1. These appeals both raise questions relating to the will of a Parsi gentleman by name Nanabhai Hirjee who died on 30th June, 1916. Appeal No. 199 of 1937 is preferred by the plaintiffs who represented the interest of Nanabhai Hirjee's daughter, Meherbai Jehangir, the first plaintiff (who is now dead) being her husband; plaintiffs 2 to 7 are her children. They sued to recover a half share in a legacy given to Nanabai's widow Bhikaijee and also to recover Meherbai's share in specific properties which are items 9 to 12 in the will. We are no longer concerned with Bhikaijee's legacy which has been validly dealt with by Bhikaijee herself in a will which excludes Meherbai. The claim in the appeal is therefore confined to the four items 9 to 12 in the will Ex. A. This will is a somewhat unusual document. Nanabhai was a merchant trading in Calicut. The will Ex. A. is dated 21st April, 1916. It enumerates firstly twelve items of property, items 1 to 6 being various movables connected with the trade, item 7 consisting of four Government promissory notes of the face value of Rs. 5,006, while item 8 is a site with the buildings thereon and their contents and the disputed items 9 to 12 are four parcels of immovable properties. These twelve items, are valued at Rs. 95,300 and in addition to these items, the will recites the existence of certain bank balances and outstandings of unspecified value. Under the will, his estate was to be managed by the widow. The first provision is that the widow, the eldest son Framroze, the first defendant and the two sons of Framroze, Jal and Bomman, both of whom are now dead, shall possess equal rights to the properties shown as items 1 to 8. The next provision is that if the widow Bhikaijee dies without disposing of her share, that share shall go to the wife of Framroze and the testator's two daughters Meherbai and Dhannubai. Then follow three legacies of Rs. 5,000 one to the widow, one to Meherbaj and the third to the other daughter Dhannubai. Meherbai has already got a decree for this legacy of Rs. 5,000. Next follow small legacies to employees and a recital that one of the promissory notes referred to in item 7 which is in tile frame of Framroze shall go to Framroze as beneficiary. Then after small bequests for charity and provision for funeral rites and tombs, the will provides that items 9 to 12 shall be retained unencumbered and unalienated in any way and that any such alienation shall be void. Then follows the sentence:
The said four items of properties have been kept as tarwad properties.
2. And it is directed that out of the income from the business the tarwad karnavan Framroze shall meet the expenses for the maintenance of these items. After that provision for the creation of a tarwad to control these items, there follow certain minor provisions with which we are not concerned. Then comes the following sentence:
All the properties that may be found to belong to me and that have been omitted to be shown herein should be taken possession of by my wife Bhikaijee, Framroze and the two grandsons in equal shares.
3. At the time of her father's death Meherbai was living at Hyderabad as the wife of a doctor practising there. There is no evidence that she was informed of the provisions of the will at the time of the testator's death and she was not paid anything under the will. In 1919 Framroze wrote a letter Ex. K-1 to Meherbai's husband referring to a claim for certain wedding presents of Meherbai which he repudiates. The letter concludes with the statement that in Nanabhai's will a sum of Rs. 750 is provided for Meherbai and is being kept at the desire of the testator for her children to be given at their marriage. This appears to refer to an earlier will which was superseded by Ex. A. It would appear that in 1921 Meherbai's husband got a registration copy of Ex. A and made a claim thereunder which was repudiated in a lawyer's letter Ex. L, dated 16th August, 1921, which says that the will is invalid and inoperative. This letter Ex. I is within twelve years of the present suit which was filed on 5th January, 1932. In 1921 and 1925 under Exs. II and III there were settlements by Framroze and his son Jal of properties got under the will and in 1928 Framroze and his son Jal mortgaged their properties to the Chalapuram Bank for Rs. 35,000. It does not appear that Meherbai ever received any part of the income of the properties covered by the will.
4. The learned Subordinate Judge who tried the suit held that it was barred by adverse possession, basing his decision on the absence of any claim to the properties, items 9 to 12 in the will, prior to 1921, the hostility between Meherbai's husband and the rest of the family and the alleged exclusion of Meherbai from the profits of the property taken along with the alienations made by the rest of the, family. It should be mentioned that the arrangement made in the will for constituting a tarwad in respect of these properties has already been found to be invalid in a previous suit and the plaintiffs' claim was based on the assumption that there was an intestacy with regard to these four items. We find difficult to accept the conclusion of the learned Subordinate Judge that the plaint claim is barred by adverse possession. Assuming for the moment that the failure of this disposition in favour of the tarwad creates an intestacy, the result would be that Framroze and his children would be co-owners of these items along with the two sisters. Meherbai was living at Hyderabad; the other sister Dhanubai was living at Cannanore. Before 1921 there is, so far as we can gather, no positive evidence of the assertion of any hostile claim to these properties by Framroze and his children except such as can be spelt out of the exclusive enjoyment of the income of those properties. Very little weight can be attached to the omission of any reference to Meherbai's interest in these properties in Framroze's letter Ex. K-1. It is well established that the mere non-receipt by one co-owner of a share in the profits of land in the physical possession of another co-owner will not be sufficient to establish adverse possession, in the absence of positive indications that the co-owner in physical possession was setting up an adverse title to the knowledge of the other co-owner.
5. As was laid down by the Privy Council in Corea v. Appuhamy (1912) A.C. 230, possession is never considered adverse if it can be referred to a lawful title. It is not possible for the co-owner in possession, whose possession is deemed to be that of his co-owners, to put an end to that common possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result. In the present case Framroze was in lawful possession as a co-owner who along with his sons had a major interest in the property. His possession must be attributed to his lawful title unless there is some clear indication that he was openly asserting a title hostile to that of his co-owners. A mere secret intention on his part to hold that property as his own or to repudiate the will under which he got title, cannot rob another co-owner, unaware of that intention, of the right to benefit from his possession. Mr. Sitarama Rao, for the respondents has quoted the decision of the Privy Council in Varadapillai v. Jeetlaratnammal (1919) 38 M.L.J. 313: L.R. 46 IndAp 285 : I.L.R. 43 Mad. 244 , as an authority for the proposition that an Ouster might be deduced from long continued enjoyment by one co-owner; but that was a case in winch adverse possession had started before the devolution which created the co-ownership. In the case of Gangadar v. Parashram I.L.R. (1905)Bom. 300, it was held that more than 40 years exclusive enjoyment without any participation in the profits or any demand for an account thereof might justify the presumption of actual ouster. There are no such circumstances in the present case. Nanabhai died in 1916 and it was not until 1921 that anything in the nature of a repudiation of the rights of Meherbai can be demonstrated. The mere exclusive enjoyment of the income of the properties for the five years preceding that repudiation is not, in our opinion, sufficient to justify the conclusion that during these five years, the possession of Framroze was openly hostile to the rights of his sister. It follows that the judgment of the learned Subordinate Judge is based on a wrong inference of ouster.
6. Mr. Sitarama Rao has, however, supported the decision on another ground which was not taken in the Court below, but which, in our opinion, must succeed. The attempt to create a perpetuity on the analogy of a Malabar tarwad in respect of these four items must be held to be invalid. Mr. Sitarama Rao contends that the effect' of the invalidity of this disposition is not to create an intestacy regarding these four items, but to add these four items to the residue which under the terms of the will is to be enjoyed by the testator's widow, his son Framroze and his grandsons Jal and Bomman. That is to say, it has to be added to the estate which these same four persons got under the specific bequest of items' 1 to 8. In our opinion, the provision that these persons should take all properties found to belong to the testator and not shown in the will, is a good residuary bequest. Section 102 of the Succession Act prescribes that a residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property. Section 103 provides that under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death of which he has not made any other testamentary disposition which is capable of taking effect and the illustration shows that when a legacy is void or has lapsed, the residuary legatee is entitled to such legacy. These statutory provisions merely codify certain well established rules of English law. In the case of Blight v. Hartnoll (1883) 23 Ch. D. 218, the testatrix gave to H all her personal property except a certain item the bequest of which failed for remoteness; it was held that that item fell into the residue and belonged to H. Jessel M.R. observes:
You may have a residuary bequest in various forms; the same thing may be meant though not expressed in the same words. But however it is expressed, the effect must be that it is intended to comprise all which is not disposed of by the will. It is not a true residue if there is some part not disposed of by the will to anybody at all.... When I say a residue I mean the residue of the estate not professed to be otherwise disposed of by the will.
7. Now the residuary clause of Ex. A purports to give the four legatees all the testator's properties that have been 'omitted to be shown herein.' The properties shown in the will are all covered by certain dispositions. It has been suggested by way of a reply to this contention that there is no disposition in the will of four items 9 to 12 in respect of which the testator made his ineffective attempt to create a tarwad. The argument is built upon the words:
The said four items of property have been kept as tarwad properties.
8. The will is written in Malayalam. Though the Malayalam words naturally indicate a past act, they are capable of indicating a continuing act. There is no suggestion that there was any prior creation of a tarwad interest in these items apart, from the will and in fact the plaintiffs themselves contended that it was the will which set aside the four items as tarwad properties and that this provision of the will was inoperative. We have no doubt that the use of the past tense in this sentence is without significance and that it was the intention of the testator to give these properties by his will to a tarwad of which, by the will, he nominated his son Frarnroze as a karnavan. This bequest is void not only as creating a perpetuity, but also for uncertainty. No one can tell from the words of the will whether the testator intended to give these properties to a tarwad formed on the analogy of a marumakkathayam family in which case the daughters would be sharers, or one founded on the analogy of a Nambudiri family, in which case the daughters would be entitled only to maintenance. We are of opinion that this will did purport to dispose of all the properties of the testator and that it did purport to male a disposition of items 9 to 12 which disposition is invalid. It follows that these items fall into the residue in which the plaintiffs have no interest. The suit therefore fails. It seems to us, however, that as the suit was dismissed in the Court below on an invalid ground and as the appeal has been resisted successfully on the basis of a legal contention not raised in the trial Court, the proper order is that each party should bear his own costs in appeal. With this provision Appeal No. 199 of 1937 is dismissed.
Civil Miscellaneous Second Appeal No. 140 of 1937.
9. Turning now to the Civil Miscellaneous Second Appeal, we have already stated that Meherbai got a decree for her legacy of Rs. 5,000. The decree was obtained in O.S. No. 42 of 1928 to which the mortgagee the Chalapuram Bank was not a party. After this decree was obtained Framroze and his son Jal were adjudged insolvents in I.P. No. 28 of 1931 on the file of the Subordinate Judge of Calicut. The Official Receiver proceeded to realise the assets and he has in his hands money representing the value of items 1 to 4 in the will. These items are bound by the mortgage in favour of the bank. They are also liable to satisfy the decree obtained by Meherbai in O.S. No. 42 of 1928. The question in the present appeal, which is preferred by the Bank, is whether under the will Meherbai's legacy is charged on items 1 to 4 and whether the decree for this legacy has priority over the claim based on the mortgage.
10. The matter seems to us to be capable of a simple solution. Under Section 213 of the Succession Act no right as legatee under a will to which the section applies can be established in any Court unless probate or letters of administration of the will under which the right is claimed have been obtained. Though this will has been established to be valid by the judgment in O.S. No. 42 of 1928 on the file of the Subordinate Judge of Calicut, that Court had no jurisdiction to grant probate or letters of administration and the will has not been formally proved. Meherbai's representatives have got a decree against the estate of the testator, which decree they are entitled to execute without relying upon the will. But the decree creates no charge They can only spell out a charge by setting, up a right under the will, which right cannot be established without probate, having regard to the terms of Section 213. On the other hand, the mortgagee has a security which he can enforce as against the mortgagors, who are estopped from denying their mortgagee's title. A similar estoppel operates against the Official Receiver who succeeds of the title of the mortgagors. It is therefore unnecessary for the mortgagee to prove, as against the mortgagors and the Official Receiver, the title which the mortgagor has got under the will. The bank, therefore can establish its position as a secured creditor and has priority over the simple decree holder.
11. Apart from this somewhat technical solution of the question we are clearly of opinion that under the terms of the will, the legacy in favour of Meherbai is not charged on items 1 to 8. The learned District Judge proceeds on the footing that items 1 to 12 in the will are exhaustive of all the properties of the testator and that as the will makes items 9 to 12 unalienable and attaches them to the tarwad his intention must have been that the legacies in favour of his widow and daughters should be satisfied out of items 1 to 8; and this conclusion is fortified by reference to the fact that one of the Government promissory notes included in item 7 is the subject of a separate bequest to Framroze, one of the persons entitled to the whole of items 1 to 8. It seems to us that the reasoning of the learned District Judge is fallacious. The legacy of items 1 to 8 to Framroze, his mother and his sons is a specific legacy. The legacy of Rs. 5,000 to Meherbai is a general legacy. Under Section 328 of the Indian Succession Act, apart from deductions necessary for debts and expenses, a specific legacy must be delivered to the legatee without any abatement. It is true that if the will indicated that another legacy was to be paid out of the funds included in a specific legacy, this might create a charge thereon. But the learned District Judge is definitely in error in his basic assumption that items 1 to 12 exhaust the whole of the property of the testator. There are the outstandings and the bank balances, the value of which we do not know, which are not included in items 1 to 12. Moreover it seems to us dubious whether the mere absence of a general fund out of which a; general legacy can be paid would be sufficient to warrant the inference that that legacy is to be paid out of the funds earmarked as a specific legacy to others, In any view of the case, the Civil Miscellaneous Second Appeal must succeed. |We allow the appeal with costs throughout and restore the order of the learned Subordinate Judge.
12. We wish to add that this decision will not prejudice any right which Meherbai's representatives may have to exclude the decree against items 9 to 12 which, by our finding in the connected appeal 199 of 1937, must be deemed to be part of the residue of the estate.