http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

RAJ BAJRANG BAHADUR SINGH

Vs.

RESPONDENT:

THAKURAIN BAKHTRAJ KUER.

DATE OF JUDGMENT:

07/11/1952

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

AIYAR, N. CHANDRASEKHARA

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 7 1953 SCR 232

CITATOR INFO :

RF 1963 SC 890 (17)

R 1976 SC 794 (8)

ACT:

Oudh Estates Act (I of 1869) s. 14- Will of Taluqdar-Bequest

as absolute owner" without right to transfer-Validity-

Succession to legatee whether governed by Act or ordinary

law-Creation of successive estates - Validity-Rule against

perpetuities-Construction -"Malik Kamil", "Naslan bad

naslan".

HEADNOTE:

The Oudh Estates Act (Act I of 1869) does not interdict the

creation of future estates and limitations provided they do

not transgress the rule of perpetuities and where a

disposition by a will made by a taluqdar does not make the

legatee an absolute owner but gives him only an interest for

life which is followed by subsequent interests created in

favour of other persons the rule of succession laid down in

s. 14 of the Act will not apply on the death of the donee

and the property bequeathed to him will pass according to

the will to the next person entitled to it under the will,

233

The words malik kamil (absolute owner) and naslan bad naslan

(generation after generation) are descriptive of a heritable

and alienable estate in the donee and they connote full

proprietary rights unless there is something in the context

or in the surrounding circumstances which indicate that

absolute rights were not intended to be conferred. In all

such cases the true intention of the testator has to be

gathered not by attaching importance to isolated expressions

but by reading the will as a whole with all its provisions

and ignoring none of them as redundant or contradictory.

In cases where the intention of the testator is to grant

an absolute estate, an attempt to reduce the powers of the

owner by imposing restraint on alienation would be repelled

on the ground of repugnancy; but where the restrictions are

the primary things which the testator desires and they are

consistent with the whole tenor of the will, it is a

material circumstance to be relied on for displacing the

presumption of absolute ownership implied in the use of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

word malik.

Though under the rule laid down in Tagore v. Tagore (18

W.R., 369) no interest could be created in favour of unborn

persons, yet when a gift is made to a class or series of

persons, some of whom are in existence at the time of the

testator's death and some are not, it does not fail in its

entirety ; it will be valid with regard to the persons who

are in existence at the time of the testator's death and

invalid as to the rest.

A will made by a taluqdar of Oudh recited that with a view

that after his death his younger son D and his heirs and

successors, -generation after generation, may not feel any

trouble or create any quarrel, D shall after the testator's

death remain in possession of -certain villages as absolute

owner, with the reservation that he will have no right to

transfer, that if D may not be living at the time of his

death D's son or whoever may be his male heir or widow may

remain in possession and that although D and his heirs are

not given the power of transfer they will exercise all other

rights of absolute ownership: Held, that the will did not

confer an absolute estate on D and on D's death the

succession was not governed by s. 14 of the Oudh Estates Act

and D's widow was entitled to succeed in preference to D's

elder brother.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 147 of 1951.

Appeal from the Judgment and Decree dated September 4, 1946,

of the late Chief Court of Oudh- (now the High Court of

Judicature at Allahabad, Lucknow Bench) (Misra and Wallford

JJ.) in First Civil Appeal No. 139 of 1941, arising out of

the Judgment,and Decree dated October 23, 1941, of the Court

of the Civil Judge, Bahraich, in Regular Suit No. I of 1941.

234

Onkar Nath Srivastava for the appellant.

Bishan Singh for the respondent.

1952. November 7. The Judgment of the Court was delivered

by

MUKHERJEA J.-This appeal is on behalf of the plaintiff and

is directed against a judgment and decree of the Chief Court

of Avadh dated September 4, 1946, affirming, on appeal,

those of the Civil Judge, Bahraich, passed in Regular Suit

No. 1 of 1941.

To appreciate the controversy between the parties to this

appeal it would be necessary to state a few facts. One Raja

Bisheshwar Bux Singh, the father of the plaintiff and of the

defendant's husband, was a taluqdar of Oudh, and the estate

known as Gangwat Estate, to which he succeeded in 1925 on

the death of the widow of the last holder, is one to which

the Oudh Estates Act (I of,1869) applies. Raja Bisheshwar

died on 16th October, 1930, leaving behind him two sons, the

elder of whom, Bajrang Bahadur, is the plaintiff in the

present litigation, while the younger, whose name was Dhuj

Singh, has died since then, being survived by his widow

Bakhtraj Kuer. who is the defendant in the suit. Shortly

before his death Raja Bisheshwar executed a will dated 11th

September, 1929, by which five properties, described in

lists A and B attached to the plaint, were bequeathed to

Dhuj Singh, the younger son, by way of making provisions for

the maintenance of the said son and his heirs. On the death

of Raja Bisheshwar,the estatement to the plaintiff as his

eldest son under the provisions of the Oudh Estates Act and

Dhuj Singh got only he five properties mentioned above under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

the terms of his father's will. Dhuj Singh had no issue of

his own and on his death in 1940 disputes arose in respect

of these properties between the plaintiff on the one land

and Dhuj Singh's widow on the other. The plaintiff

succeeded at first in having his name mutated as owner of

these properties in the revenue records in place of his

deceased brother, but the appellate

235

revenue authority ultimately set aside this order and

directed mutation to be made in the name of the defendant.

The plaintiff thereupon commenced the suit out of which this

appeal arises, praying for declaration of his title to the

five properties mentioned above on the allegation that they

vested in him on the death of Dhuj Singh and that the

defendant could not) in law, assert any right to, the same.

It may be stated here that four out of these five properties

have been described in list A to the plaint and there is no

dispute that they are taluqdari properties. The fifth item

is set out in list B and admittedly this property is not

taluqdari in its character. Besides lists A and B there is

a third list, viz., Catached to the plaint, which mentions

two other properties as being in possession of the defendant

and in the plaint a claim was made on behalf of the

plaintiff in respect to these properties as well, although

they were not covered by the will of Bisheshwar. This

claim, however, was abandoned in course of the trial and we

are not concerned with it in the present appeal.

The plaintiff really rested his case on a two-fold ground.

It was averred in the first place that Dhuj Singh hadonly a

life interest in the properties bequeathed to him by

Bisheshwar and on the termination of his life interest, the

property vested in the plaintiff as the heir of the late

Raja. In the alternative the case put forward was that even

if Dhuj Singh had an absolute interest created in his favour

under the terms of his father's will, the plaintiff was

entitled to succeed to the taluqdari properties at any rate,

under the provision of section 14(b) read with section 22

(5) of the Oudh Estates Act.

The defendant in her written statement resisted the

plaintiff's claim primarily on the ground that Bisheshwar

Bux Singh, as the full owner of the properties, was

competent to dispose of them in any way he liked and under

his will it was the defendant and not the plaintiff in whom

the properties vested after the death of Dhuj Singh. The

contention, in . substance, was that the will created a life

estate for Dhuj

236

Singh followed by a devise in favour of the widow as his

personal heir.

The decision of the point in dispute between the parties

thus hinges on the proper construction of the will left by

Bisheshwar. The trial court after an elaborate

consideration of the different portions of the will, viewed

in the light of surrounding circumstances, came to the

conclusion that Dhuj Singh got a life interest in the

devised properties but there were similar life estates

created in favour of his personal heirs in succession, the

ultimate remainder being given to the holder of the estate

when the line of personal heirs would become extinct. The

defendant, therefore, was held entitled to the suit

properties so long as she was alive and in that view the

plaintiff's suit was dismissed. Against this decision, the

plaintiff took an appeal to the Chief Court of Avadh and the

Chief Court affirmed the decision of the trial judge and

dismissed the appeal. The plaintiff has now come, up to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

this court on the strength of a certificate granted by the

High Court of Allahabad with which the Chief Court of Avadh

was amalgamated sometime after the disposal of this case.

The learned counsel appearing for the appellant first of

all drew our attention to the provisions contained in

certain sections of the Oudh Estates Act and it was urged by

him on the basis of these provisions that as Dhuj Singh, who

got the suit properties under the will of his father, the

late. Taluqdar, came within the category of persons

enumerated in clause (1) of section 13-A, Oudh Estates Act,

he could, under section 14 of the Act, hold the properties

subject to the same conditions and the same rules of

succession as were applicable to the, taluqdari himself. In

these circumstances, it is said that the provisions of

section 22 (5) of the Act would be attracted to the facts of

this case and the plaintiff, as the brother of Dhuj Siugh,

would be entitled to succeed to the properties of the latter

in preference to his widow.

The argument formulated in this way does not I appear to

us to be helpful to the appellant. Section. 11

237

of the Oudh Estates Act confers very wide powers of

disposition upon a taluqdar and he is competent under the

section "to transfer the whole or any portion of his estate,

or of his right and interest therein, during his lifetime,

by sale, exchange, mortgage, lease or gift, and to bequeath

by his will to any person the whole or any portion of such

estate, and interest." Sections 13 and 13-A make certain

special provisions in cases of transfers by way of gift and

bequest in favour of certain specified persons and lay down

the formalities which are to be complied with in such cases.

Section 14 then provides that "if any taluqdar or grantee,

or his heir or legatee, shall heretofore have transferred or

bequeathed, or if any taluqdar:or grantee, or his heir or

legatee shall hereafter transfer or bequeath the whole or

any portion of his estate-

(a) ...........

(b) to any of the persons mentioned in clauses (1) and

(2) of section. 13-A, the transferee or legatee and his

heirs and legatees shall have same rights and powers in

regard to the property to which he or they may have become

entitled under or by virtue of such transfer or bequest, and

shall hold the same subject to the same conditions and to

the same rules of succession as the transferor or testator."

It is true that Dhuj Singh being a younger son of the

testator came within the purview of clause (1) of section

13-A of the Oudh Estates Act and if he became full owner of

the properties under the will of his father, succession to

such properties after his death would certainly be regulated

by the special rules of succession laid down in the Oudh

Estates Act, and not by the ordinary law of inheritance.

But section 14 would have no application if the disposition

by the will did not make Dhuj Singh an absolute owner of the

properties and he was given only an interest for life which

was followed by subsequent interests created in favour of

31

238

It cannot also be contended that a taluqdar governed by

the Oudh Estates Act cannot convey anything less than his

absolute proprietary right in a property by transfer inter

vivos or by will, or that 'it is not competent for him to

create any limited interest or future estate. Apart from

the plenary provision contained in section 11, section 12 of

the Act which makes the rule against perpetuity applicable

to transfers made by a taluqdar, furnishes a clear

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

indication that the Act does not interdict the creation of

future; estates and limitations provided they do not trans-

gress the perpetuity rule.

The questions, therefore, which require consideration in

this case are really two in number. The first is whether

Dhuj Singh got an absolute estate or an estate for life in

the properties given to, him by the will of Raja

Bisheshwar? If he got an absolute estate, the contention of

the appellant should undoubtedly prevail with regard to the

taluqdari properties specified in list A of the plaint. If,

on the other hand,, the interest was one which was to inure

only for the period of his life, the further question would

arise as to whether any subsequent interest was validly

created by the will in favour of the widow on the strength

of which she can resist the plaintiff's claim. If the life

estate was created in favour of Dhuj Singh alone, obviously

the plaintiff as the heir of the grantor would be entitled

to come in as reversioner after his death .

The answers to both the questions would have to be given

on a proper construction of the will left by Raja

Bisheshwar. The will has been rightly described by the

trial judge as a most inartistic document with no pretension

to any precision of language, and apparently it was drawn up

by a man who was not acquainted with legal phraseology. The

Civil Judge himself made a translation of the document,

dividing its contents into several paragraphs and this was

found useful and convenient by the learned Judges of the

Chief Court. The material portions of the will, as

translated by the -trial judge, may be set out as follows:-

239

"As I have become sufficiently old and no reliance can be

placed on life, by God's grace I have got two sons namely,

Bajrang Bahadur Singh, the elder, and Dhuj Singh the

younger. After my death the elder son would according to

rule, become the Raja, the younger one is simply entitled to

maintenance.

1. Consequently with a view that after my death the

younger son and his heirs and successors, generation after

generation, may not feel any trouble and that there may

not be any quarrel between them.

2. I have decided after a full consideration that I should

execute a will in favour of Dhuj Singh with respect to the

villages detailed below.

3. So that after my death Dhuj Singh may remain in

possession of those villages as an absolute owner with the

reservation that he will have no right of transfer.

4. If God forbid, Dhuj Singh may not be living a the time

of my death, his son or whoever may be his male heir or

widow may remain in possession of the said villages on

payment of the Government revenue as an absolute owner.

5. The liability for the land revenue of the said villages

will be with Dhuj Singh and his heirs and successors; the

estate will have no concern with it.

6. Although Dhuj Singh and his heirs are not given: the

power of transfer, they will exercise all other rights of

absolute ownership that is to say, the result is that the

proprietor of the estate or my other heirs and successors

will not eject Dhuj Singh or his heirs or successors in any

way.

7. Of course if Dhuj Singh or his heirs become ever

heirless then the said villages will not escheat to the

Government but will revert and form part of the estate.

8. Hence with the soundness of my mind without any force

or pressure and after having fully under-, stood and also

having thought it proper I execute this will in favour of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

Dhuj Singh, my own ;on, with the above-mentioned terms."

240

The learned counsel for the appellant naturally lays

stress upon the words "absolute owner " (Malik kamil) and

"'generation after generation?' (naslan bad naslan) used in

reference to the interest which Dhuj Singh was to, take

under the will. These words, it cannot be, disputed, are

descriptive of a heritable and alienable estate in the

donee, and they connote full proprietary rights unless there

is something in the context or in the surrounding

circumstances which indicate that absolute rights were not

intended to, be conferred. In all such cases the true

intention of the testor has to be gathered not by attaching

importance to isolated expressions but by reading the will

as a whole with all its provisions and ignoring none of them

as redundant or contradictory.

"The object of the testator in executing the will clearly

set out in the preamble to the document and in spite of the

somewhat clumsy drafting that object to have been kept in

view by the testator throughout, in making the provisions.

The language and tenor of the document leave no doubt in OUT

minds that the dominant intention of the testator was to

make provision not for Dhuj Singh alone but for the benefit

of his heirs and successors, " generation after generation "

as the expression -has been used. The expression " heirs"

in this context obviously means and refers to the personal

heirs of Dhuj Singh determined according to the, general law

of inheritance and not the successors to the estate under

the special provisions of the Oudh Estates Act, for

paragraph 6 of the will mentioned above is expressly

intended to protect the personal heirs of Dhuj Singh from

eviction from the properties in question by the future

holders of the estate.

Thus the beneficiaries under the will are Dhuj Singh

himself and his-heirs in succession and to each such heir or

set of heirs the rights of malik are given but without any

power of alienation. On the total, extinction of this line

of heirs the properties affected by-the will are to revert

to the estate. As it was the intention of the testator that

the properties should

241

remain intact till the line of Dhuj Singh was exhausted and

each successor was to enjoy and hold the properties without

any power of alienation, obviously what the testator wanted

was to create a series of life estates one after another,

the ultimate reversion being given to the parent estate when

there was a complete failure of heirs. To what extent such

intention could be, given effect to by law is another matter

and that we shall consider presently. But it can be said

without hesitation that it was not the intention of the

testator to confer anything but a life estate upon Dhuj

Singh in respect of the properties covered by the will. The

clause in the will imposing total restraint -on alienation

is also a pointer in the same direction. In cases where the

intention of the testator is to grant an absolute estate, an

attempt to reduce the powers of the owner by imposing

restraint on alienation would certainly be repelled on the

ground 'of repugnancy; but where the restrictions are the

primary things which the testator desires and they are

consistent with the whole tenor of the Will, it is a

material circumstance to be relied upon for displacing the

presumption of absolute ownership implied in the use of the

word "malik". We hold, therefore, that the courts below

were right in holding that Dhuj Singh had only a life

interest in the properties under the terms of his father's

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

will.

Of course this by itself gives no comfort to the defendant;

she has to establish, in order that she may be able to

resist the plaintiff's claim, that the will created an

independent interest in her favour following the death of

Dhuj Singh. As we have said already, the testator did

intend to create successive life estates in favour of the

successive heirs of Dhuj Singh. This, it is contended by

the Appellant is not permissible in law and he relies on the

case of Tagore v. Tagore(1). It is quite true that no

interest could be created in favour of an unborn person but

when the gift is made to a class or series of persons, some

of

(1) 18 Weekly Report 359.

242

whom are in existence and some are not, it does not fail in

its entirety; it is valid with regard to the persons who are

in existence at the time of the testator's death and is

invalid as to the rest. The Widow, who is the next heir of

Dhuj Singh, was in existence when the testator died and the

life interest created in her favour should certainly take-

effect. She thus acquired under the will an interest in the

suit properties after the death of her husband, commensurate

with the period of her own natural life and the plaintiff

consequently has no present right to, possession. The

result, therefore, is that the appeal fails and is dismissed

with costs.

Appeal dismissed.

Agent for the appellant Rajinder Narain.

Agent for the respondent: S. S. Shukla.

243