# lfitporters and Man1,facturdr1 Ltd v. P.herote Framroze Tai·aporewala and Others

- **Citation:** [1953] 1 S.C.R. 232
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Bench:** MuKHERJEA, Chandrasekhara A!Yah, Bhagwati Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lfitporters-and-man1-facturdr1-ltd-v-p-herote-framroze-tai-aporewala-and-others-5
- **Pages:** 11

## Headnote

OudhEstates Act (I of 1861>) s.14-Will of Taluqdar-Bequest
as "absol~tte owner" without right to transfer-Validity-Succession
to legatee whether governed by Act or ordinary law-C1·eation of
su .. ccessive estates - Validity-Rule aaainst perpetuities-Construction
-
11Ma1ik Kamil", "Naslan bad naslan".
The Oudh Estates Act (Act,! 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 accord·
in~ to the 1'rill to the next person entitled to it under the will.
S.C.R.
SUPREME COURT REPORTS
233
The words malik kamii (absolute o·wner) and · naslan bad
1952
naslan (generation after generation) are descriptive of a heritable
-
and aliertable estate in the donee and they connote full proprietary
Raj Bajrarig
rights unless there is something in the context or in the surr01md- Bahadur Singh.
ing circumstances which indicate that absolute rights were not
v.
intended to be conferred. In all such cases the true intention of
Thakura-iii
the testator has to be gathered not by attaching importance to Baf,,h{rn.,i J(uer.
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 word malik.
Though under the rule laid down in Tagore v. Tagore (18
W.R. 359) 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 testlttor'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 successi~n
was not governed bys. 14 of the Oudh Estates Act and D's widow
was entitled to succeed in preference to D's elder brother.
CIVIL APPELLATE JuHISDICTION:
Civil Appeal
No. 147 of 195 !.
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 Walford 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. 1 of 1941.
llaj Bajrang
Bd.had1ir Singh
234 .·
SUPREME COURT REPOR'l'S
(1953]
Onkar Nath Srivastava for the appellant.
Bishan Singh for the respondent.
•
v.
1952.
November 7.
The Judgment of the Court
7'hakurain
d ['
d b
B_akht.raj Kiter. was e lYer~
y
Jl1ikhor je

## Text

1951!
lfitporters and
Man1,facturdr1
Ltd.
v.
P.herote
Framroze
Tai·aporewala
and Others.
1952
Nov. 'l.
233
SUPREME COURT REPORTS
(1953j
and the tenant under or throi;rgh whom he claims aud
to seek protection under the Act, if he is entitled to
any.
Such a person may be joined as a party to the
suifl' from the beginning of the suit or at any later
stage of the suit if the Court thinks fit to do so. The
joinder of such a proper party cannot alter the
character of the suit and does not make the suit any
the less a suit between the landlord and the tenant or
take it out of section 28 of the Act.
'ro hold other·
wise will be to encourage multiplicity of suits which will
result in no end of inconvenience and confusion.
In
our view the decision and the reasoning of Chagla
C.J. are substantially correct and this appeal must
fail.
We, therefore, dismiss the appeal ·with costs.
Appeal dismissed.
Agent for the appellants: RaJinder Narain.
A.gent for respondents Nos. 1, _2 & 3 : R. A. Ga.grat.
RAJ BAJRANG BAHADUR SINGH
v . .
THAKURAIN BAKHTRAJ KUER.
[MuKHERJEA, CHANDRASEKHARA A!YAH and
BHAGWATI JJ.J
OudhEstates Act (I of 1861>) s.14-Will of Taluqdar-Bequest
as "absol~tte owner" without right to transfer-Validity-Succession
to legatee whether governed by Act or ordinary law-C1·eation of
su .. ccessive estates - Validity-Rule aaainst perpetuities-Construction
-
11Ma1ik Kamil", "Naslan bad naslan".
The Oudh Estates Act (Act,! 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 accord·
in~ to the 1'rill to the next person entitled to it under the will.
S.C.R.
SUPREME COURT REPORTS
233
The words malik kamii (absolute o·wner) and · naslan bad
1952
naslan (generation after generation) are descriptive of a heritable
-
and aliertable estate in the donee and they connote full proprietary
Raj Bajrarig
rights unless there is something in the context or in the surr01md- Bahadur Singh.
ing circumstances which indicate that absolute rights were not
v.
intended to be conferred. In all such cases the true intention of
Thakura-iii
the testator has to be gathered not by attaching importance to Baf,,h{rn.,i J(uer.
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 word malik.
Though under the rule laid down in Tagore v. Tagore (18
W.R. 359) 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 testlttor'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 successi~n
was not governed bys. 14 of the Oudh Estates Act and D's widow
was entitled to succeed in preference to D's elder brother.
CIVIL APPELLATE JuHISDICTION:
Civil Appeal
No. 147 of 195 !.
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 Walford 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. 1 of 1941.
llaj Bajrang
Bd.had1ir Singh
234 .·
SUPREME COURT REPOR'l'S
(1953]
Onkar Nath Srivastava for the appellant.
Bishan Singh for the respondent.
•
v.
1952.
November 7.
The Judgment of the Court
7'hakurain
d ['
d b
B_akht.raj Kiter. was e lYer~
y
Jl1ikhor jea J.
:M:uKHBR.TEA J.-This appeal is on behalf of the
plaintiff and is directed against a judgment a..nd decree
of the Chief Court of· Ava.db 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 husb:md, was a taluqdar of Oudh, and the estate known as Gangwal 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 Bishe3hwar
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 ii:t 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 estate went
to the plaintiff as his eldest son under the provisions
of the. Oudh Estates Act and Dhuj Singh got only
the five properties mentioned above under 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
hand aud Dhuj Singh's widow on the other.
The
plaintiff succeeded at first in having )lis name mutated
as owner of these properties in the revenue 1·ecords in
place of his deceased brother, but the appellate
.~·
S.C.R.
SUPREME COURT REPORTS
235
revenue authority ultimately set aside this order and
I952
directed mutation to be made in the name of the
R . B ..
d f
d
Th
1 · t'ff th
d th
•aJ
n;ra"f1
e en ant.
e p a111 1
ereupon commence • e Bahad"r Singh
suit out of. which this appeal arises, praying for
v.
declaration of his title to the five properties mentioned
Thakm·ain
above on the allegation that they vested in him on Bakhtraj K"er.
the death of Dhuj Singh and that the defendant co~ld> rvr kl-. J
not, in law, assert any right to the same. It may be ' " "r.iea ·
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., C attached 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 had only 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 plain tiff 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 prim!l.rily 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 f1. life estate for DhuJ
195.2
236
SUPREME COUR1' REPORTS
(1953]
Singh followed by a devise in favour of the widow as
his personal heir.
Raj Bajran9
Dahnd"r Si .. gh
The decision of the point in dispute between the
v.
parties thus hiuges on the proper construction of the
Thnkurnin
will left by Bisheshwar. 'rhe trial court after an
fl,khtraj Kuer. elaborate consideration of the different portions of
MukJwjea J.' the will, viewed in the light of surrounding circum-
.
stances, 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.
'rhe plaintiff has now
come up to 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.
'rhe 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 taluqdar · himself.
In the$e.
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
Singh, would be entitled to succeed to the properties
of the latter in preference to his wiaow.
The argument formulated in this way does not
appear to us to be helpful to the appellant. Sectioq i J
{
s.c.R.
SUPREME COURT REPORTS
237
of the Oudh Estates Act confers very wide powers of
1953
disposition upon a taluqdar and he is competent
R . Ba·
.
"
f
h
h
aJ
Jrang
under the sect10n
to trans er t e w ole or any Bahadur Sin~h
portion
of
his estate, or of his right and• inv.
terest therein, during his lifetime, by sale, exchange,
Thakurain
mortgage, lease or gift, and to bequeath by his will Bakhtraj Kuer.
to any person the whole or any portion of such estate, Mukherjea J.
-
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 bis estate-
(a) ........... .
(b) to any of the persons mentioned in clauses (1)
and (2) of section 13-A, the transferee or legatee and
bis 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 be-
•
came 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 other persons .
..
238
SUPREME COURT REPORTS
[1953]
i95Z
It cannot also be contended that a taluqdar governR. . B .
ed by the Oudh Estates Act cannot convey anything
ai
•Jrang 1
th
h"
b I
·
· h ·
Bahadur Singh ess
an
IS a so ute proprietary ng t ma property
v.
by tr"ausfer inter vivas or by will, or that it is not
Thakurain
competent for him to create any limited interest or
Bakhtrn.i K1w. future estate. Apart from the plenary provision contained in section 11, section 12 of the Act which
Mukh6rjea J.· makes the rule against perpetuity applicable to transfers made by a taluqdar, furnishes a clear indication
that the Act does not interdict the creation of future
estates and Jimitations provided they do not transgress 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 fa vonr 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 tbe 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. 'fhe material portions of the will,
as translated by the trial judge, may be set out as
follows:-
..
.. -
S.C.R.
SUPREME COURT REPORTS
239
"As I have become sufficiently old and no reliance
1952
can be placed on life, by God's grace I have got two
. 8 .
·
h
S ·
h h
ld
d RfJJ
"JrfJng
sons namely, BaJra.ng Ba adur mg , t e e er, an
B"h"dur Singh
Dhuj Singh the younger. After my death the elder
v.
son would according to rule, become the Raja, the
ThakurfJin
younger one is simply entitled to maintenance.
BfJkhti·fJj Kuer.
1.
Consequently with a view that after my death Mukl<erjea J.
the younger son and his heirs and successors, generation after generation, may not f()el 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 Dbuj Singh with
respect to the villages detailed below.
3.
So that after my death Dbuj Singh may remain
in possession of those villages as au absolute owner
with the reservation that be will have no right of
transfer.
4. If, God forbid, Dbuj Singh may n.ot be living at
the time of my death, his son or wboevar 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 Dbuj, Singh and his heirs and
successors; the estate will have no concern with it.
6. Although Dbuj Singh and bis 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 Dbuj Singh or bis heirs
or successors in any way.
7. Of course if Dhuj Singh or his heirs become ever
beirless then the said villages will not escbeat 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 a.nd after having fully understood and also having thought it proper I execute this
will in fa your of Dbuj Singh, my own son, with tbe
above· mentioned term;;."
240
SUPREME COURT REPORTS
[1953j
zgsa
Th
d
_
e learne
counsel for the appellant naturally
RaJ·BaJrang lays stress upon tlie words "absolute owner" (malik
Bahadui· Singh kamil) and "generation after generation" (naslan bad
v.
na~lan) used in reference to the interest which Dhuj
Thakurain
Singh was to take under the will.
These words, it
Bakhtr•J Kuer. cannot be disputed, are descriptive of a heritable and
MukhBrjsa J .. 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 b:i; 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 is
clearly set out in the preamble to the document and
in spite of the somewhat clumsy drafting that object
seems 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 our
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 beueficia.ries 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
t
"" -
1
I·
!
S.C.R.
SUPREME COURT REPORTS
241
remain intact till the line of Dhuj Singh was
195B
exhausted and each successor was to enjoy and bold
R . B .
h
.
. b
t
. f
1.
.
a;
a;rang
t e properties wit ou
any power o a ienat10n, Bahadur Singh
obviously what the testator wanted was to create a
v.
series of life estates one after another, the ultimate
Thakurain
reversion being given to the parent estate when there Bakhtraj Kuer.
was a complete failure of heirs. To what extent such
-
intention could be given effect to by law is another M"kherjea J.
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 displa"cing the presumption of absolute
ownership implied in the use of the word "malik".
We bold, 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
will.
Of course this by itself gives no comfort to the
defendant; she bas 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 be 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 Reporter 359,
242
SUPREME COURT REPORTS
[1953)
1952
whom are in existence and some are not, it does not
R . B .
·
fail in its entirety; it is Valid With regard to the per-
. a;
a;rang
h
.
.
h
.
f h.
'
Bahadur Singh son~ w o are m existence at t e time o t e testators
v.
death and is invalid as to the rest.
The widow, who
Thakurai"
is the next heir of Dhuj Singh, was in existence when
Bakhtraj Kuer. the testator died and ·the Jife ·interest created in her
favour should certainly take effect. She thus acquired
Muklierj~a, J. 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.
' .