Kali Prashad Gope and Others vs Ram Golam Sahu and Others

James, J.—This appeal arises out of a suit for the enforcement of two mortgage bonds dated respectively 25th September 1917 and 8th February 1922 which were executed by Ramkinker Thakur. Ramkinker''s father Bharosi Thakur died on 8th March 1896, leaving him surviving his son Ramkinker Thakur, his second wife Arjunbati and a daughter-in-law Mt. Kuntabati, the widow of his second son Raj Narain Thakur. By his will Bharosi Thakur left that portion of his property with which we are here concerned to his widow and his daughter-in-law for their lives with remainder to Ramkinker. Arjunbati had a power of appointment, by which if she should have no male children, she was empowered to make a gift of not more than two specified items of property to her daughter''s sons. Arjunbati died on 17th December 1909 without having exercised the power of appointment and Kuntabati died in 1930. It is not quite clear from the will whether if Arjunbati had a son the power of appointment was to be exercised in his favour or whether the remainder would vest in the son, or whether the life-estates would end; but as this event did not happen, the matter is of no importance.

The items of property with which we are here concerned are contained in two villages Tatpur Ranga and Narkatia in which the widows enjoyed a life-estate. On 15th December 1921 Mt. Kuntabati failed to pay cess, which led to the sale of Tatpur Ranga under the Public Demands Recovery Act when it was purchased by Kuntabati''s grandson Pusp Narain. On 18th July 1927 Pusp Narain and his brother Anup Narain Jha mortgaged Tatpur Ranga to Kali Gope, who sued on his bond and obtained a decree, in execution of which he purchased Tatpur Ranga on 1st December 1930. On 24th January 1924 Ramkinker and Kuntabati sold Narkatia to Kali Sahu, the defendant (fifth party) of this suit. These items of property had already been mortgaged by Ramkinker in 1917 and 1922; and the suit with which we are here concerned is for the enforcement of those earlier mortgages. The subsequent purchasers Kali Gope and Kali Sahu, who are the appellants now before the Court, contested the suit alleging that the earlier mortgages were not for consideration, taking as a matter of course every defence which could be taken in a suit of this kind, but chiefly maintaining the ground that Ramkinker had no interest which he could transfer at the time of the mortgages. The suit was decreed by the Subordinate Judge.

No question of fact is in dispute in this appeal, so that the argument is limited to the question of whether Ramkinker at the time when he executed the mortgages had a transferable interest. The will of Bharosi Thakur on the face of it conveys a remainder which would vest on Bharosi''s death, a point which, as the learned Subordinate Judge has observed, is made clear by the terms of Section 119, Succession Act. The existence of a power of appointment would not prevent the vesting of the remainder, because where estates are subjected to a general power of appointment in the first taker with remainder over in default of such appointment, the power does not suspend the remainder from vesting. If the remainder was contingent on the failure of male issue to Arjunbati, the point is certainly not made clear by will; and if Arjunbati had borne a son, the ambiguity in the will would have probably led to litigation on the question of whether the power of appointment or the remainder was cancelled. But nine months after Bharosi Thakur''s death this contingency ceased to be of importance. Mr. Jayaswal suggests that so far as Ramkinker is concerned, the question of whether he took a vested or contingent remainder is to be regarded as res judicata. In 1916 Ramkinker sued Pusp Narain and his brother for a declaration that a deed of gift executed by Kuntabati was invalid. One of the issues in that suit was:

Are the plaintiffs entitled to get possession of the property in suit after the lifetime of the defendant second party?

The Subordinate Judge declared the gift to Pusp Narain to be invalid as conveying nothing beyond the life interest of Kuntabati, but he refused the prayer for a declaration that Ramkinker was entitled to succeed on the death of Kuntabati. The judgment on the sixth issue in that case is brief and it is as follows:

The defendant second party is yet alive and there is no knowledge as to if plaintiff 1 would be a reversioner to the properties in dispute after her death. I therefore find that his right to get the properties is yet too contingent to entitle him to claim their possession. And on this view thereon I refuse him his prayer for the possession thereof. Issue 6 is therefore found against him.

From this it appears to be possible that the Subordinate Judge misunderstood the effect of a vested remainder, apparently thinking that it was nothing more than a spes successionis and that if the remainder man should die before the life tenant, it might be necessary to look elsewhere for what he calls the reversion. But he is correct when he says that Ramkinker''s right to get the property was too contingent to entitle him to claim possession. Mr. Jayaswal lays some stress on the use of the word ''contingent,'' and he also argues that the finding on this issue converts Ramkinker from a remainder man to a mere reversioner. But in a sense every remainder man''s expectation of enjoyment of property is contingent, because unless he survives the life tenant he will not himself enjoy possession; and it appears to be only in this sense that the expression is used in the judgment. This decision is in any view of the matter not binding on the plaintiffs who were not parties to the suit. The point is not of any real importance, because there can be no doubt that the remainder of the kind described by this will is not property of the nature described in Section 6(a), T.P. Act, which cannot be transferred. It is not a mere chance or possibility but a vested interest. This was made clear by the Judicial Committee of the Privy Council in AIR 1930 17 (Privy Council) , where the remainder of a kind classed by the Judicial Committee as contingent was held to be transferable.

Mr. Jayaswal suggests that the will created a Hindu woman''s estate in the life estates of Arjunbati and Kuntabati; but the will clearly describes an ordinary life-estate with remainder over. The estate conferred in no way resembles a Hindu widow''s estate. Power is given to appoint persons other than the limited heirs. No power is given to alienate even for necessity, and the testator makes it clear that if either of the two ladies shall spend money in acts of charity or piety, she is to do it at her own expense and the act is not to be made a pretext for alienation of property. The decision of the learned Subordinate Judge was correct and I would dismiss this appeal with costs.

Courtney-Terrell, C.J.

I agree.