Raj Bajrang Bahadur Singh vs Thakurain Bakhtraj Kuer

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 147 of 1951

Decision Date: 7 November 1952

Coram: B.K. Mukherjea, N. Chandrasekhara Aiyar, Natwarlal H. Bhagwati

In this matter the Supreme Court of India rendered its judgment on 7 November 1952 in the dispute between Raj Bajrang Bahadur Singh as petitioner and Thakurain Bakhtraj Kuer as respondent. The judgment was authored by Justice B. K. Mukherjea, who was joined on the bench by Justices N. Chandrasekhara Aiyar and Natwarlal H. Bhagwati. The case is reported in the 1953 volume of the All India Reporter at page 7 and in the 1953 Supreme Court Reporter at page 232. It is also cited in later reports such as RF 1963 SC 890 (17) and R 1976 SC 794 (8). The substantive issue concerned the interpretation of section 14 of the Oudh Estates Act, Act I of 1869, particularly the effect of a taluqdar’s will that described a bequest as made to an “absolute owner” yet imposed a restriction on the right to transfer the estate.

The Court explained that the Oudh Estates Act does not forbid the creation of future estates or limitations on those estates as long as the limitation does not violate the rule against perpetuities. When a taluqdar’s will grants a life interest to a legatee and then provides for subsequent interests in favor of other persons, the succession rule set out in section 14 of the Act does not apply at the death of the original donee. Instead, the property passes according to the terms of the will to the next person named in the will. The expressions “malik kamil” (absolute owner) and “naslan bad naslan” (generation after generation) ordinarily describe a heritable and alienable estate that confers full proprietary rights, unless the surrounding circumstances or context show that such absolute rights were not intended. To discover the testator’s true intention, the Court said, one must read the will as a whole, giving effect to every provision and not treating any clause as redundant or contradictory. If the testator’s intention is to grant an absolute estate, any attempt to curtail the owner’s power to alienate the property will be rejected as repugnant to that intention. Conversely, when the testator deliberately imposes restrictions that are consistent with the overall tenor of the will, those restrictions become a material factor that can displace the presumption of absolute ownership that the word “malik” normally carries. The Court also noted that, although the rule in Tagore v. Tagore (18 W.R., 369) precludes creating an interest for unborn persons, a gift made to a class of persons—some of whom are alive at the testator’s death and some of whom are not—does not fail entirely; it remains valid for the members of the class who are alive at the time of the testator’s death.

In this appeal, the Court considered a will executed by a taluqdar of Oudh that aimed to keep the younger son, identified as D, and his heirs in peaceful possession of certain villages after the testator’s death. The will declared that D would hold those villages as an absolute owner, but with a reservation that he would have no right to transfer the property. It further provided that if D were not alive at the time of his death, his son, any male heir, or his widow could remain in possession, and although D and his heirs were denied the power of transfer, they were allowed to exercise all other rights of absolute ownership.

The Court held that the will did not create an absolute estate in D. Consequently, on D’s death the succession could not be governed by section 14 of the Oudh Estates Act, and D’s widow was entitled to succeed ahead of D’s elder brother.

The matter arose as Civil Appeal No 147 of 1951 before the Civil Appellate Jurisdiction. The appeal challenged the judgment and decree dated 4 September 1946 of the Chief Court of Oudh (now the High Court of Judicature at Allahabad, Lucknow Bench), which had affirmed, on appeal, the orders of the Civil Judge, Bahraich, rendered in Regular Suit No 1 of 1941. Counsel for the appellant was a lawyer representing the plaintiff, while counsel for the respondent represented the defendant. The judgment was delivered on 7 November 1952 by Justice Mukherjea.

The appeal was filed on behalf of the plaintiff and was directed against the decree of the Chief Court of Avadh dated 4 September 1946, which had confirmed the decree of the Civil Judge, Bahraich, in Regular Suit No 1 of 1941. To understand the dispute, the Court recounted the relevant facts. Raja Bisheshwar Bux Singh, the father of both the plaintiff and the husband of the defendant, held the status of taluqdar of Oudh and possessed the Gangwat Estate, which he inherited in 1925 after the death of the widow of the last holder. This estate fell within the scope of the Oudh Estates Act of 1869.

Raja Bisheshwar died on 16 October 1930, leaving two sons: the elder, Bajrang Bahadur, who was the plaintiff, and the younger, Dhuj Singh, who had since died leaving his widow, Bakhtraj Kuer, as the defendant. Shortly before his death, Raja Bisheshwar executed a will dated 11 September 1929. That will bequeathed five properties, enumerated in lists A and B attached to the plaint, to his younger son Dhuj Singh as provision for the maintenance of Dhuj Singh and his heirs. Upon Raja Bisheshwar’s death, the estate passed to the plaintiff in his capacity as the eldest son under the provisions of the Oudh Estates Act, while the five properties were claimed by Dhuj Singh under the terms of the will.

In this matter, the plaintiff obtained only the five parcels of land that were bequeathed to him under his father’s will. The younger brother, Dhuj Singh, died without leaving any descendants, and following his death in 1940 a dispute arose concerning those five parcels between the plaintiff on one side and Dhuj Singh’s widow on the other. Initially the plaintiff succeeded in having the revenue records altered to show his name as the owner of those parcels in place of his deceased brother; however, the appellate revenue authority later set aside that alteration and ordered that the ownership be recorded in the name of the defendant, the widow. Consequently, the plaintiff instituted the present suit, requesting a declaration that title to the five parcels vested in him upon Dhuj Singh’s death and that the defendant could not, under law, claim any right to them. It is relevant to note that four of the five parcels are listed in Schedule A of the plaint and are undisputedly taluqdari lands, while the fifth parcel, listed in Schedule B, is expressly acknowledged to be non-taluqdari in nature. In addition to Schedules A and B, a third schedule attached to the plaint identified two further properties that were in the defendant’s possession; the plaintiff initially claimed those as well, although they were not covered by Bisheshwar’s will, but that claim was abandoned during trial and is not before this appeal. The plaintiff’s case rested on two alternative grounds. First, he contended that Dhuj Singh possessed only a life interest in the properties devised by Bisheshwar and that, upon the termination of that life interest, ownership passed to the plaintiff as the legal heir of the late Raja. In the alternative, he argued that even if Dhuj Singh had been given an absolute interest by the will, the plaintiff was still entitled to succeed to the taluqdari lands pursuant to section 14(b) read with section 22(5) of the Oudh Estates Act. The defendant, in her written statement, opposed the plaintiff’s claim by asserting that Bisheshwar Bux Singh, as the absolute owner of the lands, was free to dispose of them as he saw fit and that, under his will, the properties vested in the defendant after Dhuj Singh’s death rather than in the plaintiff. In essence, the defendant maintained that the will created a life estate for Dhuj Singh followed by a devise to his widow as his personal heir. Thus, the resolution of the dispute depends on the proper construction of Bisheshwar’s will. The trial court

After a detailed examination of the various clauses of the will and consideration of the surrounding circumstances, the trial judge concluded that Dhuj Singh possessed only a life interest in the properties devised by his father’s will. The judge further held that analogous life estates were created in favour of Dhuj Singh’s personal heirs in succession, and that the ultimate remainder would vest in the holder of the estate once the line of personal heirs became extinct. Consequently, the defendant was entitled to enjoy the suit properties for the duration of her own life, and the plaintiff’s suit was dismissed. The plaintiff appealed this decision to the Chief Court of Avadh. The Chief Court reviewed the findings of the trial judge, affirmed the lower court’s conclusion, and likewise dismissed the appeal. The plaintiff thereafter obtained a certificate from the High Court of Allahabad, which had merged the Chief Court of Avadh after the earlier disposal, and instituted the present proceeding before this Court.

The counsel appearing for the appellant first directed attention to certain sections of the Oudh Estates Act. He argued that, because Dhuj Singh, who obtained the suit properties under his father’s will, fell within the category of persons listed in clause (1) of section 13-A of the Act, he could, under section 14, hold the properties subject to the same conditions and the same rules of succession that applied to the taluqdar himself. In that view, the counsel submitted that section 22(5) of the Act would become applicable, and that the plaintiff, as the brother of Dhuj Singh, should succeed to Dhuj Singh’s properties in preference to the widow.

The Court found that this line of argument did not assist the appellant. It noted that section 11 of the Oudh Estates Act grants a taluqdar very broad powers of disposition, authorising him “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 special provisions for transfers by gift or bequest to certain specified persons and prescribe the formalities to be observed in such cases. Section 14 then provides that if any taluqdar or grantee, or his heir or legatee, has 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…

The Court observed that the provision states that a taluqdar’s heirs and legatees acquire the same rights and powers over any property to which they become entitled by virtue of a transfer or a bequest, and that they must hold that property subject to the same conditions and the same rules of succession that applied to the original transferor or testator. It was noted that Dhuj Singh, being the younger son of the testator, fell within clause (1) of section 13-A of the Oudh Estates Act. Consequently, if Dhuj Singh obtained full ownership of the properties under his father’s will, the succession to those properties after his death would be governed by the special rules of succession contained in the Oudh Estates Act rather than by the ordinary law of inheritance. However, the Court held that section 14 would not be applicable if the will did not vest an absolute ownership in Dhuj Singh but instead granted him only a life interest that was followed by subsequent interests. The Court further rejected the argument that a taluqdar governed by the Oudh Estates Act is unable to convey anything less than an absolute proprietary right, or that he lacks competence to create a limited interest or a future estate. In addition to the comprehensive power granted by section 11, the Court pointed out that section 12 makes the rule against perpetuity applicable to transfers made by a taluqdar, thereby indicating that the Act does not prohibit the creation of future estates or limitations provided they do not violate the perpetuity rule.

The Court identified two principal questions for determination. The first question was whether Dhuj Singh received an absolute estate or merely a life estate in the properties bequeathed to him by the will of Raja Bisheshwar. If the Court finds that an absolute estate was granted, the appellant’s claim concerning the taluqdari properties listed in list A of the plaint would unquestionably succeed. Conversely, if the interest conferred was limited to Dhuj Singh’s lifetime, the second question would arise: whether the will validly created any subsequent interest in favor of the widow that would enable her to resist the plaintiff’s claim. The Court explained that, should the life estate have been granted solely to Dhuj Singh, the plaintiff, as the heir of the testator, would be entitled to the reversionary interest upon Dhuj Singh’s death. The Court emphasized that answers to both questions depend upon a proper construction of the will left by Raja Bisheshwar. The trial judge had described the will as a highly inartistic document lacking any pretension to precise legal language, apparently prepared by a person unfamiliar with legal terminology. Accordingly, the Civil Judge had undertaken a translation of the will, a translation that was considered useful and convenient by the learned judges of the Chief Court.

The trial judge prepared a translation of the will, dividing its contents into several paragraphs, a method found useful and convenient by the learned judges of the Chief Court. The material portions of the will, as rendered by the trial judge, may be set out as follows: The testator stated that having become sufficiently old and unable to rely on life, by God's grace he had two sons, Bajrang Bahadur Singh the elder and Dhuj Singh the younger. He declared that after his death the elder son would, according to rule, become the Raja, while the younger son was simply entitled to maintenance. Consequently, with a view that after his death the younger son and his heirs and successors, generation after generation, might not encounter any trouble and that no quarrel might arise between them, the testator made certain provisions. He affirmed that after full consideration he decided to execute a will in favour of Dhuj Singh with respect to the villages detailed in the document. He further stipulated that after his death Dhuj Singh may remain in possession of those villages as an absolute owner, subject only to the reservation that he would have no right of transfer. He added that if, God forbid, Dhuj Singh were not living at the time of his death, then Dhuj Singh’s son, any male heir, or his widow could remain in possession of the said villages on payment of the Government revenue as an absolute owner. The liability for the land revenue of the villages was placed on Dhuj Singh and his heirs and successors, and the estate itself would have no concern with it. Although Dhuj Singh and his heirs were not given the power of transfer, they would exercise all other rights of absolute ownership, meaning that the proprietor of the estate or other heirs and successors would not eject Dhuj Singh or his heirs or successors in any way. He further provided that if Dhuj Singh or his heirs ever became heirless, the villages would not escheat to the Government but would revert and become part of the estate. The testator concluded that, with soundness of mind, without any force or pressure, and after fully understanding and considering the matter, he executed the will in favour of Dhuj Singh, his own son, with the above-mentioned terms.

The learned counsel for the appellant naturally emphasized the expressions “absolute owner” (Malik kamil) and “generation after generation” (naslan bad naslan) that were used to describe the interest intended for Dhuj Singh under the will. These expressions, it cannot be disputed, describe a heritable and alienable estate in the donee and they connote full proprietary rights unless the surrounding context or circumstances indicate that absolute rights were not intended to be conferred. In all such cases, the true intention of the testator must be gathered not by attaching importance to isolated expressions but by reading the will as a whole, considering each provision together and giving effect to the overall scheme. The counsel argued that the phrase “absolute owner” signifies that Dhuj Singh was intended to possess the villages without any limitation on his right to deal with the property, except for the specific reservation of non-transferability expressly mentioned. He further submitted that the phrase “generation after generation” demonstrates that the testator intended the estate to descend to Dhuj Singh’s personal heirs in perpetuity, thereby creating a lasting hereditary interest rather than a mere life interest. Accordingly, the counsel maintained that no implication of a life estate or a conditional interest could be read into the will, because the dominant language throughout the document points to a fee simple like ownership within the limits expressly stated. The counsel also pointed out that where the will reserves the payment of government revenue to Dhuj Singh and his heirs, it nevertheless affirms that the liability rests upon them, reinforcing the notion of an enduring proprietary right. Finally, the counsel submitted that the proper construction of the will required a holistic approach, giving effect to every clause, and that such an approach would confirm that the testator’s intention was to create a hereditary, alienable ownership for Dhuj Singh and his successors.

In this case, the Court examined the will as a whole, giving effect to every provision and not treating any clause as redundant or contradictory. The purpose of the testator in executing the will is set out clearly in the preamble, and despite the somewhat clumsy drafting, that purpose was kept in view throughout the making of the provisions. The language and tone of the document leave no doubt that the dominant intention of the testator was to make provision not only for Dhuj Singh but also for the benefit of his heirs and successors, expressed by the phrase “generation after generation.” The term “heirs” in this context clearly refers to the personal heirs of Dhuj Singh as determined by the general law of inheritance, and not to successors to the estate under the special provisions of the Oudh Estates Act. Paragraph six of the will is expressly intended to protect the personal heirs of Dhuj Singh from eviction by future holders of the estate. Accordingly, the beneficiaries under the will are Dhuj Singh himself and his heirs in succession, and to each such heir or group of heirs the rights of malik are given, but without any power of alienation. Upon the total extinction of this line of heirs, the properties affected by the will are to revert to the estate. Because the testator intended that the properties should remain intact until the line of Dhuj Singh was exhausted and that each successor should enjoy and hold the properties without any power of alienation, the testator effectively created a series of life estates, one after another, with the ultimate reversion to the parent estate when there is a complete failure of heirs. How far this intention can be given effect by law is another question, which the Court will consider presently. Nonetheless, it can be said without hesitation that the testator did not intend to confer anything other than a life estate upon Dhuj Singh with respect to the properties covered by the will. The clause in the will imposing a total restraint on alienation also points in this direction. Where the testator’s intention is to grant an absolute estate, an attempt to limit the owner’s powers by imposing a restraint on alienation would be repelled as repugnant; but where the restrictions are the primary purpose desired by the testator and are consistent with the whole tenor of the will, they become a material circumstance that can displace the presumption of absolute ownership implied by the word “malik.” Accordingly, the Court holds that the lower courts were correct in finding that Dhuj Singh possessed only a life interest in the properties under the terms of his father’s will. Of course, this finding by itself offers no comfort to the defendant, who must still establish an independent interest in her favour after the death of Dhuj Singh in order to resist the plaintiff’s claim.

The Court observed that the defendant was required to prove that, after the death of Dhuj Singh, the will had created an independent interest in her favour in order to withstand the plaintiff’s claim. The Court reiterated that the testator had intended to grant successive life estates to the successive heirs of Dhuj Singh. The appellant contended that such a provision was impermissible under law and relied upon the decision in Tagore v. Tagore(1). The Court noted that, although an interest cannot be created for a person who does not yet exist, a gift made to a class or series of persons does not become invalid merely because some members of that class are unborn. Instead, the gift remains valid with respect to those members who were alive at the time of the testator’s death and is invalid only as to the others. The Court pointed out that the widow, being the next heir of Dhuj Singh, was alive when the testator died, and therefore the life interest that the will created in her favour should take effect. Consequently, the widow acquired an interest in the suit properties after the death of her husband, limited to the duration of her own natural life, and the plaintiff possessed no present right to possession of the property. In view of these findings, the Court concluded that the appeal failed and ordered its dismissal with costs. The appeal was dismissed. The appellant was represented by an agent, and the respondent was represented by an agent.