Supreme Court Dismisses Appellant in Will Construction Case Due to Contingent Legacy Not Vesting. The Will Clause Providing for Survivorship on Death Without Issue Was Construed as a Devolution Provision Under Section 124 of the Indian Succession Act, 1925, Not a Defeasance Clause Under Section 131, and Did Not Divest the Absolute Estate Already Vested in the Deceased Legatee.

Case Note & Summary

The appeal by certificate before the Supreme Court arose from a suit for possession of properties based on a will executed by Raghunath Prasad Singh on August 31, 1938. The testator died soon after, leaving behind his widow Jageshwar Kuer, his daughter Satrupa Kuer, and two granddaughters Talkeshwari Devi (the appellant) and Sheorani Devi, daughters of his predeceased son Sukhdeo Prasad Singh. The will conferred on Jageshwar Kuer a life interest in certain properties, and after her death, a portion was to pass to Satrupa Kuer as absolute owner and the remaining 10 annas 8 pies share to the two granddaughters in equal shares as absolute proprietary interest under clause 4. Clause 5 provided that if one of the two granddaughters died issueless, the other living granddaughter would enter into possession of the entire 10 annas 8 pies and become absolute owner thereof. Jageshwar Kuer died in November 1948; the granddaughters divided the 10 annas 8 pies share equally and each came into possession. Sheorani Devi died on November 1, 1949 without issue. The appellant then instituted a suit for possession of Sheorani's share relying on clause 5. The first defendant, husband of Sheorani, resisted claiming as heir of his wife. The trial court dismissed the suit; the Patna High Court in First Appeal No. 113 of 1960 by judgment dated February 17, 1965 upheld the dismissal. The appellant appealed to the Supreme Court by certificate. The core legal issues were whether clause 5 of the will was a defeasance clause divesting the absolute estate vested in Sheorani upon her dying issueless after devolution, or a contingent devolution clause effective only if the event occurred before properties devolved, and whether Section 124 or Section 131 of the Indian Succession Act, 1925 applied. The appellant contended that clause 5 entitled her to the suit properties because Sheorani died issueless, and she relied on Section 131. The respondent contended that clause 4 gave absolute rights and clause 5 ceased to be operative on the death of Jageshwar Kuer; the estate vested absolutely without defeasance. The Supreme Court, per Hegde J., held that the intention of the testator must be gathered from the language of the will read as a whole. Clause 4 gave an absolute estate to the granddaughters. Clause 5 related to devolution, not divestment; it did not provide for divestment of a vested estate. The will did not state that properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless. The contingency in clause 5 would have come into operation only if it happened before properties absolutely devolved on the two sisters upon the death of Jageshwar Kuer. Section 124 of the Indian Succession Act, 1925 applied, not Section 131. Section 124 provides that a legacy contingent on a specified uncertain event cannot take effect unless the event happens before the fund bequeathed is payable or distributable. Section 131 applies to divestment of an estate already vested, which was not the case. The court relied on the Privy Council decision in Norendra Nath Sircar v. Kamal Basini Dasi, which interpreted similar words as a contingent legacy under Section 111 of the Indian Succession Act, 1865, analogous to Section 124 of the 1925 Act. Accordingly, the Supreme Court agreed with the courts below, held the suit unsustainable, and dismissed the appeal with costs.

Headnote

Issue of Consideration

Final Decision

Supreme Court dismissed the civil appeal with costs, affirming the Patna High Court and trial court decisions; held that clause 5 was not a defeasance clause and the appellant's claim under the contingent legacy failed because the specified uncertain event did not occur before the fund bequeathed was payable or distributable under Section 124 of the Indian Succession Act, 1925.

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