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Smt Talkeshwari Devi v. Ram Ran Bikat Prasad Singh And Another
Factual and Procedural Background
Raghunath Prasad Singh executed a will on 31 August 1938 and died shortly thereafter. He was survived by his widow Jageshwar Kuer, his daughter Satrupa Kuer, and two minor grand-daughters—Talkeshwari Devi (the present appellant) and Sheorani Kuer—the children of his pre-deceased son Sukhdeo Prasad Singh.
The will gave Jageshwar Kuer some property absolutely and the remainder for her life. Clause 4 directed that, upon her death, a 10 annas 8 pies share of the estate should pass absolutely to the two grand-daughters in equal shares. Clause 5 added that if either grand-daughter died issueless “the other living grand-daughter will … become the absolute owner” of that 10 annas 8 pies share.
After Jageshwar Kuer’s death in November 1948, the sisters partitioned the 10 annas 8 pies share equally and entered possession. Sheorani Kuer died issueless on 1 November 1949. The appellant then sued for possession of Sheorani’s portion, relying on clause 5. The trial court dismissed the suit, and the High Court affirmed. The appellant obtained a certificate and appealed to the Supreme Court.
Legal Issues Presented
- Whether clause 5 of the will operated to transfer to the surviving grand-daughter the share of a sister who died issueless after the property had already vested in both sisters under clause 4.
- Whether the situation is governed by Section 124 (contingent legacy dependent on an uncertain event) or Section 131 (defeasance of a vested estate) of the Indian Succession Act, 1925.
Arguments of the Parties
Appellant’s Arguments
- Clause 5 is absolute and entitles the appellant to the entire 10 annas 8 pies share upon the death of her sister without issue, regardless of when that death occurred.
- Section 131 of the Indian Succession Act applies, making clause 5 a valid defeasance provision.
Respondent’s Arguments
- On a holistic reading of the will, clause 5 ceased to operate once the property vested absolutely in the grand-daughters after Jageshwar Kuer’s death.
- The situation falls under Section 124 of the Indian Succession Act; the specified contingency (death without issue) did not occur before the property became distributable, so the bequest to the survivor cannot take effect.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Norendra Nath Sircar v. Kamal Basini Dasi (Privy Council) | A gift over to survivors on death without issue is contingent; the contingency must occur before the time when the property becomes distributable, as per Section 111 of the Succession Act 1865 (equivalent to Section 124 of the 1925 Act). | Used as persuasive authority to show that the legacy in clause 5 is contingent on an event that did not occur before the estate vested, and therefore cannot divest the vested interest. |
Court's Reasoning and Analysis
The Court reiterated that a testator’s intention must be determined from the will read as a whole. Clause 4 confers an absolute estate on the two grand-daughters after the widow’s death. Clause 5 speaks only to devolution, not to divestment; it contains no language indicating that a vested estate would be taken away on the specified contingency.
Section 124 of the Indian Succession Act applies: where a legacy is contingent upon an uncertain event and no time is stated, the event must occur before the fund is payable or distributable. Here the fund became distributable—under clause 4—upon Jageshwar Kuer’s death. Because Sheorani’s issueless death happened after that date, the contingency failed and clause 5 did not take effect.
Section 131, concerning defeasance of a vested estate, was held inapplicable because clause 5 is not a defeasance clause; it does not direct that an already vested interest shall “go over” on the happening of an event. The reasoning in the Privy Council decision of Norendra Nath Sircar fortified this conclusion.
Holding and Implications
Appeal dismissed; the appellant is not entitled to her sister’s share.
The decision confirms that where a will gives an absolute estate and adds a gift over contingent on an uncertain event, Section 124 of the Indian Succession Act prevents the gift over from operating if the contingency occurs after the estate has vested and become distributable. The ruling affects only the parties’ property rights and sets no new precedent beyond reaffirming existing statutory interpretation.
K.S Hegde, J.— In this appeal by certificate we are to consider the effect of the will executed by one Raghunath Prasad Singh, on August 31, 1938. The said testator died very soon after the execution of the will leaving behind him his widow Jageshwar Kuer, his daughter Satrupa Kuer and his two granddaughters Talkeshwari Devi (the appellant herein) and Sheorani. The appellant and Sheorani are the daughters of Sukhdeo Prasad Singh, the son of the testator who had pre-deceased the testator. Jageshwar Kuer died in November, 1948 and Sheorani Devi on November 1, 1949, without leaving any issue. The dispute in this case is as to who is entitled to the properties devolved on Sheorani under the provisions of the will left by the testator. For deciding that question we have to refer to the relevant provisions of the will, the genuineness or validity of which is not in dispute.
2. The will in question provides that after the death of the testator a portion of his properties (detailed in the will) was to devolve on Jageshwar Kuer absolutely and the remaining properties are also to devolve on her but therein she was to have only a life interest. The will further provides that after her death “the entire property will be treated as 16 annas property out of which 5 annas 4 pies (five annas four pies) share constituting proprietary interest will pass to Shrimati Satrupa Kuer alias Nan daughter of me, the executant and her heirs as absolute owner and the remaining 10 annas 8 pies (annas ten and eight pies) share will pass to both the minor granddaughters: (1) Shrimati Talkeshwari Kuer alias Babu and (2) Shrimati Sheorani Kuer alias Bachan in equal shares as absolute proprietary interest” (clause 4 of the will). Clause 5 of the will says:
“That if one of the two grand-daughters named above died issueless, then under such circumstances the other living granddaughter will enter into possession and occupation of the entire 10 annas 8 pies and become the absolute owner thereof.”
3. At the time of the death of the testator, the appellant as well as Sheorani Kuer were minors. After the death of Jageshwar Kuer, the appellant and her sister Sheorani Kuer divided the ten annas eight pies share of the properties which devolved on them in equal shares and each one came into possession of her share of the properties.
4. Immediately after the death of Sheorani Kuer, the appellant instituted a suit for possession of the properties that fell to the share of Sheorani Kuer purporting to base her claim on clause 5 of the will to which we have earlier made reference. That suit was resisted by the first defendant, the husband of Sheorani. He claimed that he was entitled to those properties as the heir of his wife. The trial court dismissed the plaintiff's suit and the decision of the trial court was upheld by the High Court.
5. It was contended on behalf of the appellant that in view of clause 5 of the will, the appellant is entitled to the suit properties as Sheorani Kuer had died issueless. This contention, as mentioned earlier, did not find favour either with the trial court or with the appellate court. They have held that on a proper reading of the will as a whole, it is clear that clause 5 ceased to be operative on the death of Jageshwar Kuer. Thereafter clause 4 of the will was the only operative clause so far as the rights of the appellant and Sheorani were concerned.
6. It is undisputed that the duty of the Court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole. It is clear from clause 4 of the will that the testator wanted to give to his grand-daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer. The estate bequeathed under clause 4 of the will is not a conditional estate. Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested. The estate that vested on Sheorani was an absolute one. The will does not provide for the divestment of that estate. It is plain from the language of clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer. We are unable to accept the contention of Mr M.C, Chagla, learned counsel for the appellant that there is any conflict between clause 4 and clause 5 of the will. Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devolved on the two sisters. Clause 5 cannot be considered as a deferance clause. If the testator wanted that the bequest made to any of his grand-daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision. But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. Obviously what the testator intended was that if any of his grand-daughters dies issueless before the devolution took place then the entire property should go to the other grand-daughter. To our mind the intention of the testator is plain from the language of the will.
7. To find out the effect of the will before us we have to look to Sections 124 and 131 of the Indian Succession Act, 1925. Section 124 says:
“Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.”
Illustration (ii) to that section says:
“A legacy is bequeathed to A, and in the case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect.”
8. If Section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable. Section 124 deals with devolution. But as we shall presently see Section 131 deals with divestment of an estate that had vested. Mr Chagla contends that the governing provision is Section 131. That section says:
“A bequest may be made to any person with the condition super-added that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.”
9. This section provides for the divestment of an estate which had already vested. It speaks of an estate going over to another person. As seen earlier clause 5 of the will is not a defeasance clause.
10. A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar v. Kamal Basini Dasi. Therein a Hindu at his death left three sons, the eldest of full age and the other two minors. In his will were the directions “My three sons shall be entitled to enjoy all the movable and immovable properties left by me equally. Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally”. Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testator's death. In arriving at this conclusion, the Judicial Committee relied on Section 111 of the Indian Succession Act, 1865. That provision is similar to Section 124 of the Indian Succession Act, 1925.
11. For the reasons mentioned above we are in agreement with the Courts below that the suit brought by the appellant is unsustainable. This appeal is accordingly dismissed with costs.
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