Mst. Tejo vs Chhape Ram and Others

Kapur, J.—This is a defendant''s appeal against the appellate decree of the Senior Subordinate Judge confirming the decree of the trial Court decreeing the plaintiff''s suit for possession.

Bhole Ram, the last male holder, made a will on 10-11-1934 in favour of his son and three daughters giving them one-quarter share each in his movable and immovable property, the property being self-acquired. His children were Labhdu, a son, Mst. Surmi, Mst. Ghelo and Mst. Tejo daughters. In the will he provided :

"After my death my son Labhdu and my three daughters will be ''maliks'' in equal shares of my property. Mst. Surmi and Mst. Ghelo will be maintained out of my property. If they get married, they will have no concern with the property and in that contingency of their shares Mst. Tejo, my daughter, will become the owner (Malik).

If Labhdu, my son, because of his being dumb cannot be married and he dies childless, then of the share of his property Mst. Tejo, my said daughter, will become the owner and she will perform the ''kirya karam'' of Labhdu aforesaid. My collaterals will have no concern with this property. If they raise any dispute in regard to my property, then they will be considered to have no connection with it because of this writing.....''

Mst. Surmi died unmarried and Mst. Ghelo is still unmarried and the share of the former has been inherited by Tejo in accordance with the will. Labhdu, the son, did get married but he died in July or August 1945 leaving a widow Mst. Lohli who succeeded to his estate. On her remarriage the estate of Labhdu was mutated in the name of Mst. Tejo.

Thereupon Chappe Ram, the real brother of Bhole Ram and ''chacha'' (uncle) of the last male holder Labhdu, brought a suit for possession of one-quarter share, claiming that he was a preferential heir to the estate left by Labhdu to Mst. Tejo who is Labhdu''s sister. Both the Courts below have held that the estate taken by Labhdu was an absolute estate and the gift over was inoperative. Mst. Tejo has come to this Court and claims under the provisions of the will.

The will is in my opinion an inartistically drawn up document, but the intention of the testator is to bequeath his self-acquired property to his children and to exclude his collaterals and the special object of his bounty seems to be Mst. Tejo who had been serving him and in whom he had a fair amount of confidence. He was apprehensive that after his death his collaterals would raise disputes as to his property and he therefore made the will. The only dispute in the present case is in regard to the estate taken by Labhdu, the son.

Now Labhdu was a boy of six when the will was made and he was dumb, and the will specifically mentions that he will require somebody to look after him as he was unable to look after himself. In regard to the bequest in his favour the testator said that if he could not be married because of his being dumb and died childless his share was to go to Mst. Tejo.

The testator was apprehensive that he would not be able to get a wife, and the statement that if he died childless must in my opinion refer to both if he married or could not marry because in the latter case there was no necessity of mentioning his being childless. If he could not be married he would naturally remain childless. The mentioning of these words in regard to his being sonless in my opinion refers to both contingencies whether he married and remains son-less or he did not marry.

The Courts below have held that a clause such as the one in the present will, that after he had given the full estate to his son, the testator had provided for a gift over which was void and inoperative, but the appellant before me submits that this is not the proper way of construing this particular will; The object of the testator was to keep his self-acquired property within his own family consisting of his son and three daughters and that submission seems to be justified.

In a recent case of the Supreme Court, --'' Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer, it was held that where the intention of the testator is to grant an absolute estate, the powers of the legatee of alienation cannot be restrained because such a clause will be repelled on the ground of repugnancy, but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik".

In the case now before me also the language and tenor of the will leave no doubt that the dominant Intention of the testator was not only to benefit Mst. Tejo but to confine the property to his own children which is a very legitimate desire of a father.

As was pointed out in -- '' Govindaraja Pillai and Others Vs. Mangalam Pillai and Another, the distinction between a repugnant provision and a defeasance provision is subtle, but the general principle of law is that where the intention of the testator is to maintain the absolute estate conferred upon the legatee, but he simply adds some restrictions in derogation of such absolute ownership, such clauses would be repugnant to the absolute bequest and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law the original estate is curtailed and the gift over must be taken to be valid and operative.

In that case an absolute gift was made to a wife by the husband subject to the condition that if she died without issue the property would pass to other persons living at the date of the gift and that was held to be valid in favour of the third persons on the happening of the contingency.

The Privy Council in -- ''Chunilal Parvati-shankar v. Bai Samrath'' AIR 1914 PC 60 (C), also took a similar view. There a Hindu made a will appointing his two sons heirs and owners of the whole of his property and provided that "should either of these two sons die without having had any male issue the survivor of the said two sons is duly too take the whole of the property appertaining to the share of the deceased son". The testator died on 4-7-1901 and Ms elder son died on 2-1-1903 leaving a widow and a daughter, and it was held that the surviving son was entitled to the estate conveyed by the will, subject to such obligations as were imposed under the will.

Their Lordships followed a judgment of Lord Hatherley in -- ''O''Mahoney v. Burdett'' (1874) 7 HL 388 (D). In a somewhat similar case -- '' AIR 1932 269 (Privy Council) , their Lordships gave the same opinion. In -- AIR 1931 179 (Privy Council) at page 182 Sir Dinshah Mulla observed :

"A Hindu, no doubt, may give property by way of executory gift upon an event which is to happen, if at all, immediately on the close of a life in being and in favour of a person born at the date of the gift, and such a gift over might be a sufficient indication -that only a life estate to the first taker was intended : Soorjee money Dossee v. Denobundoo Mullick'' 9 MIA 123 (PC) (G); -- ''Jatindra Mohan Tagore v. Ganendra Mohan Tagore'' 9 BLR 377 (PC) (H)."

''Lakshminarayana Nainar v. Valliammal'', 34 Mad 250 (I), is also a case which supports the view which I am taking. In that case reference is made to -- ''Bhoobun Mohini Debya v. Hurrish Chunder'' 5 Ind App 138 (PC) (J), where a gift to a sister was in the following words :

"you and the generations born of your womb successively enjoy the same. No other heir of yours shall have right or interest"

and the Privy Council held that the instrument conferred upon the sister an absolute estate defeasible in the event of a failure of issue living at the time of her death in which event the estate was to revert to the donor and his heirs. Under Hindu Law such a defeasance followed by a gift over in favour of a person in being is perfectly valid (See 9 Ind App 123 (PC) (G) ).

Mr. Shamair Chand for the respondent emphasizes that the word used in the will was "malik" which connotes absolute estate and therefore any gift over would be void, but the present case in my opinion is governed by the rule laid down in the cases which I have given above, and I am of the opinion that the estate which was conferred upon Labhdu under the will was subject to defeasance in the event of his dying without issue and such a defeasance clause is not opposed to any rule of law and has been recognisad by the Privy Council to be valid (see 34 Mad 250 (I) ).

I am therefore of the opinion that on the death of Labhdu without a child (''lawald) the defeasance clause came into operation and the share of Labhdu would go to Mst. Tejo. I therefore allow this appeal, but in view of the fact that this question was not free from difficulty I leave the parties to bear their own costs throughout.

After this judgment was ready for announcement Mr. Shamair Chand brought an application stating that Ram Nath, the appointed son of the deceased Chappe Ram, was dead. He died, according to Mr. Shamair Chand, in May 1953. In view of this I cannot announce this judgment and will have to wait till the appellant takes such proceedings for bringing the legal representatives of the deceased on the record as she is advised to do.