,   dies  issueless,  then   under   such               circumstances the other living grand  daughter               will  enter into possession and occupation  of               the  entire  10 annas 8 pies  and  become  the               absolute owner thereof."  At the time of the death of the testator, the appellant  as well  as  Sheorani  Kuer were minors.  After  the  death  of Jageshwar  Kuer, the appellant and her sister Sheorani  Kuer divided  the  ten annas eight pies share of  the  properties which  devolved  on them in equal shares and each  one  came into possession of her share of the properties. Immediately after the death of Sheorani Kuer, the  appellant instituted a suit for possession of the properties that fell to  the share of Sheorani Kuer purporting to base her  claim on  clause  5  of the will to which  we  have  earlier  made reference.   That suit was resisted by the first  defendant, the husband of Sheorani.  He claimed that he was entitled to those  properties as the heir of his wife. The  trial  court dismissed the plaintiff’s suit and the decision of the trial court was upheld by the High Court. It was contended on behalf of the appellant that in view  of clause 5 of the will, the appellant is entitled to the  suit properties

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73 as  Sheorani Kuer had died issueless.  This  contention,  as mentioned earlier, did not find favour either with the trial court or with the appellate court.  They have held that on a proper  leading  of the will as a whole, it  is  clear  that clause  5 ceased to be operative on the death  of  Jageshwar Kuer, thereafter caluse 4 of the will was the only operative clause  so far as the rights of the appellant  and  Sheorani ware concerned. It  is undisputed that the duty of the court is to find  out the  intention of the testator but that intention has to  be gathered from the language of the will read as a whole.   I+ is clear from clause 4 of the will that the testator  wanted to  give  to his grant-daughters an absolute  right  in  the properties  that were to devolve on them after the death  of his  wife,  Jageshwar  Kuer.  The  estate  bequeathed  under clause 4 of the will is not a conditional estate.  Clause  5 of  the will relates to devolution and it does  not  provide for  any  divestment  of an estate which  had  vested.   The estate  that  vested on Sheorani was an absolute  one.   The will does not provide for the divestment of that estate.  It is  plain from the language of clause 5 of the will that  it refers  to the devolution, which means when  the  properties devolved on the two sisters on the death of Jageshwar  Kuer. We are, unable to accept the contention of Mr. M. C. Chagla, learned  Counsel  for  the appellant  that  there  is  an-,- conflict between clause 4 and clause 5 of the will.   Clause 5  in  our  judgment  would have  come  into  force  if  the contingency  mentioned  therein  had  happened  before   the properties absolutely devoted on the two sisters.  Clause  5 cannot  be  considered  as  a  defeasance  clause.   If  the testator  wanted that the bequest made to any of his  grand- daughters  should  stand divested on the  happening  of  any contingency,  then  he  would  have said  so  in  the  will, assuming that he could have made such a provision.  But  the will  nowhere  says that the properties  bequeathed  to  the appellant and her sister should cease to be their properties on  their  dying  issueless.  Obviously  what  the  testator intended  was  that  if  any  of  his  grand-daughters  dies issueless  before the devolution took place then the  entire property should go to the other granddaughter.  To our  mind the intention of the testator is plain from the language  of the will. To find out the effect of the will before us we have to look to  ss.  1-4  and 131 of the Indian  Succession  Act,  1925. Section 124 says :               "Where  a  legacy  is  given  if  a  specified               uncertain  event shall happen and no  time  is               mentioned  in  the will for be  occurrence  of               that  event,  the legacy cannot  take  effect,               unless  such event happens before  the  period               when   the  fund  bequeathed  is  payable   or               distributable." -L864 Sup.CI/72 74 Illustration (ii) to that section says               "A legacy is bequeathed to A, and in the  case               of  his  death without children, to  B.  If  A               survives the testator or dies in his  lifetime               leaving a child, the legacy to B does not take               effect." If  s. 124 applies to the facts of the case, as we think  it does,  then  it  is clear that the  legacy  claimed  by  the appellant is unavailable as the contemplated contingency did not  occur  before  the  fund  bequeathed  was  payable   or

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distributable.   Section 124 deals with devolution.  But  as we  shall presently see s. 131 deals with divestment  of  an estate  that  had  vested.  Mr.  Chagla  contends  that  the governing  provision is S. 131. That section says:               "A bequest may be made to any person with  the               condition   super  added  that,  in   case   a               specified  uncertain event shall  happen,  the               thing  bequeathed shall go to another  person,               or  that in case a specified  uncertain  event               shall  not happen, the thing bequeathed  shall               go over to another person." had  already vested.  It speaks of an estate going  over  to another person.  As seen earlier clause 5 of the will is not a defeasance clause. A  case  somewhat similar to the one before us came  up  for consideration  before  the Judicial Committee of  the  Privy Council  in  Norendra Nath Sircar and anr. v.  Kamal  Basini Dasi(1)  Therein a Hindu at his death left three  sons,  the eldest  of full age and the other two minors.  In  his  will were  the  directions "My three sons shall  be  entitled  to enjoy  all the movable and immoveable properties left by  me equally.   Any one of the sons dying sonless, the  surviving son  shall  be  entitled to  all  the  properties  equally". Interpreting  this clause the Judicial Committee  held  that those  words gave a legacy to the survivors contingently  on the happening of a specified uncertain event, which had  not happened before the period when the property bequeathed  was distributable, that period of distribution being the time of the  testator’s death.  In arriving at this conclusion,  the Judicial Committee relied on s. 111 of the Indian Succession Act,  1865.   That  provision is similar to s.  124  of  the Indian Succession Act, 1925. For the reasons mentioned above we are in agreement with the courts  below that the suit brought by the appellant is  un- sustainable.   This  appeal is  accordingly  dismissed  with costs. Appeal dismissed. K.B.N.                  Appeal dismissed. (1)  I.L.R. 23, Cal, 563. 75