RAJ BAJRANG BAHADUR SINGH versus THAKURAIN BAKHTRAJ KUER

lfitporters and Man1,facturdr1 Ltd. v. P.herote Framroze Tai·aporewala and Others.

1952 Nov. 'l.

and the tenant under or throi;rgh whom he claims aud to seek protection under the Act, if he is entitled to any. Such person may be joined as party to the suifl' from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such proper party cannot alter the character of the suit and does not make the suit any the less suit between the landlord and the tenant or take it out of section 28 of the Act. 'ro hold other· wise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion. In our view the decision and the reasoning of Chagla C.J. are substantially correct and this appeal must fail. We, therefore, dismiss the appeal ·with costs.

Appeal dismissed.

Agent for the appellants: RaJinder Narain.

A.gent for respondents Nos. 1, _2 & 3 : R. A. Ga.grat.

RAJ BAJRANG BAHADUR SINGH

THAKURAIN BAKHTRAJ KUER.

[MuKHERJEA, CHANDRASEKHARA A!YAH and BHAGWATI JJ.J

OudhEstates Act (I of 1861>) s.14-Will of Taluqdar-Bequest as "absol~tte owner" without right to transfer-Validity-Succession to legatee whether governed by Act or ordinary law-C1·eation of su .. ccessive estates - Validity-Rule aaainst perpetuities-Construction 11-Ma1ik Kamil", "Naslan bad naslan".

The Oudh Estates Act (Act,! of 1869) does not interdict the creation of future estates and limitations provided they do not transgress the rule of perpetuities and where disposition by will made by taluqdar does not make the legatee an absolute owner but gives him only an interest for life which is followed by subsequent interests created in favour of other persons the rule of succession laid down in s. 14 of the Act will not apply on the death of the donee and the property bequeathed to him will pass accord· in~ to the 1'rill to the next person entitled to it under the will.

S.C.R. SUPREME COURT REPORTS

The words malik kamii (absolute o·wner) and · naslan bad 1952 naslan (generation after generation) are descriptive of heritable -and aliertable estate in the donee and they connote full proprietary Raj Bajrarig rights unless there is something in the context or in the surr01md- Bahadur Singh. ing circumstances which indicate that absolute rights were not v. intended to be conferred. In all such cases the true intention of Thakura-iii the testator has to be gathered not by attaching importance to Baf,,h{rn.,i J(uer. isolated expressions but by reading the will as whole with all its provisions and ignoring none of them as redundant or contradic-tory. •

In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would be repelled on the ground of repugnancy; but where the restrictions are the primary things· which the testator desires and they are consistent with the whole tenor of the will, it is material circumstance to be relied on for displacing the presumption of absolute ownership implied in the· use of the word malik.

Though under the rule laid down in Tagore v. Tagore (18 W.R. 359) no interest could be created in favour of unborn persons, yet when gift is made to · class or series of persons, some of whom are in existence at the time of the testator's death and some are not, it does not fail in its entirety; it will be valid with re-gard to the persons who are in existence at the time of the testa-tor's death and invalid as to the rest.

will made by taluqdar of Oudh recited that with view that after his death his younger son and his heirs and succes-sors, generation after generation, may not feel any trouble or create any quarrel, shall after the testlttor's death remain in possession of certain villages as absolute owner with the reserva-tion that he will have no right to transfer, that if may not be living at the time of his death D's son or whoever may be his male heir or widow may remain in possession and that although and his heirs are not given the power of transfer they will exercise all other rights of absolute ownership: Held, that the will did not confer an absolute estate on and on D's death the successi~n was not governed bys. 14 of the Oudh Estates Act and D's widow was entitled to succeed in preference to D's elder brother.

CIVIL APPELLATE JuHISDICTION: Civil Appeal No. 147 of 195 !. Appeal from the Judgment and Decree dated September 4, 1946, of the· late Chief Court of Oudh (now the High Court of Judicature at Allahabad, Lucknow Bench) (Misra. and Walford JJ.) in First Civil Appeal No. 139 of 1941, arising out of the Judgment and Decree dated October 23, 1941, of the Court of the Civil Judge, Bahraich, in Regular Suit No. 1 of 1941.

234 .· SUPREME COURT REPOR'l'S (1953]

Onkar Nath Srivastava for the appellant.

Bishan Singh for the respondent.

llaj Bajrang

Bd.had1ir Singh

• 1952. ['

November 7.

The Judgment of the Court

7'hakurain B_akht.raj Kiter. was lYer~

:M:uKHBR.TEA J.-This appeal is on behalf of the

Jl1ikhor jea J.

plaintiff and is directed against judgment a..nd decree of the Chief Court of· Ava.db dated ·September 4, 1946, affirming, on appeal, those of the Civil Judge, Bahraich, passed in Regular Suit No. 1 of 1941.

To appreciate the controversy between the parties to this appeal it would be necessary to state few facts. One Raja Bisheshwar Bux Singh, the father of the plaintiff and of the defendant's husb:md, was taluq-dar of Oudh, and the estate known as Gangwal Estate, to which he succeeded in 1925 on the death of the widow of the last holder, is one to which the Oudh Estates Act \I of 1869) applies. Raja Bishe3hwar died on 16th October, 1930, leaving behind him two sons, the elder of whom, Bajrang Bahadur, is the plaintiff in the present litigation, while the younger, whose name was Dhuj Singh, has died since then, being survived by his widow Bakhtraj Kuer, who is the defendant ii:t the suit. Shortly before his death Raja Bisheshwar executed will dated 11th Septem-ber, 1929; by which five properties, described in lists and attached to the plaint, were bequeathed to Dhuj Singh, the younger son, by way of making provisions for the maintenance of the said son and his heirs. On the death of Raja Bisheshwar, the estate went to the plaintiff as his eldest son under the provisions of the. Oudh Estates Act and Dhuj Singh got only the five properties mentioned above under the terms of his father's will. Dhuj Singh had no issue of his own and on his death in 1940 disputes arose in respect of these properties between the plaintiff on the one hand aud Dhuj Singh's widow on the other. The plaintiff succeeded at first in having )lis name mutated as owner of these properties in the revenue 1·ecords in place of his deceased brother, but the appellate

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revenue authority ultimately set aside this order and I952 directed mutation to be made in the name of the R . .. en ant. Th p 1 a111 [· ][t'ff ]1 [th ]ereupon commence • th Bahad"r •aJ n;ra"f1 Singh suit out of. which this appeal arises, praying for v. declaration of his title to the five properties mentioned Thakm·ain above on the allegation that they vested in him on Bakhtraj K"er. the death of Dhuj Singh and that the defendant co~ld> rvr kl-. J not, in law, assert any right to the same. It may be ' " "r.iea · stated here that four out of these five properties have been described in list to the plaint and there is no dispute that they are taluqdari properties. The fifth item is set out in list and admittedly this property is not taluqdari in its character. Besides lists and there is third list, viz., attached to the plaint, which mentions two other properties as being in possession of the defendant and in the plaint claim was made on behalf of the plaintiff in respect to these properties as well, although they were not covered by the will of Bisheshwar. This claim, how-ever, was abandoned in course of the trial and we are not concerned with it in the present appeal.

The plaintiff really rested his case on two-fold ground. It was averred in the first place that Dhuj Singh had only life interest in the properties be-queathed to him by Bisheshwar and on the termina-tion of his. life interest, the property vested in the plaintiff as the heir of the late Raja. In the alterna-tive the. case put forward was that even if Dhuj Singh had an .absolute interest created in his favour under the terms of his father's will, the plain tiff was entitled to succeed to the taluqdari properties at any rate, under the provision of section 14(b) read with section 22 (5) of the Oudh Estates Act.

The defendant in ·her written statement resisted the plaintiff's . claim prim!l.rily on the ground that Bisheshwar Bux Singh, as the full owner of the pro-perties, was competent to dispose of them in any way he liked and under his will it was the defendant and not the plaintiff in whom the properties vested after the death of Dhuj Singh. The contention, in sub-stance, was that the will created f1. life estate for DhuJ

236 SUPREME COUR1' REPORTS (1953]

Singh followed by devise in favour of the widow as his personal heir.

Raj Bajran9 Dahnd"r Si .. gh The decision of the point in dispute between the v. parties thus hiuges on the proper construction of the Thnkurnin will left by Bisheshwar. 'rhe trial court after an fl,khtraj Kuer. elaborate consideration of the different portions of MukJwjea J.' the will, viewed in the light of surrounding circum-. stances, came to the conclusion that Dhuj Singh got life interest in the devised properties but there were similar life estates created in favour of his personal heirs in succession, the ultimate remainder being given to the holder of the estate when the line of per-sonal heirs would become extinct. The defendant. therefore, was held entitled to the suit properties so long as she was alive and in that view the plaintiff's suit was dismissed. Against this decision, the plaintiff took an appeal to the Chief Court of Avadh and the Chief Court affirmed the decision of the trial judge and dismissed the appeal. 'rhe plaintiff has now come up to this court on the strength of certificate granted by the High Court of Allahabad with which the Chief Court of Avadh was amalgamated sometime after the disposal of this case.'rhe learned counsel appearing for the appellant first of all drew our attention to the provisions con-tained in certain sections of the Oudh Estates Act and it was urged by him on the basis of these provisions that as Dhuj Singh, who got the suit properties under the will of his father, the late Taluqdar, came within the category of persons enumerated in clause (1) of section 13-A, Oudh Estates Act, he could, under sec-tion 14 of the Act, hold the properties subject to the same conditions and the same rules of succession as were applicable to the taluqdar · himself. In the$e. circumstances, it is said that the provisions of section 22 (5) of the Act would be attracted to the facts of this case and the plaintiff, as the brother of Dhuj Singh, would be entitled to succeed to the properties of the latter in preference to his wiaow.

The argument formulated in this way does not appear to us to be helpful to the appellant. Sectioq i J

of the Oudh Estates Act confers very wide powers of 1953 disposition upon taluqdar and he is competent R . Ba· under the sect10n . " to trans er t w ole or any Bahadur aJ Jrang Sin~h portion of his estate, or of his right and• in-v. terest therein, during his lifetime, by sale, exchange, Thakurain mortgage, lease or gift, and to bequeath by his will Bakhtraj Kuer. to any person the whole or any portion of such estate, Mukherjea J. and interest." Sections 13 and 13-A make certain special provisions in cases of transfers by way of gift and bequest in favour of certain specified persons and lay down the formalities which are to be complied with in such cases. Section 14 then provides that "if any taluqdar or grantee, or his heir or legatee, shall heretofore have transferred or bequeathed, or if any taluqdar or grantee, or his heir or legatee shall here-after transfer or bequeath the whole or any portion of bis estate-

(a) ........... .

(b) to any of the persons mentioned in clauses (1) and (2) of section 13-A, the transferee or legatee and bis heirs and legatees shall have same rights and powers in regard to the property to which he or they may have become entitled under or by virtue of such transfer or bequest, and shall hold the same subject to the same conditions and to the same rules of suc-cession as the transferor or testator."

It is true that Dhuj Singh being younger son of the testator came within the purview of clause (1) of section 13-A of the Oudh Estates Act and if he be-came full owner of the properties under the will of his father, succession to such properties after his death would certainly be regulated by the special rules of succession laid down in the Oudh Estates Act, and not by the ordinary law of inheritance. But section 14 would have no application if the disposition by the will did not make Dhuj Singh an absolute owner of the properties and he was given only an interest for life which was followed by subsequent interests created in favour of other persons .

i95Z It cannot also be contended that taluqdar govern-Bahadur R[. ]ai [. ][B ]•Jrang [. ]Singh 1 ed by ess th the an h" Oudh IS so Estates I ute proprietary Act · cannot ng · convey · t ma anything property v. by tr"ausfer inter vivas or by will, or that it is not Thakurain competent for him to create any limited interest or Bakhtrn.i K1w. future estate. Apart from the plenary provision con-tained in section 11, section 12 of the Act which Mukh6rjea J.· makes the rule against perpetuity applicable to trans-fers made by taluqdar, furnishes clear indication that the Act does not interdict the creation of future estates and Jimitations provided they do not trans-gress the perpetuity rule.

The questions, therefore, which require considera-

tion in this case are really two in number. The first is whether Dhuj Singh got an absolute estate or an estate for life in the properties given to him by the will of Raja Bisheshwar? If he got an absolute estate, the contention of the appellant should undoubtedly pre-vail with regard to the taluqdari properties specified in list of the plaint. If, on the other hand, the interest was one which was to inure only for the period of his life, the further question would arise as to whether any subsequent interest was validly creat-ed by the will in fa vonr of the widow on the strength of which she can resist the plaintiff's claim. If the life estate was created in favour of Dhuj Singh alone, obviously the plaintiff as the heir of the grantor would be entitled to come in as reversioner after his death.

The answers to both the questions would have to be given on proper construction of the will left by Raja Bisheshwar. The will has been rightly describ-ed by tbe trial judge as most inartistic document with no pretension to any precision of language, and apparently it was drawn up by man who was not acquainted with legal phraseology. The Civil Judge himself made translation of the document, dividing its contents into several paragraphs and this was found useful and convenient by the learned Judges of the Chief Court. 'fhe material portions of the will, as translated by the trial judge, may be set out as follows:-

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"As I have become sufficiently old and no reliance can be placed on life, by God's grace I have got two · S · ld sons namely, BaJra.ng Ba adur mg , t er, an Dhuj Singh the younger. After my death the elder son would according to rule, become the Raja, the younger one is simply entitled to maintenance.

RfJJ . 8 "JrfJng . B"h"dur Singh v. ThakurfJin BfJkhti·fJj Kuer.

1. Consequently with view that after my death Mukl<erjea J. the younger son and his heirs and successors, genera-tion after generation, may not f()el any trouble and that there may not be any quarrel between them.

2. I have decided after full consideration that I should execute will in favour of Dbuj Singh with respect to the villages detailed below.

3. So that after my death Dbuj Singh may remain in possession of those villages as au absolute owner with the reservation that be will have no right of transfer.

4. If, God forbid, Dbuj Singh may n.ot be living at

the time of my death, his son or wboevar may be his male heir or widow may remain in possession of the said villages on payment of the Government revenue as an absolute owner .

. 5. The liability for the land revenue of the said villages will be with Dbuj, Singh and his heirs and successors; the estate will have no concern with it.

6. Although Dbuj Singh and bis heirs are not given

the power of transfer, they will exercise all other rights of absolute ownership that is to say, the result is that the proprietor of the estate or my other heirs and successors will not eject Dbuj Singh or bis heirs or successors in any way.

7. Of course if Dhuj Singh or his heirs become ever beirless then the said villages will not escbeat to the Government but will revert and form part of the estate.

8. Hence with the soundness of my mind without any force or pressure a.nd after having fully under-stood and also having thought it proper I execute this will in fa your of Dbuj Singh, my own son, with tbe above· mentioned term;;."

zgsa _ Th learne counsel for the appellant naturally RaJ·BaJrang lays stress upon tlie words "absolute owner" (malik Bahadui· Singh kamil) and "generation after generation" (naslan bad v. na~lan) used in reference to the interest which Dhuj Thakurain Singh was to take under the will. These words, it Bakhtr•J Kuer. cannot be disputed, are descriptive of heritable and MukhBrjsa J .. alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred. In all such cases the true intention of the testator has to be gathered not by attaching importance to isolated expressions but b:i; reading the will as whole with all its provisions and ignoring none of them as redundant or contradictory.

The object of the testator in executing the will is clearly set out in the preamble to the document and in spite of the somewhat clumsy drafting that object seems to have been kept in view by the testator throughout, in making the provisions. The language and tenor of the document leave no doubt in our minds that the dominant intention of the testator was to make provision not for Dhuj Singh alone but for the benefit of his heirs and successors, "genera-tion after generation" as the expression has been used. The expression " heirs" in this context obviously means and refers to the personal heirs of Dhuj Singh determined according to the general law of inheritance and not the successors to the estate under the special provisions of the Oudh Estates Act, for paragraph 6 of the will mentioned above is expressly intended to protect the personal heirs of Dhuj Singh from eviction from the properties in question by the future holders of the estate.

Thus the beueficia.ries under the will are Dhuj Singh himself and his heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation. On . the total extinction of this line of heirs the properties affected by the will are to revert to the estate. As it was the intention of the testator that the properties should

remain intact till the line of Dhuj Singh was 195B exhausted and each successor was to enjoy and bold R . . t properties wit ou . . t any power o ienat10n, . 1[. ]. Bahadur a; a;rang Singh obviously what the testator wanted was to create v. series of life estates one after another, the ultimate Thakurain reversion being given to the parent estate when there Bakhtraj Kuer. was complete failure of heirs. To what extent such -intention could be given effect to by law is another M"kherjea J. matter and that we shall consider presently. But it can be said without hesitation that it was not the intention of the testator to confer anything but life estate upon Dhuj Singh in respect of the properties covered by the will. The clause in the will imposing total restraint on alienation is also pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is material circumstance to be ·relied upon for displa"cing the presumption of absolute ownership implied in the use of the word "malik". We bold, therefore, that the courts below were right in holding that Dhuj Singh had only life interest in the properties under the terms of his father's will.

Of course this by itself gives no comfort to the defendant; she bas to establish, in order that she may be able to resist the plaintiff's claim, that the will created an independent interest in her favour following the death of Dhuj Singh. As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh. This, it is contended by the appellant is not permis-sible in law and be relies on the case of Tagore v. Tagore(1). It is quite true that no interest could be created in favour of an unborn person but when the gift is made to class or series of persons, some of \1) 18 Weekly Reporter 359,

1952 whom are in existence and some are not, it does not Bahadur . R a; [. ][B ]a;rang [. ]Singh · fail in its son~ w o are m existence entirety; . . it is Valid at t time o t With . regard to h. testators the per-' v. death and is invalid as to the rest. The widow, who Thakurai" is the next heir of Dhuj Singh, was in existence when Bakhtraj Kuer. the testator died and ·the Jife ·interest created in her testator died and ·the Jife ·interest created in her died and ·the Jife ·interest created in her Muklierj~a, J. favour should certainly take effect. She thus acquired under the will an. interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff con-sequently has no present right to possession. The result, therefore, is that the appeal fails and is dis-missed with costs.

Bakhtraj Kuer. the testator died and ·the Jife ·interest created in her testator died and ·the Jife ·interest created in her died and ·the Jife ·interest created in her

.Appeal dismissed.

Agent for the appellant: Rajinder Narain. Agent for the respondent: S. S. Shukla.