Case: Thakurain Raj Rani And Others Vs. Thakur Dwarka Nath Singh And Others,

terms thereof, if Ganga Bux Singh failed to perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative in that event the agreement itself would become inoperative and no rights under the agreement would, survive to Shankar Bux Singh. The right which was therefore, given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance. The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux Singh is concerned it was at no stage contemplated that he could forego the performance of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood unrevoked.15. It is significant to observe on the other hand that two events were contemplated so far as Shankar Bux Singh himself was concerned. The one was the withholding of the consent of the Court of Wards and the other was the revocation of the will by Shankar Bux Singh himself. The sum of Rs. 50 per month was agreed to be paid by Ganga Bux Singh to him from the month when Shankar Bux Singh executed the will and laid it before the Court of Wards for its sanction. The Court of Wards might withhold its consent to the will and in that event whatever payments were made during the interval by Ganga Bux Singh to Shankar Bux Singh had to be refunded by the latter. Even though the Court of Wards might sanction the will Shankar Bux Singh might later on revoke the will and the consequence of such revocation was also provided in that Shankar Bux Singh was to refund to Ganga Bux Singh the amounts which he had paid up to the time of revocation to Shankar Bux Singh in accordance with the terms of the agreement. It has to be observed moreover that all these constituted independent obligations on the part of both the parties. The obligation on the part of Ganga Bux Singh was so long as the will stood unrevoked to pay to Shankar Bux Singh Rs. 50 per month during his lifetime and the obligation on the part of Shankar Bux Singh was to obtain the consent of the Court of Wards and to leave the will unrevoked during his lifetime. These obligations were independent of each other and the consequences of the non-performance of these obligations on the part of each of the parties were expressly provided in the agreement itself. It could not therefore be contended that the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent to the vesting of the legacy in his favour. That was merely a consideration provided by Ganga Bux Singh for the execution of the will by Shankar Bux Singh in his favour and if Ganga Bux Singh committed a breach of the agreement the only result was that Shankar Bux Singh would become entitled to recover the amount due on such default from Ganga Bux Singh by having recourse to a Court of law. The contract would continue to subsist the parties being relegated to their rights and remedies thereunder as contemplated by the parties.16. In spite of the non-payment by Ganga Bux Singh of the sum of Rs. 50 per month to Shankar Bux Singh in accordance with the terms of the agreement at no time did Shankar Bux Singh revoke the will nor did he pursue Ganga Bux Singh in a Court of law for the recovery of the amounts m respect of which Ganga Bux Singh was in default. He left the will unrevoked and his death the will became effective as his last will and testament and operate to vest in Ganga Bux Singh an interest in the remainder as therein provided. There is nothing in the will itself watch in terms makes the bequest conditional or regular payment of the amount under the agreement.17. The argument which was advanced by Dr. Tekchand based S. 81, Trusts Act, could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Ganga Bux Singh.It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shankar Bux Singh is equally of no avail. The legacy in favour Ganga Bux Singh was a legacy of the remainder of estate which vest in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of plaintiff 1. Such vested interest could devolve upon the defendants, the heirs and legal representatives of Ganga Bux Singh on the death of the latter and the defendants were, therefore, as the heirs and legal representatives of Ganga Bux Singh since deceased rightly entitled to the same. As the bequest was not conditional and did not lapse there could he no question of any resulting trust or of any intestacy with respect to the remainder.18.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. In regard to the last contention urged by Dr. Tekchand both the Courts below were of the opinion that the question of animus testandi was barred by res judicata. It was held by their Lordships of the Privy Council that the will in dispute was not revoked and that it was the last will and testament of Shankar Bux Singh. That decision necessarily meant that the testator when he appended his signature to the will was in a sound and disposing state of mind, was a free agent and duly executed the will in accordance with the law. The decision was conclusive as regards the testamentary capacity, due execution and the representative title of the person to whom the letters of administration with the will annexed were granted. It was not open, therefore, to the plaintiffs to contend that the will which was executed by Shankar Bux Singh was a will merely in form an not in substance. The question of animus testandi was therefore, barred by res judicata. In regard, however, to the question whether the bequest in favour of Ganga Bux Singh could take effect by reason of default in payment the decision of the Privy Council did not constitute res judicata and it was open to the plaintiffs to urge that contention. Both the Courts below, therefore, allowed the plaintiffs to agitate that question though they came to a conclusion adverse to the plaintiffs.We are of the opinion that there was no bar of res judicata and the Courts below were right in allowing the plaintiffs to agitate that question. The payment of Rs. 50 per month to Shankar Bux Singh during his life time alight be a condition precedent to the whole will coming into operation or might be a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh. If the plaintiffs urged the former position that plea would certainly be barred by res judicata. No Court would grant a probate or letters of administration with the will annexed it regard to a will which has ceased to be operative and was a mere scrap of paper. The plaintiffs could not, therefore, be heard to say that by reason of the non-fulfilment of the condition precedent the whole fill had become inoperative, for that would run counter to the decision of the Privy Council. Even on merits such a position would be untenable for the simple reason that besides Ganga Bux Singh there was the widow, who was given a life interest and there were the three daughters, the fathers sister and the mother who were given legacies by way of maintenance and they were certainly not guilty of non-fulfilment of any condition precedent. The will would certainly, therefore, stand so far as they were concerned and the whole effect of the non-fulfilment of the condition precedent quo Ganga Bux Singh would be to prevent the vesting of the legacy in his favour.There is no doubt, as held by the learned Civil Judge that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the will as well as the agreement formed one contract. But for Ganga Bux Singh having executed the deed of agreement Shankar Bux Singh would not have forwarded the draft will to the Court of Wards for its sanction and he would also not have executed the will on 28-7-1904. The contract was an overall contract under which both the parties had to perform their respective obligations. The obligation on the part of Ganga Bux Singh was to execute the deed of agreement, agreeing to pay the moneys to Shankar Bux Singh in accordance with the terms thereof. The obligation on the part of Shankar Bux Singh was to execute the will and submit it to the Court of Wards for its sanction. Both these obligations were fulfilled by the parties and the two documents were supported by consideration and became binding on both the parties. The non-performance of the agreement to pay by Ganga Bux Singh constituted at best a failure to fulfil his obligation and Shankar Bux Singh became entitled to pursue his rights and remedies against Ganga Bux Singh by reason of the breach of contract by him.While recognising the force of these observations we are constrained to observe that the terms of the deed of agreement negative any such contention. The agreement itself provided what was to happen if payment was not made in accordance with the terms thereof, if Ganga Bux Singh failed to perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative in that event the agreement itself would become inoperative and no rights under the agreement would, survive to Shankar Bux Singh. The right which was therefore, given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance. The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux Singh is concerned it was at no stage contemplated that he could forego the performance of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood unrevoked.The argument which was advanced by Dr. Tekchand based S. 81, Trusts Act, could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Ganga Bux Singh.It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shankar Bux Singh is equally of no avail. The legacy in favour Ganga Bux Singh was a legacy of the remainder of estate which vest in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of plaintiff 1. Such vested interest could devolve upon the defendants, the heirs and legal representatives of Ganga Bux Singh on the death of the latter and the defendants were, therefore, as the heirs and legal representatives of Ganga Bux Singh since deceased rightly entitled to the same. As the bequest was not conditional and did not lapse there could he no question of any resulting trust or of any intestacy with respect to the remainder.