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PETITIONER: THAKURAIN RAJ RANI AND OTHERS

       Vs.

RESPONDENT: THAKUR DWARKA NATH SINGH AND OTHERS,

DATE OF JUDGMENT: 23/01/1953

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1953 AIR  205            1953 SCR  913

ACT: Will--Agreement  by  cousin  of  testator  to  make  monthly payment  to testator in consideration of giving him and  his sons  the  remainder after life-estate  to  widow--Grant  of letters  of  administration  Question  of  animus  testandi- Whether  res-judicata-Payments, whether condition  precedent or  mere consideration -Death of cousin before  widow-Effect of.

HEADNOTE: On  the  7th January, 1904, G, a cousin of  S,  executed  an agreement in favour of S, the material portion of which  ran as  follow&: "Whereas  my cousin S has proposed to make a request of  his taluka  in  favour  of his wife and after her  death  in  my favour and 118 914 that  of my sons therefore by way of consideration for  this concession and favour, I, the executant, out of my own  free will do hereby execute this agreement in favour of my cousin aforesaid  that  in the month in which the said  cousin  may execute  the said will in my favour and that of my sons  and lays  the same along with an application before  the  Deputy Commissioner, Sitapur district, for sanction of the  Members of  the Board of Revenue, I shall from the 1st date  of  the month  following that month continue to pay the said  cousin the  sum  of Rs. 50 in cash every month during his  life  so long as the said will remains in force If I fail to  perform the said contract the said cousin has power to have the same performed  by  me  through the Court."  This  agreement  was registered  on  the 11th January.  On the  18th  January,  S submitted a draft will for sanction and the will as  amended and  sanctioned was executed on the 28th July,  1904.   This will  provided as follows: "after my death my wife  for  her lifetime  shall  remain in possession of  my  entire  estate without  the  power  of  any  sort  to  transfer  the   said properties  and rights, that on the death of the  said  wife all  the aforesaid property and rights shall devolve  on  my cousin  G with all proprietary powers and that on the  death of  G, the said entire property and rights shall devolve  on

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X, Y, Z, sons of G, in the following shares . ..." The  will also provided for maintenance for the daughter, sister, aunt and  mother of S. On the application of G’s sons  (G  having died)  letters of administration with the will annexed  were granted to them by the Chief Court of Oudh and this decision was  affirmed by the Privy Council on appeal in  1937.   The heirs of S thereupon instituted a suit against the sons of G for  a  declaration  that  the  will  was  inoperative   and ineffectual  and that G’s sons had in any case no  right  to the  properties of S, as S had no animus testandi and G  had also failed to pay Rs. 50 to S as agreed: Held,  (i)  that the deed of agreement and the  will  formed parts   of   one  transaction  and  formed   one   contract, consideration   for  the  will  being  the  agreement,   and consideration for the agreement being the will; (ii) as the Privy Council had decided that the will was  the last  will  and  testament  of  S  and  granted  letters  of administration,  the  question of animus  testandi  was  res judicata ; (iii)     with  regard to the plea that the monthly  payment of  Rs. 50 was a condition precedent to the validity of  the will  and  that  by reason of  the  non-fulfilment  of  this condition  the will had become inoperative, such a plea  was also barred by res judicata as the Privy Council bad granted letters  of administration; and even on the merits the  plea was  untenable  as  the  wife and  other  relations  of  the testator  had also certain rights under the will  which  did not depend on the monthly payment by G; (iv) the  question whether the payment of Rs. 50 was a  con- dition  precedent to the vesting of the legacy in G  or  G’B sons was 915 not, however, res judicata and it was open to the  plaintiff to raise such a plea; (v)  on  a  proper  interpretation  of  the  terms  of   the agreement,  the  payment  of  Rs. 50 per  month  was  not  a condition  precedent to the vesting of the legacy in G,  but merely  a -consideration, and the plaintiffs’ remedy was  to enforce the agreement if it was not duly performed; (vi) that  as G obtained a vested remainder under the  will, his  interest  did not fall into the residue  on  his  death before the widow, but vested in his sons; and as the bequest to  G did not lapse there was no question of  any  resulting trust or of any intestacy with respect to the remainder, and G’s sons were entitled to the estate under the will.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 153 of 1951. Appeal from the Judgment and Decree dated 2nd January, 1946, of  the Chief Court of Auadh in First Civil Appeal No. 9  of 1940 arising out of the Decree dated 6th November, 1939,  of the Court of Civil Judge in Regular Suit No. 36 of 1937. Dr.Bakshi Tek Chand (Onkar Nath Srivstava, with him) for the appellants. Achhru Ram (Bishan Singh, with him) for the respondents. 1953.  January 23.  The Judgment of the Court was  delivered by BHAGWATI  J.----This  is  an appeal from  the  judgment  and decree passed by the late Chief Court of Oudh, affirming the judgment  and decree passed by the Civil Judge  of  Sitapur, dismissing the plaintiffs’ suit. One,  Thakur  Shankar Bux Singh, proprietor  of  the  Estate known as Rampur Kelali, situated in -District Sitapur (Oudh)

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was  heavily  indebted  and  the  estate  had  been  in  the possession  of  Deputy Commissioner of Sitapur  as  receiver from 1892 up to 11th July, 1901.  Thereafter he was declared a disqualified proprietor under the provisions of Section  8 (D)  (1)  of the U.P. Court of Wards Act (U.P.  Act  III  of 1899)  and the Court of Wards took possession of the  estate on the 1st August, 1901.  Under Section 34 of the Act he was 916 not  competent to dispose his property by will  without  the consent  in writing of the Court of Wards, though  prior  to the 1st August, 1901, he had made four successive wills, the last  being dated 19th June, 1901, under which he  gave  his estate absolutely to his wife.  On the 30th November,  1901, he  made a will giving a life interest to his wife  and  the remainder over to his cousin Ganga Bux Singh after providing for certain legacies by way of maintenance in favour of  his three  daughters, his father’s sister and his  mother.   The Court of Wards withheld its consent to this will which  thus fell  through.   On the 7th January, 1904, Ganga  Bux  Singh executed  in  his  favour a  registered  deed  of  agreement agreeing  to  pay him Rs. 50 per month during  his  lifetime with effect from the month in which he would execute a  will in  favour  of Ganga Bux Singh and his sons and  submit  the same for sanction of the Members of the Board of Revenue.  A draft  of  the will was accordingly prepared by him  on  the 18th  January, 1904, under which he gave a life interest  to his wife and the residue of the property to Ganga Bux  Singh and  after  him  to his sons after  providing  legacies  for maintenance in favour of his daughters, father’s sister  and mother.   The  Board of Revenue intimated on the  25th  May, 1904,  that  it  would not withhold its consent  to  a  will similar  to that contained in the draft but altered  in  the light of the proposals contained in the further letter dated 27th  April, 1904.  He thereupon duly made and  published  a will  on  the  28th  July,  1904,  in  accordance  with  the suggestions contained in the Board’s letter dated 25th  May, 1904, cancelling all the previous wills executed by him.  It appears  that  he handed over the original of this  will  to Ganga  Bux  Singh  but did not give any  intimation  of  the execution  thereof  to the authorities and  the  authorities could  only  come to know of the same when Ganga  Bux  Singh gave  the original will to the Special Manager on  or  about the  19th  December, 1905.  He appears to have  changed  his mind thereafter and having embraced Christianity intended to marry a Christian woman and submitted to the Court of  Wards on the 8th June, 1906, the draft of a new will which he 917 intended  to execute in favour of his Christian  wife.   The Board withheld its consent to that new will and intimated on the  13th  July,  1906, its refusal  and  also  communicated thereby  the withholding of its consent to the will  already executed  by him on the 28th July, 1904.  A further  attempt by him on the 21st November, 1906, to obtain the consent  of the   Court  of  Wards  to  another  draft  will  was   also unsuccessful and the will dated the 28th July, 1904, was the only  last  will  and  testament executed  by  him  and  got registered after consent obtained from the Court of Wards. Shankar  Bux Singh died thereafter on the 28th  July,  1922, and  he  being  a  Christian  at  the  time  of  his   death successsion  to  his  property was governed  by  the  Indian Succession  Act.  His wife got 1/3rd of the estate  and  the remaining  2/3rds were divided in equal shares  between  his surviving daughter and the son of a predeceased daughter  of his.  Mutation was effected in the records of rights and the name  of  the  widow was .shown there as the  owner  of  the

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estate  in  his  place  and  stead.   The  Court  of   Wards relinquished  charge  of the estate  sometime  in  November, 1925.   The widow executed on the 16th August, 1927, a  deed of gift conveying the bulk of the estate to her daughter and the  son  of the predeceased daughter.   She  also  executed another deed of gift in the same year conveying the rest  of the  properties  and on the 8th September, 1928,  Ganga  Bux Singh filed a suit in the Court of the Subordinate Judge  of Sitapur for a declaration that under the aforesaid will  she had  only a life interest in the property and the  transfers made  by her were void.  This suit was contested by her  and one of the defences taken was that Ganga Bux Singh could not maintain  the  suit  without  first  obtaining  letters   of administration  with  the will annexed.   This  defence  was upheld and the suit was dismissed on the 14th July, 1930. Ganga  Bux  Singh having died in the meanwhile on  the  19th October,   1929,   his   sons   applied   for   letters   of administration with the will annexed on the 25th  September, 1930, on the original side of the Chief Court of Oudh.  This application was opposed by the 918 widow and other heirs of Shankar Bux Singh inter alia on the ground that the will had been executed without the  sanction of  the  Court  of Wards.  Mr. Justice  Kisch  delivered  an elaborate judgment, negatived all the objections and granted letters of administration with the will annexed to the  sons of  Ganga Bux Singh on the 16th November, 1931.   An  appeal filed  by the widow and heirs of Shankar Bux  Singh  against that decision was allowed by the Bench of the Chief Court of Oudh  at Lucknow on the 8th September, 1933, and the  orders passed by the lower court granting letters of administration with the will annexed were set aside.  The sons of Ganga Bux Singh  took  an  appeal  to  the  Privy  Council  and  their Lordships  of  the  Privy  Council on  the  7th  May,  1937, reversed  the  decree of the Appeal Court and  restored  the decree passed by Mr. Justice Kisch.  Their Lordships however observed  that  the only effect of their decision  was  that letters  of administration with a copy of the  will  annexed must  be  granted as prayed but that would not  in  any  way prejudice  any proceedings against any of the  beneficiaries which may be open to the respondents or any of them. On the 9th September, 1937, the widow, the daughter and  the son  of the predeceased daughter of Shankar Bux  Singh,  the plaintiffs, ’filed the suit out of which this appeal arises, against  the three sons of Ganga Bux Singh, the  defendants, for  a declaration that the will dated the 28th July,  1904, was  inoperative  and ineffectual and that in any  case  the defendants had no right, title or interest in the properties in suit, that plaintiff I was entitled to hold the  property in suit under the will of Shankar Bux Singh dated 19th June, 1901,  or  that the plaintiffs 1 to 3 were entitled  to  the same as heirs-at-law of Shankar Bux Singh deceased under the provisions of the Indian Succession Act, and for further and other reliefs.  In the plaint they alleged that the will was inoperative as Shankar Bux Singh had no animus testandi  and that  it  was  void  and  inoperative  in  respect  of   the testamentary disposition in favour of Ganga 919 Bux  Singh  and his sons because Ganga Bux Singh  failed  to perform  his part of the contract as regards the payment  of monthly  allowance  and the defendants therefore  could  not take   advantage  of  or  claim  any  benefit  tinder   that testamentary disposition and further the payment of the said allowance being a condition precedent and the condition  not having  been fulfilled the disposition  became  inoperative.

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The  defendant  3  filed  a written  statement  on  the  7th February,  1938,  contesting  the  plaintiff’s  claim.    He contended that the plea as to the validity or effect of  the will was barred by resjudicata by virtue of the judgment  of the  Privy Council dated 7th May, 1937.  He denied that  the will  was  executed in consideration of the  agreement.   He also  denied  that there was any contingent  or  conditional contract or any trace of the alleged condition in the  whole of  the  correspondence between Shankar Bux  Singh  and  the Board of Revenue. The  learned  Civil Judge, Sitapur,  after  considering  the evidence,  oral as well as documentary, led before him  held that the will as well as the agreement formed one  contract, that  Ganga Bux Singh had failed to perform his  promise  or his  part  of the contract, that the only  point  which  was agitated before their Lordships of the Privy Council was  as regards the consent of the Court of Wards and that therefore even though the plaintiffs were precluded from disputing the genuineness of the will they were not precluded from seeking a  declaration  to the effect that the defendants  were  not entitled  to  any  benefit  under the  will,  and  that  the decision therefore did not operate as res judicata so far as issues in the present case were concerned.  He however  held that  the contract clearly provided a remedy for  breach  on the part of either party, that Shankar Bux Singh did not  in fact  cancel the will and could not be said to have  treated it  as inoperative, that Ganga Bux Singh acquired  a  vested interest in the estate on the death of the testator and that on his death that interest devolved on his sons amongst whom were  the  defendants in the suit and  that  the  plaintiffs were, not entitled to any relief as claimed, The 920 plaintiffs filed an appeal to the Chief Court of Oudh.   The Chief  Court of Oudh negatived the contention  that  Shankar Bux  Singh had no animus testandi and that it was a will  in form  only and not in substance, holding that it was  barred by res judicata by reason of the decision of their Lordships of the Privy Council.  It also negatived the contention that the  bequest in favour of Ganga Bux Singh was a  conditional bequest or that Ganga Bux Singh having failed to fulfil  his obligation  to  pay the gujara his original character  as  a legatee changed into that of a trustee and he must hold  the beneficial  interest  for the testator or  his  heirs.   The appeal  was therefore dismissed with costs.  The  plaintiffs applied  for  leave to appeal to the Privy Council  and  the necessary certificate was granted by the Chief Court of Oudh on the 8th August, 1947. It  is  necessary  at  the outset to set  out  the  deed  of agreement  and  the  will executed by Ganga  Bux  Singh  and Shankar  Bux  Singh respectively on dates the  7th  January, 1904, and the 28th July, 1904.  The deed of agreement  dated the 7th January, 1904, ran as under:- "Whereas, my cousin Thakur Shankar Bakhsh Singh, Taluqdar of Rampur Kalan, has proposed to make a bequest of his  taluka, immovables, movables, rights etc. in favour of his wife and, after her death in my favour and that of my sons Dwarka Nath Singh,  Ajodhya Nath Singh and Tirbhuwan Nath Singh,  there- fore by way of consideration for this concession and favour, I, the executant, out of my own free will do hereby  execute this agreement in favour of my cousin aforesaid that in  the month  in which the said cousin might execute the said  will in  my  favour and that of my sons and lays the  same  along with an application before the Deputy Commissioner,  Sitapur district,  for  sanction  of the Members  of  the  Board  of Revenue,  I shall from the 1st date of the  month  following

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that month, continue to pay to my said cousin Rs. 50 in cash every  month  during  his life, so long  as  the  said  will remains  in force and under this contract I make  my  person liable and hypothecate the same by virtue 921 of this agreement.  If I, the executant, fail to perform the said  contract  the said cousin has power to have  the  same performed by me, the executant, through Court.  If the  will mentioned  above  executed  by  the  said  cousin,  be   not sanctioned  by  the Members of the Board of  Revenue  or  if under  any  circumstance,  the kV said  cousin  may  himself revoke  the said will, then from the time of  revocation  or refusal by the Board of Revenue the said cousin shall not be entitled  to receive the aforesaid monthly amount of Rs.  50 and whatever money the said cousin might have received  from me, the executant, up to the said refusal or revocation  the said cousin shall necessarily be bound to refund that  money to me, the executant." The will dated the 28th July, 1904, was executed by Shankar Bux Singh in the terms following:- "  I  am Thakur Shankar Baksh alias S. John  son  of  Thakur Anant  Singh,  Taluqdar of Rampur and Grantee  of  Piprawan, district Sitapur.  Out of my own free will, inclination  and accord and consent I make a will that after my death my wife for  her  lifetime shall remain in possession of  my  entire Ilaqa  (estate)  as  well  as  the  movable  and   immovable property,  left  by  me,  together  with  the  rights  etc., relating  to the said properties, without the power  of  any sort to transfer the said properties and rights, that on the death  of the said wife all the aforesaid property  and  the rights  shall devolve on my real cousin, Ganga  Bakhsh  with all  the proprietary powers, and that on the death of  Ganga Bakhsh the said entire property and the rights shall devolve on  Dwaraka Nath, Ajodhia Nath and Tirbhuwan Nath,  sons  of Ganga  Bakhsh, like Ganga Bakhsh himself, in  the  following shares:  Dwaraka  Nath  annas  6,  Ajodhia  Nath  aninas  5, Tirbhuwan Nath annas 5: and that the persons mentioned below shall  continue  to get the maintenance  allowance  (Guzara) according to the amounts and conditions noted below:- Musammat   Permeshuri,  my  eldest  daughter,   married   at Allahabad to the son of Rai Anant Ram, generation 922 after  generation,  (limited)  to male issue,  Rs.  100  per month; Musammat  Chandrani,  my  younger  sister,  married  to  Rai Raghubir  Bakhsh,  son  of  Rai  Kunwar  Bahadur,  Rais   of Shahabad,  district  Hardoi,  generation  after   generation (limited) to male issue, Rs. 60 per month; - Mussamat Roop Rani, my real paternal aunt (father’s sister), wife of Munshi Chedi Prasad deceased, Rais of Qasba  Mahona, district Lucknow, generation after generation, (limited)  to male issue, Rs. 45 per month; Musammat Sohni, my mother for her life, Rs. 70 per month. *              *              *            *               * Be  it  also  known  that my estate  (Ilaqa)  is  under  the Superintendence  of  the  Court of  Wards  and  the  Hon’ble Members  of  the Board of Revenue have granted me  power  to execute  the will so I do hereby execute this my  last  will cancelling all the previous wills executed by me’ " It  is  clear from the terms of the deed of  agreement  that Ganga  Bux  Singh agreed to pay Rs. 50 in cash  every  month during the lifetime of Shankar Bux Singh in consideration of Shankar  Bux Singh having proposed to make a bequest of  the remainder in favour of Ganga Bux Singh and his sons and that it  was  after the deed of agreement was got  registered  by

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Ganga  Bux Singh on the 11 th January, 1904, that the  draft of the will was submitted on the 18th January by Shankar Bux Singh to the Court of Wards.  It was this draft of the  will amended as it was by the letter dated 27th April, 1904, that was  engrossed in the will which was ultimately executed  on the  28th July, 1904, after the letter of sanction  obtained from  the Board on 25th May, 1904.  The learned Civil  Judge under the circumstances came rightly to the conclusion  that the  deed of agreement and the will formed part of the  same transaction,  that  the consideration for the will  was  the deed  of agreement and the consideration for  the  agreement was the will and that the will 923 as well as the agreement formed one contract.  This  finding was not challenged before the Chief Court of Oudh and  could not  be  challenged  before us.  There was  also  a  further finding  of  fact which was recorded by  the  learned  Civil Judge  and it was that Ganga Bux Singh failed and  neglected to  -make any payment to Shankar Bux Singh in terms  of  the deed of agreement even though Shankar Bux Singh executed the will and laid the same along with the application before the Deputy Commissioner, Sitapur, for sanction of the Members of the Board of Revenue and that Ganga Bux Singh thus failed to perform his part of the contract.  This finding also was not challenged  before the Chief Court of Oudh and could not  be challenged before us. The question therefore which falls to be considered by us is what  is the effect of the failure on the part of Ganga  Bux Singh to make the payments to Shankar Bux Singh in terms  of the  deed of agreement.  It was urged by Dr.  Tekchand,  who appeared for the plaintiffs before us that by reason of such non-payment and the breach of contract on the part of  Ganga Bux Singh the will became ineffective and inoperative,  that the  payment  of  Rs. 50 per month during  the  lifetime  of Shankar  Bux Singh was a condition precedent to the  vesting of  the  legacy  in  favour of  Ganga  Bux  Singh  and  that condition not having been fulfilled the legacy did not  vest in  Ganga Bux Singh and that on a true construction  of  the terms  of  the  will  Ganga Bux  Singh  acquired  no  vested interest in the remainder.  He also urged that the scope  of the  Privy Council judgment was misunderstood by  the  Chief Court of Oudh and that both the questions as regards  animus testandi  and  the  payment  of Rs. 50  per  month  being  a condition precedent though they were barred by res  judicata in  regard to the due execution of the will were still  open to  him  as affecting the right of Ganga Bux  Singh  to  the legacy which was provided for him by Shankar Bux Singh under the will. In regard to the last contention urged by Dr. Tekchand  both the  courts below were of the opinion that the  question  of animus testandi was barred by res 924 judicata.   It  was  held by their Lordships  of  the  Privy Council that the will in dispute was not revoked and that it was the last will and testament of Shankar Bux Singh.   That decision  necessarily  meant  that  the  testator  when  -he appended  his  signature  to the will was  in  a  sound  and disposing state of mind, was a free agent and ’duly executed the  will  in  accordance with the law.   The  decision  was conclusive   as  regards  the  testamentary  capacity,   due execution and the representative title of the person to whom the  letters  of administration with the will  annexed  were granted.   It  was not open therefore to the  plaintiffs  to contend  that  the will which was executed  by  Shankar  Bux Singh  was a will merely in form and not in substance.   The

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question  of  animus testandi was therefore  barred  by  res judicata.   In  regard however to the question  whether  the bequest  in favour of Ganga Bux Singh could take  effect  by reason  of  default  in payment the decision  of  the  Privy Council  did not constitute res judicata and it was open  to the  plaintiffs to urge that contention.  Both  the  courts’ below therefore allowed the plaintiffs to agitate that ques- tion  though  they  came  to a  conclusion  adverse  to  the plaintiffs.  We are of the opinion that there was no bar  of res judicata and the courts below were right in allowing the plaintiffs to agitate that question.  The payment of Rs.  50 per month to Shankar Bux Singh during his lifetime might  be a  condition  precedent  to  the  whole  will  coming   into operation or might, be a condition precedent to the  vesting of  the  legacy  in  favour of  Ganga  Bux  Singh.   If  the plaintiffs  urged  the  former  position  that  plea   would certainly be barred by res judicata.  No court would grant a probate  or letters of administration with the will  annexed in regard to a will which has ceased to be operative and was a  mere scrap of paper.  The plaintiffs could not  therefore be heard to say that ’by reason of the non-fulfilment of the condition  precedent the whole will had become  inoperative, for  that  would run counter to the decision  of  the  Privy Council.  Even on merits such a position would be  untenable for the simple reason that besides 925 Ganga  Bux Singh there was the widow, who was given  a  life interest  and there were the three daughters,  the  father’s sister  and  the mother who were given legacies  by  way  of maintenance  and  they  were certainly not  guilty  of  non- fulfilment  of  any  condition precedent.   The  will  would certainly therefore stand so far as they were concerned  and the  whole  effect of the non-fulfilment  of  the  condition precedent  qua  Ganga  Bux Singh would  be  to  prevent  the vesting of the legacy in his favour. The  latter  position therefore would be  available  to  the plaintiffs and they could contend that by reason of the non- fulfilment of the condition precedent by Ganga Bux Singh the legacy  provided in his favour did not vest in him.  If  the payment  of  Rs.  50  per  month  therefore  constituted   a condition  precedent the plaintiffs were on firm ground  and that  position could not and was not contested before us  by the  learned  counsel  appearing  for  the  defendants.   It therefore  remains to be considered whether the  payment  of Rs.  50 pet month to Shankar Bux Singh during  his  lifetime constituted  a  condition precedent to the  vesting  of  the legacy in favour of Ganga Bux Singh. There is no doubt, as held by the learned Civil Judge,  that the consideration for the will was the deed of agreement and the  consideration for the agreement was the will  and  that the will as well as the agreement formed one contract.   But for  Ganga Bux Singh having executed the deed  of  agreement Shankar Bux Singh would not have forwarded the draft will to the  Court of Wards for its sanction and he would  also  not have executed the will on the 28th July, 1904.  The contract was an overall contract under which both the parties had  to perform their respective obligations.  The obligation on the part of Ganga Bux Sigh was to execute the deed of agreement, agreeing  to  pay  the  moneys  to  Shankar  Bux  Singh   in accordance  with the terms thereof.  The obligation  on  the part of Shankar Bux Singh was to execute the will and submit it  to  the  Court of Wards for its  sanction.   Both  these obligations  were  fulfilled  by the  parties  and  the  two documents were supported by consideration and became binding 926

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on both the parties.  The nonperformance of the agreement to pay  by  Ganga Bux Singh constituted at best a  failure.  to fulfil his obligation and Shankar Bux Singh became  entitled to pursue his rights and remedies against Ganga Bux Singh by reason of the breach of contract by him. It  was  urged by Dr. Tekchand that the  consideration  here constituted  a condition precedent and that the  non-payment of  Rs.  50 per month by Ganga Bux  Singh  constituted  non- fulfilment of condition precedent. He  relied upon the observations of Chief Justice  Wills  in Acherley  v. Vernon, 125 English Reports 1106 at  page  1108 (Willes 153 at page 156): "  I  know  of  no  words that either  in  a  will  or  deed necessarily  make a condition precedent, but the same  words will  either  make  a  condition  precedent  or   subsequent according  to the nature of the thing and the intent of  the parties.   If therefore a man devise one thing in  lieu  and consideration  of another, or agree to do anything or pay  a sum  of  money in consideration of anything to be  done,  in these  cases that which is the consideration is looked  upon as a condition precedent.  So is the case of Peters v. Opie, I Ventr. 177, and I Saund. 350.  If a man agree to pay a sum of money to another pro labore suo in pulling down a  house, the pulling down of the house is a condition precedent.   So is the case of Thorpe and Thorpe.  I Salk. 171, where a  man agreed  to  pay a sum of money to another he  releasing  the equity  of redemption in certain lands.  And so is the  case of Turner v. Goodwin, adjudged by Lord Macclesfield and  the rest of the Judges of B. R. upon great consideration, P.  13 Anne,  in  which case Goodwin was to pay  Turner  15001.  be assigning a judgment.  In all which cases it was holden that the  party who was to receive the money was not entitled  to demand  it  until  he  had  performed  that  which  was  the consideration  of the payment, and which was  considered  in all  these cases to be in the nature of a  condition  prece- dent. *                     *                     *              * 927 So  likewise  if it plainly appear to be the intent  of  the testator  that the devise shall not have the benefit of  the devise  unless he perform a certain act enjoined him by  the devisor,  this  is a condition precedent;  and  the  devisee shall  have  no benefit of the devise until he  perform  it, even though the condition be never so unreasonable if it  be not  illegal  or  impossible; for cujus est  dare  ejus  est disponere." These  observations  were particularly relied  upon  by  Dr. Tekehand  in support of his contention that the  payment  of Rs.  50 per month to Shankar Bux Singh during  his  lifetime constituted  a  condition precedent to the  vesting  of  the legacy in favour of Ganga Bux Singh. While  recognising  the force of these observations  we  are constrained  to  observe  that  the terms  of  the  deed  of agreement  negative  any  such  contention.   The  agreement itself provided what was to happen if payment was not-  made in  accordance with the terms thereof.  If Ganga  Bux  Singh failed to perform the contract Shankar Bux Singh was to have the  power  to have the same performed by  Ganga  Bux  Singh through  Court.  This consequence could not be  contemplated if  the  payment constituted a condition precedent  and  the non-fulfilment  of the condition precedent was to  have  the effect  of  rendering the agreement  inoperative.   In  that event  the agreement itself would become inoperative and  no rights  under  the agreement would survive  to  Shankar  Bux Singh.   The right which was therefore given to Shankar  Bux

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Singh  to  have the agreement performed by Ganga  Bux  Singh contemplated  the existence and the continued  existence  of the  agreement  so as to enable Shankar Bux  Singh  to  hold Ganga Bux Singh to its performance, The continued  existence of  the contract was in contemplation of the parties and  so far  as  Ganga  Bux Singh is concerned it was  at  no  stage contemplated  that  he could forego the performance  of  the obligation  on his part to pay Rs. 50 per month  to  Shankar Bux  Singh  during his lifetime so long as  the  will  stood unrevoked. 928 It  is  significant to observe on the other  hand  that  two events were contemplated so far as Shankar Bux Singh himself was  concerned.  The one was the withholding of the  consent of  the Court of  Wards and the other was the revocation  of the  will by Shankar Bux Singh himself.  The sum of  Rs.  50 per  month was agreed to be paid by Ganga Bux Singh  to  him from the month when Shankar Bux Singh executed the will  and laid  it  before the Court of Wards for its  sanction.   The Court of Wards might withhold its consent to the will and in that  event whatever payments were made during the  interval by  Ganga Bux Singh to Shankar Bux Singh had to be  refunded by  the  latter.   Even  though the  Court  of  Wards  might sanction  the will Shankar Bux Singh might later  on  revoke the  will  and the consequence of such revocation  was  also provided  in that Shankar Bux Singh was to refund  to  Ganga Bux  Singh the amounts which he had paid up to the  time  of revocation to Shankar Bux Singh in accordance with the terms of  the agreement.  It has to be observed moreover that  all these  constituted  independent obligations on the  part  of both  the parties.  The obligation on the part of Ganga  Bux Singh  was  so long as the will stood unrevoked  to  pay  to Shankar  Bux Singh Rs. 50 per month during his lifetime  and the  obligation  on  the part of Shankar Bux  Singh  was  to obtain  the consent of the Court of Wards and to  leave  the will unrevoked during his lifetime.  These obligations  were independent  of each other and the consequences of the  non- performance of these obligations on the part of each of  the parties were expressly provided in the agreement itself.  It could not therefore be contended that the payment of Rs.  50 per   month  to  Shankar  Bux  Singh  during  his   lifetime constituted  a  condition precedent to the  vesting  of  the legacy  in  his  favour.  That was  merely  a  consideration provided by Ganga Bux Singh for the execution of the will by Shankar  Bux  Singh  in his favour and if  Ganga  Bux  Singh committed a breach of the agreement the only result was that Shankar  Bux  Singh  would become entitled  to  recover  the amount due on such default 929 from  Ganga Bux Singh by having recourse to a court of  law. The  contract would continue to subsist, the  parties  being relegated  to  their  rights  and  remedies  thereunder   as contemplated by the parties. In spite of the non-payment by Ganga Bux Singh of the sum of Rs. 50 per month to Shankar Bux Singh in accordance with the terms  of  the agreement at no time did  Shankar  Bux  Singh revoke the will nor did he pursue Ganga Bux Singh in a court of  law for the recovery of the amounts in respect of  which Ganga Bux Singh was in default.  He left the will  unrevoked and on his death the will became effective as his last  will and  testament and operated to vest in Ganga Bux  Singh  ail interest  in  the remainder as therein provided.   There  is nothing in the will itself which in terms makes the  bequest conditional  on  regular  payment of the  amount  under  the agreement.

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The  argument  which was advanced by Dr. Tekchand  based  on section 81 of the Indian Trusts Act could not avail him  for the  simple reason that the intention of Shankar  Bux  Singh had  to be gathered as on the date of the execution  of  the will  and  not  at any  subsequent  time  thereafter.   That intention  was clearly to effect a testamentary  disposition of  the  remainder  in favour of Ganga Bux  Singh.   It  was certainly farthest from the thought of Shankar Bux Singh not to  dispose of the beneficial interest in the  remainder  in favour  of Ganga Bux Singh with the result that there  could neither  be  a  secret  trust  nor  a  trust  of   imperfect obligation  created  in favour of the heirs at  law  of  the testator  Shankar Bux Singh.  The argument of  Dr.  Tekchand that the remainder did not vest in Ganga Bux Singh but  fell into  residue by reason of his having predeceased the  widow of Shankar Bux Singh is equally of no avail.  The legacy  in favour  of Ganga Bux Singh was a legacy of the remainder  of the estate which vested in Ganga Bux Singh but was  deferred in possession till after the extinction of the life interest created  in favour of the plaintiff 1. Such vested  interest could  devolve  upon  the defendants, the  heirs  and  legal representatives of 120 930 Ganga  Bux  Singh  on  the  death  of  the  latter  and  the -defendants  were  therefore as the heirs  and  legal  repre sentatives  of  Ganga  Bux  Singh  since  deceased   rightly entitled  to the same.  As the bequest was  not  conditional and  did  not  lapse  there could  be  no  question  of  any resulting  trust  or of any intestacy with  respect  to  the remainder. The  result therefore is that the appeal fails and  must  be dismissed with costs. Appeal dismissed. Agent for the appellants : Rajinder Narain. Agent for the respondents: C. P. Lal.