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1945 DIGILAW 192 (ALL)

Beni Madho v. Harihar Prasad

1945-07-26

KAUL

body1945
JUDGMENT Kaul, J. - Both these appeals arise between the same parties and as their decision turns upon the same common question the proper interpretation to be put upon the two wills executed by Jagannath Prasad and their effect they may be conveniently disposed of by one common judgment. I will take up appeal No. 32 of 1943 first. 2. This appeal arises out of a suit brought for possession of a plot of land in village Silaudhi by Ram Adhar against Beni Madho. Ram Adhar died since these appeals were filed and is now represented by Harihar Prasad. Ram Adhar based his title to the land in suit on a perpetual lease, Ex. Al, executed in his favour by three ladies, Bhagmani, Radha and Ram Piari. The original owner of this property was one Jagannath Prasad. Bhagmani was his widow, Radha his widowed daughter-in-law and Ram Piari his grand-daughter, being the daughter of Radha and her husband Hanuman Prasad, son of Jagannath Prasad, who had predeceased him. All these three ladies died before the suit which gave rise to this appeal was instituted. Bhagmani died in 1921, Kam Piari in 1931 and Radha Who had survived them in 1938. 3. It was contended on behalf of the defendant Bani Madho, the present appel- lant, that none of the three ladies had anything more than a life interest in the property which came to them under the two wills of Jagannath Prasad, Exs. A6 and A5. In reply it was argued that Mst. Radha, the last surviving widow, took an absolute estate or at least a life estate with full power of alienation, and any alienation made by her could not be challenged after her death. It is. therefore, material to consider the contents of these wills and their effect. 4. The first of the two wills was executed by Jagannath Prasad on the 21st of December, 1908. The meterial portion of this will is as follows : 5. The testator states in the opening portion of the will that inasmuch as be has grown old and has no male issue he deems it desirable to give proper directions as regards his property so that his wife, his daughter-in-law and his grand-daughter may not be faced with any difficulty after his death. The testator states in the opening portion of the will that inasmuch as be has grown old and has no male issue he deems it desirable to give proper directions as regards his property so that his wife, his daughter-in-law and his grand-daughter may not be faced with any difficulty after his death. Ho makes it clear that he is the sole owner of the property referred to in the will and that he is separate from his collaterals. He prefaces the dispositive portion of the will with the observation that after him his property should go to the devisees under his will and be not taken by any one else. Then follow the necessary directions. After me nay- wife, Mst. Bhagmini, my daughter-in-law Mst. Radha and my grand-daughter Mst. Ram Piari will be and remain malik Kamil of all my present and future property. As I have made this will in favour of three persons, I therefore lay diwn the made of management and possession o the property. It is tiiis : That if my .vifo lives up to the time of my death she will be in possess on and mmage the property. She will support my daughter-in-law and grand- daughter. If my wife be not alive at the time of my death then my daughter-in-la?/ will have the same powers (akntiarat). If she too be not alive (at the tine of my death) then my grand-daughter will be the permanent owner of my entire property with all the power of alienation and inheritance. If my grand-daughter lives, my wife and daughter- in-law will not have any power of alienation. If God so wills that; my grand-daughter be not alive then my wife or daughter-in-law whosoever be the last person in possession, will have the right of alienation......I want to emphasise thit the devisees will not have the right to divide the property but they should live jointly and together and rercnin in possession. 6. It appears that after the execution of the first will the testator's grand-daughter married but unfortunately lost her husband and became a widow. This led Jagainath Prasad to execute another will on the 12th of June, 1914. This is marked Ex. 6. It appears that after the execution of the first will the testator's grand-daughter married but unfortunately lost her husband and became a widow. This led Jagainath Prasad to execute another will on the 12th of June, 1914. This is marked Ex. A5, In this will he refers to the previous will of 1908 and states that as his grand- daughter Ram Piari has become a widow he felt it necessary to execute another will. Then he proceeds as follows : First I had decided that Ram Piari's childre-i should be the full proprietors (of my property). That hope wag not fulfilled by God's will. It is, there- fore, necessary that the previous will be altered. I write this second will and alter the previous one by this will on the following points: (1) My wife, Bhagmani, will be muhk tnttstakil (permanent proprietor) with rights of ownership like myself, but she shall have the right of alienation only in case of urgent necessity. It will not be possible that she should transfer the property and my daughter-in-law and grand-daughter be deprived of their maintenance nor will she have the right to adopt any one or to make a gift of the property in any persons' name. If my wife dies during my lifetime this will shall stand cancelled and become ineffectual so far as she is concerned. (2) After the death of myself and my wife my daughter-in-law will be the owner of the entire property, moveable and immoveable, and during her life will have all the rights of alienation. (3) If my diughter-iii-law also dies in my lifetime and only my grand-daughter be living at the thru of my deith, she will remain in possession of the entire moveable and immoveable properly for her life without po.ver of alienation. She will enjoy all the proceeds and profits from the property. (4) When I, my wife, my daughter-in-law, and my grand-daughter are dead then Sheo Dayal, son of Ram Sewak......will be the owner of all my property, moveable and immoveable, and he will have all the proprietary rights with the right of inheritance And if Sheo Dayal be not alive at the time it becomes necessary to give effect to this will, then whoever be the heir and possessor of Sheo Dayal's property at that time, will be the devisee of all my property. No other person be- longing to my family or any other family will have any right or share. All of them shall be deemed to have been excluded under this will. 7. The question for consideration is what rights were acquired by Mst. Radha, the last surviving of the three ladias belonging to Jagannath Prasad's family under this will. It was strenuously argued by the learned Counsel for the appellant that the two wills should be read together, and he con- tended that the effect of .the first will was to make it clear that he did not want either his widow or his daughter-in-law to take an absolute estate or have a right of alienation. I agree with the contention of the learned Counsel that these two wills ought to be read together. Specific reference is made in the second will to the previous one which. It is said, was only altered on certain points by the second will. It is, how- ever, impossible to accept the other part of this contention. It is true that the chief idea present to the mind of the testa- tor when he executed the first will was that after provisions had been made for the support and maintenance of his widow and daughter-in-law his property should ulti- mately devolve upon his grand-daughter and her children. She was given an absolute estate in so many words. Bat the will does not stop there. There is an express provisions contained in this document that in case his grand-daughter died, then whichever of the two, his widow or his daughter-in- law, be the last person in possession, will have the right to alienate the property. 8. It is, therefore, clear that if his daughter-in-law survived both his widow and his grand-daughter, she was to take the pro- party with ull power of alienation. The contention that under the previous will in no circumstances could Mst. Radha acquire the property with full power of alienation, is expressly negatived by the provisions of the first will. Coining now to the second will we find that the rights given to the three ladies are not the same. This is amply clear even on a cursory perusal of the material terms to which reference has been made above. So far as the testator's grand daughter is concerned she had no power of alienation. Coining now to the second will we find that the rights given to the three ladies are not the same. This is amply clear even on a cursory perusal of the material terms to which reference has been made above. So far as the testator's grand daughter is concerned she had no power of alienation. His widow could alienate the property in case of urgent necessity, but could not make a gift of it to any one. The rights given to the daughter-in-law were much wider. She was to be "owner of all the property moveable and immoveable and in her life time have all the power of alienation." This is in clear contrast to the rights conferred upon his grand- daughter and the widow by the testator. If there was nothing further to consider, I would have had no difficulty in determining what the scope of the rights conferred upon Mst. Radha, the testator's daughter-in-law, was. Stress was, how- ever, laid by the learned Counsel for the appellant upon the fourth clause of the will which said that if all these three ladies died then the testator's entire property, moveable and immoveable, would pass to Sheo Dayal. It was argued that having regard to the rights which the testator intended to confer upon Sheo Dayal with regard to his entire property, it would be inconsistent with his intention to hold that Mst. Radha acquired anything more than a bare life estate. Reference was in this connection made by the appellant's learned Counsel to the decision of their Lordships of the Privy Council in AIR 1932 172 (Privy Council) , where on a consideration of two wills executed by the testttor, by which apparently an absolute estate was given to each of the three parsons who were to take under them, it was held by their Lordships that the dominant intention of the testor as displayed by the said wills was that the property should pass to three persons in succession and there if ter to some one or more persons selected in a specific manner. It may be observed that to interpret one will by reference to the language used in another will is hardly the proper course to adopt. Each document has to be interpreted on its own terms read in thee ontext in which they occur, and the circumstances in which the document came into existence. It may be observed that to interpret one will by reference to the language used in another will is hardly the proper course to adopt. Each document has to be interpreted on its own terms read in thee ontext in which they occur, and the circumstances in which the document came into existence. These factors vary with each document and hence the interpretation put upon one in a judicial decision is hardly of much ass;s- tance in interpreting another document. It is true there are certain well established principles applicable to the interpretation of wills and these must be observed. But it is wrong to seek assistance from the judicial interpretation placed upon one will in interpreting another merely because of some supposed similarity between the two. I may observe, however, that a comparison of the contents of the wills which were the subject of Interpretation by the Judicial Committee in the above noted case makes it clear that there are no real points of similarity between those wills and the wills with which we are concerned. It is true that the dominant intention of the testator is to be g thered from a reading of the document as a whole, and effect is to be given to it. The question for consideration, therefore, is whether there is anything in the wili executed by Jagannath Prasad on the 12th of June, 1914, which would militate against our placing upon it an interpretation that would confer upon Radha a life estate with full power of alienation during her life time if she chooses to exercise it under the terms of that document. It was strenuously argued by the learned Counsel for the appellant that under the terms of this will Jagannath Prasad ultimately wanted S'leo Dayal to take his ent re property, moveable and immoveable. It must be conceded that if the fourth condition or term of the will in question be read as standing by itself, apart from other portions of the will, such an interpretation could be put forward; but it would ba going against all well established canons of interpretation to take the fourth condition of the will and ignore the others. The will, in order to gather the correct intention of the testator, must be read as a whole, and if possible effect must be given to every. one, of the terms contained therein. The will, in order to gather the correct intention of the testator, must be read as a whole, and if possible effect must be given to every. one, of the terms contained therein. It has already been pointed out that the rights conferred upon Mst. Radha by this will were much larger in extent and wider in their scope than those conferred by the testator either upon his grand-daughter or his widow. Hs daughter-in-law was to be owner of his property, moveable and immoveable, and during her life time was to have jumla ikhtiar intiqal (full powers of alienation). When considering the fourth term of the . will which deals with the rights conferred upon Sheo Dayal, we cannot ignore this term which deals with the rights of Mst. Radha. In this connection it would be pertinent to observe that while Radha was the testator's daughter-in-law, Sheo Dayal was a stranger to the family. He was the father-in-law of Jagannath Prasad's widowed granddaughter. It ap- pears from a perusal of the entire document that it was not so much his affection for Sheo Dayal which induced the testator to incorporate the fourth condition in his will. On the other hand it was his anxiety to see that none of his collaterals, or other members of his family, should bane- fit from his property. He seems to have been anxious that none of them (of course except his widow, his daughter-in-law and his grand-daughter) should taka any portion of the property left by him. These are, however, extraneous considerations. The question b to be determined on a proper interpretation of the language used in the will. I am clear that if we are to give effect to all the provisions of this will, it must be held that Radha was given a life estate with full powers of alienation during her life time and that Sheo Dayal was to take all such property as was left undisposed of by her. To hold otherwise would be to give effect to one portion of the will and ignore the other portion. To do so would lead to a result which was probably furtherest from the testator's indention, that is to benefit Sheo Dayal to the detriment of the righ s of his own daughter-in law. To hold otherwise would be to give effect to one portion of the will and ignore the other portion. To do so would lead to a result which was probably furtherest from the testator's indention, that is to benefit Sheo Dayal to the detriment of the righ s of his own daughter-in law. Having given the argument of the learned Counsel for the appellant and the terms of the two wills my best consideration, I am clearly of opinion that on a proper interpretation thereof Mst. Radha acquired under the will of 1914 a life estate in her father-iu-law's property with full power of alienation during her life time. 9. Apart from the question of interpretation to be placed upon the . will it was argued by the appellant's learned Counsel that the Indian Law does not contemplate the conferring of such an estate as has been described above (a life estate with full power of alienation) by a testator. It was strenuously con- tended that the testator could confer either an absolute estate or a life estate, but not a life estate with full power of alienation. I find it somewhat difficult to follow this argument. Reference was made in this connection by the learned Counsel to the well known Tagore case Juttendromohun Tagore v. Gamndromohun Tagore (1872)1 A Sup 47. He contended that to coafer a life estate with full power of alienation would amount to creating an estate not recognised by law. I am clear that the contention is not well founded. It is true that a man cannot create a new form of estate or alter the line of succession allowed by law for the purpose of carrying out his own wishes or views of policy But is a life estate coupled with full power of alienation a new form of estate not recognised by law? A person is free to deal with his property in any manner he likes so long as he does not, in doing so, trench upon the rights of others or go against -the law. A proprietor can dispose of his property according to his wishes and impose restrictions upon the enjoyment thereof, provided such restrictions do not go against the law. Other- wise he has every freedom to deal with his property and dispose of it in any manner he likes. A proprietor can dispose of his property according to his wishes and impose restrictions upon the enjoyment thereof, provided such restrictions do not go against the law. Other- wise he has every freedom to deal with his property and dispose of it in any manner he likes. He may transfer it inter vivos or dispose of it by will. The transferee or devisee may in his turn deal with the interest acquired by him in any manner he considers proper subjact to the limitations imposed upon his interest. In this respect there is no difference between Indian Law and English Law. But apart from the domiuion which a man has over his own estate by virtue of ownership he may have authority to dispose of property. This authoiity is in English Law generally called "a power." As observed by Farwell in his well known Treatise on Powers, page 1. A power is on authority reserved by, or limited to, a person to dispone, either wholly or partially, of reilor personal property, either fo." his own benefit or for that of others. The word is used as a technical term, and is distinct from the dominion which a man his over his own estate by virtue of ownership. The donee of a power has a right of disposition over the property subject to the power, which may be either limited or unlimited, according to the terms upon which it is granted. The power is available, and can be exercised, against all the world; and, once created, does not necessarily involve the existence of any trusteeship or contractual relationship between the grantor and the grantee, neither of which is inherent in a power as such. 10. Further at page 8 of the same Treaties: Powers miy be either general or limited. General powers are such as the donee can exercise in favour of such person or persons as he pleases, including himself. 11. Development of the Indian Law of property has not followe d the same course as the English Law o n the subject. As was natural the two have been affected by the social and economic histories of the two countries, their religions, customs and numerous other factors which differ very widely in east and west. 11. Development of the Indian Law of property has not followe d the same course as the English Law o n the subject. As was natural the two have been affected by the social and economic histories of the two countries, their religions, customs and numerous other factors which differ very widely in east and west. If I have referred to the subject of powers in dealing with .the matter under consideration, it is only to show that in the English Law authority may be conferred upon a person to dispose of property irrespective of the dominion which he exercises over it by right of ownership. This authority may be conferred apart from '-trusteeship or contractual relationship between the grantor and the grantee. Power may or not be coupled with interest in the property subject of such power. Thus it is clear that a per- son, though he may have only a life estate in a property, may also have the power to dispose of it during his life time. Any disposal of the property subject to the power will hold good against the whole world. Thus a life estate coupled with the power of alienation during the life of the limited owner is not an estate unknown to law. There is nothing in Indian Law, so far as I am aware, which would stand in the way of a testator giving to a devisee a life estate in his property coupled with the power to alienate it during his life time lif he so chooses\ Any residue that is left over undisposed of by the devisee will go either to the testator's heir-at-law or tg any person named by him. Authority for the view thus expressed will be found in observations made by Sir Louis Stuart C. J., and Gokaran Nath Misra, J, in their Juigmsnts in the case of Thakur Jagmohart Singh v. Sheoraj Kuer (1927) 4 O W N 1125. In that case one Baldeo Singh executed a will under which he devised a portion of his property to Mst. Mahraj Kuar, the widow of his deceased son, and to Mst, Param Kuar, widow of his deceased grandson. Under the terms of the will if they survived they were to succeed jointly to a life interest in the property. In that case one Baldeo Singh executed a will under which he devised a portion of his property to Mst. Mahraj Kuar, the widow of his deceased son, and to Mst, Param Kuar, widow of his deceased grandson. Under the terms of the will if they survived they were to succeed jointly to a life interest in the property. On the death of one of them Mahraj Kuar predeceased Param Kuar the survivor was to succeed to the property with power of transfer and powers to sell, mortgage or give away by gift or will. Param Kuar as purvivor did so succeed. The will further providei that after such survivor's death the property, which she was to leave without nominating a successor, would pass to the'legal heirs of the deceased, After the death of Param Kuar a suit was brought by Baldeo Singh's legal heir for possession of the property against the legal heirs of Param Kuar...The contest in that case was, as already stated, between the legal heir of Baldeo Singh and the legal heirs of Param Kuar. If Param Kuar got only a life estate under the provisions of the will the property passed on her death to the legal heir of the last male holder Baldeo Singh. But in case Param Kuar got an absolute estate her own heirs would be entitled to the property after her death. It was argued in that case on behalf of the plaintiff who was the legal heir of Baldeo Singh that though Param Kuar was under the terms of the will given the power of transfer and powers to sell, mortgage or give away by gift or will, she did not acquire an absolute estate but only a life estate with a power that is known in Eng- lish Law as "power of appointment." (See the observations of Sir Louis Stuart C.J., at pages 1134-35). Dealing with this argument the learned Chief Judge observed: If I accepted the view that on the construction of the will he (Baldeo Singh) had granted only a power of enjoyment together with a power of appointment I should accede to his argument, but I do not accept that view. 12. Dealing with this argument the learned Chief Judge observed: If I accepted the view that on the construction of the will he (Baldeo Singh) had granted only a power of enjoyment together with a power of appointment I should accede to his argument, but I do not accept that view. 12. Thus it will be seen that the argument advanced that all that was conferred upon Param Kuar was a life estate with a power of alienation was not negatived on the ground that such an estate was not contemplated by Indian Law. The ob- servations of Gokaran Nath Misra J. at page 1141 are more explicit. The learned Judge observed: I do not dispute the proposition that in cer- tain cases a testator nny confer a life estate and may also give to the donee power of appointment or power of transfer. 13. When I drew the attention of the learned Counsel to these observations of the learned Judges he. replied that possibly Misra J. did not mean to say what his words conveyed. I am clear that both the Chief Judge and Misra J. distinctly recognised the possibility of the grant by the testator to a devisee of a life estate coupled with a power of alienation during his (donee's) life time. There is nothing in our law to prohibit the grant of a life es'ate with full power of transfer during the donee's life time by a testator in his propsrty. Such an estate coupled with full power of alienation was conferred by Jagannath Prasad upon Mst. Radha his daughter-in-law. Thus the contentions of the learned C )unsel for the appellant, both as regards the interpretation of the wills as also the effect thereof, fail. 14. It was not disputed that if Mst. Radba bad a power of alienation the lease granted by her along with Bhagmani and Ram Piari (Ex. A1) was a good and valid lease which could not be challenged after her death. In this view of the matter, the judgment of the Court below must be upheld and the appeal dismissed. 15. Another point argued by the appellant's Counsel was that under Ex. Al the property in suit was exempted from the operation of the lease. That this was not so, was conceded by the appellant before the first appellate Court. In this view of the matter, the judgment of the Court below must be upheld and the appeal dismissed. 15. Another point argued by the appellant's Counsel was that under Ex. Al the property in suit was exempted from the operation of the lease. That this was not so, was conceded by the appellant before the first appellate Court. I have carefully examined the lease in question and am of opinion that the exemption referred only to the house which stood on the land in question and not: to the land. The result therefore is that the appeal is dimissed with costs. 16. Turning to t ae other appeal (Execution of Decree Appeal No. 30 of 1941) it may be observed that after what has been said already in connection with the previous appeal this need not detain us long. It appears that some property which had devolved upan Mst. Radha, daughter-in- law of Jagannath Prasad, under the will of 1914, was attached by Ram Adhar in execution of a simple money decree and put up for sale. Beni Madho in whose favour a deed of relinquishment was executed by the heirs of Sheo Dayal In rejpent of the property left by Jagannath Prasad, and who is also a collateral of Jagannath Prasad, preferred objections to sale of the property on the ground that Radha did not acquire any- thing further than a life estate in the attached property under the will. This contention was repelled by both the Courts below I have held, as already stated, in connection with the previous appeal that Mst. Radha acquired in the property in question a life estate with full power cf alienation during her life time. As such the property which formed the subject matter of this appeal was liable to attachment and sale in satisfaction of her debt. T was property over which Mst. Radha hid disposing power which she could exercise for her own benefit. Thus u/s 60 of the CPC it could be made available for satisfaction of her debts. It may be mentioned that the attachment was effected in the life time of Mst. Radha. 17. Another point was urged in conection with this appeal on behalf of the respondent opposite-party. Radha hid disposing power which she could exercise for her own benefit. Thus u/s 60 of the CPC it could be made available for satisfaction of her debts. It may be mentioned that the attachment was effected in the life time of Mst. Radha. 17. Another point was urged in conection with this appeal on behalf of the respondent opposite-party. It was contended that no deed of transfer, apart from a deed of relinquishment, was executed by the sons of Sheo Dayal in favour of Beni Madho ; and as the deed of relinquishment did not transfer property, Bent Madho did not acquire any rights in the attached property under the deed could not object to the sale of the property in execution. The contention is not without force, but in view of the conclusion arrived at by me that Mst. Radha acquired life interest in the properly in question with full power of alienation, over it, it is unnecessary to consider the second point. I am satisfied that the Courts below were right in throwing out the appellant's objection. The appeal fails and is dismissed with costs.