# RAJ KUMAR MOHAN SINGH & ORS v. RAJ KUMAR PASUPATINATH SARAN SINGH & ORS

- **Citation:** [1969] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1968-04-19
- **Bench:** J. C. Shah, V. Ramaswami, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-kumar-mohan-singh-ors-v-raj-kumar-pasupatinath-saran-singh-ors-4376
- **Pages:** 21

## Headnote

Oudh Estates Act 1869, ss. 13(1) an~ 22(71---;Testator making will
less than three nionths b.ejore death-Directing widow to adopt sonS1'ch son \vhethcr a r)erson who would have succ~eded to t~te estate or
interest therein within the ni.eaning of s. 13(1)-Widow gets t1tle to estate
under s. 22(7) in the absence of heirs
under els. (1) to ~6)-Su_bse
. quent adoption of son under husband's authority does n~t d1yert widow
of her title-She does not lose title by adver~e possession if estate is
manag~d by Co1•rt of Wards or adopted son.
Transfer of Property Act, s. 43-Applies only wl1en transfer is for
consideration.
S who held ·a Talukdari Estate governed by the provisions of the
Oudh Estates Act 1 of 1869 died without legitimate c~ildren. Ei!;ltt days
before his death on June 21, 1900 he. executed a will under which (a)
his widow J was directed to adopt a son as soon as possible, (b) the
Court of Wards was to manage the estate till a male successor could
take over the management, (c) J was during her life-time to be paid a
monthly allowance of one thousand rupees.· In 1901 J, as directed by
the aforesaid will, adopted a son B. Till 1920 when B attained majority
the Court of Wards managed the estate and thereafter it was managed
by B,
In 1932, one year before J's death, B executed a deed of Trust
in respect of the estate properties principally for the benefit of his creditors \Vilh .the residue in favour of his son 'the Senior Rajkumar'.
ln
1936 B revoked this deed.
In 1946 he made a will bequeathing
the
estate in favour of his second son 'the Junior Rajkumar.
After his death
in the san1e year there was litigation between 'the Senior Rajkumar' and
the 'Junior Rajkumar' the former
claiming the
estate under the
Trust
Deed of 1932 and the latter under 1the Will of 1946. The. trial rourt
held that the Trust Deed was validly executed. and that the will was operative in rc'.ipect of •the. properties not covered by the Trust.
The High
Court in appeal also held the Trust Deed to be valid.
The Junior Rajkun1ar appealed to this Court.
On the contentions of the parties the
fo1Jowing questions arose for consideration : (i) Whether on a true inter~
pretation of the will of S, interest in the estate was intended to be C-Onferred on B; (ii) Whether the will of S, having been made less than three
months before his death it could operate in favour of B in vie\\-· of the
provision in s, 13 (1) of the Oudh Estates Act; (iii)
Whether in view
of s. 22(7) of the. Act B had a vested interest in •the estate during the
life-time of J; (iv) whether B's adoption related back to the date of the
death of S.; (v) whether before the trust deed was execlllted by B in
1932 he had acquired title to the estate by adverse possession against J·
(vi) whether S, 43 of the Transfer of Property Act
precluded
th~
appe1lants from cha11enging the Trust Deed.
HELD : (i) In the will of S. it was laid down that after his death
his wife should adopt a son and the Court. of Wards should manage ¢he
estate on behalf of the son so adopted.
This indicates by necessary
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[1969] I S.C.R.
implication that the adopted son was on adoption
intended to be
lhc
beneficiary of the estate [7 FJ
·(ii)· The 5"n adopted by the widow in pumiance of the authority
from :he talukdar would wider the provisions of the Act, be deemed to
he a person v.·ho \\'ould have succeeded to th~ estate or interest therein
--:ithin the meaning of s. 13(1) of the Act.
Therefore the fact that S
died . within thrc-e. months of the date. when his will was executed
and
attested did not operate under s. I 3 of the Act as a bar to the acquisition
of an interest by B under the will of S. [13F, 14C]
Maharani lndar Klu1.\'0r and Udit
Narayan \'. Malzar1111i
Jaipal
K1mwar. L.R. 15 I.A. 127, Bhaiya Rabidat Si1111h v. Maharani
Indar
Kunwar & Or.I'. LR. 16 I.A. 53 Abdul Latif\', Abadi JJegam,
L.R.
61
I.A. 322, applied.
·(iii) But under the will of S. the devise of the residue in favour of B
could beeome

## Text

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RAJ KUMAR MOHAN SINGH & ORS.
v.
RAJ KUMAR PASUPATINATH SARAN SINGH & ORS.
April 19, 1968
[J. C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.]
Oudh Estates Act 1869, ss. 13(1) an~ 22(71---;Testator making will
less than three nionths b.ejore death-Directing widow to adopt sonS1'ch son \vhethcr a r)erson who would have succ~eded to t~te estate or
interest therein within the ni.eaning of s. 13(1)-Widow gets t1tle to estate
under s. 22(7) in the absence of heirs
under els. (1) to ~6)-Su_bse
. quent adoption of son under husband's authority does n~t d1yert widow
of her title-She does not lose title by adver~e possession if estate is
manag~d by Co1•rt of Wards or adopted son.
Transfer of Property Act, s. 43-Applies only wl1en transfer is for
consideration.
S who held ·a Talukdari Estate governed by the provisions of the
Oudh Estates Act 1 of 1869 died without legitimate c~ildren. Ei!;ltt days
before his death on June 21, 1900 he. executed a will under which (a)
his widow J was directed to adopt a son as soon as possible, (b) the
Court of Wards was to manage the estate till a male successor could
take over the management, (c) J was during her life-time to be paid a
monthly allowance of one thousand rupees.· In 1901 J, as directed by
the aforesaid will, adopted a son B. Till 1920 when B attained majority
the Court of Wards managed the estate and thereafter it was managed
by B,
In 1932, one year before J's death, B executed a deed of Trust
in respect of the estate properties principally for the benefit of his creditors \Vilh .the residue in favour of his son 'the Senior Rajkumar'.
ln
1936 B revoked this deed.
In 1946 he made a will bequeathing
the
estate in favour of his second son 'the Junior Rajkumar.
After his death
in the san1e year there was litigation between 'the Senior Rajkumar' and
the 'Junior Rajkumar' the former
claiming the
estate under the
Trust
Deed of 1932 and the latter under 1the Will of 1946. The. trial rourt
held that the Trust Deed was validly executed. and that the will was operative in rc'.ipect of •the. properties not covered by the Trust.
The High
Court in appeal also held the Trust Deed to be valid.
The Junior Rajkun1ar appealed to this Court.
On the contentions of the parties the
fo1Jowing questions arose for consideration : (i) Whether on a true inter~
pretation of the will of S, interest in the estate was intended to be C-Onferred on B; (ii) Whether the will of S, having been made less than three
months before his death it could operate in favour of B in vie\\-· of the
provision in s, 13 (1) of the Oudh Estates Act; (iii)
Whether in view
of s. 22(7) of the. Act B had a vested interest in •the estate during the
life-time of J; (iv) whether B's adoption related back to the date of the
death of S.; (v) whether before the trust deed was execlllted by B in
1932 he had acquired title to the estate by adverse possession against J·
(vi) whether S, 43 of the Transfer of Property Act
precluded
th~
appe1lants from cha11enging the Trust Deed.
HELD : (i) In the will of S. it was laid down that after his death
his wife should adopt a son and the Court. of Wards should manage ¢he
estate on behalf of the son so adopted.
This indicates by necessary
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SUPREME COURT REPORTS
[1969] I S.C.R.
implication that the adopted son was on adoption
intended to be
lhc
beneficiary of the estate [7 FJ
·(ii)· The 5"n adopted by the widow in pumiance of the authority
from :he talukdar would wider the provisions of the Act, be deemed to
he a person v.·ho \\'ould have succeeded to th~ estate or interest therein
--:ithin the meaning of s. 13(1) of the Act.
Therefore the fact that S
died . within thrc-e. months of the date. when his will was executed
and
attested did not operate under s. I 3 of the Act as a bar to the acquisition
of an interest by B under the will of S. [13F, 14C]
Maharani lndar Klu1.\'0r and Udit
Narayan \'. Malzar1111i
Jaipal
K1mwar. L.R. 15 I.A. 127, Bhaiya Rabidat Si1111h v. Maharani
Indar
Kunwar & Or.I'. LR. 16 I.A. 53 Abdul Latif\', Abadi JJegam,
L.R.
61
I.A. 322, applied.
·(iii) But under the will of S. the devise of the residue in favour of B
could beeome effective only on his adoption hy J. Between the date of
the death of S. and Che adoption of a son there was intestacy in respect of
the talukdari estate.
As under Hindu Jaw, so under the Oudh Estates Act
1869 the estate did not remain in abeyance. On the death of the testator
therefore the \\'idow took the estate by
\irtuc of s.
22(7) Of the
Act.
[14D-E)
(iv) Under sub-cl. (7) of s. 22, in default of heirs mentioned in els.
(.I) to ( 6) of that section the widow takes the estate for her life-tim<:
whatever be the personal law governing her husband dying intestate. Her
interest in the estate was not liable to he defeated once it \Vas vested in
her. She held the estate for the natural life-time : the son adopted by her
in pursuance of the authority of her hushan<l did not divest hr.r of the
estate. The adoptec> son inherited the estate on her death under ?:I. (8)
of s. 22 and not before.
The adopted son was undoubtedly an heir but
he has during the life-time of the widJW no interest in the estate. [15P16B)
Accordingly B was not competent in 1932 \vhcn J. v.:ac; still alive, to
settle the estate for the benefit of his eteditors and the Trust Deed relied on
hv the rec;pondcnts \\-:ls inoperative in regard to the 1alukdari cc;tate. l18G;
210)
Pandit Chandra Kislinre Te1vari &. Or.'i. V. ])cputy Co111111i.riioner of
Lucknow in Charge Court of Ward~ Sirsendi L\ta<e and Anr. L.R. 76 I.A
17, Babu Ahdul Karim Khan v. Babu Hari Si1111h. I O.D. 264 and lJi.</.,shwar Baksh Si1111h v. Jani: Bahadur Sin11h. A.LR. ( 1930) Oudh 225, applied.
(v) The doctrine of Hindu Jaw by which the adoption of a son by the
widow by the authority of her husband relates hack •!O the <lcath of the
husband could have no application to taluqdari c'\tat~ a'\ such a rule would
be contrary to the express provision in s. 22(7) \\·hich is applicable to
all communities. ( l 7G-l 8AJ
(vi) By the mere fact tha.t she. did not have management of the estate
hut was only ~iven a pension J. clid not lose her title 10 the property which
devolved on
her under s. 22(7).
B was living with her and it did not
appear that she v.:as ""clude.d from the C9~atc or :-inv part thereof.
~ere
erroneous admission of title of another pcr~on without ·ctrcc1ive deprivation
of l)Ossession did not result in extinction of her title by adverse Po!.Scssion.
[20A-B)
(vii) Section 43 of the Transfet of Proporty Ac: applies onlv to c°""
where the transfer . is for consideration and not
Othcr"·ise.
The Trust
Deed of 1932 \\.'as not executed for consideration.
The doctrine of feeding
the cstoppel cmhodied in s. 4' relied on by the respondents had therefore,
no application to the case. [20F-21C)
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MOHAN SINGH v. SARAN SINGH (Shah, J.)
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CIVIL APPELLATE JurusmcTION :
Civil Appeal No. 380 of
1965.
·
Appeal from the judgment and order dated May 23, .1963 of
.the Allahabad High Court (Lucknow Bench) in First Civil _Appeal
No. 70 of 1950.
C. B. Aanvala, I. A. Abbasi, S. Rahman and C. P. Lal, for
the appellant.
Jagdish Swaroop, A. K. Sen, R. N. Trivedi, S. S. Shukla and
Yogeshwar Prasad for respondents Nos. 1 and. 3.
· ·
The Judgment of the Court was delivered by
· Shah, J. The following is the geneological table explaining how
the parties are related :
Raja Jagpal Singh
I I .
Raja Surpal Smgh d. 1900
(married Rani Jagannath Kuar)
Raja Bishwanath S.Jan Singh d. 1946
F.1
1rst Wife
Rani Aditya
Binai Kumari
D4
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.,
Second W11e
Rani Fanindra Rajya
~k•kshmi nT, n s
h
RaJ umar Pasupattnat
Saran Singh, D2
I· I
Rajkunlar
Mohan Singh
Dl
I
Thirl Wife
Rani Sonamani
Devi, D6'
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·I I. I
Rajkumar
Vijai Singh
D3
Raja Jagpal Singh was granted the taluqdari of the Tiloi
Estate by the Government, and his name was entered as taluqdar
in Lists 1, 2 and 5 prepared .under s. 8 of the Oudh Estates Act
l of 1869. He died on September 15, 1875, and was succeeded
by his son Raja Surpal Singh as taluqdar of the estate.
Raja
SWJ>al Singh had no legitimate children.. On June 13, .1900,
Raia Surpal Singh executed a will disposing of ·bis property and
conferring upon his wife Rani Jagannath Kaur power to adopt a
son.
Raja Surpal Singh died on Jun"e 21, 1900.
Rani Jagan-
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SUPREME COURT REPORTS
[1969] I S.C.R.
nath Kuar adopted on February 21, 1901, a son who was known
as Raja Bishwanath Saran Singh hereinafter called 'Raja Biswanath'.
After the death of Raja Surpal Singh, the Court of Wards
took over the management of the Tiloi Estate and continued to
manage it till March 30, 1920, when it was released in favour of
Raja Bishwanath.
On August 29, 1932, Raja Bishwanath executed a deed of trust in respect of the Tiloi Estate and other
properties primarily for the benefit of his creditors and the residue
remaining after satisfying his debts for the benefit of his son
Rajkumar Pasupatinath Saran Singh-hereinafter called "the
Senior Rajkumar".
Rani Jagannath Kuar died on August 7.
I 933. On November 2 I 1936, Raja Bishwanath revoked the deed
of trust. On January 31 1942. the Court of Wards again assumed
management of the Tiloi Estate on behalf of Raja Bishwanath
and continued to manage the estate till it was released on the
abolition of the Estate under the U.P. Z1mindari Abolition and
Land Refonns Act I of I 951. On August 2, I 946, Raja Bishwanath executed a will bequeathing the Tiloi Estate and its appurte--
nanccs to his son Rajkumar Mohan Singh-hereinafter
called
"the Junior Rajkumar".
Raja Bishwanath died on November 8,
I 946, and disputes arose soon thereafter between
the Senior
Rajkumar and the Junior Rajkumar-the former claiming the
estate relying upon the deed of trust and the latter relying upon
the will of the late Raja.
The Court of Wards instituted in the Court of the District
Judge, Rai Bareilly, an inter-pleader suit on July 7, 1950, impleading the three widows of Raja Bishwanath, his three sons,
:ind the deity Sri Jagannath Bahari Ji for whose benefit certain
lands were settled under two deeds by Rani Jagannath Kuar. The
District Judge held that the deed of trust executed by Raja Bishwanath was acted upon and was "not invalid and unenforceable" foc
any of the reasons set up by the Junior Rajkumar. and that the
Senior Rajkumar was not precluded from claiming the estate relying on the trust deed.
He further held that the provisions of
s. 22 of the Oudh Estates Act, 1869. applied to the ta/uqdari
estate held by Raja Bishwanath, but not to his non-taluqdari property.
Since. however, a major portion of the property was the
subject matter of the trust under the deed executed in 1932. and
the rest had been bequeathed in favour of the Junior Rajkumar.
the question of succession by lineal primogeniture did not arise
in respect of any portion of the property which was the subjcctmatter of the suit.
The Court further held that Item 210 of Sch.
A to the plaint was not in possession of the Court of Wards and
consequentlv in that respect an interpleader suit did not lie, and
in respect o·f Items 8 to 12 of Sch. B to the plaint, the three son.~
of Raja BishW'anath had only a righ"! of management as shebalL~.
that the deed of trust constituted a valid .e:ift and the property
included in the deed of tru't was subject to the obligations created
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MOHAN SINGH V. SARAN SINGH (Shah, J.)
5
thereby that Raja Bishwanath was fully competent to execute the
deed of trust and that the will dated August 2, 1946, executed
by Raja Bish~anath in favour of the Junior Rajkumar wa~ operative in respect of Items 102 and 112 of Sch. A of the pla!!1t, and
also in respect of Items 4, 5, 6 & 7 of Sch. B to the plamt and
the other appurtenances of the Tiloi Estate. whi9h were not i~
cluded in the deed of trust executed by Raia Btshwanath or m
the deed of trust executed by Rani Jagannath Kuar.
The Court
gave certain directions in respect of the property settled under the
deeds of trust created by Rani Jagannath Kuar, but since no claim
is raised in respect of those properties, nothing need be said in
that behalf. Substantially as a result of the findings recorded by
the District Judge, the will set up by the Junior Rajkumar and
the deed of trust set up by the Senior Rajkumar were both upheld,
and a decree was made in favour of the Junior Rajkumar in respect of those properties which were not covered by the deed of
trust
Against that decree the Junior Rajkumar, his brother Rajkumar
Vijai Singh and their mother Rani Sonamani Devi appealed. The
Senior Rajkumar did not prefer an appeal against that part of the
decree which upheld the will of Raja Bishwanath and the claim
of the Junior Rajkumar.
During the pendency of the appeal, the
Senior Rajkumar was appointed receiver of the properties in dispute under an order of the Court dated March 24, 1959, and he
continued to remain in possession thereafter.
On the abolition of
the Zamindari, the Court of Wards was struck off from the record.
Before the High Court of Allahabad, two principal questions
fell to be determined: (1) whether the deed of trust dated August
29, 1932, executed by Raja Bishwanath was valid and operative
so as to create an interest in favour of the Senior Rajkumar; and
(2) whether the deeds of trust executed by Rani Jagannath Kuar
<?n September. 21, 1920 and May 15, 1933 were valid and operattve.
The High Court substantially agreed with the Trial Court
on both the questions.
Against that decree passed by the High
Court, this appeal was filed with certificate granted by the High
~u;t ~y the Juni~ Rajkumar, his. younger brother-Rajkumar
V11ai Smgh-and his mother-Ram Sonamani Devi.
. . Counsel for the appell~ts did not challenge the finding of the
High Court about the validity and the operative character of the
d_eeds of trust executed by Rani J agannath Kuar. The only quesnon canvassed by counsel for the appellants related to the property
covered by the deed of trust executed by Raja Bishwanath. We
have heard coun~el for the appellants on two out of the several
contentions raised &y him-(1) that on a true interpretation of
the will of Raja Surpal Singh, no interest in the estate was intended
to b~ conferred upon Raja Bishwanatl\; and· (2) granting that it
was mtended by the testator to bequeath the residuary estate in
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SUPREME COURT REPORTS
( 1969) 1 s.c.R
favour of Raja Bishwanath the will was inoperative by virtue of
s. 13 of the Oudh Estates Act, 1869, and that in any event Raja
Bishwanath had under the will no vested interest in the taluqdari
estate· during the life-time of Rani Jagannath Kuar.
A
Being of the view that the appellants must succeed on the
second contention, we have not thought it neressary to detennine
8
whether tl1e title of the Senior Rajkumar suffered from any other
infirmity. vi~. that the deed of trust was not a permissible transaction under s. 11 of.the Oudh Estates Act 1869; that possession
df the property was not delivered to the trustees within six months
of' the. date of execution of the deed of trust as required by
s. 13(2) of the Oudh Eswtes Act, and the trust failed for noncompliance with the mandatory provisions of law in that regard;
C
that the provisions of the deed of trust were vague and indefinite
and .on that account incapable of enforcement; that the trust wa~
lawfully revoked by Raja Bishwanath and that the main purpose
of the .trust-satisfaction of the debts of Raja Bishwanath--has
since the date of the deed of trust been achieved by the operation
of .the U.P. Encumbered Estates Act 25 of 1934, the U.P. Zamin·
D
dari Abolition and Land Reforms Act I of 1951 and the U.P.
ne~·i Reduction Act 15 of 1953.
Raja Surpal Singh executed his will on June 13, 1900. The
preamble, and the- first four
paragraphs of the will which are
material. in this appeal may first be read :
· . "Let it be known to all concerned that I Raja Surpal
E
Singh Bahadur Taluqdar and proprietor of Tiloi Estate
do hereby declare my last wishes and make the disposition of my property a~ below and it will operate after
my demise unless and until I cancel these presents by
· duly executed will.
I. As I have got no heirs competent to manage the
estate properly and independently, I solicit the Government to take the estate under the Court of Ward~ superintendence unless and until there be some male successor fit to man;ige the estate.
2. As I have got no issue begotten of my wedded
. wife (Rani Jagannath Kaer) I authorize my said Rani to
select a fit and promising boy with the approval of the
Deputy Commissioner from the Rajkumar Thakurs of
village Chilowli or other village and adopt him as my
son.
3. The Deputy Commissioner of the District will
very kindly press the said Rani .to make the adopti?n
according to law as soon as practicable after my demL<;e
and from the time o' adoption the Court · of Wards
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MOHAN SINGH v. SARAN SINGH (Shah, J.)
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should hold the estate on behalf of the said adopted .
son.
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4. My wife Rani Jagannath Koer will receive a
suitable maintenance of rupees one thousand a month
whether the estate be under the charge of the Court of
Wards or of my adopted son."
By paragraph-5 the testator directed that one Col. R. F. Ange)s
should be continued as special manager of the estate on tJ:ie sall,le
pay and privileges that he enjoyed at the. dat~. of the 'Yill·
BY
paragraph-6 provision was made for two illegitimate children of
the testator, and by paragraph-7 it was directed that the personal
servants and others who it was stated had faithfully served· the
testator should be adequately rewarded.
In favour of the son to be adopted, then~ is in the will no
express bequest. But we are ~nable t~ hold ~at the testator .. by
his will intended merely to devise specific legacies and to,provtde
for the management of the estate and not _to dispose of the residue.
The preamble to the will declares the intention of the testator to
dispose of his property as set out therein. By the first paragraph
he requested the Government to take the estate under the superintendence of the Court of Wards until there was some male successor fa to manage the estate, and by paragraph-2 he authorised
his wife to adopt a son to him with the approval of the Deputy
Commissioner from amongst certain classes. By paragraph-3 ·he·
recommended that the Deputy Commissioner should persuade the
Rani to make the adoption according to law as soon as practicable
after his demise, and after the adoption the Court of Wards was
to hold the estate on behalf of the said adopted son.
In our
judgment, the intention of the testator was that after his. death
Rani J agannath Kuar should adopt a son selected by her and that
his estate should then remain under the management of the Cour.t
of Wards on behalf of the adopted son.
This clearly indi<;ates
that the adopted son ,Was on adoption intended to be the beneficiary of the estate.
The will does not expressly devise the estate
in favour of the adopted son, but the language clearly implies that
intention.
Till the adoption was made, the estate was to remain
under the management of the Court of Wards and no beneficial
owner was designated.
What the effect in law of that direction
is, we will presently consider.
Bnt there is no doubt that the
t~tator intended that the son adopted by Rani Jagannath Kuar was
to take the estate and the Conrt of Wards was to hold the estate
on behalf of the adopted son.
We therefore agree with the High
Conrt that the testator intended to confer an estate of inheritance
upon the son to be adopted by the Rani.
The finding that under the will of Raja Surpal Singh the
adopte!i son was on adoption intended t~ take an estate of i~heri-
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SUPREME COUR'f REPORTS
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taace is however not suflicicnt to justify the decision that Raja
Bishwanath-thc son adopted by Rani ·Jagannath Kuar-was
invested lawfully with interest in the ta/uqdari estate which he
could settle at the date of the deed of trust.
There arc special
rules governing inheritance and succession to a ta/11qdari estate
and testamentary dispositions made by a 1a/11qdar within three
months before his death arc valid only if certain conditions arc
fulfilled and not otherwise.
Again, under the will, between the
date of the death of the testator and the date of adoption of a
son by the Rani, the beneficial interest in the residue was not
devised in favour of any person, and the estate remained in abeyance till the Rani adopted a son.
The legal effect of the will in
the light of the Oudh Estates Act and in particular of s. 22 remains
also to be considered.
To appreciate the provisions of the Oudh Estates Act 1 of
1869, which have a bearing on the questions in dispute, it is necessary in ihc first instance to refer to certain peculiar fcamres of
the estates held by the Oudh Ta/uqdars.
Annexation of Oudh
by the East India Company was effected on February 13, 1856.
In anticipation of the change of Government,
the GovernorGeneral addressed a letter to the Resident on February 4, 1856,
for guidance in the administration of the province, and directed
that settlement of lands be made by the Government with the
actual occupants of the soil, that is, with the petty zami11dars or
proprietors, and to exclude ta/11qdars who held the estates in the
Province of Oudh.
A summary settlement with the persons in
occupation of the soil was commenced, but before the summary
settlement was completed, insurrection by the Indian troops broke
out at Lucknow on May 13, 1857, and the territory of Oudh
was up in arms against the foreign regime. After the insurrection
was quelled, the Government made a change in its policy, and the
Commissioner of Oudh recommended to the Government of India
that "talookas should only be given to men who have actively
aided us, or who, having been inactive, now evince a true willingness to serve us, and are possessed of influence sufficient to make
their support of real value".
This policy recommended by the
Commissioner was accepted by the Government of India, and on
March 15, 1858, the Governor-General Lord Canning, issued hfa
proclamation divesting the landed proprietors (except holders of
five estates) in Oudh of all their proprietory rights in the soil add
vesting them in the British Government. The effect of the proclamation was that all lands within the province of Oudh, with the
exception of five estates, were at the disposal of the British Government, and all rights of the entire body of proprietors of lands
covered by the said proclamation were ex(inguished, and any
future rights to be clarmed by any proprietors had to be claimed
under regrant from the 6overnment.
Under the new scheme,
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sanads were granted to 'the taluqdars and tables setting out the
names of taluqdars and the nature of their rights were prepared
After Lord Canning's proclamation a second summary settlement
was started, by which a hierarchy of interests in the lands analogous to the feudal system in England was created.
The Oudh Estates Act 1 of 1869 was enacted in 1869 to deal
with the special kind of property called "estate", brought inte>
being in Oudh as a result of the Act.
The long preamble of the
Act recited that "whereas, after the re-occupation of Oudh by the
British Government in the year 18 5 8, the proprietary right in
diverse estates in that province was, under certain conditions,
conferred by the British Government upon certain Taluqdars and
others; and whereas doubts may arise as td the nature of the rights
of the said Taluqda!W and others' in such estates, and as to the
course of succession thereto, and whereas it is expedient to prevent
such doubts, and te> regulate such course, and to provide for such
other matters connected therewith as are hereinafter mentioned;",
the Act was enacted. The Act made provisions about the
nature of the rights of the taluqdars to the course of succession
thereto and incidental matters. It had the merit of being an enactment declaring the rights of all the taluqdars qua their estates,
and prescribed a uniform course of succession irrespective of the
personal law which governed individual taluqdars.
Since we are primarily concerned to determine the rights of
the parties arising by virtue of a will executed in the year 1900,
we propose not to refer to amendments made in the Act after the
year 1900.
The expression 'transfer' was defined in the Act
as meaning "an alienation inter vivas'';
and "will" was defined
as meaning "the legal declaration of the intentions of the testator
with respect to his property affected by this Act, which he desires
to be carried into effect after his death"; 'taluqdar' was defined
as meaning "any person whose name is entered in the first of the
lists mentioned in section eight"; "estate" was defined as meaning
"the taluqa or immoveable properiy acquired or held by a
Taluqdar or grantee in the manner mentioned in section three,
section four or section five, or the immoveable property conferred
by a special graw.t of the British Government upon a grantee"·
and 'h~ir' was del.lned as meaning "a person who inherits property
otherwise than as a widow. under the special provisions of this
Act"; and 'legatee' was defined as meaning "a person to whom
property is bequeathed under the same provisions".
By s. 3 the
rights of taluqdars were declared : every taluqdar with whom a
summary settlement of the Government revenue was made between
the first day of April 1858, and the tenth day of October 1859.
or to whom, before the passing of the Act and subsequently to
the first day of April 1858, a taluqdari sanad had been granted,
LIOSup.CI/68-2
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was deemed W have thereby acquired a permanent, heritable and
transfer~blc rig.ht m the estate comprising the villages and lands
named m the list attached to the agreement or kab11/iya1 executed
by such taluqdar when such settlement was made.
By s. 8 th~
Governor-General of India was enjoined to prepare six lists-of
whkh the following are material :
"First.-A list of all persons who are to be considered
Ta/ukdars within the meaning of this Act.
Second.-A list of theTaluqdars whose estates according to the custom of the family, on and before the
thir!c'cnth day of February 1856, ordinarily devolved
upon a single heir;
Fifth.-A list of the Grantees to whom
sa11ads or
grants may have been or may he given or made by the
British Government, up to the date fixed for the closing
of such list. declaring that the succession to the estates
comprised therein shall ther~after he regulated by the
rule of primogeniture;"
By s. 11 power was conferred upon every taluqdar and grantee
and every heir and legatee of a taiuqdar and grantee to rransfer
the whole or any portion of the 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, right and interest, but by s. 13 certain
restrictions were imposed upon ta/uqdm·s as to the manner in which
gifts and devises could be made.
It was provided, insofar as it is
material:
"No Ta/uqdar or Grantee and no heir or legatee of
a Taluqdar or Grantee shall have power to give or bequeath hi< estate or any portion thereof or any interc"t
therein to any person not being either-
(!) a person who, under the provisions of this Act
or under the ordinary law to which persons of the donor
or testator's tribe and religion are subject, would have
succeeded to such estate or to a portion thereof or to an
interest therein, if such Taluqdar or Grantee, hcir or
legatee had died intestate, or
(2)
except by an instrument of gift or a will executed
and attested not less than three months before the death
of the donor or testator, in manner herein provided in the
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case of a gift or will, as the case may be and registered
within one month from the date of its execution."
By s. 14, insofar as it is material, it was provided :
"If any Taluqdar or Grantee . . . .
or his heir
or legatee, shall hereafter transfer or bequeath, the whole
or any portion of his estate to another Taluqdar or
Grantee, or to . . . . . a person who would have
succeeded according to the provisions of this Act to the
estate or to a portion thereof if the transferor or testator
had died without having made the transfer and intestate,
the transferee or legatee and his heirs and legatees shall
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have the same rights and powers in regard to the property t··o wnich 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."
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Chapter VII dealt with intestate succession, and s. 22, set out
special rules of succession ·to the estates held by Taluqdars and
Grantees dying intesta:c. lt provided:
"If any Tawqa,;1· or Grantee, whose name shall be
inserted in the second, third or fifth of the lists mentioned in section cig:1t, or his heir or legatee, shall die
intestate as to his estate, such estate shall descend as
follows, viz. :-
" ( 1 ).-To the eldest son
of
such Ta/uqdar or
Grantee, heir or legatee, and his male lineal descendants,
subje<:t to the same conditions and in the same manner
as the estate was held by the deceased;
(2).-0r if such eldest son of such Taluqdar or
Grantee, heir or legatee, shall have died in his lifetime,
leaving male lineal descendants, then to the eldest and
every other son of such eldest son successively, according to their respective seniorities, and their respective male
lineal descendants, subject as aforP,said;
(3).-0r if such eldest son of such Taluqdar or
Grantee, heir or legatee, shall have died in his father's
1 ifetime without leaving male lineal descendants, then to
the second and every other son of the said Taluqdar or
Grantee, heir or legatee, successively, according to their
respective seniorities, and their respective male lineal
descendants, subject as aforesaid;
( 4).-0r in default of such son or descendants, then
to such son (if any) of a daughter of.such Ta!uqdar or
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Grantee, heir or legatee, as has been treated by him in
all respects as his own son, and to the male lineal descendants of such son, subject as aforesaid;
(5).--0r in default of such son or descendants, then
to such person as the said Ta/11qdar or Grantee heir or
legatee, shall have adopted by a writing executed and
attested in manner required in case of a will and registered, subject as aforesaid;
(6).--0r in default of such adopted son, then to
the eldest and every other brother of such Ta/uqdar or
grantee, heir or legatee, successively, according to their
respective seniorities, and their respective male
lineal
descendants, subject as aforesaid;
( 7) .-Or in default of any such brother the11 to the
widow of the decca<;ed Taluqdar, Grantee, heir or lega-
. tee; or, if there be more widows than one, to the widow
first married to such Taluqdar or Grantee, heir or
legatee, for her lifetime only;
(8).-And upon the death of such widow, then to
such son as the said widow shall, with the consent in
writing of her decease<l husband, have adopted by a
writing executed and attested in manner required in case
of a will and registered, subject as aforesaid;
(9).-0r on the death of such first married widow
and in default of a son adopted by her with such consent and in such manner as aforesaid, then to the other
widow, if any, of such Taluqdar or Grantee, heir or
legatee, next in order of marriage, for her life, and on
the death of such other widow. to a son adopted by her
with such "consent and in such manner as aforesaid; or
in default of such adopted son, then to the other surviving widows according to their respective seniorities as
widows for their respective lives, and on their respective
deaths to the sons so adopted by them respectively and
to the male lineal descendants of such sons respectively,
subject as aforesaid:
(10).-0r in default of any such widow or of any
son so adopted by her. or of any such descendant, then
to the male lineal descendants, not being najib·ul-tarfain
of such Ta/uqdar. or Grantee, heir or legatee, successively, according to their respective seniorities and their
respectvc ·maile linoal descendants whether
najib-11/-
tarfain or not;
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(11 ).-Or in default of any such descendant then to
such persons as would have been entitled to succeed to
the estate under the ordinary· law to which persons of
tire religion and tribe of such Taluqdar or Grantee, heir
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or legatee, are subject.
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Nothing contained in the former part of this section
shall be construed to limit the power of alienation conferred by section eleven."
Raja Surpal Singh died within three months of the date of
his will: the will was made on June 13, 1900, and presented for
registration and was duly registered on June 15, 1900. Raja
Surpal Singh died on June 21, 1900. If the will be regard~ as
made in favour of a person who would not, under the prov1S1ons
of the Act or the ordinary law to which tire· testator was subject,
have succeeded to the estate, the will was, by virtue of s .. 13(1)
inoperative.
We have already observed that under the will .there
was an intention to grant the residue of the estate to the adopted
son, but till adoption the devise of the estate was in abeyance.
The adopted son was still a person who would have, under the
provisions of the Act, succeeded to the estate or to an interest
therein.
It may be observed that the legacies by Raja Surpal
Singh in favour of ilkgitimate children and strangers to the family
could not aPParently come out of the ta/uqdari estate, but was
are in the absence of necessary parties not called upon to express
any final opinion on that question.
A son adopted by the widow
with the consent in writing of the taluqdar would be entitled by
cl. (8) of s. 22 to take the estate upon the termination ·of the
estate of the widow under cl. (7).
But the son adopted by the
widow in pursuance of the authority from the taluqdar would,
under the provisions of the Act, be deemed to be a person who
would have succeeded to the estate or interest therein within tire
meaning of s. 13(1).
On that part of tire case there is abundant
authority .
In Maharani Indar Kunwar and Udit Narayan v. Maharani
J aipa/ K unwar(') it was held by the Judicial Committee tlrat a
junior widow who under s. 22(9), on the deatlr of the senior
y<ido"'.' and in default of a son adopted by her with such consent,
is entLtled to take the estate of a taluqdar, holds an interest in
the estate of a ta/uqdar within the meaning of s. 13 ( l) even tlrough
her right to succeed is subject to a life estate in the taluqdari
property expectant on the determination of tire life estate of the
senior widow th~rein, ~and is subject to be defeated by an adoption
made by tire semor widow. In Bhalya Rabidat Singh v. j'Jaharani
Tndar Kunwar and others(2 ), which is an offshoot of the case
(1) L. R.15 I. A. 127.
(2) LR. 161.A. 53 .
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Jeci.ded in Malzanmi llldar Kumm1"s case( 1 ), it was held by the
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J ud1cial Com1111ttcc that the word 'intestate' in sub-s. ( 1) of s. 13
means intestate as to estate.
An adopted son is a person who
wou.ld have succeeded to an intestate within the meaning of that
section, although the authority to :1dopt him was conferred by
the will of the taluqdar.
Similarly in Abdul Latif v.
Abadi
Begam(') it was held by the Judicial Committee that the junior
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widow of a taluqdar in List 2 was a person who would
have
succeeded to an interest in the estate upon intestacy, and accordingly s. 13 did not preclude the ta/uqdar from making a bequest
to her by a will executed within three months of his death.
Therefore the fact that Raja Surpal Singh died within three c
months of the date his will was executed and attested, docs not
operate under s. 13 of the Act as a bar to the acquisition of an
interest by Raja Bishwanath under the will of Raja Surpal Singh.
But under the will the devise of the residue in favour of Raja
Bishwanath could become effective only on his adoption by Rani
Jagannath Ku:n'.
Between the date of his death and the adoption
of a son there was intestacy in respect of the ra/uqdari estate which
was not lawfully disposed of.
As under the Hindu Law, so under
the provisions of the Oudh Estates Act 1 of 1869, the estate does
not remain in abeyance.
On the death of the testator therefo1 c
the widow took the estate by virtue of s. 22(7), and that e!'latc
must enurc for the lifetime oi the widow, for the Act does not
contemplate that the statutory estate which the widow takes under
s. 22(7) 011 in1estacy may be restricted.
Ily express provision
of the Act, the widow is not an heir : when she takes the estate
of a taluqdar
011 intestacy. she does not inherit the estate as an
heir, but she takes it by virtue of the statutory right conferred
upon her.
The source of her right is in s. 22(7) and its extent
and incidents are delimited thereby.
She holds the estate as an
owner, and she is entitled to enjoy it during her lifetime.
She
cannot alienate or encumber the estate or any part thereof beyond
her lifetime.
But so long as she is alive, no one has any vested
interest in the estate.
The person or heir who would take the
estate will be determined on the termination of her natural span
of life. If she adopts a son, pursuant to authority given in writing by her husband, and the son survives her, the estate will
devolve upon the adopted son. If she is not authorised to adopt.
or being authorised docs not adopt, or even if she has lawfully
adopted and the adopted son dies· leaving no male lineal descendants, the .estate will devolve upon the next junior widow, if any,
for her lifetime, and cftl the death of such other widow to a son
(2)
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adopted by her with the consent in writing of her husband, and
in default of an adopted son to the next surviving widow, according to their seniorities as widows for their respective lives, and
"on their respective deaths to the sons so adopted by them
respectively, and to the male lineal descendants of such sons
respectively."
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The Oudh Estates Act, as observed by the Judicial Committee,
is a Special Act, which is self-contained and complete in regard
to the matters contained therein : Pandit Chandra Kishore Tewari
and others v. Deputy Commissioner of Lucknow in Charge Court
of Wards Sissendi Estate and another( 1 ). The rules relating to
inheritance and succession contained therein follow no definite
pattern consistent with any system of law-Hindu, Muhamadan
or English.
As remarked by the Judicial Commissioner of Oudh
in Babu Abdul Karim Khan v. Babu Hari Singh(2), s. 22 of Act
1 of 1869 "follows neither the Hindu nor the Muhamadan nor
the English Law, but borrowing something from each of them,
lays down a peculiar line of succession applicable to the estate
of those taluqdars and grantees dying intestate whose names are
to be found in the second, third or fifth of the lists prepared
under s. 8 of the Act". The taluqdars of Oudh comprise among
them, Hindus, Mussalmans, Christians and Sikhs, and s. 22 was
enacted to lay down a complete scheme of succession applicable
to all taluqdars irrespective of the religious faith of the ta/uqdar.
Under s. 22(7) in default of heirs mentioned in els. (1) to (6) the
property of a taluqdar devolves upon the widow first married to
such taluqdar for her lifetime only.