# THAKURAIN RAJ RANI AND OTHERS v. THAKUR DWARKA NATH SINGH

- **Citation:** [1953] 1 S.C.R. 913
- **Court:** Supreme Court of India
- **Decided:** 1952-12-31
- **Bench:** Mehr Chand Mahajan, s.R.DAS andBHAGWAnJJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakurain-raj-rani-and-others-v-thakur-dwarka-nath-singh-223
- **Pages:** 18

## Headnote

Will--Agreement by cousiJ> of testator to make monthly poymm•t
to testator in consideration of giving hirn and his sons the remainder
after life-esta.te to wid,ow--Grant of letters of administrationQuestion of animus testanfr-Whether res-judicata-Payments,
11..vhether condition precedent or ?nere consideration-Death of cousin
before widoiir--Efi'ect of.
On the 7bh .T anuary, 1904, G, a cousin of S, executed au agreement in favour of S, the material portion of which ran as follows:
''Whereas my cousin S has proposed to make a bequest of his
taluka in favour of his wife and after her death in my favour and
118
1953
Jan. 23,
914
SUPREME CO~RT REPORTS
[19.53]
1003
that of my sons ...... therefore by way of consicJ.eration for this
concession and favour, I, tho executant, out of my O\Vn free will
ThnkurahJ. Raj do hereby execute this agreement in favour of my cousin aforesaid
Eani
that in the month in which the said cousin may execute the said
and Of/""'
will in my favour.and that ol my sons and lays the same along
v.
with an application before the Deputy Commissioner, Sitapnr
'fhnl,:ur Dwarka district, for sanction of the Members of the Board of Revenue, I
Nath Singh
shall from the 1st date of the month following that month conand Othera.
tinne to pay the said cousin the sum of Rs. 50 in cash every
month during his life so long as the said will remains in force ......
If I fail to perform the said contract the said cousin has power to
have the same performed by me th1·ougb the Court." This agree·
ment was registered on the 11th January. On the 18th January,
S submitted a draft will for sanction and the will as amended and
sanctioned was executed on the 28th .July, 1904.
'rhis will provided as follows: "after my death my wife for her lifetime shall
l'emain in possession of my entire estate ...... without the po,ver of
any sort to transfer the said properties and rights, that on the
death of the said wife all the aforesaid property and rights shall
devolve on my cousin G with a,11 proprietary powers ancl that on
the death of G, the said entire property and rights shall deYolve on
X, Y, Z, sons of G, in the following shares .... "
The will also
provided for maintenance for the daughter, sister, aunt and mother
of S.
On tho application of G's sons (G having died) letters of
administration with the will annexed were granted to them by
the Chief Court of Oudh and this decision was affirmed by the
Privy Conncil on appeal in 1937.
'rhe heirs of S thereupon instituted a suit against the sons of G for a declaration that the will
was inoperative and ineffectual and that G's sons had in any case
no right to the properties of S, as S had no animns testandi and G
had also failed to pay Rs. 50 to S as agreed:
Held, (i) that the deed of agreement and the will formed parts
of one transaction and formed one contract, consideration for the
will being the agl'eement, and consideration for the agreement being the will;
(ii) as the Privy Council had decided that the will was the
last will and testament of S and granted letters of administration,
the question of ani1nu.s testandi was res jndicata;
(iii) with regtml Lo tbe plea that the monthly payment of
Hs. 50 was a condition precedent to the validity of the will and
that by reason of the non-fulfilment of this condition the will had
become inoperative, such a plea \Vas also barred by res judicata
as the Privy Council had granted letters of administration; and
even on the n1erits the plea was untenable as the wife and other
relations of the testator had also certain rights under the will
which did not depend on the monthly payment by G;
· (iv) the question whethel' the payment of Hs. 50 wae a cou-
<li~ion precedent to the vesting of the legacy in G or G's sons was
,_
S.C.R.
SUPREME COURT l{J~PORTS
915
not, however, r~s j?ldiMta and it was open to tbe plaintiff to raise
196&
such a plea;
(v} on a proper interpretation of the terms of the agreen1ent, Thakurai·n Raj
the payment of Rs .. 50 per month was

## Text

_Characters 0–39,931 of 40,254. This is a partial read: ask again with offset=39931 for what follows._

S.C.R.
SUPREME COURT REPORTS
913
mentioned in ihe section and could not mean a date
1952
antecedent to 30t,h September, 1952.
B oppamna
For the reasons given above, in our judgment, the Venkatcswaraloo
detention of the petitioner in this petition and of those
and Other•
in the other petitions mentioned above, after the 30th
v.
September, 1952, became illegal and we therefore Superintend~nt,
d.
t h t th
t't'
· th'
· ·
d .
.
Central Jail,
rrec t a
e pe 1 10ners m
is pet1t10n an m pet1- Hyderabad State
tions Nos. 350, 356, 362 and 366 of 1952 be released
-
·
forthwith. They are in detention by reason of the
MaJwjan J.
extension order made on the 22nd September extending their detention up to 31st December, 1952. On
that date the State Government had no jurisdiction to
make that order under the law in force as it stood on
that date. 30th September, 1952, had been specified
as the date up to which their detention was to last by a
subsisting and perfectly valid order and their detention order beyond that date is illegal and cannot be
justified on the provisions of section 11-A (2) or on the
provisions of section 11 ( 1) of the original Act.
Petitions allowed.
Agent for the respondents and intervener : G. H.
Rajadhyaksha.
THAKURAIN RAJ RANI AND OTHERS
v.
THAKUR DWARKA NATH SINGH
AND OTHERS.
[MEHR CHAND MAHAJAN, s.R.DAS andBHAGWAnJJ,J
Will--Agreement by cousiJ> of testator to make monthly poymm•t
to testator in consideration of giving hirn and his sons the remainder
after life-esta.te to wid,ow--Grant of letters of administrationQuestion of animus testanfr-Whether res-judicata-Payments,
11..vhether condition precedent or ?nere consideration-Death of cousin
before widoiir--Efi'ect of.
On the 7bh .T anuary, 1904, G, a cousin of S, executed au agreement in favour of S, the material portion of which ran as follows:
''Whereas my cousin S has proposed to make a bequest of his
taluka in favour of his wife and after her death in my favour and
118
1953
Jan. 23,
914
SUPREME CO~RT REPORTS
[19.53]
1003
that of my sons ...... therefore by way of consicJ.eration for this
concession and favour, I, tho executant, out of my O\Vn free will
ThnkurahJ. Raj do hereby execute this agreement in favour of my cousin aforesaid
Eani
that in the month in which the said cousin may execute the said
and Of/""'
will in my favour.and that ol my sons and lays the same along
v.
with an application before the Deputy Commissioner, Sitapnr
'fhnl,:ur Dwarka district, for sanction of the Members of the Board of Revenue, I
Nath Singh
shall from the 1st date of the month following that month conand Othera.
tinne to pay the said cousin the sum of Rs. 50 in cash every
month during his life so long as the said will remains in force ......
If I fail to perform the said contract the said cousin has power to
have the same performed by me th1·ougb the Court." This agree·
ment was registered on the 11th January. On the 18th January,
S submitted a draft will for sanction and the will as amended and
sanctioned was executed on the 28th .July, 1904.
'rhis will provided as follows: "after my death my wife for her lifetime shall
l'emain in possession of my entire estate ...... without the po,ver of
any sort to transfer the said properties and rights, that on the
death of the said wife all the aforesaid property and rights shall
devolve on my cousin G with a,11 proprietary powers ancl that on
the death of G, the said entire property and rights shall deYolve on
X, Y, Z, sons of G, in the following shares .... "
The will also
provided for maintenance for the daughter, sister, aunt and mother
of S.
On tho application of G's sons (G having died) letters of
administration with the will annexed were granted to them by
the Chief Court of Oudh and this decision was affirmed by the
Privy Conncil on appeal in 1937.
'rhe heirs of S thereupon instituted a suit against the sons of G for a declaration that the will
was inoperative and ineffectual and that G's sons had in any case
no right to the properties of S, as S had no animns testandi and G
had also failed to pay Rs. 50 to S as agreed:
Held, (i) that the deed of agreement and the will formed parts
of one transaction and formed one contract, consideration for the
will being the agl'eement, and consideration for the agreement being the will;
(ii) as the Privy Council had decided that the will was the
last will and testament of S and granted letters of administration,
the question of ani1nu.s testandi was res jndicata;
(iii) with regtml Lo tbe plea that the monthly payment of
Hs. 50 was a condition precedent to the validity of the will and
that by reason of the non-fulfilment of this condition the will had
become inoperative, such a plea \Vas also barred by res judicata
as the Privy Council had granted letters of administration; and
even on the n1erits the plea was untenable as the wife and other
relations of the testator had also certain rights under the will
which did not depend on the monthly payment by G;
· (iv) the question whethel' the payment of Hs. 50 wae a cou-
<li~ion precedent to the vesting of the legacy in G or G's sons was
,_
S.C.R.
SUPREME COURT l{J~PORTS
915
not, however, r~s j?ldiMta and it was open to tbe plaintiff to raise
196&
such a plea;
(v} on a proper interpretation of the terms of the agreen1ent, Thakurai·n Raj
the payment of Rs .. 50 per month was not a condition precedent to
Rani
h
·
fhl
'Gb
andOthers
t e vestmg o t e egacy m
, ut merely a consideration, and
the plaintiffs' remedy was to enforce the agreement if it was not
v.
duly performed;
Thakur Dwarkti
(
Nath Singh
vi) that as G obtained a vested remainder uuder the will,
and Others.
his interest did not [all into the residue on his death before the
widow, but vested in his sons; and as the bequest to G did not
lapse there was no question of anJ·· resulting trust or of any intestacy with respect to the remainder, and G's sons were entitled to
the estate under the will.
CIVIL
APPELLA'l'F.
JuRISDW'.rlO)!:
Civil Appeal
No. 153 of 1951.
Appeal from the Judgment and Decree dated 2nd
January, 1946, of the Chief Court of Avadh in First
Civil Appeal No. 9 of 1940 arising out of the Decree
dated 6th Xovember, 1939, of the Court of Civil Judge
in Regular Suit No. 36 of 1937.
Dr. Bakshi Tele Chand (Onlcwr Nath Sn:vastal!a,
with him) for the appellants.
Achhru Rarn (Bishan Singh, with him) for the respondents.
1953. Jammry 23. The Judgment of the Court waH
delivered by
BHAGWA'L'I J.- -This is an appeal from the judgment
and decree passed by the late Chief Court of Ondh,
ttffirming the judgment and decree passed by the Civil
Judge of Sitapur, dismissing the plaintiffs' suit.
One, Thakur Shankar Bux Singh, proprietor of the
Estate known as Rampur Kelau, situated in District
Sitapur (Oudh) was heavily indebted and the estate
had been in the possession of Deputy Commissioner of
Sitapur as receiver from 1892 up to 11th July, 1901.
Thereafter he was declared a disqualified proprietor
under the provisions of Section 8 (D) (1) of thn C.P.
Court of Wards Act (r.P. Act Ill of 1899) and the
Court of Wards took possession of the estate on the
1st August, 1901.
Cnder Section 34 of the Aet he was
•
916
SUPREME COURT REPORTS
[1953]
1953
not competent to dispose his property by will without
the consent in writing of the Court of \Vards, though
1.'hakurain Raj
llani
prior to the 1st August, 1901, he had made four succesand Others
sive wills, the last being dated 19th June, Hl01, under
v.
which he gave his estate absolutely to his wife.
On
~·h~/,nr Dwarka the 30th November, 1901, he made a will giving a life
Aath Singh
interest to his wife and the remainder over to his cousin
and Others.
Ganga Bux Singh after providing for certain legacies by
Bhagwati J. way of maintenance in favour of his three daughters,
his father's sister and his mother. The Court of Wards
withheld its consent to this will which thus fell through.
On the 7th January, 1904, Ganga Bux Singh executed
in his favour a registered deed of agreement agreeing to
pay him Rs. 50 per month during his lifetime with effect
from the month in which he would execute a will in.favour
of Ganga Bux Singh and his sons and submit the same
for sanction of the Members of the Board of Revenue.
A draft of the will was accordingly prepared by him on
the 18th January, 1904, under which he gave a life
interest to his wife and the residue of the property to
Ganga Bux Singh and after him to his sons after providing
legacies for maintenance in favour of his
daughters, father's sister and mother. The Board of
Revenue intimated on the 25th May, 1904, that it
would not withhold its consent to a will similar to that
contained in the draft but altered in the light of the
proposals contained in the further letter dated 27th
April, 1904. He thereupon duly made and published
a will on the 28th July, 1904, in accordance with the
suggestions contained in the Board's letter dated 25th
May, 1904, cancelling iill the previous wills executed by
him. It appears that he handed over tho original of
this will to Ganga Bux Singh Lut did not give any intimation of the execution thereof to the authorities and
the authorities could only come to know of the same
when Ganga Bux Singh gave the original will to the
Special Manager on or about the 19th December, 1905.
He appears to have changed his mind thereafter and
having embraced Christianity intended to marry a
Christian woman and submitted to the Court of Wards
on the 8th June, 1906, the draft of a new will which he
-·
S.U.R.
SUPREME COURT REPORTS
917
intended to ex~cute in favour of his UhriRtian wife.
1963
The Board withheld its consent to that new will and 7,1 -. R .
intimated on the 13th July, 1906, its refusal and also
wk~:~:;• aJ
communicated thereby the withholding of its consent
and Others
to the will already executed by him on the 28th July,
v.
1904. A further attempt by him on the 21st Novem- 1'huku,- Dwarku
ber, 1906, to obtain the consent of the Court of Wards
Nath Singh
to another draft will was also unsuccessful and the will
and Others.
datedthe 28th July, 1904, was the only last will a.nd
BltagwatiJ.
testament executed by him and got registered after
consent obtained from the Court of \Vards.
Shankar Bux Singh died thereafter on the 28th
July, 1922, and he being a Christian at the time of his
death succrnssion to his property was governed by the
Indian Succession Act.
His wife got l /3rd of the
estate and the remaining 2 /3rds were divided in equal
shares between his surviving daughter and the son of
a pre-deceased daughter of his. Mutation was effected
in the records of rights and the name of the widow was
shown there as the owner of the estate in his place and
stead. The Court of Wards relinquished charge of the
estate sometime in November, 1925.
The widow
executed on the 16th August, 1927, a deed of gift conveying the bulk of the estate to her daughter and the
son of the pre-deceased daughter. She also executed
another deed of gift in the same year conveying the
rest of the properties and on the 8th September, 1928,
Ganga Bux Singh filed a suit in the Court of the Subordinate Judge of Sitapur for a declaration that under
the aforesaid will she had only a life interest in tht.'
property and the transfers made by her were void.
This suit was contested by her and one of the defences
tRken was that Ganga Bux Singh could not maintain'
the suit without first obtaining letters of administration with the will annexed. This defence was upheld
and the suit wr.s dismissed on the 14th July, rnao.
Ganga Bux Singh having died in the meanwhile on
the 19th October, 1929, his sons applied for letters of
administration with the will annexed on the 25th
September, 1930, on the original side of the Chief
Court of Oudh.
This application w&s opposed by the
•
918
SUPREME COURT REPORTS
[1953]
1963
widow and other heirs of Shankar Bux. Singh inter alia
on the ground that the will had been executed without
Thakurain Raj
Rani
the sanction of the Court of Wards. Mr. Justice Kisch
and Others
delivered an elaborate judgment, negatived a.JI the
v.
objections and granted letters of administration with
Thakur Dwarka the will annexed to the sons of Ganga Bux Singh on
Nath Smgk
the Hith November, l93l.
An appeal filed by the
and Others.
widow and heirs of Shankar Bux Singh against that
Bhagwati J.
decision was allowed bv the Bench of the Chief Court
of Oudh at Lucknow oi1 the 8th September, 1933, and
the orders passed by the lower court granting letters of
administration with the will annexed were set aside.
The sons of Ganga Bux Singh took an appeal to the
Privy Council and their Lordships of the Privy Council on the 7th May, 1987, reversed the decree of the
Appeal Court and rrn;tored the decrne passed by
Mr. Justice Kisch. Their Lordships however observed
that the only effect of their decision was that letters of
administration with a copy of the will annexed must
be granted as prayed but that would not in any way
lJl'ei·udice anv proceediiws a"ainst anv of the benefiJ
b
b
v
ciaries which may be open to the respondents or any
of them.
On the 9th tleptem ber, 1987, the widow, the
claughter and the son of the pre-deceased daughter
of Shankar Bux Singh, the plaintiffs, filed the suit
out of which this appeal arises, against the three
8ons of Gang·a Bux Singh, the defendants, for a
declaration that the will dated the 28th July,
1904, wa.s inoperative and ineffectual and that in any
case the defendants had no i·ight, title or interest
in the properties in suit, that plaintiff 1 was entitled
to hold the property in suit under the will of Shankar
Bux Singh dated 19th June, 1901, or that the plaintiffs
1 to 3 were entitled to the same as heirs-at-law of
Shankar Bux Singh deceased under the provisions of
the Indian Succession Act, and for further and other
reliefs. In the plaint they alleged that the will was
inoperative as Shankar Bux 8ingh had no animus
testandi and that it was void and inoperative in respect
of the testamentary disposition in favour of Ganga
,_
•
S.C.R.
SUPREME COURT REPORTS
919
Bux Singh am\ his sons because Ganga Bux Singh
195.1
failed to perform his part of the contract as regards the
f,
hi
JI
'J.
1hakurai'n Raj
payment o mont y a owance and the defendants
Rani
therefore could not take advantage of or claim any
""d Others
ben!!fit under that testamentary disposition and further
v.
the payment of the said allowance being a condition Tha;·ur D~mka
precedent and the condition not having been fulfilled
J>.ath Singh
h d.
't'
I
·
t'
Th d f' d
3
and Others.
t e 1spos1 rnn 1ecame mopera 1ve.
. e
e en ant
filed a written stat;ement on the 7th February, 1938,
Bhagwati J.
eontesting the plaintiff's claim. He contended that the
plea as to the validity or effeet of the will was barred
hy res j11dicata by virtue of the judgmt>n t of the Privy
Council ch1ted 7th May, 1937.
He denied that the will
was executed in consideration of the agreement.
He
also denied that there was any contingent or conditional contract or any trace of the alleged condition in
the whole of the correspondence between Shankar Bux
Singh and the Board of Revenue.
The learned Civil .Judge, Sitapm, after considering
the cvidenee, oral as well as documentary, led before
him held that the will as well as the agreement formed
one contract, that Ganga Bux Singh had failed to perform his promise or his part of the contract, that the
only point which was agitated before their Lordships
of the Privy Council was as regards the consent of the
Court of 'Vards and that therefore even though the
plaintiffs were precluded from disputing the genuineness of the will they were not precluded from seeking
a declaration to the effect that the defendants were not
entitled to any benefit under the will, and that the
decision therefore did not operate as res judicata so
far as issues in the present case were concerned.
He however held that the contract clearly provided a
remedy for breach on the part of either party, that
Shankar Bux Singh did not in fact cancel the will and
could not he said to have treated it as inoperative,
that Ganga Bux Singh acquired a vested interest in
the estate on the death of the testator and that on his
death that interest devolved on his sons amongst whom
were the defendants in the suit and that the plaintiffs
were not entitled to any relief as claimed,
T)le
•
920
SUPREME COCRT REPORTS
[1953]
1953
plaintiffs filed an appeal to the Chief Qourt of Oudh.
The Chief Court of Oudh negatived the contention that
Tl1akurai11 Raj
h d
·
J ·
d h
Rani
Shankar Bux Singh a no animu8 testan<ii an
t at
and Others
it was a will in form only and not in substance, holdv.
ing that it was barred by res judicata by reason of the
Thakur Dwarh1 decision of their Lordships of the Privy Council. It
Xa;h Singh
also negatived the contention that the bequest in
and Other.1·,
.r
f
B
s·
I
d' .
1 b
iavour o Ganga ux mg 1 was a con 1t10na
equest
Bhagwati .r.
or that Ganga Bux Singh having f~ailed to fulfil his
obligation to pay the gujara his original chamcter as a
legatee changed into that of a trustee and he must
hold the beneficial interest for the testator or his heirs.
The appeal was therefore dismissed with costs. The
plaintiffs applied for leave to appeal to the Privy
Council and the necessary certificate was grante<l hy
the Chief Court of Oudh on the 8th August, 1947.
It is necessary at the outset to set out the deed of
agreement and the will executed by Ganga Bux Singh
and Shankar Bux Singh respectively on dates the 7th
January, 1904, and the 28thJuly, 1904. The deed of
agreement dated the 7th .January, 1904, ra.n as
under:-
"vVhereas, my cousin Thakur Shankar Bakhsh Singh,
Taluqdar of Rampur Kalan, has proposed to make a
bequest of his taluka, immovables, movables, rights
etc. in favour of his wife and after her death in my
favour and that of my sons Dwarka Nath Singh,
Ajodhiya Nath Singh and Tirbhuwan Nath Singh, therefore by way of consideration for this concession and
favour, I, the executant, out of my own free will do
hereby execute this agreement in favour of my cousin
aforesaid that in the month in which the said cousin
might execute the said will in my favour and that of
my sons and lays the same along with an application
before the Deputy Commissioner, Sitapur district, for
sanction of the Members of the Board of Revenue,
I shall from the 1st date of the month following that
month, continue to pay to my said cousin Rs. 50 in
cash every month during his life, so long as the said
will remains in force and under this contract I make
my person liable and hypothecate the same by virtue
•
S.C.R.
SUPREME COURT REPORTS
921
of this agreement. If I, the;·executant, fail to perform
1963
the said contract the said cousin has power to have Th k-. R .
the same performed by me, the executant, through
" ';;~7 •J
Court. If the will mentioned above executed by the
and Other•
said cousin, be not sanctioned by the Members of the
v.
Board of Revenue or if under any circumstance, the Thakur D~""ka
said cousin may himself revoke the said will, then from
Nath Singh
and Others.
the time of revocation or refusal by the Board of
Revenue the said cousin shall not be entitled to receive
Bhagwati J.
the aforesaid monthly amount of Rs. 50 and whatever
money the said cousin might have received from me,
the executant, up to the said refusal or revocation the
said cousin shall necessarilv be bound to refund that
money to me, the executaii.t."
The will dated the 28th July, 1904, was executed
by Shankar Bux Singh in the terms following:--
"I am Thakur Shankar Baksh alias S. John son of
Thakur Anant Singh, Taluqdar of Rampur and Grantee of Piprawan, district Sitapur. Out of my own
free will, inclination and accord and consent I make a
will that after my death my wife for her lifetime
shall remain in possession of my entire Ilaqa (estate)
as well as the movable and immovable property,
left by me, together with the rights etc., relating to
the said properties, without the power of any sort to
transfer the said properties and rights, that on the
death of the said wife all the aforesaid property and
the rights shall devolve on my real cousin, Ganga
Bakhsh with all the proprietary powers, and that on
the death of Ganga Bakhsh the said entire property
and the rights shall devolve on
Dwaraka Nath,
Ajodhia Nath and Tirbhuwan Nath, sons of Ganga
Bakhsh, like Ganga Bakhsh himself, in the following
shares:
Dwaraka Nath annas 6,
Ajodhia Nath
annas 5, Tirbhuwan Nath annas 5: and that the
persons mentioned below shall continue to get
the
maintenance
allowance
(Guzara)
according to the amounts and conditions noted below:-·-
Musammat Permeshuri, my eldest daughter, married
at Allahabad to the son of Rai Anant Ram, generation
U9
•
922
SUPREME COURT REPORTS
[1953]
19;3
after generation, (limited) to male issue,. Rs. 100 per
month;
Thakurain Raj
flani
Musammat Chandrani, my younger sister, married
and Othm
to Rai Raghubir Bakhsh, son ofRai Kunwar Bahadur,
v.
Rais of Shahabad, district Hardoi, generation after
Thakur Dwarka generation (limited) to male issue, Rs. 60 per month;
No.th Singh
and Others,
Mussamat 1-toop Rani, my real paternal aunt
(father's sister), wife of Munshi Chedi Prasad deceased,
Bhagwati J. Rais of Qasba Mahona, district Lucknow, generation
after generation, (limited) to male issue, Rs. 45 per
month;
Musammat Sohni, my mother for her life, Rs. 70 per
month.
*
*
*
*
Be it also known that my estate (Ilaqa) is under the
Superintendence of the Court of Wards rmd the
Hon'ble Members of the Board of Revenue have
granted me power to execute the will so I do hereby
execute this my last will cancelling all the previous
wills executed by me."
•
It is clear from the terms of the deed of agreement
that Ganga Bux Singh agreed to pay Rs. 50 in cash
every month during the lifetime of Shankar Bux Singh
in consideration of Shankar Bux Singh having proposed to make a bequest of the remainder in favour of
Ganga Bux Singh and his sons and that ·it was after
the deed of agreement was got registered by Ganga
Bux Singh on the 11th .January, 1904, that the draft of
the will was submitted on the 18th January by
Shankar Bnx Singh to the Court of vVards.
It was
this draft of the will amended as it was by the letter
dated 27th April, 1904, that was engrossed in the will
which was ultimately executed on the 28th July, 1904,
after the letter of sanction obtained from the Board
on 25th May, 1904.
The learned Civil Judge under
the circumstanr:i>s uame rightly to the conclusion that
the <leed of agreement and the will formed part of the
same transaction, that the consideration for the will
was the deed of agreement and the consideration
for the agreement was the will and that the wiU
I
•
S.C.R.
SUPRE~iE COCR'r ilEPORTS
923
as well as the agreement formed one contract. This
1v53
finding was not challenged beforn the Chief Court of T' k-. R .
0
.._.,
.
rta u·ra1n
a;
udh and could not be challenged before us.
There
Rani
was also a further finding of fact which was recorded
and Other,
by the learned Civil Judge and it was that Ganga Bux
v.
Singh failed <tnd neglected to make any payment to 1'hakur JJ_warka
Shankar Bux Singh in terms of the deed of agreement
Na%'0
8Z"u"
even though Shankar Bux Singh executed the will and
""
t "'·
laid the same along with the application before the
Bhagwati J.
Deputy Commissioner, Sitapur, for sanction of the
Members of the Board of Revenue and that Ganga Bux
Singh thus failed to perform his part of the contract.
This finding also was not challenged before the Chief
Court of Oudh and could not be challenged before us.
The question therefore which falls to be considered
by us is what is the effect of the failure on the part of
Ganga Bux Singh to make the payments to Shankar
Bux Singh in terms of the deed of agreement. It was
urged by Dr. Tckchand, who appeared for the plaintiffs before us that by reason of such non-payment and
the breach of contract on the part ofG;onga Bux Singh
the will became ineffective and inoperative, that the
payment of Rs. 50 per month during the lifetime of
Shankar Bux Singh was a condition precedent to the
vesting of the legacy in favour of Ganga Bux Singh
and that condition not having been fulfilled the legacy
did not vest in Ganga Bux Singh and that on a true
construction of the terms of the will Ganga Bux Singh
acquired no vested interest in the remainder. He also
urged that the scope of the Privy Council judgment
was misunderstood by the Chief Court of Oudh and
that both the questions as regards anhn1ls testandi and
the payment of Rs. 50 per month being a condition
precedent though they were bareed by res judicata in
regard to the due execution of the will were still open
to him as affecting the right of Ganga Bux Singh to
the legacy which was provided for him by Shankar
Bux Singh under the will.
In regard to the hist contention urged by Dr. Tekchand both the courts below were of the opinion that
the question of animus testandi was barred by res
•
924
SUPREME COURT Rl!JPORTS
[1953]
1953
,judicata.
It was
held by
their Lordships of
,
. R . the Privy Council that the will in 'dispute was
7 hakurain "J not revoked and that it was the last will and
Rani
and Others
testament of Shankar Bux Singh. That decision necesv.
sarily meant that the testator when he appended
Thakur Dwarka his signature to the will was in a sound and disposing
Nath Singh
state of mind, was a free agent and duly executed the
and Others.
will in accordance with the law. The decision was
Bhaywati J. conclusive as regards the testamentary capacity, due
execution and the representative title of the person to
whom the letters of administration with the will
annexed were granted. It was not open therefore to
the plaintiffs to contend that the will which was executed by Shankar Bux Singh was a will merely in form
and not in substance. The question of animus testandi .
was therefore barred by res _judicata. In regard however to the question whether the bequest in favour of
Ganga Bux Singh could t.ake effect by reason of default
in payment the decision of the Privy Council did not
constitute res _judicata and it was open to . the plaint'
iffs to urge that contention.
Both the courts below
therefore allowed the plaintiffs to agitate that question tl-.ough they came to a conclusion adverse to the
plaintiffs.
We are of the opinion that there was no
bar of res _judicata and the courts below were right in
allowing the plaintiffs to agitate that question.
The
payment of Rs. 50 per month to Shankar Bux Singh
during his lifetime might be a condition precedent to
the whole will coming into operation or might be a
condition precedent to the vesting of the legacy in
favour of Ganga Bux Singh. If the plaintiffs urged the
former position that plea would certainly be barred by
res _judicata. No court would grant a probate or letters
of administration with the will annexed in regard to a
will w':i.ich has ceased to be operative and was a mere
scrap of paper. The plaintiffs could not therefore be
heard to say that by reason of the non-fulfilment of
the condition precedent the whole will had become inoperative, for that would run counter to th.e decision
of th(} Privy Council. Even on merits such a position
would be untenable for the simple reason that besides
I
·
I
I
I
I
•
S.C.R.
SUPREME COURT REPORTS
9:!5
Ganga Bux Singh there was the widow, who was given
I91iJ
a life interest and there were the three daughters, the
" h ' ·
d h
h
Thakurain Raj
1at er s sister an t e mother w o were given legacies by
Rani
way of maintenance and they were certainly not guilty
and Others
of non-fulfilment of any condition precedent. The will
v.
would certainly therefore stand so far as they were con- Thakur Dwarka
cernedand the whole effect of the non-fulfilment of the
Nath Singh
condition precedent qua Ganga Bux Singh would be
and Others.
to prevent the vesting of the legacy in his favour.
Blmgwati J.
The latter position therefore would be available to
the plaintiffs and they could contend that by reason
of the non-fulfilment of the condition precedent by
Ganga Bux Singh the legacy provided in his favour
did not vest in him.
If the payment of Rs. 50 per
month therefore constituted a condition precedent the
plaintiffs were on firm ground and that position coulrl
not and was not contested before us by the learned
counsel appearing for the defendants. It therefore remains to be considered whether the payment of Rs. 50
per month to Shankar Bux Singh during his lifetime
co11Rtituted a condition precedent to the vesting of the
legacy in favour of Ganga Bux Singh.
There is no doubt, as held by the learned Civil Judge,
that the consideration for the will was the deed of
agreement and the consideration for the agreement
was the will and that the will as well as the agreement
formed one contract. But for Ganga Bux Singh having
executed the deed of agreement Shankar Bux Singh
•
would not have forwarded the draft will to the Court
of Wards for its sanction and he would also not have
executed the will on the 28th July, 1904. The contract
was an overall contract under which both the parties
had to perform their respective obligations. The obligation on the part of Ganga Bux Singh was to execute
the deed of agreement, agreeing to pay the moneys to
Shankar Bux Singh in accordance with the terms
thereof.
The obligation on the part of Shankar Bux
Singh was to execute the will and submit it to the
Court of Wards for its sanction. Both these obligations
were fulfilled by the parties and the two documents
were supported by consideration and became Linding
•
!:126
SUPREME COURT REPOR'h:l
[1953]
195J
on beth the the parties. The non-perfonnanoe of the
agreement to pay by Ganga Bux Singh"constituted at
'11hakurai-n Raj
'-'
'-'
Rani
best a failure to fulfil his obligation and Shankar Bux
and Others
Singh became entitled to pursue his rights and remev.
dies against Gangti Bnx Singh by reason of the breach
Thakur Dwarka of contract by him.
Nath Singh
h
.
.
lt was urged bv Dr. Tekchand t at the cons1derat10n
and Others.
J
here constituted tt condition precedent and that the
Blwgwati J.
non-pa,yment of Rs. 50 per month by Ganga Bux
Singh constituted non-fulfilment of condition precedent.
He relied upon the observations of Chief Justice
\Vills in Acherley v. Vernon, 125 English Reports llOG
at page llOS (Willes 153 at page 156):
"I know of no words that either in a, will or deed
neoessm·ily make a condition precedent, but the smno
words will either make a condition precedent or subsequent according to the nnture of the thing and the
intent of the parties. If therefore a man devise one
thing in lieu and c01rnideration of another, or agree to
do anything or pay a sum of money in consideration
of anything to be done, in these cases that which is the
consideration is looked upon as a condition precedent.
So is the case of Peters v. Opie, 1 Ventr. 177, and 1
:Saund. 350. If a man agree to pay a sum of money to
another pro lubore suo in pulling down a house, the
pulling down of tho house is a condition precedent. So
is the case of Thorpe and Thorpe, 1 Salk. 171, where a
man agreed to pay a sum of money to another he releasing the equity of redemption in certain lands. And
so is tb.e case of 'l'wmer v. Ooodwin, adjudged by Lord
"Macclesfield and the rest of the Judges of B. R. upon
great consideration, P. 13 Anne, in which case Goodwin wa.s to pay Tu111er 1500!. he assigning a judgment.
In all which mises it was holden that the party vd10
was to receive the money was not entitled to demand
it until he had performed that which was the consideration of the payment, and which was considered in all
these cases to be in the nature of a condition precedent.
*
*
*
I
•
'
•
S.C.R.
SUPREME COURT REPORTS
927
So likewis.e if it plainly appear to be the intent of
1953
the testator that the devisee shall not have the bene- 7,1
-
fit of the devise unless he perform a certain act enJ'oiniakumin Ilaj
Rani
ed him by the devisor, this is a condition precedent ;
and Others
and the devisee shall have no benefit of the devise
v.
until he perform it, even though the condition be never Thakur Dwarka
so umensonable if it be not illegal or impossible; for
Naih Singh
·
d
·
d ·
"
and Others,
CUJUB est ure eJUB eBt iBponere.
These observations were particularly relied upon by
Bhagwati J,
Dr. Tekchand in support of his contention that the
payment of .Rs. 50 per month to Shankar Bux Singh
during his lifetime constituted a condition precedent.
to the vesting of the legacy in favour of Ganga
Bux Singh.
While recognising the force of these observations we
are constrained to observe that the terms of the deed
of agreement negative any such contention. The agreement itself provided what was to happen if payment
was not made in accordance with the terms thereof. If
Ganga Bux Singh failed t,o perform the contract
Shankar Bux Singh was to
have
the power
to have the same
performed
by
Ganga Bux
Singh through Court. This consequence could not be
contemplated if the payment constituted a condition
precedent and the non-fulfilment of the condition
precedent was to have the effect of rendering the
agreement inoperative. In that event the agreement
itself would become inoperative and no rights nuder
the agreement would survive to Shankar Bux Singh.
The right which was therefore given to Shankar Bux
Singh to have the agreement performed by Ganga
Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar
Bux Singh to hold Ganga Bux Singh to its performance.
The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux
Singh is cmwPrned it was at no stage contemplated
that he could forego the performanee of the obligation
on his part to pay Rs. 50 per month to Shankar Bux
Singh during his lifetime so long as the will stood
1111revolrnd,
•
928
SUPREME COURT REPORTS
[1953)
19.53
It is significant to observe on the otl;ter hand that
Tl ku--: R . two events were contemplated so far as Shankar Bux
w ;:~7 OJ Singh himself was concerned.
The one was the withand Others
holding of the consent of the Court of Wards and the
v.
other was the revocation of the will by Shankar Bux
Thakur D':'arka Singh himself. The sum of Rs. 50 per month was agreed
Nath Smgh
to be paid bv Ganga Bux Singh to him from the
aad Others.
h
h
"sh
k
B
s. h
d th
·u
mont
w en
an ar ux
mg
execute
e w1
Bhagwati J.
and laid it before the Court of Wards for its
sanction. The Court of \Vards might withhold its
consent to the will and in that event whatever payments were made during the interval by Ganga Bux
Singh to Shankar Bux Singh had to be refunded by
the latter. Even though the Court of Wards might
sanction the will Shankar Bux Singh might later on
revoke the will and the consequence of such revocation was also provided in that Shankar Bux Singh was
to refund to Ganga Bux Singh the amounts which he
had paid up to the time of revocation to Shankar
Bux Singh in accordance with the terms of the agreement. It has to be observed moreover that all these
constituted independent obligations on the part of both
the pacties. The obligation on th.e part of Ganga Bux
Singh was so long as the will stood unrevoked to pay
to Shankar Bux Singh Rs. 50 per month during his lifetime and the obligation on the part of Shankar Bux
Singh was to obtain the consent of the Court of Wards
and to leave the will unrevoked during his lifetime.
These obligations were independent of each other and
the consequences of the non-performance of these obligations on the part of each of the parties were expressly
provided in the agreement itself. It could not therefore
be contended that the payment of Rs. 50 per month to
Shankar Bux Singh during his lifetime constituted a
condition precedent to the vesting of the legacy in his
favour. That was merely a consideration provided by
Ganga Bux Singh for the execution of the will by
Shankar Bux Singh in his favour and if Ganga Bux
Singh committed a breach of the agreement the only
result was that Shankar Bux Singh would become
\)ntitled to recover the amount due on such default
I
4 - •
'
8.0.R.
SUPREME COURT REPORTS
929
from Ganga Bux Singh by having recourse to a court
of law.
The contract would continue to subsist, the
•
1953
Thakttrain Raj
parties being relegated to their rights and remedies
Rani
thereunder as contemplated by the parties.
and Others
hln spitefoRf th~
0
non-paymehnt bSyhGakngaBBuxSS!nghh ?f ThakurvDwarka
t e sum o . ~· l> per mont to
an ar ux mg m
Nath 8 ;ngh
accordance with the terms of the agreement at no time
and Others.
did Shankar Bux Singh revoke the will nor did he
pursue Ganga Bux Singh in a court of law for the reBhagwati J,
covery of the amounts in respect of which Ganga Bux
Singh was in default. He left the will unrevoked and
on his death the will became effective as his last will
and testament and operated to vest in Ganga Bux
Singh an interes1i in the remainder as therein provided.
There is nothing in the will itself which in terms makes
the bequest conditional on regular payment of the
amount under the agreement.
The argument which was advanced by Dr. Tekchand
based on section 81 of the Indian Trusts Act could not
avail him for the simple reason that the intention of
Shankar Bux Singh had to be gathered as on the date
of the execution of the will and not at any subsequent
time thereafter. That intention was clearly to effect a
testamentary disposition of the remainder in favour of
Oanga Bux Singh. It was certainly farthest from the
thought of Shanlrnr Bux Singh not to dispose of the
beneficial interest in the remainder in favour of Ganga
Bux Ringh with the result that there could neither be
a secret trust nor a trust of imperfect obligation created
in favour of the heirs at law of the testator Shankar
Bux Singh.
The argument of Dr. Tekchand that the
remainder did not vest in Ganga Bux Singh but fell
into residue by reason of his having pre-deceased the
widow of Shanlrnr Bux Singh is equally of no avail.
The legacy in favour of Ganga Bux Singh was a legacy
of the remainder of the estate whi~h vested in Ganga
Bux 8ingh but was deferred in possession till after the
extinction of the life interest created in favour of the
plaintiff l. Ruch vested interest could devolve upon
the dofondants, the heirs and legal representatives of
. 120
•
930
SCPREME COURT REPORTS
[1953]
19.13
Ganga Bux Singh on the death of th() latter and the
7'hakurain llaj defendants were therefore as the heirs and legal repreflani
sentatives of Ganga Bux Singh since deceased rightly
and Other.,
entitled to the same. As the bequest was not
v.
conditional and did not lapse there ~onld be no quesThakur Dwarka t'
f
lt'
t
t
f
'
t
· h
N h ,.. h
ion o any resu mg rus
or o any rntes acy wit
at
ui.11rf
•
•
and Others.
respect to the remamder.
The result therefore is that the appeal fails and must
Bhagwat-i J.
be dismissed \Vith costs.
1953
Ja;n, 28.
Appeal dismissed.
Agent for the appellants: R11;iinder Narain.
Agent for the respondents: 0. P. Lal.
BEJOY GOPAL MUKHERJI
v.
PRATUL CHANDRA GROSE.
[MEHR CHAND MAHA.JAN, S. R. DAs and
BHAGWA1'I JJ.]
Landlord and tenant-Permanent tenancy-Evidence-Inference froin po.<!session froni generation to generation, transfers, erection of structu,res and other ci1:cnmsttinces-J1Iere increase of rent,
effect of.
Permanency of tenure does not necessarily imply both fixity
of rent and fixity of occupation and the fact of enhancement of
rent Joes not necessarily n1ilitate n,gainst the tenancy being a permanent one.
When, therefore, in a previous suit the only <iuestion was whether the jama could be increasen and the jama was
increased :
Held, that this decision did not operate as res judicata on the
tJ.U8sLio11 of permanency of the tenure in a snbsoquent suit for
ejectment.
Shankar Rao v. Sambhu Wallad (1940) 45 C.W.N. 57; Jogen·
dra Krishna Banerji v. Szibashini Dassi (1940) 45 C.W.N. 590,
Probhas Chandra Mallick v.