Ram Bahadur vs Jagerkath Prasad

Chapman, J.—This appeal arises out of a suit for a declaration that the title conveyed by one Sahodra Bibi to Ganpat Bhagat in a house and garden had ceased at her death, and for possession. The suit was instituted by Jagernath Prasad, the son of Sahodra Bibi, and by two other persons who had purchased a 7-annas interest from Jagernath Prasad. The deed of conveyance, which is dated the 10th January 1885 and is referred to as Exhibit C, purported to convey an absolute interest in the property. The plaintiffs'' case, however, was that Sahodra Bibi had no power to convey a title to inure beyond her lifetime. The suit has been decreed and the defendants, who are purchasers from the assignees of Sahodra Bibi, have appealed to this Court.

Sahodra Bibi had held under a Will executed by Fateh Chand, who died possessed of considerable immoveable property, more particularly specified in the schedule to his Will in addition to a banking business which was carried on in the town of Muzafferpur under the style and title of Fateh Chand Sakhi Chand. He died in 1848 or 1849, leaving a widow Sheudai Koer and Sahodra Bibi his brother''s daughter. On the 13th of April 1848 he executed a Will whereby he devised and bequeathed all his property in the first place to Sheudai Koer and after her death to Sahodra Bibi. The widow Sheudai died in 1853. In 1884 the banking business failed and on the 5th of August 1884 Sahodra Bibi executed three conveyances of the immoveable property left by Fateh Chand to satisfy debts due by the banking business referred to as Exhibits B, B-1, B-2 On the 10th January 1885 she executed two further conveyances of the immoveable property of the testator referred to as Exhibits O and C. All these conveyances recited that they were executed in order to enable Sahodra to discharge debts due by the banking business which descended to her as assets of Fateh Chand deceased. The property, which is the subject of the present suit, was sold under one of the conveyances of the 10th January 1885 to Ganpat Bhagat, viz., Exhibit C. Ganpat sold the property to a Hindu joint family, the head of which was named Kunj Lal, on the 29th May 1888. Thereafter this particular property fell by partition to the share of one Isri Prasad, whose successors are the principal defendants in this suit.

Sahodra Bibi died on the 8th November 1899. The plaintiffs'' case is that by the conveyance of 1885 Sahodra Bibi could and did only convey a title to enure until her death; and that on her death in November 1899 the title to the property in suit together with all the other property of the testator, whether moveable or immoveable, vested in her son Jagernath who was the sole heir to Fateh Chand''s estate by reason of an intestacy as to the residue of his property. Jagernath and the other plaintiffs who have purchased an interest from him accordingly sued for possession.

The decision of the case depends upon the interpretation of the Will of Fateh Chand and as to the nature and character of the estate or interest which Sahodra acquired thereby.

The first contention in appeal is that this Will is void so far as the immoveable property is concerned, as it did not convey any beneficial interest in the corpus of the testator''s estate either to Sheudai and Sahodra or to those designated to succeed on the death of Sahodra, and that in effect the gifts or bequests contained in the Will were thereby bequests not of the corpus of the immoveable property but of the right to receive only the rents and profits accruing therefrom; that Sahodra, when she entered in 1853, therefore, entered as a trespasser; and that by reason thereof she has acquired an absolute estate by adverse possession, and that she acquired an absolute title which she could and did convey to Ganpat Bhagat. It may be doubted whether in such a case where a person enters under a Will of doubtful construction, an absolute title can be acquired by adverse possession in the absence of an express claim to hold an absolute title. The contention however, in my opinion, fails ab initio. It is clear that the Will did contain a devise of a beneficial interest in the corpus of the immoveable property of the testator and that the limitations in respect thereof, so far as Sheudai and Sahodra are concerned, are not invalid. The Will recites that if any daughter or son be born to the testator during his lifetime, such son or daughter will be the owner of all his property but if there be no son or daughter, his niece Sahodra is to take a bequest of a lakh of rupees and the rest of the moveable and immoveable property has to remain in the possession of his wife until her death, After her death it was to pass into the possession of his niece. But if on the death of his wife and niece there be living a son and a daughter born of the womb of the niece, then two-thirds of the cash and the furniture should belong to the son and one-third to the daughter absolutely and that as to the immoveable property "they", meaning all these persons including the son and daughter, were to enjoy the balance left after the payment of rent and the expenses incurred in discharge of certain religious and charitable obligations charged upon the income of the testator''s immoveable property. This Will clearly purported to convey an absolute estate ultimately to the sou and daughter of his niece. The fact that the corpus is not expressly mentioned is not sufficient to justify the interpretation that the corpus did not pass; and the recitals from time to time in the Will that there should be no right of alienation would make no difference, so far at any rate as the niece''s son and daughter are concerned, nor does it make any difference that the bequest in favour of the niece''s son and daughter failed on the ground that they were unborn at the date of the testator''s death. The failure of the gift of the remainder to them would not make the Will itself invalid. The appellant''s Vakil has relied upon the case of (1885) ILR 11 684 (Privy Council) , where it was held that the Will which was the subject-matter of that case was invalid upon the ground that it was not the testator''s intention to pass the corpus of the estate but merely the rents and pro-fits, and that thus the Will offended against the rule of perpetuity and was void. This intention or absence of intention was inferred by their Lordships of the Privy Council from certain recitals and provisions in the Will, none of which occur in the Will which we have to construe. In the Will in the case cited the testator began by saying that his estate was to remain intact; and that his heirs were to be entitled to enjoy the profits thereof. Their Lordships said that this created an impression that the intention of the Will was to create a perpetuity as regards the estate and to limit the enjoyment of the profits for an indefinite period. This impression was confirmed by the subsequent clauses in the Will, under which a 6-annas portion of the property was dedicated to the family worship and the maintenance of the family, leaving a 10-annas share which was not to be expended at all so long as the family remained joint and which was not disposed of in any way. There was a further provision as to how the profits should be enjoyed in the event of disagreement. From the judgment of the High Court against which there was an appeal to the Privy Council, it appears that the Will provided for a succession of trustees. The only provision in the present Will which resembles the provisions in the Will in that case is the prohibition against alienation; but as was pointed out by the Privy Council in the subsequent case of 1 CWN 387 (Privy Council) ; 7 Sar. P.C.J. 155; 12 Ind. Dec. (N.S.) 1224 (P.C.) the interpretation given to the Will in (1885) ILR 11 684 (Privy Council) was arrived at independently of the provisions against alienation. I have no doubt that the Will was not invalid upon the ground that the testator did not intend to convey the corpus. The first contention pressed by the appellants, therefore, fails.

The next contention is that the Will intended to create an absolute estate in Sahodra Bibi. This same Will was so interpreted in the case of Jagarnath Prasad v. Jaikishun Prasad 34 Ind. Cas. 375; 1 P.L.J. 16; 3 P.L.W. 164. The point, therefore, requires careful consideration, and it would only be with great hesitation that we would adopt the view that was not accepted by the learned Judges who decided that case. It will be remembered that the Will created an estate in the first instance in the testator''s widow Sheudai Koer. The estate in the widow is described in two passages of the Will. In the first it is said that the moveable property and the shops will remain in the possession of his wife until her death; and in other passage it is said that the immoveable property will remain in the possession of his wife during her lifetime without power to transfer them, and that his wife, after meeting certain charges recited in detail, shall bring the remainder to her own necessary expenses. The Will then proceeds to say that after the death of his wife the properties will remain in the possession of his niece Sahodra Bibi without right of transfer, and that, after defraying certain charitable charges, she will bring the balance to her necessary expenses. It then goes on to say that if on the death of his wife and his niece there be living a son and daughter born of the womb of his niece, the son and daughter are to enjoy the properties. Now there are no words in the description in the Will of the estate given to Sahodra, to suggest that the intention was that she should have an absolute estate. The expression remain in possession", as contrasted with the expression "will be the owner" used in the earlier part of the Will with reference to his own son and daughter if there should be one, militates against the idea of an absolute estate The condition against alienation also points in the same direction. It is, however, contended that the provision for the ultimate benefit of Sahodra''s son and daughter was a provision that they were eventually to succeed as heirs of Sahodra, and that this indicates that the intention was to create an estate of inheritance in Sahodra. The point, therefore, for our determination reduces itself to the question, whether the words referring to the ultimate succession of the niece''s son and daughter can be treated as leading to the interpretation contended for. The alternative interpretation of course if, that there was an absolute gift of the remainder to the niece''s son and daughter and that there was no idea of an estate of inheritance in the niece at all. Shortly the question is, do the words referring to the ultimate succession of the son and daughter indicate a gift of the remainder in their favour, or do these words mean a mere description of an estate of inheritance in Sahodra. It may be premised that if the words can be interpreted as a description of an estate of inheritance, it does not matter if the description is incorrect, although no doubt the incorrectness of the description is a point to be considered in adopting one or other of the two alternative constructions.

The disposing words are :--"If on the death of my wife and my niece there be living a eon and a daughter born of the womb of my said brother''s daughter, then two-thirds of the moveable property will belong to the said son and one-third to the daughter. But as regards the immoveable property none shall have the least right of alienation. They will, of course, be entitled to enjoy the balance left after payment of rent, etc."

Now I am aware of no case in which where a son and daughter have alone been mentioned, the words have been interpreted to amount to a description of the course of the inheritance. The words also obviously do not provide for the case where there is no son or daughter, and it is hardly conceivable that the testator can have thought that in the absence of a son and daughter there would be no person entitled to succeed by inheritance. Moreover under the Mitakshara Law to which the testator was subject, the son and daughter would not in any circumstances simultaneously succeed. It is true that under the Bengal Law there are cases in which a son and daughter may succeed jointly to a mother. But there are no circumstances in which a son and daughter would succeed, one to two-thirds and the other to one-third. The whole wording of the disposition appears to me to be also more favorable to the interpretation of a gift of the remainder than to a description of the course of succession. It is true that later on in the Will, there is reference in one sentence to the niece''s heirs born of her womb, and in the other to ''the heirs of my niece." These references appear to relate back to the son and daughter in favour of whom there had been an express disposition. They do not occur in the disposing portion of the Will but merely in sentences which are precatory in character, and the expression "heirs born of the womb" relied on by Sharfuddin and Mullick, JJ., would, in any event, be descriptive only of an estate tail, which is unknown to Hindu Law. They could not be held to be descriptive of an estate of ordinary inheritance. I am unable to infer from the use of these words that the testator meant to describe an estate of ordinary inheritance as having vested in his niece. The expression "her heirs born of her womb" excluded her husband who was then living; and it is impossible to conceive that the testator would not know that if his niece took an estate of inheritance the husband would be one of the principal heirs. On a careful consideration of the terms of the Will, I am of opinion that the disposition in favour of the niece''s son and daughter was intended as a gift of the remainder and not merely a statement of what the testator believed to be the rule of succession in case of his niece''s intestacy. It is true that this gift of the remainder would contravene the rule against bequests in favour of unborn persons and would be bad, but this is not a point that can be taken into consideration when the question is merely the interpretation of the Will [Edwards v. Edwards (1909) A.C. 275 at p. 277; 78 L.J. Ch. 504; 100 L.T. 84]. We are of opinion, therefore, that the Will was not intended to and did not, vest an absolute estate of inheritance in Sahodra Bibi, and that, therefore, she did not in that capacity have an unfettered right of alienation.

It is then contended that the estate conferred on the niece, if not an absolute estate, was an estate of the kind that a Hindu widow inherits in the case of an intestacy, that is, that the niece had the power of alienation for legal necessity and that legal necessity was established in the present case so as to justify the particular alienation assailed in this suit.

In the course of the argument a doubt was at one time suggested whether such an estate can be created by act of parties. It was expressly held in the case of Meda Vengamma of Gunkanapally Vs. Mitta Chelamayya and Others, that such an estate can be created by act of parties. Their Lordships of the Privy Council assumed that it could be so created so far back as 1875 in the case of (1875) L.R. 2 I.A. 256 (Privy Council) , and there has been a long series of cases in the Privy Council which have proceeded upon this assumption. We are of opinion that such an estate can be created by Will.

The question we have to determine in the first place is, whether the estate created in Sahodra Bibi was a mere estate for life in the English sense of the term, or a woman''s estate as known to Hindu Law. The authorities which might assist in the determination of this question are somewhat perplexing, inasmuch as the term "estate for life" has been frequently need in Indian cases as synonymous with a widow''s or a woman''s estate. Thus in the case of Lallu v. Jagmohan 22 B. 409 at p. 413; 11 Ind. Dec. (N.S.) 855 Farran, C.J., described an estate in which he held that the widow had wider powers of alienation than an ordinary Hindu widow as a an life estate. And in the case of 12 CWN 729 (Privy Council) their Lordships of the Privy Council described the estate in one sentence as a woman''s estate in the property, and in another as an estate for life. Again in the case of Gooroo Das Mustafi Vs. Sarat Chunder Mustafi, , Mr. Justice Geidt, while concurring in the view that the estate was merely an estate for life, went on to remark that the estate resembled that of a Hindu widow; and in Mahim Chandra Sarkar Vs. Hara Kumari Dasee, the expression "the life-estate of a Hindu widow" occurs. The only case in which it is possible to say that it was held that a pure estate for life in the English sense as distinguished from a woman''s estate was created, is the case of (1875) L.R. 2 I.A. 256 (Privy Council) decided by their Lordships of the Privy Council so far back as the year 1875 [ (1875) L.R. 2 I.A. 256 (Privy Council) ]. That, however, was a case of settlement made inter vivos.

The question, therefore, we have to determine is practically res Integra, but this at any rate can be laid down with certainty that in construing the Will it is not; permissible to take into consideration what the effect of such a Will as this would have been under the English Law. It is not permissible for instance to import the idea that where an estate is devised to enure only for life, the result is that an estate in fee in remainder, whether vested or contingent, must exist in some one. In the case of 15 CWN 393 (Privy Council) their Lordships of the Privy Council desired emphatically to call attention to a passage in the judgment of the Chief Justice of the Calcutta High Court with which their Lordships were in entire concurrence. The passage is this (page 474 of the Report):--

English rules of construction have grown up side by side with a very special law of property and a very artificial system of con-evincing, and the success of those rules in giving effect to the real intention of those whose language they are used to interpret, depends not more upon their original fitness for that purpose than upon the fact that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus who view most trans-actions from a different point, think differently, and speak differently from Englishmen, and who have never heard of the rules in question.

Again in the case of 17 CWN 853 (Privy Council) their Lordships say that English rules of interpretation must not be allowed to govern the case but the matter must be determined by the principles of natural justice. It is clear, therefore, that in construing the Will we must banish from our minds for the time being the very artificial legal notions connected with the English idea of an estate for life, and substitute therefore a notion familiar to Hindu Law under which a person holding a restricted estate for life is yet regarded as representing the entire estate. The English classification under which estates are, as has been said, projected along the plane of time and are measured by time alone is foreign to the Hindu Law which measures estates not by duration but by use (Mayne''s Hindu Law, 8th Edition, page 847). Now the "Will contemplates that the estate should be held first by the widow and then by the niece, and that if a son and daughter born of the womb of the niece are living at the death of the niece, then by the son and daughter. The Will, therefore, does not contemplate the existence of any interest in the estate contemporaneously in the first place with the widow and thereafter with the niece. The bequest of the remainder to the niece''s son and daughter was a bequest of a contingent and not a vested remainder. The condition is ''if the son and daughter be living on the death of my wife and my niece" [Denn v. Bagshaw (1796) 6 T.R. 512; 101 E.R. 675; 3 R.R. 242, Jarman on Wills, 6th Edition, page 1385]; that is to say, under the Will there was no interest vested in any person other than the widow in the first place and after her the niece. The Will, therefore, contemplated that the estate should be completely represented first by the testators''s widow and thereafter by his niece; and it is not permissible to import the English artificial idea that an estate in fee was outstanding anywhere else.

In the case of (1875) L.R. 2 I.A. 256 (Privy Council) their Lordships mentioned as one of the circumstances in favour of the view that a mere estate for life was intended, and not a widow''s estate, that it would follow that if the estate was a widow''s estate, the gift of the remainder would not in any sense be a gift of a vested remainder but merely a contingent one. It follows that where a mere contingent remainder is created after a woman''s estate and not a vested remainder, this is an indication in favour of the view that the estate created was a woman''s estate in the technical sense and not merely a life-estate. The Hindu Law is, as I have said, familiar with estates which though restricted are fully representative. It is true that in describing the estate created in favour of the niece the words "without power of alienation" occur. It does not appear to us to be possible to read those words as more indicative of an estate for life in the English-sense than of a widow or woman''s estate. Read literally, the words would be as foreign to an estate for life as to a woman''s estate. We must not forget that the testator was a Hindu and it is no easier to read into the words the power to convey a title for the remainder of the niece''s life than it is to read into the words the power to alienate in the case of legal necessity. The fact is that in cases of this kind it is very easy to use the words "without power of alienation" in a loose sense, that is to say, to use them in the sense without power of alienation except in the case of recognized legal necessity. Thus the Officiating Chief Justice of Madras in the case of Carlapatti Chinna Cunniah and Others Vs. Cota Wammalivariah, says: "We are inclined, therefore, to think he did not intend that his widow should have the power to alienate the estate", when manifestly the meaning was "to alienate otherwise than in the case of necessity". We are of opinion that a reasonable interpretation of the description of the estate created in favour of the niece is an estate such as a woman ordinarily acquires by inheritance under the Hindu Law which she holds in a completely representative character but is unable to alienate except in case of legal necessity.

In the case of Dal Koer Vs. Lala Ramjewan Lal, , where the terms of the Will resembled the terms of the Will with which we are dealing in the present case, with this exception that the word malik was used to describe the estate conferred upon the woman in that case, the Judges had to consider the effect of an emphatic condition against alienation. The Judges held that an absolute estate had been conferred, and that on that ground the condition against alienation was void. It is instructive, however, to notice that the Judges say that, if a life-estate had been given, there wan no reason why there should be any provision restricting the beneficiary from selling or alienating. Thus in the present case the words "without power to alienate" in respect of the niece''s estate were of the nature of surplusage; that is to say, the testator had in his mind the ordinary recognized restriction upon alienation which would apply independently of any provision in the Will, and that he had not in his mind the eventuality of an alienation becoming necessary, either for the purposes of providing maintenance for the niece or for the preservation of his estate.

At a later stage in the Will there is a general expression to the effect that "none shall have the least right of alienation," but in the first place it is not certain that the testator meant by the word "none" in this sentence to refer to any person other than the son and daughter of the niece who had been mentioned in the immediately preceding sentence. So far as they are concerned, the gift in their favour being obviously an absolute gift, the condition was void. We are also not disposed to attach too much importance to the use of the word "least" in this sentence. We are of opinion that the Will must be read as a whole, and if so read, it is quite clear that the testator intended that his estate should be entirely represented in the first instance by his widow, next by his niece, and after the death of his niece, by the niece''s son and daughter. It is inconceivable that he should really have intended to have prevented any of these persons from alienating portions of the estate in the event of an occasion arising such as is described by the term "legal necessity." The principle of repugnancy has been applied in a large series of precedents which deal with the more simple cases in which an absolute estate had been created: but where a completely representative estate has been created the principle, in our opinion, should be applied. In the case of Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 B.L.R. 377; 18 W.R. 359; I.A. Sup. Vol. 47; 2 Suth. P.C.J. 692; 3 Sar. P.C.J. 82 (P.C.) the Privy Council said that where a gift is in terms of an inheritable estate with superadded words restricting the power of transfer, the restriction would be rejected as being an attempt to take away that which the law attaches to the estate which the giver has sufficiently shown his intention to create, though he adds a qualification which the law does not recognize. Adopting the expressive words of the Court of Exchequer Chamber in a judgment which is the foundation of the rule of repugnancy [Ferrin v. Blake (1770) I.W. Bl. 672; 4 Burr. 2579; 1 Dongl 329 n. 96 E.R. 392] the indelible landmarks of property, irrevocably established by the well weighted policy of the law, cannot be exceeded or transgressed by any intention of the testator, be it ever so clear and manifest. Where a testator is found to have intended to create a woman''s estate, an estate, that is to say, which is entirely representative, though restricted, an absolute prohibition of alienation even for ''be purposes of the preservation of the estate should be regarded as coming within the principle above laid down and rejected as being an attempt to take away that which the law attaches to the estate which the giver baa sufficiently shown his intention to create. It is however, the fact that to so construe the Will would not be to defeat the real intention of the testator, which clearly was to provide simultaneously for the maintenance of his niece and for the perpetuation of his name. It is precisely with this in view that the power to alienate in the case of necessity has been grafted by judicial decision upon women''s estates treated in the texts as inalienable except for religions purposes. The power has been grafted with a view either to secure the maintenance and other objects desired or to preserve the estate and the name of the last male holder.

In the case of Branion v. Robinson (1811) 18 Ves. Jun. 429; 34 E.R. 370; 11 R.R. 226 Lord Eldon said: "It is clear, generally speaking, that if property is given to a man for his life, the donor cannot take away the incidents to a life estate". There is, therefore, nothing in the bare fact that the estate is to last only for life to bar the application of the rule of repugnancy.

We hold that the estate created in favour of the niece was a woman''s estate with power to alienate in the case of legal necessity.

We do not doubt that a Hindu can by Will create an estate for life in the English sense, but his intention to do so must be made clear by the terms of the Will itself without any importation of English ideas.

We proceed to consider whether this particular alienation was justified upon the ground of legal necessity. The difficulty in the way of finding in favour of legal necessity is that Ganpat Bhagat, the vendee of the conveyance of 1885, though alive at the time of the suit, was not examined as a witness to testify as to whether be made enquiry or not. On the other hand, there is nothing to indicate that Ganpat would have proved anything more than that he made enquiry. The plaintiff Jagernath in his application for insolvency, made in September 1884, stated that the money lending business was insolvent and that the two debts which were discharged by the conveyances made by Sahodra Bibi in the following year were debts due by the money lending business. We have regard also to the fact that Jagernath''s father signed this conveyance of 1885 for Sahodra Bibi as well as three other conveyances in August in the previous year and another conveyance on the same date as the conveyance which is the subject of the suit; and in all these conveyances the urgent necessity for alienation is recited. Jagernath himself is a witness to the three conveyances made in August 1881, in each of which the urgent necessity is recited. We would not be disposed to give undue weight to the fact that the business appears to have declined from the prosperous condition in which Fateh Chand left it in 1848, for the evidence is, and this evidence is not denied, that the plaintiff''s father, and after him the plaintiff himself managed the business; and if any blame is attached to the management for the insolvency the blame was theirs. The alienation was made at a time when Jagernath''s application in insolvency was about to fail. Twenty-five years had passed since the conveyance of 1885 when the suit was instituted. It is permissible, therefore, to apply the principles laid down in the case of 36 Ind. Cas. 420 (Privy Council) on the subject of the weight which may, in such a case as the present, be given to recitals made at or about the time of the conveyance. Their Lordships say (page 229 of the report): "If the deeds were challenged at the time or mar the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes greater importance, and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation, and, if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction--perfectly honest and legitimate when it took place--would ultimately be incapable of justification merely owing to the passage of time". We find that the alienation was justified by necessity.

A point was taken, which we have not hitherto mentioned, that the plaintiffs failed to prove that Jagernath was the heir to the estate. He is the son of Fateh Chand''s niece and would, therefore, be a bandhu and would not probably inherit until after many other relations. His evidence, however, is to the effect that except himself there is no other heir to Fateh Chand. This is supported by the recitals in Fateh Chand''s Will that he had at that time no other heir. There is no evidence to the contrary and no suggestion that there is any heir other than Jagernath. In these circumstances we are of opinion that the plaintiffs made out sufficiently that Jagernath was the heir of the estate and that the suit cannot be defeated upon the ground of any failure of proof in that connection.

We would accordingly allow the appeal and dismiss the suit with costs in both Courts.