Deoki Nandan, J.
1. This is a plaintiffs Second Appeal in a suit for partition and separate possession, over the plaintiffs' share in a notice with the land appurtenant thereto and for damages for cutting away the crops over the agricultural land in suit and the trees from the other land in suit. Joint possession over the agricultural land was also claimed, Plaintiffs Nos. 1 to 3, who are also appellants Nos. t to 3, are purchasers under a sale-deed Dt. the 14th Sept., 1964 of the shares in the property in suit of Ram Sureman, Ram Ujagar and Ram Milan who are the sons of Smt. Partapa. She also joined in the sale-deed as a vendor. Plaintiffs Nos. 4 and 5, of whom plaintiff No. 4 died during the pendency of the suit and is now represented by the appellants Nos. 4 to 8 and 10 to .12, and the plaintiff No. 5 is appellant No. 9, are the purchasers under a sale deed dated the 4th Feb., 1966 of the share in the property in suit of Shesh Chandra son of Smt, Dulari. The sixth plaintiff, who is appellant No. 13, is the purchaser under a sale-deed dated the 24th February, 1965 of the share of Chandra Kant son of Smt Mishara. Smt, Mishara, Smt. Dulari and Smt. Partapa were sisters being the daughters of Jamuna Prasad by his first wife Smt, Surja Devi, Defendants NOS. 1 to 5 are the purchasers of the share of Bindbashi son of Smt. Dhupa who was the daughter of Jamuna Prasad by his second wife Smt. Sona Devi, Jamuna Prasad had two more daughters by his second wife Smt, Sona Devi namely Smt. Gunjan and Smt. Ram Sanwari, Their respective sons Budh Sagar and Jai Prakash are defendants Nos. 6 and 10 and also respondents Nos. 6 and 10 respectively.
2. The relationship of the parties would be clear from the following pedigree:--
Jamuna Prasad = Smt. Surja Devi
| | |
Smt. Mishara Smt. Partapa Smt. Dulari
| | |
Chandrakant | __________________
_______________________|_____ | |
| | | Sesh Chandra Ram Chandra
Ram Sureman Ram Ugar Ram Milan
Jamuna Prasad = Smt. Sona Devi
| | |
Smt. Gunjan Devi Smt. Ram Sanwarl Smt. Dhupa
| | |
Balbhaddar Ram Kripal Bindhbashl
Budhsagar Jai Prakash
3. Of the daughters' sons of Jamuna Prasad, Ram Chandra son of Smt. Dulari, who was not mentioned so far, was impleaded as defendant No. 9 and is also respondent No. 9 in this Court.
4. The dispute between the parties centres round the construction of the will of Jamuna Prasad, which he executed on 3rd July. 1956 and a certified copy of which is Ext. 4 on the record. There is no dispute about the genuineness or the due execution of the will. It recites that the testator Jamuna Prasad had become very old and had no male issue. He had only a wife living who was older than himself and they had no hope of having any issue in the future, but they had daughters and the testator's wife and daughters served him well. The will then proceeds on to recite the several kinds of properties, which the testator was possessed of and to say that after his death his wife and daughters would be entitled to get the properties, but he considered it proper to execute a Wasika for their satisfaction so that there may be no dispute after his death about his inheritance. The disposition of the property made by the will is in the following words:--
'Bad wafat mukir mere jumla tarka mal mankoola wo ghair mankoola wo iumla asasul bait wo arazi sir wo khud-kasht wo makan wo bagh baghicha garaz jo kwcca bhi maujood rahe uske pane ki mustahaq pahle zaula mukir ba akhtyar intleal hogi jiska nam Son Devi hai wo bad wafat zauja Sondel ke Ram-sureman wo Ram Uiagar wo Ram Milan .........wo Ram Chandra wo Seshman......sakin Bhadi Sukul wo Chandra Kant vald Sita Ram Sukul sakin Bhadi Sukid wo Bindbasini Prasad ...... we Jai Prakash..........wo Budh Sagar io newasganhakiki hamare honge. Charaz hamare wafat ke bad pahle ba indrai nam kagh-zat dehi hamari zauia be akhtiyar inta-qal hogi. Uske wafat ke bad iumla nam burdgan mundarje wala apne apne haq ke mutabia ba indrai nam kaghzat dehi hojavenge wo usper bhog bhugut karenge. Khilaf iske bad wafat mukir ki koi dusra shakhs mere tarka ke babat kisi tarah ka dawa uzur kart to uske Sumla uirat ba muqabla wasiyatnama haza naiayaz wo mustard mutssuar hon. Iswaste wasiyat nama haza tahrir karake registeri kara dete hain..............'
5. The question of construction, which has been raised in this case, is whether the aforesaid disposition conferred an absolute estate on the testator's widow Sona Devi: the argument being that, if Sona Devi was given an absolute estate, it was heritable on her death by her own heirs, namely, her three daughters Smt. Gunjan Devi. Smt. Ram Sanwari and Smt. Dhupa and/or their sons Budh Sakar, Jai Frakash and Bindbashi, and the subsequent disposition of his properties by the testator equally amongall the daughters' sons including those descended from the testator's first wife Surja Devi, was invalid. The plaintiffs are, as noticed above, transferees from the daughters' sons by the testator's first wife Smt. Surja Devi.
6. The trial court dismissed the suit. During the pendency of the appeal before the lower Appellate Court consolidation of holdings operations were commenced in the village, in which the agricultural land in suit was situate, with the result that the suit and the appeal in respect of the relief for joint possession over the agricultural land was abated under Section 5 of the U. P. Consolidation of Holdings Act. With regard to the rest of the appeal, the lower Appellate Court agreed with the finding of the trial court and confirmed the decree dismissing the suit.
7. Mr. Rajeshwari Prasad, Senior Advocate, for the plaintiff-appellants in this Court, contended that Jamuna Prasad, the testator, did not intend to and could not be said to have conferred an absolute heritable estate on his second wife Smt. Sona Devi who survived him. The will was executed on the 3rd July. 1956 a few days after the commencement of the Hindu Succession Act, 1956; and the estate conferred on Smt. Sona Devi was not a widow's estate or a Hindu woman's limited estate either. It was a life estate with a power of alienation, or a power of appointment, as it is technically called in the English Law. Smt. Sona Devi died without making any alienation of the property. The daughters' sons, in whom the right to inheritance became vested on the death of thetestator Jamuna Prasad, came into possession of their respective share, as tenants in common, on the death of Smt. Sona Devi They could as such lawfully dispose of their shares and the plaintiffs were entitled to sue for partition of the shares purchased by them in the house in suit as also for the other reliefs claimed by them.
8. Mr. S. S. Bhatnagar on the other hand, supported the view of the two courts below that the will conferred an absolute heritable estate on Smt. Sona Devi and that the subsequent disposition of property in favour of the daughters' sons, particularly those descended from the first wife Smt. Surja Devi was invalid. I have alreadv quoted the dispositive words of the will. I have also referred to the recitals in the will to show the background in which it was executed. Reading the will as a whole, the dominent intention of the testator appears to have been to give all the property to all the sons of all the six daughters from both his wives. But his wife, though old, probably older than himself, was alive and the testator had a forboding that she would survive him. He accordingly wanted to provide for her. The extent of the properties owned by him and the language of the will show that he must have consulted a lawyer and the will does appear to have been drafted by a lawyer or, at any rate, by a qualified petition writer or other practitioner who knew the law. There is the further fact that the Hindu woman's limited estate Or the widow's estate was only a few days ago abolished by the Hindu Succession Act and the U. P. Zamindari Abolition and Land Reforms Act which governed the bulk of the testator's property in the form of bhumidhari rights in the land, did not know the Hindu woman's limited estate, but did authorise the bequest of bhumidhari holding by the will of a testator. Jamuna Prasad was a bhumidhar of the agricultural land. He could consequently dispose of all his properties by will in accordance with law and must have been informed that the Hindu woman's limited estate is no longer known to law. Yet most probably he wanted to restrict the estate conferred on his wife Smt. Sona Devi to her life so that the ultimate disposition of property made by him in favour of his grandsons may take effect. He musthave also been advised that an estateunknown to law could not be conferredOr created by a testator's will. Therefore,the conferment or creation of a Hinduwoman's limited estate in favour of Smt.Sona Devi, Jamuna Prasad must havebeen advised, was out of question. Alife estate is a recognized form of estateknown to law; but so far as the agricultural land, which Jamuna Prasadheld as a bhumidhar. was concerned, itwas doubtful that the restrictions Or thelimitations imposed by law on an alienation or transfer made by a life estateholder could lawfully have beenmade applicable to a bhumidhar takingunder a will. But as held by a learnedsingle Judge of the Oudh Chief Court inBeni Madho v. Harihar Prasad (AIR 1946Oudh 20), full powers of transfer possessed by a testator in property could beconferred along with a life estate in property on the donee under his will. Thatsquarely solved the problem with whichJamuna Prasad must have been faced, ifhis intention was, as apparent from theterms of the will which he executed, togive the property to all his grandsons,but at the same time to provide for hiswidow by giving her a lifeestate coupled with a power of alienation which the law had come to recognize without any restrictions even incases of Hindu widows in respect of allkinds of property possessed by them including bhumidhar holdings. The givingof the power of alienation must havebeen considered necessary in order tomake it appear that the estate conferredby the will in the property devised wasin conformity with the law, but at thesame time hoping that the widow wouldnot alienate the property, and, at anyrate, could not alter the course of succession as the estate conferred on herwas limited to her life. There does notappear to be any other plausible or conceivable reason for giving the power ofalienation to the widow by introducingthe words 'ba akhtiyar intakal' for defining her rights in the property, the duration of which was expressly limited toher life. Any other construction of thewill would make it appear that it wasthe act of a senseless man, for it cannotbe said that a testator intended to bequeath all his property to his nine grandsons, after he and his wife were bothdead, but at the same time defeated thatintention by giving his wife the fullrights of alienation which were possessedby him also. His wife Sona Devi, who survived the testator, did not, in fact, make any alienation or transfer of the property to which she succeeded under the will. Even if she had, the transfer made by her as a life estate holder, without the power of alienation would have been good for and limited to her life. By the conferment on the widow of the power of alienation, by the testator, who himself did enjoy that power as the full owner of the property, any alienation made by the widow would have been good and binding on the heirs of the testator, under the will, who took On her death. But, while the testator expressly conferred on her the powers of alienation, he did not confer on her any power of appointment of successors to the property, inasmuch as the estate given to her was expressly limited to her life, by naming the heirs who were to take the estate on her death. Thus, though the power of appointment of the property was given, the power of appointment of successors was not given, and Smt. Sona Devi could not have altered the course of succession after her, which was already settled by the testator by his will. She did not have a heritable estate. Her estate was a life estate. She was not made the owner of the properties bequeathed to her, absolutely for ever or a full owner, but was given a life estate with a power of alienation of property, or of appointment, as it is technically called in the English law.
9. Of the case cited before me, the one that is nearest to the facts of the present case is that of Beni Madho v. Harihar Prasad (AIR 1946 Oudh 20) fsupra). The clause of the will that came up for construction in that case was the one in favour of the testator's daughter-in-law. It was to the following effect:
'After the death of myself and my wife my daughter-in-law will be the owner of the entire property, movable and immovable, and during her life will have all the rights of alienation'.
After the daughter-in-law, the property was given by the testator to Sheo Dayal as a full owner.
10. The learned Judge held 'I am clear that if we are to give effect to all the provisions of this will it must be held that Radha (daughter-in-law) was given a life estate with full powers ofalienation during her lifetime and that Sheo Dayal wag to take all such property as was left undisposed of by her.............It was strenuously contended that the testator could confer either an absolute estate or a life estate, but not a life estate with full power of alienation........................... To confer a life estate withfull power of alienation would amount to creating an estate not recognised by law. I am clear that contention is not well founded. It is true that a man cannot create a new form of estate or alter the line of succession allowed by law for the purpose of carrying out own wishes or views of policy. But is a life estate coupled with full power of alienation a new form of estate not recognised by law? The learned Judge answered the Question so posed by him by saying that 'There is nothing in our law to prohibit the grant of a life estate with full power of transfer during the donee's lifetime by a testator in his property.'
11. It cannot be disputed that the testator did have the full powers of alienation. He also had full powers of disposing of the property as he willed after his death. He gave the property to his widow to hold it so long as she lived and also gave her his full powers of alienating the property or transferring it in the same manner as he could have alienated it or transferred it, but gave her no power to appoint a successor by her will on her death. There is nothing opposed to law if husband and wife jointly settle the succession to property after the death of both of them reserving to themselves full powers of transfer so long as they live so that only that property passes to the successor appointed by the will which remains undispose of by transfer inter vivos, on the death of both of them. I respectfully adopt the reasons and the conclusion arrived at by the learned Judge in Beni Madho's case (AIR 1946 Oudh 20) (supra).
12. The next case cited was of Ram-chandra v. Mrs. Hilda Brite : 2SCR722 . The words of the will that came up for consideration in that case were different The testator was not a Hindu being a Roman Catholic Christian. Yet the guidelines laid down by the Supreme Court in this case for the proper construction of a will are valuable. They are :
'It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect shouldbe given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest, created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely 'on' or 'after' or 'at' A's death. A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.'
13. These observations are apposite in the construction of the will in the present case: and I have, with respect, adopted and applied them in construing the words of the will which has come up for construction in the present case.
14. The case of Gopala Menon v. Sivaraman Nair : AIR1979SC1345 is of little help, for the dispositive words of the will, which came for construction in that case, have not been reproduced in full in the judgment. It seems well settled that in the matter of construction of a will precedents are of little help as each will has to be construed on its own terms and in the setting in which its clauses occur. See Ramchandra v. Mrs. Hilda Brite : 2SCR722 .
15. The learned counsel for the respondents very strongly relied upon the decision of this Court in Ram Bharosey v. Lachmandas : AIR1954All715 . The dispositive language of the will in question in that case was entirely different, and, as already observed above, a precedent construing the language of a will to a particular way is of little help in construing the language of another will. I may add that the testator made the donee in that case Malik and gave her all kinds of rights of disposing of the property by gift or in other way. It was held that the word 'Malik' imports full proprietary rights. That is not the case here.
16. Mr. S. S. Bhatnagar, the learned counsel for the respondents, however, strongly relied upon the judgment ofHon'ble S. Murtaza Fazal Ali, J. in V. Tulasamma v. V. Sesha Reddi (AIR 1977 SC 1944) and contended on that basis that Jamuna Prasad's wife Sona Devi, who survived him had a pre-existing right of maintenance and even of inheritance in the property left by Jamuna Prasad and that being so, notwithstanding the restrictions, if any, on the estate conferred on her by the will, she must be deemed to be the full owner of the property by virtue of Sub-section (1) of Section 14 of the Hindu Succession Act, 1956. The majority (Hon'ble P. N. Bhagwti, J. and Hon'ble A. C. Gupta, J.,) while agreeing with the conclusion arrived at by Hon'ble S. Murtaza Fazal Ali, J., chose to give their own reasons. They stated:
'Sub-section (9) must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for operation as possible to Sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.'
17. They amplified by saying:
'The legislative intendment was that Sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right a kind of acquisition akin to one under gift or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.'
18. Quite apart from the fact that the bulk of the property which passed under the will was the agricultural land held by Jamuna Prasad as a bhumidhar to which the Hindu Succession Act did notapply at all. Jamuna Prasad did not purport to make the will in favour of Sona Devi, his wife, by way of a partition or in lieu of her right of maintenance. He gave her all the property as a donee, under the will and not on account of her pre-existing right of maintenance, (there being no right of partition in this case as Jamuna Prasad had no son) but at his pleasure. It cannot be said by any stretch that the whole property bequeathed under the will, which was considerable in extent, was given by Jamuna Prasad to his wife Sona Devi in lieu of her pre-existing right to maintenance. Tulasamma's case (AIR 1977 SC 1944) (supra) is accordingly not applicable to the facts of the present case and it cannot be held on its basis that Jamuna Prasad's widow became a full owner of the properties, bequeathed to her under the will by applying Sub-section (1) of Section 14 of the Hindu Succession Act, 1956.
19. This appeal must, therefore, ' be allowed and it must be held that the nine grandsons of Jamuna Prasad succeeded to the properties in suit as tenants in common under Jamuna Prasad's will dated the 3rd July. 1956 (Ext. 4). The property became a vested interest on the death of Jamuna Prasad and fell into possession on the death of Smt. Sona Devi which occurred in Chaitra 1964, The alienations of property made by them are valid in law.
20. In view of the above conclusion, it is necessary to examine the question of relief to be granted to the plaintiffs. Of the reliefs claimed in the plaint, the first two reliefs for recovery of Rupees 1616-66P. and Rs. 330/- as damages for harvesting the crops and cutting away the trees cannot be granted in view of the findings recorded by the trial court on issues Nos. 5, 6, 13 and 15 at one place and on issue No. 7 at another place. It is not possible to interfere with those findings in this Second Appeal. The third relief was for a decree of partition of the property shown in list Kha at the foot of the plaint name,ly, the house, Bakhari Charni, Berha and well etc. The relief of joint possession over the plaintiffs' share in the agricultural land is no longer claimable and the suit in respect thereof has rightly been declared to have abated.
21. In respect of the relief for partition of the property specified in list Kha at the foot of the plaint, it appearsnecessary to pass a preliminary decree specifying the shares of the plaintiffs therein. The plaintiffs are transferees. It has been observed in the recital of facts in the opening part of this judgement that plaintiffs Nos. 1 to 3. who are appellants Nos. 1 to 3, have purchased the shares of Ram Sureman, Ram Ujagar and Ram Milan under a sale-deed dated the 14th Sept-ember, 1964, to which their mother Smt Partapa was also a party. The number of grandsons, to whom the entire property was bequeathed by Jamuna Prasad, was nine. They would take equally per capita. The result would be that the share of the plaintiff-appellants Nos. 1 to 3 in the property is 1/9 x 3 equal to 1/3. Plaintiffs Nos. 4 and 5. of whom plaintiff No. 4 had died during the pendency of the suit and is now represented by appellants Nos. 4 to 8 and 10 to 12 and plaintiff No. 5 who is appellant No. 9, purchased the share of Shesh Chandra under a sale-deed dated the 4th February, 1966. Their share in the property is accordingly 1/9. Plaintiff No. 6, who is appellant No. 13, purchased the share of Chandrakant under a sale-deed dated the 24th February, 1965. Her share in the said house is 1/9. Thus the shares of all the plaintiff-appellants work out as under.
Plaintiffs Nos. 1 to 3
(appellants ......... Nos. 1 to 3)- 1/3
Plaintiffs Nos. 4 and 5
(appellants Nos. 4 to 12)- 1/9
Plaintiff No. 6 (appellant
22. However, in the relief claimed by the plaintiffs, a decree for partition was claimed only for plaintiffs Nos. 1 to 5 in respect of their 4/9 share in the property. On the plaint, as it stands, a decree for partition of the share of the plaintiff No. 6 cannot be passed. This will, however, not preclude plaintiff No. 6 who is appellant No. 13 or any of the defendants, who desire a partition and separate possession over their share from applying for the same before the trial court, but they must do so in good time so that the proceedings for preparation of the final decree are not delayed.
23. I accordingly allow the appeal and set aside the decree under appeal-The suit is decreed for the relief of partition and separate possession over theshares of the plaintiffs Nos. 1 to 5 in respect of the property specified in list Kha at the foot of the plaint. The shares of the plaintiffs Nos. 1 to 3 (appellants Nos. 1 to 3) therein is declared to be 1/3; that of plaintiff No. 4 since deceased and represented by appellants Nos. 4 to 8 and 10 to 12, and that of plaintiff No. 5 (appellant No. 9) together, is declared to be 1/9. The share of plaintiff No. 6 (appellant No. 13) is 1/9 but a decree for partition and separate possession over her share is not being passed because the relief of partition that has been claimed in the plaint is for partition of the shares of the 4/9 share of the plaintiffs Nos. 1 to 5 only. It shall, however, be open to plaintiff No. 6 or any of the defendants to have their share in the property in suit determined and partitioned by the trial court by making a proper application in good time. A preliminary decree for partition shall accordingly be drawn up in the suit and further proceedings for final decree shall be taken in the trial court in accordance with law. The suit in respect of the relief of joint possession over agricultural land is declared to have abated. The suit in respect of the other reliefs claimed is dismissed. In the circumstances, the parties shall bear their own costs throughout.