PRIVY COUNCIL

                    Lal Ram Singh

                    Vs.

                    The Deputy Commissioner of Partabgar

                            P.C.A. No. 104 of 1922
(Lords Sumner CJ. Phillimore, Sir John Edge and Mr. Ameer Ali JJ.)

                    3.7.1923

                    JUDGMENT

Lord Phillimore J.

1. The dispute in this case concerns the succession to a taluqdari estate in Oudh,
which at the time of the confiscation was held by one, Raja Hanwant Singh, the
ancestor of all the parties. Their position would best be explained by a short pedigree.

2. Narain Singh, the original plain tiff, is dead, and his three sons take his place as the
present appellants. The defendant-respondent being a minor, is represented by the
Deputy-Commissioner as manager ot the Court of Wards.

3. The occasion for the dispute arose upon the death of Ram Rumpal Singh in 1909,
on which occasion Ram Gulem Singh claimed the estate and pro cured mutation of
names in his favour. He did not live long and was succeeded by the minor, whose
interest is represented by the Manager of the Court of Wards. In 1913, the plaintiff,
Narain Singh brought the present suit to dispossess him.

4. The estate is one of those governed by the Oudh Estates Act, 1869 and is in list 2,
denned by the Act as "A List of the Taluqdars whose estates according to the custom
of the family on and before the thirteenth day of February, 1856, ordinarily devolved
upon a single heir."

5. Hanwant Singh, before he received his sanad, had executed a deed of gift in favour
of his grand son, Rampal Singh, of all his properties, except six villages. Disputes
having arisen as to the nature and operative effect of the gift, the Raja, on the 16th
May, 1871, filed a suit against Rampal Singh in the Court of the Deputy
Commissioner of Sultanpur, praying for a declaration of his absolute proprietary right,
notwithstanding the execution of the deed of gift.

6. The grandson appeared and defended the suit; and thereupon a compromise was
arrived at, which was embodied in an agreement between the parties, which again was
confirmed by a decree of the Court. In compliance with that agreement Hanwant
Singh executed an instrument which may not inappropriately be called a settlement.
This document provided that Hanwant Singh should for his life be the proprietor in
possession of one of the taluqdari estates. He was to have no power to make a will,
sale or transfer affecting the estate beyond his life time. Rampal Singh was to have
another estate similarly for his life only. On the death of Hanwant, Rampal was to
have the whole of the taluqdari estates, but again for his life only ; except that he had
power to make a certain provision for his widow or widows, sons and daughters.

7. If Rampal Singh predeceased Hanwant Singh, DirgajKuar, mother of Rampal
Singh, was to have Rampal's estate for her life. If both she and Rampal Singh died in
life of Hanwant Singh, Hanwant was to have the absolute proprietary right with the
power of making a will, sale or transfer in accordance with the authority given by the
Act of 1869.

8. If, on the other hand, the order of deaths was that Hanwant Singh died first, and
then Rampal Singh, in that event the mother was to be owner of the whole taluqdari
estate for her life with simila restriction. Then came the last limitations which are the
important ones in this case. The actual settlement was drawn up and executed in Urdu,
and the official translation of this paragraph is as follows :-

       9. As the pedigree showsThat on the death of the last three persons, i. e., Raja
       Hanwant Singh, Raja Rampal Singh and DirgajKuar, the mother of Raja
       Rampal Singh, BabuLachman Singh, the second son of Raja Hanwant Singh,
       and his heirs and representatives, shall succeed to the entire Rampur Kaithaula
       estate, as provided by Section 22 of Act I of 1869. But the said BabuLachman
       Singh shall not interfere in any way with the said ilaqa, beside the six villages
       which he has received under Section 8, during the lifetime of Raja Rampal
       Singh and his mother, DirgajKuar.
, Hanwant Singh died first, then the mother, then Lachman Singh, and lastly Rampal
Singh, upon whose death it became necessary to determine who succeeded to the
reversion. Rampal Singh seems to have died without leaving a son, but if he had left
sons, they would have been excluded.

10. Now Section 15 of the "Act of 1869 provides as follows :-
       " If any Taluqdar or Grantee shall heretofore have transferred or bequeathed or
       if any Taluqdar or Grantee or his heir or legatee shall hereafter transfer or
       bequeath to any person not being a Taluqdar or Grantee the whole or any
       portion of his estate, and such person would not 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 transfer of
       and succession to the property so transferred or bequeathed shall be regulated
       by the rules which would govern the transfer of, and succession to, such
       property if the transferee or legatee had bought the same from a person not
       being a Taluqdar or Grantee."
11. This transaction took place before the amending Act of 1910 ; so that a transfer to
a person who is not the immediate successor, even though that person be in the line of
succession, operates to take the estate out of the special limitations of descent. The
principle has been finally established by the case of Ghulam Abbas Khan v. Amatol
Fatima,1

12. In these circumstances the original plaintiff, Narain Singh, the father of the present
appellants, claimed to succeed to the whole estate under the Mitakshara law of the
Benares School, or alternatively under a will executed by Lachman Singh ; and the
original defendant Gulam Singh alias Ramesh set up as defences that the deed of
settlernent was invalid, that the plaintiff was estopped under the principle of res
judicata, that the estate was impartible, that he was the heir according to the custom of
the tribe or family, which he said was the custom of lineal primogeniture, that the
alleged will of Lachman Singh was fictitious, and that in any event, Lach man Singh
had no power to dispose of the taluqdari estate by will. Fortunately, for him, though he
did not rely upon it at the time as a defense, he introduced among the documents
which he filed, a will of Lachman Singh in his favor. In the event, he got a decision
from the Subordinate Judge in his favor on the points of res judicata, and the family
custom of lineal primogeniture - the Subordinate Judge farther holding that the
plaintiffs had not proved the will of Lachman Singh on which he relied.

13. The case then came on appeal to the Court of the Judicial Commissioner. Here the
learned Judges agreed with the Subordinate Judge that the will upon which the
plaintiff relied had not been proved. But they disagreed with him in his decision as to
res judicataand the family custom, which latter they held not to be proved.
Nevertheless, they decided in the defendant's favor because they held, contrary to his
original submission, thatLachman Singh could validly dispose of his property by will,
he having according to their views, an absolute estate in reversion and not a life estate
only.

14. Having thus allowed the defendant to reverse his original position to so large an
extent, they, as it seems to their Lordships, very properly gave him a decision without
costs.

15. On appeal to this Board the heirs of the original plaintiff, while not abandoning
their father's position that he was entitled as next heir either to Hanwant Singh or to
Lachman Singh to the whole property, have also put forward a claim that the two sons
of Lachman Singh were both of them heirs, and that they, as representing one of these
sons, should have half the property.

16. Now, for this purpose they had to abandon the original case, which was that
Lachman Singh could dispose of the property by will and had disposed of it in their
father's favour. On the contrary they now say that he had only a life estate and could
not, in any event, pass the property by will.

17. In this tangle of claims and defenses, it appears to their Lordships that the points
which now remain to be decided are these:

       1. What estate or interest did Lachman Singh take under the settlement ? It he
       took only a life estate, then the reversion descended to the heir or heirs of
       Hanwant Singh. If he took an absolute estate, then -
       2. Had he the power to dispose of it by will ?and this question raises a new
       point which was not discussed in the Courts below, if he could not dispose of it
       by will, then -
       3. Who are his heirs ? In connection with this point, it would have to be decided
       whether the estate in Lachman's hands was partible or impartible.
18. Now as to the first point, it was strongly contended on behalf of the appellant, that
the right way to read clause 7 was to read it as an endeavour to fix the course of
succession in the line prescribed by Section 22 to the Act of 1869, though the effect
by virtue of Section 15 would be to take the estate out of the Act ; and that, therefore,
this was an attempt to create an order of succession unknown to the common law and
unwarranted by the Act, which has been decided to be impossible by the judgment in
the Tagore case Jatindra MohanTagore v. GanendraMohanlagore2 and by various
subsequent decisions.

19. It followed (so the argument proceeded) that the limitations were good so far as
they gave Lachman a life estate, but that everything after this must be rejected as
contrary to law, and that therefore the reversion to the estate after the death of
Lachman remained undisposed of.

20. It was also submitted that the point might be put in this way; the grant of a life
estate to Lachman would not - supposing him to be out of the line of succession -
necessarily operate under section 15 as a destruction of the special taluqdari entail,
and the settlement would anyhow be effective so far as it granted that life estate but
the transfer of the absolute ownership would operate under section 15, to break the
taluqdari entail, and would therefore subject the property to the ordinary Hindu law of
inheritance to which the taluqdari entail would be repugnant, and that therefore the
further limitation by reference to section 22 of the Act would be invalid and
inoperative.

21. Another suggestion was that the clause should be read as giving a life estate to
Lachman and then the reversion to his heirs, who being unborn persons, could not take
under Hindu Law.

22. The words in clause 7 are undoubtedly difficult of construction ; but their
Lordships, in dealing with an instrument of this kind carrying out a decision of the
Court, ought to take for their guidance the rule, that, if possible, such a document
should be cons trued, ut res magisvaleat quam pereat.

23. On the whole, their Lordships are disposed to accept the construction which the
Subordinate Judge and the Court of Appeal put upon this clause of the settlement. In
the first place, they think that to borrow a phrase from the English law of real property,
the words " heirs and representatives " are to be treated as words of limitation and not
of purchase, that is, that they are merely intended to express the absolute estate which
it was proposed to give to Lach man as distinguished from the life estates which had
preceded it. This being so, the later words in the sentence may be regarded either as
an idle attempt to derogate from the grant previously made and therefore to be
rejected, or as words of description only, stating the legal incidents which the grantor
conceived to belong to the estate which he had granted. In this case his mistake as to
the legal consequences does not affect the grant which he has made. They think,
therefore, that Lach man received an absolute estate in reversion.

24. The next point for consideration is whether Lachman could dispose by will of the
estate which was vested in him. This depends upon the question whether it was to be
deemed ancestral property or self acquired property.
25. On this point their Lordships have little assistance from the Courts below. It could
not have been considered by the Subordinate Judge, because the respondent was not
then relying on Lachman's will. It probably was not argued before the Court of Appeal
because counsel for the appellant had so little opportunity of addressing himself on
this new point. But the Court of Appeal, though without giving any reasons for it, did
incidentally state its opinion that the property was self-acquired property.

26. It appears that there has been great diversity of opinion in the High Courts in India
as to the effect in a Mitakshara family of a bequest made by a father of property which
in the father's hands was self-acquired, to his son.

27. In Calcutta, in 1863, the point first arose in the case of MuddunGopal v. Ram
Buksh3when it was held that such property would be ancestral, and this has been
followed in the later case of Hazari Mall Babu v. AbaniNathAdhurjya, 4

28. In Madras, upon the whole, the view seems to be that the father can determine
whether the property which he has so bequeathed, shall be ancestral or self-acquired,
on the principle of cujusestdereejusestdisponere, but that unless he expresses his wish
that it should be deemed self-acquired, it is ancestral. See Tarachand v. Eeebram5and
compare it with Nagalingam v. Ramachandra6other cases. In Bombay, on the other
hand, the principle of intention seems to have been accepted if it makes the property
ancestral, but if there be no expression of intention, it is deemed self-acquired. See
Jug-mohandas v. Sir MangaldasNathu-bhoy7 and Nanabhai v. Achratbai, 8

29. At Allahabad the decision was that such property is self-acquired. See
ParsotamRaoTantia v. JankiBai9Finally, in Oudh in the case of Rameshary. Mt.
Rukmin after a review of all the cases, it was heldthat:-

       Where self-acquired property is bequeathed to sons, in the absence of language
       clearly indicating the testator's intention that the property should be held by the
       sons subject to the incident of survivor ship, it should be presumed that each
       son takes an interest which passes to his heirs at his death.
30. If the criterion were to be the intention of the father when he makes the gift, there
is nothing to indicate that Hanwant Singh desired to make the estate ancestral property
in the hands of Lachman. His expression of opinion or desire, whichever it may be
that the property should still be governed by the Act of 1869 would indicate the
contrary view; because under the Act each holder of the estate has a power to give it
or will it away.
31. If, on the other hand, Hanwant should be treated as having intended the legal
consequences of his acts, he had brought the estate under section 15; and then the
argument urged by Counsel for the respondent founded on the words at the end of that
section by which property is to be regulated by the rules which would govern
succession to it, if the transferee or legatee had bought it, would have to be
considered.

32. But their Lordships deem it unnecessary to pronounce upon these points. It may be
that someday this Board will have to decide between the conflicting decisions of the
Indian High Courts, and it may be that when this time comes, this Board will prefer to
go back to the original text of the Mitakshara and put its own construction upon that
text. It is not necessary to do so in this case.

33. The principle upon which it is contended that such property should be deemed
ancestral property, is that the son is only getting by his father's will that which but for
the will, he would have received by descent according to the Mitakshara law. Now
before Hanwant Singh made the settlement, the property was subject to the Act of
1869 and would have descended to a single heir in accordance with that Act, and
would not have descended according to Mitakshara law or to those whom that law
would designate as heirs.

34. The principles, therefore, of Mitakshara law - if that law be as the High Court of
Calcutta has thought and the appellant contends - would not apply to regulate the
descent. Lachman, there fore, took the property as self acquired property and could
dispose of it by will.

35. It becomes, therefore, unnecessary to consider who would be the heir or heirs of
Lachman if he had died intestate.

36. In the result, their Lordships will humbly advise His Majesty that this appeal
should be dismissed with costs.

Appeal dismissed.

Cases Referred.

1.AIR 1921 PC 4: 43 All 297 : 48 IA 135 : 19 ALJ 433 : 40 MLJ 577 : 34 CLJ 2.113 :
8 OLJ 225 : 24 0C 118 : (1921) MWN 349 : 14 LW 680 (PC)

3. 9 BLR 377 : 18 WR 359 : IA Sup Vol 47 : 2 Suth 692 : 3 Sar 82 (PC)]
4. [1863] 6 WR 71
5. [1912] 17 CWN 280: 18 IC 625 : 17 CLJ 38.
6. [1866] 3 MH CR 50
7. [1901] 24 Mad 429: 11 MLJ 210 and
8. [1886] 10 Bom 528
9. [1886] 12 Bom 122.
[1907] 29 All 354 : 4 A.LJ. 257 : (1907) AWN 77.
[1909] 14 OC 244 : 12 IC 770