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Kedar Nath Poddar Vs. Gaya Nath Poddar and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1930Cal731,129Ind.Cas.846
AppellantKedar Nath Poddar
RespondentGaya Nath Poddar and ors.
Cases ReferredBrandon v. Robinson
Excerpt:
- .....second appeal.4. two main points arise for decision in the appeal : firstly whether mohim chandra poddar bequeathed only a lite estate or an absolute interest in the properties in suit to defendant 2 by his will; and secondly whether plaintiff 1 has acquired any title to the properties in suit by his alleged purchase. with regard to the first point i do not think that there can be any doubt upon a true construction of the terms of the will that the intention was to bequeath a limited interest or an interest for life only and not an absolute interest. para. 1 of the will which is the material portion reads as follows:my daughter and her one son are alive. on the strength of my this will, the said daughter and her son shall possess and enjoy the immovable properties set forth in the will......
Judgment:

Graham, J.

1. This is an appeal by the plaintiff from a decision of the Subordi nate Judge, 2nd Court, Pabna, affirming a decision of the Munsif, Second Court, Pabna and arises out of a suit for a declaration of title to and recovery of possession of certain lands described in the plaint.

2. The plaintiff's case was that Mohim Chandra Poddar, who owned the properties in dispute, died on the 7th Falgoon 1325 B.S. corresponding to the 19th February 1919 leaving as his heirs defendants 2 and 3 who are his daughter's sons. Plaintiff 1 purchased the properties from them on the 18th of Pous 1327 corresponding to 2nd January 1921 in the name of his son plaintiff 2 since deceased and possessed the suit properties until Falgoon 1327 when according to the plaintiff, defendant 1 dispossessed him therefrom. The plaintiff further alleged that after the purchase of the properties from defendants 2 and 3, defendant 1 propounded a will which was said to have been executed by the aforesaid Mohim Chandra Poddar and obtained probate thereof from the District Judge of Pabna as executor. Mohim Chandra Poddar, however, bequeathed an absolute right in the properties to defendant 2 by that will and defendant 1 had no right to dispossess the plaintiff. The suit was contested by defendant 1 alone, the main contention being that the will conferred only a life-estate on defendant 2 and his mother, who predeceased Mohim Chandra Poddar, and that defendants 2 and 3 had no right to sell the properties in question to the plaintiff who therefore, it was pleaded, acquired no title by his purchase.

3. The trial Court dismissed the suit holding that the will conferred only a life estate upon defendant 2 and his mother who predeceased that testator, that the restriction on alienation imposed by the will was legal, and that in consequence the plaintiff had acquired no title by his purchase. Against that decision an appeal was preferred to the District Court and the learned Subordinate Judge who heard the appeal concurred with the view which had been taken by the Munsif and dismissed the appeal. The plaintiff has now perferred this second appeal.

4. Two main points arise for decision in the appeal : firstly whether Mohim Chandra Poddar bequeathed only a lite estate or an absolute interest in the properties in suit to defendant 2 by his will; and secondly whether plaintiff 1 has acquired any title to the properties in suit by his alleged purchase. With regard to the first point I do not think that there can be any doubt upon a true construction of the terms of the will that the intention was to bequeath a limited interest or an interest for life only and not an absolute interest. Para. 1 of the will which is the material portion reads as follows:

My daughter and her one son are alive. On the strength of my this will, the said daughter and her son shall possess and enjoy the immovable properties set forth in the will. If they have to transfer in any way by gift, sale or otherwise they shall have to do so only in favour of my brother's son Gayanath Poddar. That alone shall be valid. On the other hand, upon hindrance to (in the event of the death of) the said daughter and her son, according to the terms of my this will, the title of my brother's son Gayanath Poddar shall accrue to all my immovable properties sat forth in my this will. He shall acquire full and complete title to the said properties and my said brother's son shall have power to transfer the properties in every way by gift or sale.

5. This passage seems to indicate clearly that the intention of the testator was to bequeath only a life-estate and not an absolute interest in the properties.

6. With regard to the second point, namely, as to whether plaintiff 1 has acquired any title to the properties the answer depends upon the view which is taken of Section 138, Succession Act. That section reads as follows:

Where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.

7. The learned advocate for the appellant has construed the first part of this section in a manner which seems to me to be very doubtful. In order to make this section applicable it must be clear that the fund is bequeathed absolutely. The learned advocate, had placed reliance upon the portion of the section consisting of the words 'or for the benefit of any person.' As I understood his argument ha sought to draw a distinction between this and the preceding part of the sentence, namely the words 'bequeathed absolutely.' As I read the section the word 'absolutely' qualifies not only the first part, namely the word 'bequeathed,' but also the latter part consisting of the words 'for the benefit of any person.' In other words the opening part of the section reads virtually as if it had been expressed thus:

Where a fund is bequeathed absolutely to or absolutely for the benefit of any person,

etc. The fact that there is no comma after the word 'to' seems to me to lend support to this view. If this construction is correct then restraint upon alienation would arise only where the property is absolutely bequeathed and by implication there would be no such restraint where there is a demise not of an absolute interest but merely of a temporary or life interest. Some English cases were referred to by the learned advocate for the appellant some of which certainly lend some support to the contrary view, and I am bound to say that there is a good deal to be said in favour of the view that conditions restraining alienation by a tenant for life ought also to be deemed to be void inasmuch as the power of alienation may be said to be as much incident to that kind of interest as it is to an absolute interest : Brandon v. Robinson (1811) 18 Ves. Jun. 429. Whatever the English authorities may be on the point however in this country we have the statute and are to be guided by it. On the whole it appears to me that the conclusion arrived at by the Court below is correct.

8. There was an alternative prayer in the plaint, that in the event of the sale being held to be invalid the sum of Rs. 500 which was paid as consideration for the purchase of the properties should be refunded. We think that that prayer ought to be granted in the circumstances. We therefore discharge the decrees of the Courts below and in lieu thereof direct that a sum of Rs. 500 only with interest at the rate of six per cent per annum from the date of the decree of the trial Court be paid to the plaintiffs by defendant 2 to be realized out of the disputed properties belonging to him in the hands of defendant 1. The plaintiffs will get their costs of this appeal only, the said costs to be realized in the aforesaid manner.

Mitter, J.

9. I agree with my learned brother in the order which ha has made in this case. The question in this appeal turns on the validity of a certain clause in the will of the testator Mohim Chandra Poddar. The plaintiff in this suit claims to have purchased the properties in dispute from defendant 2 for a consideration of Rs. 500. It appears that the properties originally belonged to the maternal grandfather of defendant 2 who executed a will so far back as the year 1905 by which he gave the life interest in these properties to the daughter, that is the mother of defendant 2, who is now dead, and to defendant 2. There was a clause in this will by which the two holders of estates for life were restrained from alienating the properties by gift, sale or otherwise except in favour of the testator's brother's son Gaya Nath Poddar who is defendant 1 in the suit and in whose favour there is an ultimate bequest in the will, for it is stated in the will that after the determination of the life interest created in favour of the daughter of the testator and the daughter's son who is defendant 2, Gaya Nath shall acquire full and complete title to all the immovable properties and that he shall have power to transfer the properties In every way by gift or sale.

10. The question raised in the Courts below by defendant 1 was that this restraint on alienation by the clause in the will to which I have referred was valid and operative and consequently the plaintiff had not acquired any title by his purchase of the disputed properties from defendant 2. This contention of the defendant was accepted by both the Courts below and the question in this appeal is whether this conclusion of the Courts below is right or not. The determination of this question really turns on an interpretation of the provisions of Section 138, Succession Act. It is contended on behalf of the appellant that the conclusion arrived at by the Courts below is wrong seeing that Section 138 is not only applicable to the case of absolute bequest, but also to the case of a bequest creating a life interest in favour of defendant 2 and in support of this contention reference has been made by Mr. Brajalal Chakrabarti, who appears for the appellant, to several English cases. He contends that according to the English authorities conditions restraining alienations by a tenant for life either of real or of personal property have been held to be void and refers to the cases which are collected in Jarman's well-known Text-book on Wills, Edn. 6, p. 1495. It appears to me however that these English cases are of little assistance and we have to consider the particular section of the Succession Act. Section 138 runs as follows:

Where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.

11. It appears dear from the plain language of this section that restraints against the mode of enjoyment is held to be operative only in a case where the bequest is an absolute bequest either to a particular person or for the benefit of any particular person. It was not the intention of the legislature to make a restraint against any alienation operative in a case where the bequest is not an absolute bequest, or in other words where a bequest is as in the present case limited to the life of any particular legatee. It is not a case of legislative omission so that we may have recourse to English authorities for the purpose of determining the intention of the legislature. A testator is free to exercise his volition in any way he chooses provided in the exercise of such volition he is not restrained by any provision of law. Section 138 imposes no such restraint as it is limited in the case of absolute bequests, and it is conceded by Mr. Brajalal Chakrabarti that the bequest in the present; case is not an absolute bequest but a bequest limited to the life of defendant 2. Section 138 therefore does not assist the appellant in the present case. It seems therefore that the Court below have taken the right view as regards the operative character of the restraint against alienation. If the transfer is invalid it does not mean, as there is no clause of forfeiture, that the property should pass to defendant 1 by reason of the transfer at the present moment. The effect of the invalid transfer is that the properties still remain with defendant 2. In these circumstances, as defendant 2 has received a large consideration by the sale of these properties to the plaintiff which turns out to be invalid having regard to the construction of the will which has been accepted by us it is only equitable that he should refund this sum which forms the consideration for the deed of sale. It is also equitable that this sum should be realized out of the properties which were sold by defendant 2 and of which defendant 1 is in possession as executor.


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