Ghasite Ram alias Ghasito v. Pt. Parmeshwari Dayal
1969-07-30
H.N.SETH, S.D.KHARE
body1969
DigiLaw.ai
JUDGMENT S.D. Khare, J. - This is an appeal against the judgment and decree passed by the learned Second Civil Judge, Meerut, on 14th February, 1959, partly decreeing the plaintiff's suit. 2. The suit out of which this appeal arises was in respect of properties described in schedules Ka and Kha of the plaint. The property in Schedule Ka was the ancestral property of the plaintiff and defendant no. 1, in which each of them had a half share. The property in Schedule Kha was the self-acquired property of Bishambhar Lal, the father of defendant no. 1. The undisputed facts of the case are that Bishambhar Lal executed a will in respect of his self-acquired property on 8th March, 1946, and got it registered. It was provided in the will that Bishwamkt bhar Lal was not at all pleased with Parmeshwari Dayal, defendant no. 1, who was his only son, and he did not consider it advisable that his self-acquired property should pass on to one who might squander it. He, therefore, mentioned in the will that his self-acquired property should go to his brother Girdhari Lal and his minor son Ghasito Ram (Plaintiff). The will further provided that in case any son was born to Parmeshwari Dayal (defendant no. 1) the branch of Girdhari Lal and Ghasito Ram shall become divested of the property which in that event shall vest in the sons of Parmeshwari Dayal. Bishambhar Lal died in the month of July, 1947, and soon after his death Girdhari Lal also died in the month of September, 1947, leaving Ghasito Ram .(plaintiff), who was then a minor. There was no one to look after Ghasito Ram, and he had, therefore, to go to live with his maternal uncle Banwari Lal, who was appointed his certificated guardian two years later. Banw ari Lal was a resident of district Muzaffarnagar. The property in suit is situated in the town of Ghaziabad district Meerut. Parmeshwari Dayal, therefore, remained in possession of the ancestral property belonging jointly to the parties and also over the property belonging exclusively to his father. At the time of Bishambhar Lal's death Parmeshwari Dayal had not even been married. His marriage took place about three months after. the death of Bishambhar Lal and a son was born to him from his first wife in the month of April, 1953. That son.
At the time of Bishambhar Lal's death Parmeshwari Dayal had not even been married. His marriage took place about three months after. the death of Bishambhar Lal and a son was born to him from his first wife in the month of April, 1953. That son. however, expired on 10th August, 1953. The first wife of Parmeshwari Dayal died and he married again. Two more sons were born to defendant no. I in the years 1956 and 1957. The son, who was born in the year 1956 expired, but the third son born in the year 1957 is still alive. Out of the properties mentioned in Schedule Kha only one house remained in the occupation of defendant no. 1, while all the remaining properties, mentioned both in Schedule Ka and Kha were let out to tenants. There defendant no. I realised the rent of the properties. 3. The suit out of which this appeal arises was instituted by the plaintiff on 19th October, 1956, for a declaration that he is the owner of half share in the property mentioned in Schedule Ka and full owner of the property mentioned in Schedule Kiln. The plaintiff further sought possession after ejectment of the defendant over house No, 63, situated in the market Dasna Gate in Ghaziabad town. He further prayed for directing defendant no. I to render accounts in respect of the property in dispute since August 1947 up to the date of the filing of the suit on the allegation that his certificate guardian had appointed defendant no. 1 as his agent for realising the rent. In the alternative it was prayed that, if the allegations regarding defendant no. I being appointed the agent on behalf of the plaintiff are not proved, the plaintiff should be allowed a sum of Rs. 2,500/- as rent and mesne profits for three years preceding the suit. 4. The main dispute between the parties was regarding the interpretation of the will executed by Bishambhar Lal. The contention of defendant no. 1 was that under the provisions of the will the self-acquired property belonging to Bishambhar Lal and detailed in Schedule Kha of the plaint had vested in the sons of Parmeshwari Dayal immediately on the birth of the first son to him in the year 1953.
The contention of defendant no. 1 was that under the provisions of the will the self-acquired property belonging to Bishambhar Lal and detailed in Schedule Kha of the plaint had vested in the sons of Parmeshwari Dayal immediately on the birth of the first son to him in the year 1953. It was further pleaded that in any case the plaintiff could not ask for the profits of the property mentioned in Schedule Kha for the simple reason that there was a provision in the will that the entire profits of that property shall be utilised for the maintenance of the daughter-in-law of Bishambhar Lal. The claim of the plaintiff with regard to his half share in the property mentioned in Schedule Ka of the plaint was not disputed. 5. The other defendants in the case were the tenants of the properties mentioned in Schedule Ka and Kha of the plaint. The son and the wife of Parmeshwari Dayal were not brought in the array of defendants. 6. The learned Civil Judge, has, after a consideration of the entire evidence, arrived at the conclusion that the plaintiff had failed to prove that Parmeshwari Dayal had been appointed as an agent on behalf of the plaintiff. According to the interpretation placed by the court on the will dated 8th March, 1946, executed by Bishambhar Lal, it was held that upon the birth of the first grandson to Bishambhar Lal the plaintiff became divested of the property mentioned in Schedule Kha and, therefore, he could not claim any relief in respect of that property. The learned Civil Judge, therefore, granted to the plaintiff in respect of property mentioned in Schedule Ka only, the reliefs of declaration sought for, and Rs. 270/- only as plaintiff's share of the rent for three years preceding the suit. All other reliefs claimed were disallowed. 7. The plaintiff has come up in appeal, and it is contended that the will dated 8th March, 1946, has not been properly interpreted by the court below and that under the aforesaid will he had become full owner of the property mentioned in Schedule Kha. It is further contended that the plaintiff being a minor till the year 1954 his claim for the entire period beginning from August 1947 ought to have been decreed. 8. We have heard the learned counsel for the parties.
It is further contended that the plaintiff being a minor till the year 1954 his claim for the entire period beginning from August 1947 ought to have been decreed. 8. We have heard the learned counsel for the parties. There was some confusion in the plaintiff's evidence regarding the time when Parmeshwari Dayal was marri ed. According to the statement made by Banwari Lal (P. W. 1) the marriage of Parmeshwari Dayal had taken place during the lifetime of Bishambhar Lal. The court has very rightly not placed any reliance on that part of the statement of Banwari Lal for the simple reason that he is a resident of distrilt Muzaffarnagar and, therefore, could not be expected to know the exact date when Parmeshwari Dayal was married. The court, below very correctly relied on the statement made by Parmeshwari Dayal himself that his marriage took place about three months after the death of Bishambhar Lal. 9. Another point of controversy between the parties before the trial court was whether Parmeshwari Dayal had been appointed as agent by Banwari Lal (P. W. 1) to realise the rent of the properties in suit. The court below has given very good reasons for not believing Banwari Lal (P. W. 1) on that point. No arguments have been addressed to us to challenge that finding of the learned Civil Judge. 10. We now proceed to examine the contents of the will date 8th March, 1946. The material portion of this document reads as follows :- "...... I have a son Parmeshwari Dayal. Unfortunately he is unworthy and disobedient and keeps company of bad characters and squanders away my money. It is almost certain that he will become a loafer. I am at present very much aggrieved. If my son inherits my property my soul shall be greatly afflicted and he shall be; after my death, a cause of bad name to me ..... My brother and my nephew both are able persons ...... So long as I, the executant am alive, I myself shall remain the owner of my entire movable and immovable residential property and city property situated at Ghaziabad, district Meerut. After my death, my brother Girdhari and my nephew Ghasite shall be the owners thereof. They shall have no right to mortgage or sell it to anybody. They shall themselves continue to be benefited from the income of the property.
After my death, my brother Girdhari and my nephew Ghasite shall be the owners thereof. They shall have no right to mortgage or sell it to anybody. They shall themselves continue to be benefited from the income of the property. Parmeshwari Dayal, my son, shall not be entitled to get any right and share. However, if male issues are born to my son Parmeshwari Dayal, who shall be the grandsons of me the executant, they shall be the owners of this property, but they too shall have no right to mortgage or sell it. In the same way after my grandsons their male descendants shall continue to be the owners, and if issues are born to my son Parmeshwari Dayal the proprietary rights in respect of this property shall vest in them, i.e., my grandsons, whosoever, Girdhari Lal or Ghasitu, shall be alive at that time. i.e., at the time of the birth of my grandsons shall be only the manager of my property and shall spend the entire income from my property for the maintenance of my grandsons and the wife of Parmeshwari Dayal. If the wife of Parmeshwari Dayal survives after my death, Girdhari Lal and Ghasitu, whosoever is alive at that time shall continue to give 23rd share out of the income from property to the wife of Parmeshwari Dayal by way of maintenance and shall utilise the remaining one-third share in repairs etc. of the property, and if a son is born to the wife of my son, i.e., grandson is born to me, he shall become the owner of the entire property...." 11. From a perusal of the will it is clear that the clear intention of the testator was to disinherit his son whom he did not like for reasons stated in the will itself. He, therefore, provided for various contingencies. The property was to go to the branch of Girdhari Lal in case at the time of the death of the testator no son was horn to Parmeshwari Dayal. However, in case Parmeshwari Dayal was to be get male issues during the life-time of the testator, the grandsons of the testator were to become . the owners of the property of the testator without any right of transfer in the property. 12.
However, in case Parmeshwari Dayal was to be get male issues during the life-time of the testator, the grandsons of the testator were to become . the owners of the property of the testator without any right of transfer in the property. 12. Another contingency which seems to he provided for under the will was that in case no male issue was born to Parmeshwari Dayal but his wife was alive at the time of the testator's death then 23rd of the income of the property was to be given by his brother Girdhari Lal or his son to the wife of Parmeshwari Dayal for her maintenance. 13. After a careful perusal of the will this much is clear that the testator was eager to save his property for his grandson or grandsons who might be born. If no grandson or grandsons were born to the testator, then the intention is clear that the son was to he excluded from inheritance and the property was to go to the branch of his brother Girdhari Lal. No right in the property of the testator was intended to be given to the wife of Parmeshwari Dayal, the daughter-in-law of the testator. However, if she was in existence at the time of the death of the testator the legatees were injoined to give her ?rd of the income of the property of the testator for her maintenance. 14. The clear intention of the testator was that the brother of the testator or the nephew of the testator were not to get any legacy under the will if a grandson or grandsons were born to the testator either during his life time or even after his death. The intention of the testator is apparent from a perusal of the will and also from the statement of Bhagwati Prasad (P. W. 2) , who was an attesting witness of the will and also the legal adviser of the testator, whom the testator used to consult even before the execution of the will. 15. At the time the will was executed the following contingencies were possible :- (1) The son of the testator may not marry at all. (2) The son of the testator may marry but might not beget any male issue. (3) Grandsons to the testator may be born during the lifetime of the testator.
15. At the time the will was executed the following contingencies were possible :- (1) The son of the testator may not marry at all. (2) The son of the testator may marry but might not beget any male issue. (3) Grandsons to the testator may be born during the lifetime of the testator. (4) No grandson to the testator may be born during the lifetime of the testator but one might be born after his death. (5) Several grandsons to the testator may be born only after the death of the testator. 16. The will seems to provide for the first four contingencies mentioned above, but does not appear to provide for the fifth contingency. In the first contingency, that is to say, if the son was not to marry, the brother and the nephew of the testator were to inherit the. property. In the second contingency, that is to say, if the son was to marry but was not to beget any male issue, the property was to vest in the brother or the nephew of the testator, as the case may be. However, if the son's wife was alive at the time of the testator's death, she was to get ?rd income of the property for her maintenance. In the third contingency, that is to say, if several grandsons to the testator were born during his lifetime, all the grandsons were to become owners of the property and the same was to be managed by the brother and the nephew of the testator as managers. The entire income of the property was reserved for the benefit of the grandsons and the daughter-in-law. In the fourth contingency, that is to say, if a grandson was born after the death of the testator, the brother or the nephew of the testator in whom the property might have vested at the time of the death of the testator was to be divested of the property and the same was to vest in the grandson. That was. the last clause in the will and no provision was made in that document as to what was to happen in case several grandsons were to be born after the death of the testator. 17.
That was. the last clause in the will and no provision was made in that document as to what was to happen in case several grandsons were to be born after the death of the testator. 17. It might be said that the provision in the will at an earlier place that the property was to vest in all the grandsons should apply to that contingency also, that is to say, all the grandsons who might be horn even after the death of the testator were to get equal shares in the property of the testator. There is, however, no specific provision contained in the will to show that the same was the intention of the testator. Without any specific provision to that effect we are not prepared to interpret the will in a manner which might frustrate the very object of the testament and make some of its provisions illegal or void. 18. The Indian Succession Act contains various provisions for the interpretation of wills. So far as the present appeal is concerned it will be necessary to examine only the following provisions of the Succession Act :- "82. The meaning of any clause in a will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other. ILLUSTRATION (i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his death in B; it appearing from the bequest to B that the testator meant to use in a restricted sense the words in which he describes what he gives to A. (ii) Where a testator having an estate,. one part of which is called Black Acre, bequeaths the whole of his estate to A, and in another part of his will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the first as if he had said 'I give Black Acre to B, and all the rest of my estate to A.' "84.
Where a clause is susceptible of two meanings according to one of which it has some effect and according to the other of which it can have none, the former shall be preferred. "85. No part of a will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it." 87. The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be 7 given to it as far as possible. ILLUSTRATION The testator by a will made on his death-bed bequeathed all his property to a. C D for life and after his death to a certain hospital. The intention of the testator cannot take effect to its full extent, because the gift to the hospital is void under Section 118 but it will take effect so far as regards the gift to C D. 88. Where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail. ILLUSTRATIONS (i) The testator by the first clause of, his will leaves his estate of Ranmagar 'to A' and by the last clause of his will leaves it to B and not to A'. B will have it. (ii) If a man at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail." "101. Where a will purports to make two bequests to the same person, and a question arises whether the testator intended to make the second bequest instead of or in addition to the first; if there is nothing in the will to show what he intended, the following rules shall have effect in determining the construction to put upon the will . (c) Where two legacies of unequal amount are given to the same person in the same will, or in the same codicil, the legatee is entitled to both." 19. While interpreting a will the document has to be read as a whole. To the extent possible the intention of the testator has to be given effect to. If two interpretations are possible, the one that gives effect to his intentions and makes the disposition valid must be accepted.
While interpreting a will the document has to be read as a whole. To the extent possible the intention of the testator has to be given effect to. If two interpretations are possible, the one that gives effect to his intentions and makes the disposition valid must be accepted. If the full intention of the testator cannot be given effect, to, and it is possible to give effect to part only, that might be done. In case all these principles are followed, the will can be interpreted only in the manner in which we propose to read it and ai it has been indicated in the preceding paragraphs. 20. The contention of the learned counsel for the appellant, however, is that the son of the testator not having been married during the lifetime of the testator, the bequest in favour of the daughter-in-law as well as the grandsons became void by virtue of the provisions of Sections 112 and 113 of the Indian Succession Act, and, therefore, the property which on the death of the testator had, according to the provisions of the will, vested in the plaintiff, continued to remain vested in him. The relevant portions of Sections 112 and 113 of the Indian Succession Act read as follows:- "112. Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void. Exception. If property is bequeathed to a person described as standing in a particular decree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time the property shall, at such later time, go to that person, or, if he is dead, to his representatives. ------ 113. Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. ......................." 21. In our opinion there is no force in these contentions.
......................." 21. In our opinion there is no force in these contentions. Under the will only limited interest was granted to the brother and the nephew of the testator. They could neither mortgage nor sell the property and in the case of the birth of grandson the property was to vest in the grandson. It is, therefore, clear that the mere fact that the property had once vested in the plaintiff on the death of the testator will not help the plaintiff. He has to further establish that the bequest in favour of the daughter-in-law and the grandson or grandsons was void under the law. 22. Even according to our interpretations the daughter-in-law does not come in the picture. The will, as we read it, shows that she was to get 213rd income of the property in case she was alive at the time of the death of the testator. If that contingency could be fulfilled, it is obvious that Section 112 of the Indian Succession Act could not make the bequest in her favour void. However, since the daughter-in-law had not come into existence at the time of the death of the testator for the simple reason that the son of the testator had not till then married himself, the provision in the-will providing for the maintenance of the daughter-in-law shall not take effect. 23. So far as Section 113 of the Indian succession Act is concerned, the meaning is very dear. The bequest in favour of persons (in the present case grandsons) who were not born till the death of the testator shall be void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. If no right of transfer is given to the legatee it is obvious that the whole of the remaining interest of the testator in the thing bequeathed has not been transferred to the legatee. The full bench case of Girjish Datt v. Data Din, A.I.R. 1934 Oudh 35 is an authority for this proposition. In that case the property had been given by the donor to one Ram Kali for life, and after her death, if there be any male descendants, whether born of son or daughter, to them absolutely. If Ram Kali were to have only daughters, they were to have no power of transfer.
In that case the property had been given by the donor to one Ram Kali for life, and after her death, if there be any male descendants, whether born of son or daughter, to them absolutely. If Ram Kali were to have only daughters, they were to have no power of transfer. It was further provided that in the absence of any issue whether male or female living at the time of her death, the gifted property was not in any way to devolve upon her husband or his family, but it was to go to Data Din, father of Ram Kali. Interpreting the gift deed it was held that the gift in favour of Data Din was dependent upon the failure of the prior interest in favour of the daughters and the result was that the gift in favour of Data Din also failed because of the failure of prior interest sought to be created in favour of the daughters of Ram Kali under Sections 13 and 16 of the Transfer of Property Act. 24. This case, no doubt, interprets Section 13 of the Transfer of Property Act, but the wordings in Section 13 of the Transfer of Property Act are exactly similar to those used in Section 113 of the Indian Succession Act: the only difference is that Section 13 of the Transfer of Property Act relates to transfers inter-vivas, while Section 113 of the Indian Succession Act deals with bequests, which take effect only on the death of the testator. 25. This contention of the appellant could have some force if we were to hold that the-will read as a whole provided that the grandsons of the testator born after the death of the testator were to have limited interest only in the property bequeathed. Had some of the grandsons of the testator been alive at the time of the death of the testator, Section 113 of the Indian Succession Act could have no application on the rights of such grandsons, and all those grandsons, who were born till the death of the testator, could have got limited interest in the bequest with vested remainders in favour of their sons. However, that contingency has not arisen.
However, that contingency has not arisen. The facts of the present case show that a grandson was born to the testator after his death and the last clause in the will clearly provide, that such a grandson will become the owner of the property. No limitation whatsoever is placed in that clause on the right of the grandson. On the happening of that event the plaintiff was to be divested of the property and the property was to vest in the grandson. There is no further provision in the will to indicate that if another grandson to the testator is born later than he too will get any interest in the property. From that we infer that although there is no clear mention in the will, the last clause in the will contemplates only the contingency when a grandam to the testator was to be born after his death. 26. There being no limitation to the absolute ownership of such a legatee, it is evident that the bar created under Section 113 of the Indian Succession Act cannot apply to him. 27. After the birth of the grandson in the year 1953 the plaintiff was divested of the property. The plaintiff is, therefore, not entitled to claim any declaration in respect of the property mentioned in Schedule Kha. The plaintiff, having failed to establish that the defendant No. I acted 4? as agent for the plaintiff, is not entitled to any decree for accounting. 28. With respect to the property mentioned in Schedule Ka the contention of the plaintiff is that he having remained a minor till the month of January, 1954, and the suit having been filed within three years of the date on which he attained majority. The plaintiff's share in the entire rent realised by defendant No. 1 during the years 1947 to 1956 should have been decreed. 29. In our opinion there is no force in this contention also. The relief asked for by the plaintiff is in the following terms:- "If defendant No. 1 is not proved as the agent of the plaintiff the rent for three years and the utilised money of Rs. 2,500/- may be caused to be paid by the defendants." 30. According to the evidence led in the case the annual rental value of the property mentioned in Schedule Kha was Rs. 840/-.
2,500/- may be caused to be paid by the defendants." 30. According to the evidence led in the case the annual rental value of the property mentioned in Schedule Kha was Rs. 840/-. It is, therefore, evident that in the event it was not established that defendant No. 1 was agent on behalf of the plaintiff only three years' rent so far as property mentioned in Schedule Ka was concerned and three years' utilised profits so far as property mentioned in Schedule Kha was concerned were claimed. In the circumstances the learned Civil Judge was fully justified in granting a decree only for the plaintiff's share of three years' rent of the property mentioned in Schedule Ka. 31. There is no force in this appeal and it is dismissed with costs.