DUGLU RAM v. GOVIND RAM — 1980 DIGILAW 59 (HP)

JUDGMENT V. P. Gupta, J.—Duglu Ram defendant-appellant has filed this appeal against the judgment and decree, dated 10th September, 1970 passed by the Additional District Judge, Kulu, by which the appeal of the defendant-appellant has been dismissed and the judgment and decree passed by the Sub Judge 1st Class, Kulu, decreeing the suit of Smt. Nathi deceased-respondent has been upheld. 2. The brief facts of the case are that one Ganga Ram son of Kesaru was the owner of the disputed property. The said Ganga Ram died on 4th March, 1944. Ganga Ram had three daughters, Smt. Nathi (deceased- plaintiff), Smt. Bahaduri and Smt. Sewati, and one sons daughter, Smt. Tulsi. Ganga Ram executed a will, Exhibit P. 1, dated 20th January, 1944, the construction of which is now in dispute in this appeal. 3. It appears that Smt. Tulsi, sons daughter of Ganga Ram died before attaining majority. Duglu Ram appellant is the husband of Smt. Bahaduri, the daughter of Ganga Ram, and the presentrespondents are the legal representatives of Smt. Nathi (the original plaintiff). Smt. Bahaduri had one daughter, Smt. Ailu also. The admitted facts are that on the death of Ganga Ram his property was mutated in favour of his daughters, namely, Smt. Nathi, Smt. Bahaduri and Smt. Sewati in equal shares, and this was exactly in accordance with the clauses of the will, Exhibit P. 1. Smt. Sewati died on 10th March, 1944 and her estate was inherited by Smt. Nathi and Smt. Bahaduri in equal shares. This was also in consonance with the clauses of the will, Exhibit P. 1. 4. Smt. Bahaduri died on 14th February, 1956, and it appears that her estate was mutated in favour of her daughter, Smt. Ailu. Smt. Ailu daughter of Smt. Bahaduri also died on 27th June, 1960, and her estate was mutated in favour of Duglu Ram appellant (i.e., father of Smt. Ailu and husband of Smt. Bahaduri). 5. Smt. Nathi, who was the only surviving daughter or descendant of Ganga Ram deceased filed the present suit against Duglu Ram claiming the suit property and alleging that Duglu Ram bad no right to the suit property in accordance with the terms of the will, Exhibit P. 1, dated 20th January, 1944, and that even Smt. Ailu had no right to succeed to Smt. Bahaduri. It was pleaded by Smt. Nathi that after the death of Smt. Bahaduri she was entitled to the suit property in accordance with the terms of the will. This suit was filed in June, 1966. 6. The suit was contested by Dulgu Ram appellant. He contested the factum and the validity of the will and also alleged that he is entitled to the suit property and that any conditions in the will by which certain restrictions had been placed are null and void. He also raised the question of court-fee, and upon the pleadings of the parties the following issues were framed : "1. Whether mark A is the last will of Ganga Ram deceased ? OPP 2. In case issue No. 1 is proved, whether the defendants are entitled to get the property in suit ? OPD 3. Whether the plaint has been properly valued for purposes of court-fee and jurisdiction ? If not, what is the correct value ?OPP 3A. If issue No. 1 is proved whether the condition entered in para IV of the alleged will is null and void ? OPD 4. Relief. 7. The Sub-Judge, Kulu, decided all the issues in favour of the plaintiff and against the defendant, and in view of these findings he decreed the plaintiffs suit on 31st July, 1968. 8. An appeal was preferred by Duglu Ram defendant and during the course of the appeal the defendant did not contest the findings of the trial court on issues 1 and 3 and only contested that clause IV inserted in the will Exhibit P. 1 is void and inoperative. The learned Additional District Judge repelled the contentions of the defendant-appellant and affirmed the findings of the trial court with the result that the appeal of the defendant- appellant was dismissed. 9. In this appeal, Shri Arun Goel, Advocate, appearing on behalf of the appellant has contested the correctness of the findings of both the courts below with respect to the construction and interpretation of the will, Exhibit P. 1, and it was contended that by the will, Exhibit P. 1, an absolute estate had been created in favour of Smt. Bahaduri, the daughter of Ganga Ram, and that after creating an absolute estate, Ganga Ram testator had no right to change the mode of succession by inserting clause IV in the will, Exhibit P. 1. It was also contended by the learned counsel that this clause in the will is void and that such a condition could not be imposed. 10. Shri Prem Goel, Advocate, appearing on behalf of the respondents, contended that the lower courts have interpreted the will correctly and that the will, Exhibit P. 1, never conferred an absolute estate in Smt Bahaduri. It was also contended that condition No. IV in the will is quite legal and valid and enforceable. The learned counsel further contended that the real intention of the testator has to be looked into, for interpreting the different clauses of the will and with these contentions he argued that the judgments of both the courts below are correct. 11. I have carefully considered the contentions of the learned counsel for the parties and have gone through the record of the case. 12. The main question in this case is about the construction of different clauses of the will, Exhibit P. 1, by taking into consideration the real intention of the testator at the time of the execution of the will. 13. It is a fundamental law that the intention of the testator should not be set aside and the effect should be given to it as far as possible and for construction of a will the case in hand should be looked into and that the other cases will be of little assistance because the different clauses in different wills will always differ from case to case. 14. In the present case a reading of the different clauses of the will, Exhibit P. 1, clearly proves that the testator had no intention to confer absolute estate upon his daughters or sons daughter. All the clauses of the will have to be read in such a manner so that they should reconcile with one another and the real intention of the testator is carried out. The will, Exhibit P. 1, in very clear words depicts the intention of the testator to the effect that he never wanted to confer absolute right of ownership on any female member of his family. In the first para he has stated that his property will devolve on his three daughters and in the next para he states that his sons daughter, Smt, Tulsi, will also be entitled to l/4th share in the immoveable property as soon as she attains the age of majority. In the first para he has stated that his property will devolve on his three daughters and in the next para he states that his sons daughter, Smt, Tulsi, will also be entitled to l/4th share in the immoveable property as soon as she attains the age of majority. In other words, the intention of the testator was that his property should devolve upon his three daughters and one sons daughter as soon as she attains the age of majority in equal shares. The testator further has clarified that if any of his three daughters or the sons daughter die without leaving any male issue then the property would revert back to his collaterals and not to the families of his daughters or sons daughter. The will, Exhibit P. 1, nowhere states that his daughters or the sons daughter will at any time get an absolute estate in the property bequeathed in their favour. On the other hand, the intention is very clear that the property should be held by the above said four females till their life time and after their demise the property will go to the male descendants of these females only, and in the case of absence of the male descendants the property should devolve to the survivors or if there is no surviving legatees then the same should go to the collaterals, i.e., the male reversioners. In view of the above clear intention of Ganga Ram testator, it cannot be held that he ever conferred absolute rights of ownership upon Smt. Bahaduri deceased (his daughter). The first contention of the learned counsel for the appellant has thus no force and is repelled. 15. The next contention of the learned counsel for the appellant that clause IV in the will, Exhibit P. 1, is void and inoperative has also no force in view of the finding that Smt. Bahaduri had not acquired an absolute estate in the property of Ganga Ram deceased. 16. The learned counsel for the appellant further contended that under sections 57 (c) and 114 of the Indian Succession Act, 1925, read with paras 382 and 385 of the Hindu Law by Mulla, the insertion of such a clause, i. e., clause IV in the will, is void and inoperative. 16. The learned counsel for the appellant further contended that under sections 57 (c) and 114 of the Indian Succession Act, 1925, read with paras 382 and 385 of the Hindu Law by Mulla, the insertion of such a clause, i. e., clause IV in the will, is void and inoperative. This contention of the learned counsel is also without any force in view of section 131 of the Indian Succession Act, because in section 131, it is clearly laid down that a condition can be super-added in a will to the effect that "in case a specified uncertain event shall happen, the thing bequeathed shall go to an other person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person". This section 131 is subject to the rules contained in certain other sections mentioned in this section. I am, therefore, of the view that clause IV in the will, by which the condition has been added by Ganga Ram testator that in the case of the death of the daughters and the grand-daughter without leaving behind a male issue, is a specified uncertain event and such an event could be added in the will. 17. The learned counsel for the appellant then contended that this clause IV in the will is contrary to the provisions of section 124 of the Indian Succession Act, and in support of his contention he relied upon Tiruchendur Sri Subramaniaswami Temple v. P. Ramaswamia Pillai and ors. [AIR 1950 Privy Council 32] and N. Ramadasa Kamathv. M. Kalliani and another, [AIR I960 Kerala 183]. In Tiruchendur Sri Subramaniaswami Temples case (supra) the will conferred an absolute estate on the son of the testator and this intention of the testator was given effect to. In these circumstances their Lordships of the Privy Council held that the transfer by will was an absolute transfer and not a conditional or restricted transfer. In N. Ramadasa Kamath case (supra) also it has been held that the will in that case conferred an absolute estate add not a life estate, and after holding that the will conferred an absolute estate the learned Judge held that the restrictions on the powers of the transfer upon an absolute owner are repugnant to the interest already created in the favour of the owner by giving an absolute estate to him. This case is also distinguishable and is not at all helpful to the learned counsel for the appellant. 18. The learned counsel for the respondents has relied upon Nand Ram v. Mst. Vidya, [1974 1LR (Himachal Series) 945], and Akhoy Kumar Ghose v. Indira Rania Ghose, [AIR 1931 Calcutta 499], In both these rulings the wills had been made with certain superadded conditions and such wills were upheld. 19. Some other authorities which also lend support to respondents contention are S. Narayana Doss (died) and another v. Arumugathammal and another, [AIR 1962 Madras 259], Kadiyala Venatasubbaiah and others v. Sarupuri Narayanamma and others, [AIR 1972 Andhra Pradesh 341], and Sarupuri Narayanamma and others v. Kediyala Venkatasubbaiah and ors., [AIR 1973 SC 2114]. In S. Narayana Doss (died) and another ; and Kadiyala Venatasubbaiah and others cases {supra) the judgment of the Privy Council in Tiruchendur Sri Subramaniaswami Temples case (supra) has also been discussed and distinguished. 20. I have already remarked that under section 131 of the Indian Succession Act, clause IV (which is superadded in the will, Exhibit P. i) is quite legal and valid. The will, Exhibit P. 1, if interpreted on the wordings of the document and keeping in view the intention of the testator does not at all confer an absolute estate on Smt. Bahaduri. In accordance with the clauses of the will, which, in fact, depict the real intention of Ganga Ram testator on the death of Smt. Bahaduri (without a male child) the property was to vest in Smt. Nathi. her sister. The learned Additional District Judge has, therefore, rightly repelled this contention of the appellant and I also affirm the same. 21. In view of the above discussion, this appeal is dismissed. The parties are left to bear their own costs. Appeal dismissed.