1. This is plaintiff's second appeal, whose suit for declaration was decreed by the trial Court but was dismissed in appeal.
2. Sham Singh was the owner of the land in dispute measuring 47 Kanals. Sham Singh left behind a Will dated 21st August,1959 in favour of Balwant Kaur, his daughter, and in favour of his two brothers Teja Singh and Beant Singh. According to the said Wil1 Exhibit P-I Balwant Kaur succeeded only to a life estate and she had no right to alienate the land. It was further provided that after the death of Balwant Kaur the other two legatees will succeed to the estate and in case they are pre-deceased to Balwant Kaur then their male descendants will inherit the property. Since Balwant Kaur executed a Will on 6th February, 1970 in favour of the defendant, Peshora Singh, the plaintiffs, who are the successor-in-interest of Teja Singh and Beant Singh (legatees) filed the present suit for declaration that the Will executed by the Balwant Kaur in favour of Peshora Singh was illegal and ineffective and against their rights and they will be entitled to succeed to the estate inherited by Balwant Kaur from Sham Singh.
3. The suit was contested by Balwant Kaur and Peshora Singh defendants who filed a joint written statement. It was pleaded that Balwant Kaur became absolute owner of the property inherited by her under the said will. It was denied that Balwant Kaur was only entitled to usufruct of the property during her life time. According to her, Sham Singh died on October 11, 1960 and on his death, Balwant Kaur became full owner. It was denied that after her death, the plaintiffs would be entitled to the suit property. It was further pleaded that the will executed by Balwant Kaur in favour of Peshora Singh was thus valid.
4. The learned trial Court found that Sham Singh bequeathed only life estate under the will to Balwant Kaur defendant, and, therefore, she could not claim herself to be the absolute owner of the suit property after the death of her father Sham Singh. Consequently, plaintiff's suit was decreed.
5. In appeal the 1earned District Judge canvassed the said findings of the trial Court and came to the conclusion that from the perusal of the terms of the will Exhibit P-1 it is clear that Balwant Kaur was made the absolute owner when she was described to become 'Malik Haqdarr' under the will and the subsequent terms of the will that she was to get benefit of the produce of the property till her life time and that in the contingency provided therein the property would go to Teja Singh and Beant Singh or their legal heirs will not in any manner restrict the ownership rights of Balwant Kaur in the property in dispute. Thus it was ultimately held that Sham Singh bequeathed the suit property in favour of Balwant Kaur not as a life estate but as an absolute owner. As a re-suit of these findings, it was further found that the Will made by the Balwant Kaur in favour of Peshora Singh was a valid one. Consequently, the plaintiff's suit was dismissed. Dissatisfied with the same, the plaintiff has come up in second appeal in this Court.
6. The learned counsel for the appellants contended that the Will Exhibit P-1 is to be read as a whole and after reading the same as a whole, it is quite evident that Balwant Kaur was only given life estate under the Will and it was further made clear therein that she will be entitled to produce only till her life-time and after her death the property will return to Teja Singh and Beant Singh or their male successor-in-interest. The findings of the lower appellate Court in this behalf, according to the learned counsel were wrong and were based on misreading of the Will. The trial Court rightly found that Balwant Kaur was only given the life estate.
7. On the other hand the learned counsel for the defendant-respondents submitted that from the words in the Will 'that Balwant Kaur will be the heir under the Will, clearly proves that she was made the absolute owner and any condition subsequent thereto was of no consequence and could not deprive her of her absolute ownership. In support of his contention reference was made to Raghunath Prasad Singh v. Deputy Commr., Partabgarh, AIR 1929 PC 283, Amar Nath v. Guran Ditta Mal, AIR 1918, Lahore 394, Muharram Ali v. Barkat Ali, AIR 1930 Lahore 695 and Sewa Ram v. Smt. Bishan Devi, 1978 Pun LJ 274.
8. I have heard the learned counsel for the parties and have gone through the case taw cited at the bar.
9. It could not be denied that Sham Singh was the absolute owner of the land in dispute, and, therefore, he was competent to will away the property in any manner, he. liked. Admittedly during his lifetime he made the Will Exhibit P-1 dated 2lst August, 1959, by virtue of which he bequeathed the land in favour of his brothers Teja Singh and Beant Singh 1/3rd each, whereas the remaining 1/3rd was bequeathed in favour of his daughter Balwant Kaur. From the perusal of the Will as a whole, it is quite clear that she was given only the life estate as she was entitled only to the produce thereof, and after her death the property was to revert back to the two brothers of the testator i. e. Teja Singh and Beant Singh and in case of their death prior to Balwant Kaur, their sons had to inherit the property. The contention of the learned counsel for the defendants that once Balwant Kaur was allowed to succeed as the heir under the Will, then any subsequent conditions were not binding on her, has no merit. She could not claim herself to be the absolute owner of the suit property on the death of her father Sham Singh, because S. 14(2) of the Hindu Succession Act, clearly provides that nothing contained in sub-s. (1) shall apply to any property acquired by way of gift or under a Will, where the terms of the gift or Will prescribed a restricted estate in such property. The judgments relied upon by the learned counsel for the defendants are clearly distinguishable. In any case, it could not be laid down as a rule that no conditions whatsoever could be imposed in the Will while bequeathing the property by the testator. In Raghunath Prasad Singh's case (AIR 1929 PC 283) (supra), which is the basic judgment and has been followed subsequently, it was held from the contents of the Will in that case that from the words 'that the legatee shall be the testator's 'heir and successor' were clear dis-positive words creating an absolute estate of inheritance in P and the various clauses that followed the main provisions were to come into operation after P had so inherited. So it was ultimately held that an attempt to impose repugnant conditions upon the estate so created were, therefore, void. The terms of the will has been reproduced therein, which inter alia contain that on the death of the testator the property shall vest in Lal Pratap Bahadur Singh, whom, he trusted, shall follow all the religious principles of Hindus and shall pass his whole life in a good manner, and he shall be hid heir and successor. The said heir after he has inherited him shall be bound to abide by all the terms following therein. One of the terms was that the legatee and his representative shall have no power to alienate the properties. Such a clause restricting the right of alienation permanently was certainly repugnant upon the estate so created, and, therefore, the same was held to be void. In Amar Nath's case (AIR 1918 Lahore 394) (supra) the conditions imposed upon the legatee were that they shall not be competent to transfer, mortgage, sell etc. their respective shares of property until 40 years of the testator's death. On account of such a condition it was held that the Will conveyed absolute estate in favour of the legatees. In Muharram Ali's case (AIR 1930 Lahore 695) (supra) also, the Will contained certain clauses purporting to restrict and cut down the powers over the house after the legatee had inherited it, and therefore, it was held that the subsequent restriction clauses would not displace the effect of the dis-positive words and must be regarded as conditions subsequent which being repugnant to absolute estate, are void and must be rejected. In the case reported as Sewa Ram (1978 Pun L.J 274) the Wil1 provided that the legatee could. become full owner and would get into possession as such of all properties of testator and be entitled to mortgage part of agricultural property to raise amount for maintenance but prohibited legatee from permanently alienating any part of agricultural land and property devised to be inherited after the death of legatee by nephews of testator and their heirs. Under these circumstances, it was held therein, while considering provision of Ss. 74 to 111 of the Succession Act that the subsequent conditions being. repugnant to absolute estate, were void and must be rejected.
10. All these cases referred to above, have no applicability to the facts of the present case. Here under the Will Exhibit P-1 Balwant Kaur was only given life estate for 1/3rd share of Sham Singh. She was only entitled to the produce of the land during her lifetime. It was clearly provided in the Will that after her death her one-third share will revert back to the other two legatees under the Will or their male descendants. Thus the question of restricting any rights of alienation etc. of Balwant Kaur as such did not arise because she was never made the absolute owner under the Will, and, therefore, the authorities referred to above, as stated earlier, have no applicability to the facts of the present case. Moreover, it will be pertinent to note that Balwant Kaur defendant appeared as D.W. 1 and categorically admitted that she was given only the life estate in the suit property.
1l. Under these circumstances, in view of the provision of S. 14(2) of the Hindu Succession Act she could not claim herself to be the absolute owner after the death of her father Sham Singh, because in the Will Exhibit P-1 she was only given life estate during her lifetime.
12. As a result of the above discussion, this appeal succeeds, the judgment and decree of the lower appellate Court are set aside and that of the trial Court decreeing the plaintiffs' suit are restored with no order as to costs.
13. Appeal allowed.