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Darshan Singh and ors. Vs. Wali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All102
AppellantDarshan Singh and ors.
RespondentWali Khan and ors.
Excerpt:
.....no locus standi to sue. sunder kunwar, the survivors of dilsukh and others or their heirs acquired a vested interest which could be inherited by their heirs, the plaintiffs must fail. the testator clearly intended that after the death of the survivor of the two widows the estate would not go to his heir-at-law but should go to ram lal. 9. it therefore seems to us that simply because no bequest in the eye of the law came into effect in favour of ram lal's son, and such a bequest from the very beginning was bad, because he was unborn, it does not follow that the bequest in favour of dilsukh and others was also void ab initio. but the illustrations 3 and 4 to section 120 illustrate the principle which undoubtedly holds good. 13. we are, therefore, clearly of opinion that after 1898 when..........ram lal's son would be the owner of the estate after ram lal; and if there be no son to ram lal, dilsukh singh, hori lal, lachhman singh, lal singh and the widow of dilsukh singh would be the heirs and owners of the estate ram lal appears to have died about the years 1897-1898 without there having been any son born to him. by that time four of the five ultimate legatees were dead. but hori singh survived ram lal and died on 8th march 1907. mt. tulsha kunwar, one of the widows of rai singh, had died much earlier in 1890, but the other widow mt. sunder kunwar remained alive till 29th may 1917. all these facts are now settled on the findings, returned by the court below on the issues sent down by us. these facts are not now disputed before us.2. the contesting defendants' ancestor had.....
Judgment:

1. This is a plaintiffs' appeal arising out of a suit for recovery of possession. The estate originally belonged to one Rai Singh who died in the year 1876. Some time before his death he had made a will, the contents of which are to be found in an application made by him on 7th October 1876, to the revenue Court. Under that will he left his moveable and immovable properties including, village Mainakot which is in dispute in this appeal to his widows and after the death of the surviving widow to one Ram Lal whom he had brought up as a son. He declared that Ram Lal would be the owner of the property after his death. He then went on to provide that he who is Ram Lal's son would be the owner of the estate after Ram Lal; and if there be no son to Ram Lal, Dilsukh Singh, Hori Lal, Lachhman Singh, Lal Singh and the widow of Dilsukh Singh would be the heirs and owners of the estate Ram Lal appears to have died about the years 1897-1898 without there having been any son born to him. By that time four of the five ultimate legatees were dead. But Hori Singh survived Ram Lal and died on 8th March 1907. Mt. Tulsha Kunwar, one of the widows of Rai Singh, had died much earlier in 1890, but the other widow Mt. Sunder Kunwar remained alive till 29th May 1917. All these facts are now settled on the findings, returned by the Court below on the issues sent down by us. These facts are not now disputed before us.

2. The contesting defendants' ancestor had purchased the property in dispute from Dilsukh Singh and the other legatees (excluding Ram Lal) in the year 1877 and they have remained in possession of the property ever since then.

3. The plaintiffs' case was that the bequest never came into effect and on the death of the last surviving widow Mt. Sunder Kunwar in the year 1917, the plaintiffs as the next reversioners of Rai Singh succeeded to the estate and are entitled to its possession. The fact that the plaintiffs would be the next reversioners of Rai Singh has never been disputed. The contesting defendants pleaded that the bequest did not altogether fail and that the plaintiffs had no locus standi to sue.

4. The Court below has dismissed the suit hence this appeal. The application containing the will is printed on p. 23 of the paper book. As there was considerable dispute as regards the true interpretation and we found that parts of it were not literally translated we have ordered the translation department of the High Court to re-translate it and a corrected translation has been placed before us and perused by the counsel for the parties. The terms of it have been set forth briefly by us in the earlier portion of our judgment.

5. There can be no doubt that if the interest of Dilsukh and others continued to toe a contingent interest till the death of Mt. Sunder Kunwar the contesting defendants acquired no interest in the property at all and the suit must succeed. On the other hand, if at any time before the death of Mt. Sunder Kunwar, the survivors of Dilsukh and others or their heirs acquired a vested interest which could be inherited by their heirs, the plaintiffs must fail. The learned advocate for the plaintiffs has first contended that the testator intended to give a Hindu widow's estate to his two widows as his legal heirs and has therefore argued that none of the subsequent bequests can amount to a vested interest following upon a Hindu widow's estate. We are unable to concede that a Hindu widow's estate was acquired by the two widows. The testator clearly intended that after the death of the survivor of the two widows the estate would not go to his heir-at-law but should go to Ram Lal. It therefore follows that the estate given to the widows amounted to life-interests and no more. There is not even any reference in the will to a power of alienation for purposes of legal necessity.

6. Holding that the estate taken by the widows was a limited estate there can be no doubt that Bam Lal was intended to take the estate after their deaths. Counsel for the parties are not agreed as to the nature of the estate which was given to Ram Lal. On behalf of the plaintiffs it was contended that Ram Lal was given a life-estate and his son was given a separate and independent vested interest in the property which would come into existence as soon as the son was born, even though that be in the lifetime of Ram Lal. On behalf of the defendants it is contended that the reference to the son of Ram Lal was merely intended to indicate that a heritable estate was conferred upon Ram Lal and that there was no bequest of a separate interest to Ram Lal's son.

7. Looking to the will we are unable to hold that it was the testator's intention that Ram Lal's son would have an interest in the property from the very time of his birth and have a vested interest in it which he could transfer even though his father Ram Lal was alive. The plain meaning of the provision of the will is that it was after Ram Lal's death that his son would succeed to the estate. If, however, there was no son born to Ram Lal who could succeed, the property was to go to Dilsukh and others after Rim Lal's death. Thus, the bequests in favour of Ram Lal's son and in favour of Dilsukh and others were both to take effect at the time of the death of Ram Lal and not before. It is impossible to say that the bequest in favour of Dilsukh and others followed the bequest in favour of Ram Lal's son in the sense that it was to take effect after the bequest in favour of Ram Lal's son had been exhausted. It was really an alternative bequest and is separable from the bequest in favour of Ram Lal's son. Both would not come into effect simultaneously and one would not come into existence if the other did.

8. No doubt it is settled by their Lordships of the Privy Council in the famous case of Jotindra Mohan Tagore v. Ganendra Mohan Tagore 9 Beng. L.R. 377, that under the Hindu law a bequest in favour of an unborn person is void in law. The remarks of their Lordships at p. 410 in the judgment shows that bequests over, which in the scheme of the will are intended to follow the creation of the prior estate of inheritance, must fall therewith. It is obvious that this must be so, for, if a prior bequest is void in the eye of the law, subsequent bequests cannot be given effect to as that would be entirely contrary to the intention of the testator who intended the subsequent bequests to come into effect only if the prior bequest did not come into existence. On the other hand, if we uphold the bequest in favour of Dilsukh and others in the present case we are not in any way acting contrary to the intention of the testator because he himself intended that if there be no son born to Ram Lal, the property would go to Dilsukh and others. This distinction was drawn by the learned Judges of the Bombay High Court in the case of Javerbai v. Kablibai [1892] 16 Bom. 492. The case on facts is distinguishable, but it has some bearing on the present case because there the third bequest in favour of the persons nominated by the trustees was to come into effect only if the second set of legatees, viz., the male issues of the testator were not alive at the time of the testator's death. The Bombay High Court held that the two were alternative gifts and one did not follow the creation of the other. A somewhat similar view was expressed by the Calcutta High Court in the case of Rai Kishori Dassi v. Dabendra Nath Sircar [1888] 15 Cal. 409, whose conclusion was accepted by their Lordships of the Privy Council. The learned Judges of the Calcutta High Court had on p. 416 remarked that in the case before them there were two intentions wholly separable, the second not depending upon the first and that it was possible to give effect to one intention without entering into the question of the other.

9. It therefore seems to us that simply because no bequest in the eye of the law came into effect in favour of Ram Lal's son, and such a bequest from the very beginning was bad, because he was unborn, it does not follow that the bequest in favour of Dilsukh and others was also void ab initio.

10. So long as Ram Lal was alive there was the possibility of a son being born to him and, therefore, the interest taken by Dilsukh and others was merely a contingent interest depending on an uncertain event whether a son would or would not be born to Ram Lal, As soon, however, as Ram Lal died without a son it became absolutely certain that there would be no prior bequest coming into effect which would take precedence over the interest in favour of Dilsukh and others. The contingent interest of Dilsukh and others was therefore transformed into a vested interest although one of the widows was still alive.

11. The learned advocate for the appellants has not disputed the point that if a bequest is made in favour of one person and after his death the property is directed to go to another, the second legatee gets a vested interest in the estate. The death of a living person is not an uncertain contingency. Although the date of his death cannot be known beforehand, the event itself is absolutely certain. Therefore the interest taken by such a legatee is not a contingent one, but he has a vested interest in the property bequeathed to him.

12. The Indian Succession Act does not apply to the present case where the will was made at a time when it was not applicable to Hindus. But the illustrations 3 and 4 to Section 120 illustrate the principle which undoubtedly holds good. If an estate is bequeathed to A for life and after his death to B if B be then alive, but if B be not living to 0, then B and C both take contingent interest so long as A is alive. But as soon as B or C dies and it becomes certain that the survivor only can succeed after A's death, he has at vested right in the estate, although A is still alive.

13. We are, therefore, clearly of opinion that after 1898 when Ram Lal was dead and Hori Singh, one of the five last named legatees, survived him, the latter acquired a vested interest which was capable of being transferred by him and inherited by his heirs. This vested interest remained in Hori Singh and passed on to his legal representatives whoever they may be although Mt. Sunder Kunwar was still alive. On the death of Mt. Sunder Kunwar there has been no reversion of this estate to the heirs of Rai Singh. The plaintiffs accordingly have no locus standi to maintain the suit.

14. It is unnecessary for us to consider the effect of the transfer of 1877 having been made by Dilsukh and others at a time when they had a mere contingent interests.

15. The appeal is accordingly dismissed with costs.


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