1. This judgment will dispose of R. F. A. 353 of 1962 and Cross Objections marked as C. M. 312/C of 1963.
2. This regular first appeal has been filed against the judgment of the Subordinate Judge 1st Class. Jullundur dated August 29, 1962, by which he partially decreed the suit.
3. The facts giving rise to this litigation are that plaintiff No. 1 and defendants 1 to 3 are the sons from two different wives and plaintiff No. 2 is the grandson of Sukh Daval. Their pedigree table is as follows:--
(See Pedigree Table)Pandit Nand Lal|Pandit Sukh Dayal (died on 25-9-1949)__________________|___________________| |Shrimati Gangi Shrimati Ram Jowai1st wife 2nd wife (died on 5-3-61)_____________|____ ___________________|____________| | | | |Shri Basti Ram Shri Ram Ved Parkash Dina Nath Devinder NathPlaintiff No.1. Parshad (Dead) Defendant No. 1. Defendant No. 2. Defendant No.3.|Shri Madan MohanPlaintiff No. 2. The property in dispute is the joint Hindu family property of the plaintiffs and defendants 1 to 3 in which the plaintiffs are owners to the extent of one-half share. Ram Jowai, the mother of defendants 1 to 3, after the death of their father Sukh Dayal, filed a suit for possession of the properties mentioned at serial Nos. 1 to 3 in the heading of the plaint. In that case it was held that Ram Jowai had only a widow's estate in that property. It was stated by defendants 1 to 3 that Sukh Dayal had made a Will in their favour but the plaintiffs alleged that the will had been obtained by fraud and undue influence and that the same could not affect their right in the property in dispute as it was a coparcenary property. It was also alleged by the plaintiffs that the Will had never been acted upon and the plaintiffs could not be deprived of their share in the property in dispute on its basis. Defendants 4 to 10 who are tenants in the property in dispute were proceeded ex parte as they did not appear before the trial Court. The defendants 1 to 3 contested the suit and denied the allegations of the plaintiffs. It was stated by them that the properties shown in the plan, Exhibits A, B, C, D and E, were not joint Hindu family properties of Sukh Dayal and his sons. Ram Jowai had not the widow's estate in the said property and was full owner there of. The property in dispute had been disposed of by a valid Will dated December 31,1928 and the plaintiffs, in view of that Will, were not entitled to the property in dispute. The plaintiffs were barred from challenging the Will in view of the judgment and decree in the previous suit between the parties. The trial Court held that the properties shown in plans Exhibits A, B, C, D, and E, were not the joint Hindu family properties of Sukh Dayal and his sons: that Ram Jowai held an absolute estate in the properties of Sukh Dayal under the Will and not a limited estate therein, that the plaintiffs were not entitled to the properties marked as A, B, C, D and E as Sukh Dayal was competent to make a Will with regard to them: and that the plaintiffs were entitled to 2/5th share in the properties mentioned as F and G (The trial Court while passing the decree, has by mistake granted decree with regard to the properties marked as E and F. But the learned counsel for the parties admitted that the decree passed in favour of the plaintiffs was with regard to F and G). Consequently, the trial Court passed the decree in favour of the plaintiffs regarding the 2/5 the share in the properties marked as F and G. The plaintiffs having felt aggrieved against the judgment and decree of the trial Court have come up in appeal to this Court. The defendants have filed cross-objections against the appeal.
4. The learned counsel for the appellants has not challenged the execution of the Will dated December 31, 1928 by Sukh Dayal and states that by virtue of the Will, a life estate was created in favour of Ram Jowai. The learned counsel for the appellants has also not challenged the findings of the trial Court to the effect that the properties marked as A, B, C, D and E are the self-acquired properties of Sukh Dayal.
5. The first contention of the learned counsel for the appellants is that the Will created an estate tail which is not permitted by the Hindu Law. He has referred to Article 382 of the Hindu Law by Mulla, Thirteenth Edition. The learned counsel for the respondents contests the said argument and states that the Will has been properly executed and is valid. I have heard the contentions of the learned counsel for the parties at great length. It will be advisable to peruse relevant portion of the Will (Exhibit D-1) dated December 31, 1928 which is as follows:
'During my lifetime I myself shall remain the owner and possessor of all sorts of movable and immovable property. At the time of (after ?) my death my entire movable and immovable property of every kind which would be owned and possessed by me shall pass to my wife Mst. Ram Jowai for her lifetime and she shall remain in possession thereof. She shall be at liberty to use the same in any way she might like. After her death her issues shall become owners and possessors thereof, according to the law of succession. My issues from my first wife, i.e. Basti Ram and Ram Parshad shall have no concern or connection with the property to be left by me, because they have already taken from me their due share and even more than that.'
By virtue of Section 57 read with Schedule III of the Indian Succession Act, 1925(hereinafter referred to as the Act), Sections 114 and 115 have been made applicable to all Wills made by any Hindu on or after the 1st day of January, 1927. The aforesaid sections are as follows:--
'S 114. No bequest is valid where by the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom if he attains full age, the thing bequeathed is to belong.
S. 115. If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of Section 113 or Section 114, such bequest shall be void in regard to those persons only and not in regard to the whole class.'
According to Section 114, no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death. Section 114 and illustration (iii) have been reproduced in Article 385 of the Hindu Law by Mulla Thirteenth Edition. Illustration (iii) is as follows:-
'A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B's death it hall be divided amongst such of B's children as shall attain the age of 18, but that, if no child of B shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest at the expiration of 18 years from the death of B, a person living at the testator's decease. All the bequests are valid.'
Paras. (1) to (5) in Schedule III of the Act provide certain restrictions and modifications in application of the sections applicable to all wills made by any Hindu on or after the 1st day of January, 1927. The relevant para to which my attention has been drawn is para. (2) which states that nothing therein contained shall authorise any Hindu, Budhist, Sikh or Jaina, to create in property any interest which he could not have created before the first day of Sep., 1870. A reading of the said para, shows that the only restriction that has been placed on a will made by a Hindu is that he cannot create in property any interest which could not have been created before Sept. 1, 1870. It has not been brought to my notice that the terms of the will in anyway contravene the aforesaid para. By virtue of the will an estate which has been created by Sukh Dayal could be done before September 1, 1870. Article 390 of the Hindu Law by Mulla, Thirteenth Edition, at page 425 is as follows:--
'390. Gift or bequest by way of remainder.-A grant by way of remainder is valid provided-
(1) the grant is to take effect immediately on the close of a life in being, and
(2) it is made to a person in existence at the date of the gift or at the death of the testator as the case may be.
In cases, however, governed by the Hindu Disposition of Property Act, 1916, a gift by a of remainder may be made in favour of an unborn person.'
The article clearly provides that a grant by way of remainder is valid if it is made to a person in existence at the date of the gift or at the death of the testator, as the case may be. In the present case, the bequest was made in favour of Ram Jowai for her lifetime and to respondents 1 to 3 after her death. It is not a bequest which is repugnant or unknown to Hindu Law. In Ranganadha Mudaliar v. Baghirathi Ammal, (1906) ILR 29 Mad 412, R. by a registered deed of settlement settled property in trust after making provisions for the maintenance of himself and his wife and his grand daughters V. and Z., provided that on the death of the survivor of the grand-daughters, the trustees were to hold the property in trust for the sons of the grand-daughters who should attain 18 and the daughters of the grand-daughters who attained that age or marry. A female child on the consummation of marriage or on attaining 18 was to be given Rs. 1,000/- and a male child on attaining age was to be given his share of the property. In a suit by the reversioners of R to set aside the settlement as null and void, it was held that the settlement by way of remainder in favour of the sons of V. and Z. (Such sons being in existence at the date of the settlement) was valid under the Hindu Law. This contention has, therefore, no force. The learned counsel for the appellants has placed reliance mainly on Article 382 of Hindu Law by Mulla. According to the said article, a man cannot create a new form of estate, or alter the line of succession allowed by law, for the purpose of carrying out his own wishes or policy. The present case, however, does not come within the aforesaid article. If Art. 382 is read in conjunction with Articles 385 and 390, it will be found that the bequest can be made in the form in which it has been done in the present case. The learned counsel for the appellants has placed reliance on Kumar Tarakeswar Roy v. Kumar Shoshi Shikhareswar, (1883) 10 Ind App 51 in support of his contention. In that case a Hindu, by will, gave to his three nephews certain estate in the following terms:--
'The said three nephews shall hold possession of the same in equal shares and shall pay the Government revenue of the same into the Collectorate. They shall have no right to alienate the same by gift or sale; but they, their sons grandsons, and other descendants in the male line shall enjoy the same, and shall perform acts of piety as they respectively shall see fit for the spiritual welfare of our ancestors. If any of them die without leaving a male child (which God forbid) then his share shall devolve on the surviving nephews and their male descendants, and not on their heirs.'
A suit was filed by the surviving nephew against the infant son of the testator for declaration of his rights in the properties in suit. It was held by the Privy Council that on the death of the first nephew his share went to the other two, and that on the death of the second the share which he left behind him made up of his original and his accrued share went to the plaintiff. The privy Council further observed as follows:-
'The gift over of a life estate was competent; it being to persons alive, and capable of taking on the death of the testator, and to take effect on the death of a person or persons then alive.'
The aforesaid case does not help the appellants: on the other hand, it enunciates the principle of law which is propounded by the learned counsel for the respondents.
6. The learned counsel for the appellants has also placed reliance on another Privy Council's case, Kristoromoni Dasi v. Narendro Krishna Bahadur. (1889) ILR 16 Cal 383(PC). In that case, the testator bequeathed the residue of his estate to his executors upon trust to pay the income to his daughter during her lifetime: and after her death in trust to convey the residue to his two half-brothers, in equal moieties, and to the heir or heirs male of their or either of their bodies, in failure of whom upon trust to give the same to the sons or son of his daughter. Both the half-brothers survived the testator. On the death of one of them, the daughter, making all persons interested parties, claimed that the trusts and limitations had become void as to one moiety of the residue bequeathed, and that she had become entitled thereto for the estate of a Hindu daughter. Of the children, all were born after the testator's death, save three sons of the surviving half-brother who were born in the testator's lifetime. It was observed by the Privy Council:
'that the gift of the residue, so far as it purported to confer an estate of inheritance on the half-brothers, and the heirs male of their bodies, was contrary to law and void: that the gift to the plaintiff's sons, unborn at the death of the testator, was incapable of taking effect: that each of the half-brothers took an estate for life one moiety of the residue bequeathed, in remainder expectant on the death of the plaintiff: and that accordingly, on the death of the half-brother, who had died before this suit was brought, the inheritance of his moiety had devolved on the plaintiff, as daughter and heir of her father, and as she claimed.'
The observations of the Privy Council do not also help the appellants in the present case. They took into consideration Tarakeswar Roy's case, (1883) Ind App 51' while coming to the aforesaid conclusions. A reading of the aforesaid cases shows that a bequest can be made in favour of a person or persons in succession who are in existence at the date of death of the testator. Under the Hindu law, as it existed before 1870, such a bequest did not create a new form of estate or alter the line of succession. As already observed above, all the three respondents were alive at the time of the death of Sukh Dayal, which took place on September 25, 1949. The bequest in favour of Ram Jowai for life and Ved Parkash, Dina Nath and Devinder Nath respondents, after her death, is in accordance with the principles of Hindu law as all the three respondents were in existence when their father died. The contention of the learned counsel for the appellants is, therefore, rejected as it has no merit.
7. The second contention of the learned counsel for the appellants is that the judgment in the previous suit No. 75 of 1951, decided on 16-3-1953, titled as Ram Jowai v. Basti Ram Exhibit P-13 operates as respondent judicata between the parties in which it was held that the will, in so far as it excludes the children of Shrimati Gangi (the appellants in the present case) from succession after the death of the plaintiff, was invalid. This objection was neither taken by the appellants in the written statement nor in the grounds of appeal in this Court. He orally requests that he should be allowed to raise this contention in this Court. I do not find any sufficient reasons for allowing him to raise this contention. The matter should have been raised by him before the trial Court. He cannot be allowed to take this new point at this stage. I have also considered this matter. The contention of the learned counsel for the appellants has no force. It was held by the Subordinate Judge, in his judgment dated March 16, 1953. (Exhibit P-13) that the question did not strictly speaking, arise in that case. After making the said observation, he observed that the will did not create an estate unknown to Hindu law. Section 11 of the Code of Civil Procedure says that no Court shall try any suit or issue in which the matter in issue has been directly and substantially in issue in a former suit between the same parties, or their representatives, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The matter, according to the said section, should be directly and substantially in issue in the earlier suit. The word 'substantially' means a matter of some importance and value. If the matter is not of importance for deciding the case, then it cannot be said to be a substantial question. As the Subordinate Judge himself held that that question did not strictly arise, therefore, any finding given by the Court would not operate as respondent judicata in the present case. For the reasons recorded above. I am of the view that the decision in the earlier suit, copy of which is Exhibit P-13, will not operate as respondent judicata in the present case.
8. The respondents filed cross objections against the judgment of the trial Court in which they claimed that the appellants were not entitled to 1/5th share each but to 1/6th share each in properties marked as 'F' and 'G' which were coparcenary properties. Sukh Dayal died on September 25, 1949. He had 1/6th share in the coparcenary properties 5/6th being that of his five sons. This, 1/6th share was inherited by his widow under sub-section (2) of Section 3 of the Hindu Women's Rights to Property Act, 1937(hereinafter referred to as '1937 Act'). Section 5 of 1937 Act provides that a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition, which is capable of taking effect. Sub-section (2) of Section 3 and Section 5 are as follows:--
'3(1) ... ... ... ...
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.
(3) ... ... ... ...
(4) ... ... ... ...
5. For the purposes of this Act, a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.'
In the present case, the will made by Sukh Dayal in ineffective regarding the coparcenary property. It is an established rule of Hindu law that before the Hindu Succession Act, 1956, a coparcener under the Mitakshara law had no power to dispose of his coparcenary interest by will unless he was the sole surviving coparcener. In this case, therefore, Sukh Dayal, who was not a sole surviving coparcener, shall be deemed to have died intestate regarding coparcenary property. On his death Ram Jowai gets 1/6th share in the coparcenary property of which she became full owner after coming into force of Hindu Succession Act, 1956. On her death in 1961, her share will be inherited by respondents in equal share. The appellants will not get anything out of her property. Thus each of the appellants is entitled to 1/6th share in properties marked as 'F' and 'G'. The judgment and decree of the trial Court in granting them 2/5th share is erroneous. The cross objections, therefore, deserve to be accepted to that extent.
9. For the reasons recorded above, I dismiss R. F. A. 353 of 1962 and accept cross-objections marked as c. M. 312/C of 1963 and pass a preliminary decree in favour of the appellants regarding 1/3rd share in the properties marked as 'F' and 'G'. The case will go back to the trial Court for appointment of Commissioner and passing of final decree. In the circumstances of this case, I leave the parties to bear their own costs.
10. Order accordingly.