Case: Talkeshwari Devi Vs. Ram Ran Bikat Prasad Singh &amp; Another

1. In this appeal by certificate we are to consider the effect of the will executed by one Raghunath Prasad Singh, on August 31, 1938. The said testator died very soon after the execution of the will leaving behind him his widow Jageshwar Kuer, his daughter Satrupa Kuer and his two grand-daughters Talkeshwari Devi (the appellant herein) and Sheorani. The appellant and Sheorani are the daughters of Sukhdeo Prasad Singh, the son of the testator who had pre-deceased the testator. Jageshwar Kuer died in November, 1948 and Sheorani Devi on November 1, 1949, without leaving any issue3. At the time of the death of the testator, the appellant as well as Sheorani Kuer were minors. After the death of Jageshwar Kuer, the appellant and her sister Sheorani Kuer divided the ten annas eight pies share of the properties which devolved on them in equal shares and each one came into possession of her share of the properties4. Immediately after the death of Sheorani Kuer, the appellant instituted a suit for possession of the properties that fell to the share of Sheorani Kuer purporting to base her claim on Clause 5 of the will to which we have earlier made reference. That suit was resisted by the first defendant, the husband of Sheorani. He claimed that he was entitled to those properties as the heir of his wife. The Trial Court dismissed the plaintiffs suit and the decision of the Trial Court was upheld by the High Court.

Reasoning:
6. It is undisputed that the duty of the Court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. It is clear from Clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under Clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of Clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr. M. C. Chagla, learned for the appellant that there is any conflict between Clause 4 and Clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a defeasance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will7. To find out the effect of the will before us we have to look to Section 124 and 131 ofthe Indian Succession Act, 1925. Section 124 says :"Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable."Illustration (ii) to that section says :"A legacy is bequeathed to A, and in the case death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect."8. If Section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see Section 131 deals with divestment of an estate that had vested. Mr. Chagla contends that the governing provision is Section 131. That section says :"A bequest may be made to any person with the condition superadded that, in case a specified uncertain even shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person."9. This section provides for the divestment of an estate which had already vested. It speaks of an estate going over to another person. As seen earlier Clause 5 of the will is not a defeasance clause10. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and Another v. Kamal Basini Dasi. [ILR 23 Cal 563]. Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions "My three sons shall be entitled to enjoy all the movable and immovable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally." Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testators death. In arriving at this conclusion, the Judicial Committee relied on Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 ofthe Indian Succession Act, 1925.