judgement:
Appeal No. 153 of 1951.
Appeal from the Judgment and Decree dated 2nd January, 1946, of the Chief Court of Auadh in First Civil Appeal No. 9 of 1940 arising out of the Decree dated 6th November, 1939, of the Court of Civil Judge in Regular Suit No. 36 of 1937.
Bakshi Tek Chand (Onkar Nath Srivstava, with him) for the appellants.
Achhru Ram (Bishan Singh, with him) for the respondents.
January 23.
The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal from the judgment and decree passed by the late Chief Court of Oudh, affirming 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 Kelali, 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 the U.P. Court of Wards Act (U.P. Act III of 1899) and the Court of Wards took possession of the estate on the 1st August, 1901.
Under Section 34 of the Act he was 916 not competent to dispose his property by will without the consent in writing of the Court of Wards, though prior to the 1st August, 1901, he had made four successive wills, the last being dated 19th June, 1901, under which he gave his estate absolutely to his wife.
On the 30th November, 1901, he made a will giving a life interest to his wife and the remainder over to his cousin Ganga Bux Singh after providing for certain legacies by 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 all the previous wills executed by him.
It appears that he handed over the original of this will to Ganga Bux Singh but 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 917 intended to execute in favour of his Christian wife.
The Board withheld its consent to that new will and intimated on the 13th July, 1906, its refusal and also communicated thereby the withholding of its consent to the will already executed by him on the 28th July, 1904.
A further attempt by him on the 21st November, 1906, to obtain the consent of the Court of Wards to another draft will was also unsuccessful and the will dated the 28th July, 1904, was the only last will and testament executed by him and got registered after consent obtained from the Court of Wards.
Shankar Bux Singh died thereafter on the 28th July, 1922, and he being a Christian at the time of his death successsion to his property was governed by the Indian Succession Act.
His wife got 1/3rd of the estate and the remaining 2/3rds were divided in equal shares between his surviving daughter and the son of a predeceased 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 predeceased 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 the property and the transfers made by her were void.
This suit was contested by her and one of the defences taken 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 was dismissed on the 14th July, 1930.
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 was opposed by the 918 widow and other heirs of Shankar Bux Singh inter alia on the ground that the will had been executed without the sanction of the Court of Wards.
Mr. Justice Kisch delivered an elaborate judgment, negatived all the objections and granted letters of administration with the will annexed to the sons of Ganga Bux Singh on the 16th November, 1931.
An appeal filed by the widow and heirs of Shankar Bux Singh against that decision was allowed by the Bench of the Chief Court of Oudh at Lucknow on 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, 1937, reversed the decree of the Appeal Court and restored the decree 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 prejudice any proceedings against any of the beneficiaries which may be open to the respondents or any of them.
On the 9th September, 1937, the widow, the daughter and the son of the predeceased daughter of Shankar Bux Singh, the plaintiffs, 'filed the suit out of which this appeal arises, against the three sons of Ganga Bux Singh, the defendants, for a declaration that the will dated the 28th July, 1904, was inoperative and ineffectual and that in any case the defendants had no right, title or interest in the properties in suit, that plaintiff I 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 Singh had no animus testandi and that it was void and inoperative in respect of the testamentary disposition in favour of Ganga 919 Bux Singh and his sons because Ganga Bux Singh failed to perform his part of the contract as regards the payment of monthly allowance and the defendants therefore could not take advantage of or claim any benefit tinder that testamentary disposition and further the payment of the said allowance being a condition precedent and the condition not having been fulfilled the disposition became inoperative.
The defendant 3 filed a written statement on the 7th February, 1938, contesting the plaintiff 's claim.
He contended that the plea as to the validity or effect of the will was barred by resjudicata by virtue of the judgment of the Privy Council dated 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, Sitapur, after considering the evidence, 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 Wards 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 be 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, The 920 plaintiffs filed an appeal to the Chief Court of Oudh.
The Chief Court of Oudh negatived the contention that Shankar Bux Singh had no animus testandi and that it was a will in form only and not in substance, holding that it was barred by res judicata by reason of the decision of their Lordships of the Privy Council.
It also negatived the contention that the bequest in favour of Ganga Bux Singh was a conditional bequest or that Ganga Bux Singh having failed to fulfil his obligation to pay the gujara his original character 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 granted by 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 28th July, 1904.
The deed of agreement dated the 7th January, 1904, ran as under: "Whereas, 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, Ajodhya Nath Singh and Tirbhuwan Nath Singh, there fore 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 921 of this agreement.
If I, the executant, fail to perform the said contract the said cousin has power to have the same performed by me, the executant, through Court.
If the will mentioned above executed by the said cousin, be not sanctioned by the Members of the Board of Revenue or if under any circumstance, the kV said cousin may himself revoke the said will, then from the time of revocation or refusal by the Board of Revenue the said cousin shall not be entitled to receive 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 necessarily be bound to refund that money to me, the executant.
" The will dated the 28th July, 1904, was executed by Shankar Bux Singh in the terms following: " I am Thakur Shankar Baksh alias section 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 aninas 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 922 after generation, (limited) to male issue, Rs. 100 per month; Musammat Chandrani, my younger sister, married to Rai Raghubir Bakhsh, son of Rai Kunwar Bahadur, Rais of Shahabad, district Hardoi, generation after generation (limited) to male issue, Rs. 60 per month; Mussamat Roop Rani, my real paternal aunt (father 's sister), wife of Munshi Chedi Prasad deceased, 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 and 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 11 th January, 1904, that the draft of the will was submitted on the 18th January by Shankar Bux Singh to the Court of Wards.
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 circumstances came rightly to the conclusion that the deed 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 will 923 as well as the agreement formed one contract.
This finding was not challenged before the Chief Court of Oudh and could not be challenged before us.
There was also a further finding of fact which was recorded by the learned Civil Judge and it was that Ganga Bux Singh failed and neglected to make any payment to Shankar Bux Singh in terms of the deed of agreement even though Shankar Bux Singh executed the will and laid the same along with the application before the 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. Tekchand, who appeared for the plaintiffs before us that by reason of such non payment and the breach of contract on the part of Ganga 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 animus testandi and the payment of Rs. 50 per month being a condition precedent though they were barred 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 last contention urged by Dr. Tekchand both the courts below were of the opinion that the question of animus testandi was barred by res 924 judicata.
It was held by their Lordships of the Privy Council that the will in dispute was not revoked and that it was the last will and testament of Shankar Bux Singh.
That decision necessarily meant that the testator when he appended his signature to the will was in a sound and disposing state of mind, was a free agent and 'duly executed the will in accordance with the law.
The decision was 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 take effect by reason of default in payment the decision of the Privy Council did not constitute res judicata and it was open to the plaintiffs to urge that contention.
Both the courts ' below therefore allowed the plaintiffs to agitate that ques tion though 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 which 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 the decision of the Privy Council.
Even on merits such a position would be untenable for the simple reason that besides 925 Ganga Bux Singh there was the widow, who was given a life interest and there were the three daughters, the father 's sister and the mother who were given legacies by way of maintenance and they were certainly not guilty of non fulfilment of any condition precedent.
The will would certainly therefore stand so far as they were concerned and the whole effect of the non fulfilment of the condition precedent qua Ganga Bux Singh would be to prevent the vesting of the legacy in his favour.
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 could 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 pet month to Shankar Bux Singh during his lifetime constituted 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 Sigh 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 binding 926 on both the parties.
The nonperformance of the agreement to pay by Ganga Bux Singh constituted at best a failure.
to fulfil his obligation and Shankar Bux Singh became entitled to pursue his rights and remedies against Ganga Bux Singh by reason of the breach of contract by him.
It was urged by Dr. Tekchand that the consideration here constituted a condition precedent and that the non payment of Rs. 50 per month by Ganga Bux Singh constituted non fulfilment of condition precedent.
He relied upon the observations of Chief Justice Wills in Acherley vs Vernon, 125 English Reports 1106 at page 1108 (Willes 153 at page 156): " I know of no words that either in a will or deed necessarily make a condition precedent, but the same words will either make a condition precedent or subsequent according to the nature of the thing and the intent of the parties.
If therefore a man devise one thing in lieu and consideration 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 vs Opie, I Ventr.
177, and I Saund.
If a man agree to pay a sum of money to another pro labore suo in pulling down a house, the pulling down of the house is a condition precedent.
So is the case of Thorpe and Thorpe.
I 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 the case of Turner vs Goodwin, adjudged by Lord Macclesfield and the rest of the Judges of B. R. upon great consideration, P. 13 Anne, in which case Goodwin was to pay Turner 15001.
be assigning a judgment.
In all which cases it was holden that the party who 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 prece dent.
* * * * 927 So likewise if it plainly appear to be the intent of the testator that the devise shall not have the benefit of the devise unless he perform a certain act enjoined him by the devisor, this is a condition precedent; and the devisee shall have no benefit of the devise until he perform it, even though the condition be never so unreasonable if it be not illegal or impossible; for cujus est dare ejus est disponere.
" These observations were particularly relied upon by Dr. Tekehand 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 to 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 under 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 concerned it was at no stage contemplated that he could forego the performance 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 unrevoked.
928 It is significant to observe on the other hand that two events were contemplated so far as Shankar Bux Singh himself was concerned.
The one was the withholding of the consent of the Court of Wards and the other was the revocation of the will by Shankar Bux Singh himself.
The sum of Rs. 50 per month was agreed to be paid by Ganga Bux Singh to him from the month when Shankar Bux Singh executed the will and laid it before the Court of Wards for its sanction.
The Court of Wards 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 parties.
The obligation on the 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 entitled to recover the amount due on such default 929 from Ganga Bux Singh by having recourse to a court of law.
The contract would continue to subsist, the parties being relegated to their rights and remedies thereunder as contemplated by the parties.
In spite of the non payment by Ganga Bux Singh of the sum of Rs. 50 per month to Shankar Bux Singh in accordance with the terms of the agreement at no time did Shankar Bux Singh revoke the will nor did he pursue Ganga Bux Singh in a court of law for the recovery 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 ail interest 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 Ganga Bux Singh.
It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh 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 predeceased the widow of Shankar Bux Singh is equally of no avail.
The legacy in favour of Ganga Bux Singh was a legacy of the remainder of the estate which vested in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of the plaintiff 1.
Such vested interest could devolve upon the defendants, the heirs and legal representatives of 120 930 Ganga Bux Singh on the death of the latter and the defendants were therefore as the heirs and legal repre sentatives of Ganga Bux Singh since deceased rightly entitled to the same.
As the bequest was not conditional and did not lapse there could be no question of any resulting trust or of any intestacy with respect to the remainder.
The result therefore is that the appeal fails and must be dismissed with costs.
Appeal dismissed.
Agent for the appellants : Rajinder Narain.

summary:
On the 7th January, 1904, G, a cousin of S, executed an agreement in favour of S, the material portion of which ran as follow&: "Whereas my cousin S has proposed to make a request of his taluka in favour of his wife and after her death in my favour and 118 914 that of my sons 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 may 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 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 through the Court.
" This agreement 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.
This will provided as follows: "after my death my wife for her lifetime shall remain in possession of my entire estate 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 rights shall devolve on my cousin G with all proprietary powers and that on the death of G, the said entire property and rights shall devolve 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 section On the 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 Council on appeal in 1937.
The 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 animus 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 agreement, 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 animus testandi was res judicata ; (iii) with regard to the plea that the monthly payment of Rs. 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 was also barred by res judicata as the Privy Council bad granted letters of administration; and even on the merits 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 whether the payment of Rs. 50 was a con dition precedent to the vesting of the legacy in G or G 'B sons was 915 not, however, res judicata and it was open to the plaintiff to raise such a plea; (v) on a proper interpretation of the terms of the agreement, the payment of Rs. 50 per month was not a condition precedent to the vesting of the legacy in G, but merely a consideration, and the plaintiffs ' remedy was to enforce the agreement if it was not duly performed; (vi) that as G obtained a vested remainder under the will, his interest did not fall 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 any resulting trust or of any intestacy with respect to the remainder, and G 's sons were entitled to the estate under the will.


judgement:
Civil Appeal No. 285 of 1958.
Appeal from the judgment and decree dated September 22, 1955, of the former Nagpur High Court in Mis.
(First) Appeal No. 201 of 1952.
N. C. Chatterjee, D. R. Baxy and Dharam Bhusan, for the appellant.
B. section Sastri and Ganpat Rai, for the respondent.
October 16.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, on certificate granted by the High Court at Nagpur, is directed against its order dismissing the appellant 's appeal against the dismissal of his objection, under section 47 of the Code of Civil Procedure, by the III Civil Judge, Class I, Nagpur.
The respondent purchased at auction sale, held by the Revenue Officer for recovery of arrears of land revenue, eight anna share of Ganpatrao in mouza Vadoda, Tehsil and District Nagpur, in the Central Provinces, and obtained formal possession of that share on September 23, 1938.
Ganpatrao relinquished his share in khudkahst lands they were recorded as the occupancy land of his wife and sons.
They surrendered those fields to lambardar Narain, who leased those fields in occupancy right to tho appellant in 1940.
The respondent filed a suit for possession of certain fields including the fields in suits viz., fields khasra Nos. 147 and 154, 126 and based his claim on his proprietary right to recover possession and not on the loss of possession on account of the appellant 's dispossessing him.
The suit was decreed and the decree was upheld by he Nagpur High Court by its order dated April 20, 1951, it being held that the respondent was entitled to the fields in suit which were originally khudkasht fields as part and parcel of the eight anna share of Mahal No. 2 purchased by the respondent.
It so happened that between the closing of the arguments in the appeal before the High Court, some time before March 31, 1951, and the delivery of judgment on April 20, 1951, the Madhya Pradesh Abolition of proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. Act No. 1 of 1951), hereinafter called the Act, came into force.
This fact does not appear to have been brought to the notice of the High Court as it did not consider the effect of the Act on the appeal before it.
The respondent decree holder filed execution application for the recovery of costs and delivery of possession on July 23, 1951.
The appellant paid up the costs, but, on August 31, 1951, filed an objection to the application for delivery of possession on the ground that the respondent decree holder had no right to dispossess the appellant judgment debtor, as the respondent had lost his proprietary rights to the fields and the appellant had acquired rights to occupy them subsequent to the confirmation of decree for possession by the High Court.
It was stated that the malguzari proprietary rights of the respondent decree holder, except his rights over home farm fields, ceased to exist on March 31, 1951, by virtue of section 3 of the Act and vested in the State thereafter.
Home farm fields were those fields which were recorded as khudkasht or sir fields in the Jamabandhi of 1948 49.
The fields in suit were not so recorded and were recorded as occupancy fields of appellant,. 127 It was further contended that the State had, after the date of vesting, collected rent from the appellant recognizing the land in suit to be the tenancy land of the appellant.
On September 24, 1951, the appellant filed an application stating further facts in support of his objection.
He stated that the respondent neither claimed, in the ex propriation proceedings before the Compensation Officer, Nagpur, the fields in suit as his khudkasht lands, nor raised any such claim in proceedings for fixation of assessment on his home farm and that the decree holder had not been declared malik makbuza of the land in suit.
He further stated that the respondent had included the rent of the fields in suit in the area of the village for the purpose of claiming compensation and thereby got more compensation on that account and that the fields in suit had been declared malik makbuza of the appellant on July 22, 1952, under section 41 of the Act.
The respondent contended before the Executing Court that the appellant could not raise such objections in the Executing Court and should have raised them in the High Court before it had passed the orders in the appeal.
He further contended that he had not lost his right to possess the fields in suit and that his claim to possession of the fields was not affected by the Act the provisions of which did not apply to the facts of the case.
He also contended the State had absolutely no right to collect any rent for the fields from the appellant and any collection made did not affect the respondent 's rights.
He further contended that the appellant could not take any advantage of his omission to claim the land in suit as his home farm as he could not have moved in the matter without obtaining possession or of a declaration of malik makhbuza under section 41 of the Act during the pendency of the execution application as he had fraudulently suppressed the fact that he had been hold by the 128 High Court not to have been an occupancy tenant of the land in suit and that the respondent had a decree for possession against him.
The State of Madhya Pradesh was served with notice of the objection and filed its statement of facts stating therein that the plots in suit were not shown as home farm by the ex proprietor respondent, that no Jamabhandhis as required by section 2(g) of the Act, were filed in the compensation proceedings and that, consequently, the respondent was not declared mailk makbuza of those plots.
It was also stated that the appellant had been declared malik makbuza of the plots under section 41/56 of the Act on application under section 4(2) of the Madhya Pradesh Agricultural Raiyats and Tenants Acquisition of Privileges) Act, 1950 (M. P. Act XVIII of 1950), and that he has paid land revenue to the State.
The Execution Court dismissed the objection.
It held that the vesting of respondents proprietary rights in the State did not come in his way to take possession of the fields ill execution of the decree, as the Deputy Commissioner could not take possession of the fields in suit under section 7 of the Act as they were occupied lands.
It further held that the land in suit did not form the respondent 's home field that the respondent could not be the malik makbuza of the fields under section 38 (1) of the Act as the fields were not in his possession.
It further held that the declaration of the appellant, who was a trespasser as a malik makbuza, was illegal.
The appellant then went in appeal to the High Court.
The High Court relied on the case reported as Rahmatulla Khan vs Mahabirsingh (1) in which it was held that the definition of a 'home farm ' in section 2, clause (g), of the Act, should be liberally construed and should include the fields of a proprietor who was entitled to get the Revenue papers of 1948 49 corrected as a result of the decree in his favour, (1) I.L.R. 129 even though the fields were not recorded as his khudkasht in the 1948 49 papers, because it was the duty of the Revenue Authorities to make correct entries in the Jamabandis and other village papers.
The High Court, however, pointed out that the decision in Rahmatullah 's Case(1) made out an exception in the definition which is not in it and in effect laid down that the application of the Act depended upon the result of pending litigation, a view which was not accepted in the earlier Full Bench case of Chhote Khan vs Mohammad Obedullakhan (2).
The learned Judges further said: Though we do not agree with the view of Mudholkar, J., the decision ranks as a Division Bench Case and we follow it, though reluctantly. " The learned counsel for the appellant has urged that the respondent is not entitled to execute the decree for possession as he had lost the proprietory right which entitled him to get possession.
It is further urged that the appellant has secured the rights of malik makbuza of the land subsequent to the decree and has thus got a right to remain in possession in spite of the decree.
The learned counsel for the respondent mainly relies on the contention that the Execution Court cannot go behind the decree and therefore must execute it and deliver possession to the respondent.
Before considering the question arising for determination in this appeal, it will be convenient to detail the relevant provisions of the Act and their effect.
The preamble of the Act says that it is expedient to provide for the acquisition of the rights of the proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith.
This indicates that the Act purported to deal with the rights of the proprietors and not directly with the rights of other persons in the (1) I.L.R. (2) I.L.R 130 estates, mahals, alienated villages and alienated lands.
The proprietors were intermediaries between the persons actually cultivating the land and the Government.
They realised rent from the former and paid revenue to the latter.
Section 3 is the vesting section and its sub sections (1) and(2) read: (1) Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the estate for the purposes of the State free of all encumbrances.
(2) After the issue of a notification under subsection (1), no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.
" In accordance with the provisions of this section, the proprietary rights in an estate, mahal, alienated village or alienated land in the area specified in the notification vesting in a proprietor of such estate etc., were to pass from such proprietor and vest in the State for purposes of the State free from all encumbrances.
These provisions themselves were sufficient to divest the proprietor of such estate etc., of his proprietary right.
The consequences of such 131 vesting are further specified in section 4.
In view of sub section
(2) of section 3, no right could acquired over the land which had vested in the State except by succession or under a grant or contract in writing made or entered into by or on behalf of the State.
This means that no person could acquire any right over such land under a decree passed in his favour subsequent to the vesting of the estate on the notified date and that therefore the respondent did not acquire the right to possess this land under the decree in his favour.
The relevant portions of sub section
(1) of section 4 are: (1) When the notification under section 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or any other law for the time being in force and save as otherwise provided in this Act, the consequence as hereinafter set forth shall, from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting), ensue, namely (a) all rights, title and interest vesting in the proprietor in such area including land (cultivable or barren), shall cease and be vested in the State for purposes of the State free of all encumbrances. . . . . . . . . . . . . . (e) the interest of the proprietor so acquired shall not be liable to attachment or sale in execution of any decree or other process of any court, civil or revenue, and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of section 73 of the , case to be in force." ' sub sections (2) and (3) of section 4 are as follows: (2) Notwithstanding anything contained in sub section (1), the proprietor shall continue 132 to retain the possession of his homestead, home farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948 49 but before .
the date of vesting.
(3) Nothing contained in subsection (1) shall operate as a bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting by virtue of his proprietary rights and any such sum shall be recoverable by him by any process of law which but for this Act would be available to him.
" It is to be noted that the consequences mentioned in 8. 4 follow the notification under 8. 3, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force.
The question is whether the word 'document ' includes a decree of the Court.
We do not see any good reason why a decree of the Court, when it affects the proprietary rights and is in relation to them, should not be included in this expression.
The main object of sections 3 and 4 and in fact, of the Act itself, is that all the bundle of rights which a proprietor possess on account of his proprietorship of the land within the estate etc., should cease, except such rights which are saved to the proprietor under some specific provision of the Act.
Any rights which accrue to the proprietor under a decree by virtue to his proprietary right will not, under the scheme of the Act, prevail over the statutory consequences following the vesting of the proprietary rights in the State and will be lost to the proprietor.
One such right is the right of the proprietor under a decree to obtain possession over certain land.
Such a decree for recovery of possession is the result of the recognition of the proprietor 's right of possession as proprietor over that land as against the claim of the judgment debtor to 133 retain possession of that land.
The proprietary right vests in the State and as a consequence of it the proprietor 's right under the decree to obtain possession also vests in the State, even though tho State gets right to the possession of the land under other provisions of the Act as well.
Section 7 empowers the Deputy Commissioner to take charge, on the date of vesting, of all lands other than occupied lands and homestead of all interest vesting in the State under B. 3.
This means that the Deputy Commissioner could take possession of the land in suit on the date of vesting, i. e., on March 31, 1951, as it was neither the proprietor 's home farm nor occupied land, as defined in cl.
(k) of c. 2, of the appellant who was held by the High Court to be a trespasser vide judgment of the High Court dated April 20, 1951, now reported in Subhan vs Madhorao (1).
`Occupied land ' means, in relation to the Central Provinces, according to sub cl.
(1), land held immediately before the date of vesting in absolute occupancy or village service tenure, or land held as malik makbuza, or land comprised in a home farm.
Occupied land did not include land held by a person as a trespasser.
The provisions of cl.
(e) of sub section
(1) of section 4 indicate that certain decrees against the interest of the proprietor become inexecutable on the vesting of his rights in the State.
There is therefore good reason to hold that decrees in his favour also become inexecutable if they are based on his proprietary right which he possess no more and which has vested in the State.
The Act provided, by sub section
(3) of section 4, that the out going proprietor was free to recover any sum which had become due to him before the date of vesting by virtue of his proprietary rights by any process of law which, but for the Act, would be (1) I.L.R. 134 available to him.
It does not provide for the outgoing proprietor to recover possession of land by any process of law if he had become entitled to the possession of that land before the date of vesting.
The absence of any such provision adds strength to the view that the proprietor 's right to obtain possession of land under a decree in his favour gets lost to him after the date of vesting.
Sub section (2) of section 4 of the Act provides that the proprietor can continue to retain possession of home farm land after the vesting of his proprietary right in the State.
The respondent cannot take advantage of this provision even if the land in suit be held to be home farm.
He was not in possession of the land in suit on the date of vesting and no question of continuing to retain possession arose.
In fact, the fields in suit could not be his home farm and therefore he got no right to retain possession over them.
Clause (g) of section 2 of the Act defines `home farm '.
It reads.
(g)`home farm ' means, (1) in relation to Central Provinces, (ii) land recorded as sir and khudkasht in the name of a proprietor in the annual papers for the year 1948 49, and (ii) land acquired by a proprietor by surrender from tenants after the year 1948 49 till the date of vesting; (2) in relation to merged territories, that part of the land under the personal cultivation of the proprietor on the date of vesting which was similarly under cultivation in the agricultural year 1949 50 and which he is omitted to retain on the termination of proprietary tenure under any instrument having the force of law and applicable to such tenure.
Explanation.
Land under personal cultivation includes land allowed to lie fallow in 135 accordance with the usual agricultural practice but does not include any land in lawful possession of a raiyat or tenant.
. . . . . . . . . . It is significant to note in this completion that sub cl.
(1) refers to land actually recorded as sir and khudkasht in the annual papers of 1948 49 and does not refer in terms to land which was the sir and khudkasht of the proprietor in that year and which ought to have been recorded as such in those papers but had not been so recorded.
Another point to be noted is that though cl.
(ii) refers to land acquired by the proprietor by surrender from tenants between the close of the year 1948 49 and the date of vesting no reference is made in this definition to land the possession of which had been obtained by the proprietor as a result of a decree during that period or to the possession of which the proprietor was held entitled under the decree of the Court passed before the date of vesting.
It is also significant to notice that in sub section (2), the land answering the description of 'home farm ' is described differently.
Only that land comes within the expression `home farm ' ' which had been under the personal cultivation of the proprietor on the date of vesting and which had been similarly under cultivation in the agricultural year 1949 50, and which he is entitled to retain even on the termination of his proprietary tenure under any instrument having the force of law and applicable to that tenure.
Personal cultivation of the proprietor at two relevant dates was the main criterion.
Such cultivation was not made the criterion in the definition in sub cl.
(1) of sub section
It is not necessary, according to that sub clause, that the proprietor be personally cultivating that land.
The only condition requisite for the proprietor having certain land treated as his home farm was the fact that the annual papers of 1948 49 recorded that land as his sir and khudkasht.
The basis was the record and 136 not the fact of actual cultivation or his title to that an land The definition evinces the intention of the Legislature to remove the question of certain land being `home farm ' or not from the sphere of litigation.
Recorded entry was treated to be the basis for adjudging tho land to be `home farm. ' There is no ambiguity about the definition of 'home farm ' and so the question of strict or liberal construction does not arise.
These consideration lead to the conclusion that land cannot come within the definition of `home farm ' which had not been actually recorded as sir and khudkasht in the name of the proprietor in the annual papers for the year 1948 49 or which had not been acquired by the proprietor by surrender from tenants after the years 1948 49 till the date of vesting.
The plots in suit were neither actually recorded as the respondent 's sir and khudkasht in the 1948 49 annual papers nor had been acquired by him by surrender from tenants during the period mentioned in sub cl.(ii) of cl.
(1) of the definition and so could not be the respondent 's home farm.
The decree of the trial Court was passed on July 12, 1944.
As that decree was under appeal in 1948 49, it would not be right to say that the Revenue Authorities were in error in not correcting the entries in the annual papers.
They could Not have corrected them merely on the basis of the decree.
Correction in the entries would have been made if there had been change of possession.
No change of possession took place and therefore no entry could have been made in the annual papers of 1948 49 with respect to the plots in suit to be the khudkasht of the respondent.
In fact, even if the respondent had taken possession over the land in suit by executing the decree passed by the trial Court, an entry of his holding that land as khudkasht could have been made only if he had brought 137 that land under his own personal cultivation and not if he had let out the land to some other person.
This consideration, again, would go against the respondent even if a liberal interpretation was to be given to the definition of `home farm '.
Section 12 requires that every proprietor should file a statement of claim in the specified form and verify that statement in accordance with order VI, rule 15, Code of Civil Procedure.
The respondent filed his compensation statement, Document No. 1, on September 20, 1951, and mentioned in his claim the total gross rental of his proprietary share.
This rental included the recorded rent of the land in suit.
Section 83 provides that every entry in the record of rights, the annual papers and the register of proprietary mutations in the Central Provinces, shall, for purposes of assessment and payment of compensation be presumed to be correct.
This means that for the purpose of settlement of the claim filed by the respondent under section 12, the entry of the appellant 's being an occupancy tenant in the annual papers had to be presumed to be correct and, as a consequence of such a presumption, the land in suit cannot be taken to be the respondent 's khudkasht in 1948 49, and this supports the construction we have placed on the definition of `home farm ' in section 2 (g).
Sub section (1) of section 38 provides that every proprietor who is divested of his proprietary rights in an estate or mahal, shall, with effect from the date of vesting, be a malik makbuza of the home farm land in his possession.
The respondent does not appear to have taken any steps to get himself recognized as a malik makbuza of the land in suit on the ground that it was, his home farm.
In fact, he estates in his reply to the appellant 's objection that he could not have moved in the matter without obtaining possession.
138 Exhibit A 1, dated May 8, 1951, is the statement of fixation of assessment on the home farm of the respondent.
It does not include the land in suit.
Section 45 provides inter alia that any person who, immediately before the date of vesting, was in possession of any holding, as an occupancy tenant, shall be deemed to be a tenant of the State and shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to, immediately before the date of vesting.
Section 41 provides inter alia for occupancy tenants to be declared in the prescribed manner to be malik makbuza of the land comprised in their holding on payment of the amounts mentioned in the section.
The appellant applied for such a declaration on July 22, 1952 and got the declaration i his favour on the basis of the entry in the village papers, though that entry of his being an occupancy tenant was wrong in view of the finding of the High Court.
Exhibit A 4 is the declaration by the Naib Tehsildar, Nagpur, on July 22, 1952, under s.41 of the Act, that 'the appellant was malik makbuza in respect of the land in suit.
Exhibit A 6 is the copy of the Jamabandhi for holding serial No. 121 of mauze Vadoda for the year 1948 49, showing the respondent to be the occupancy tenant of the land in suit.
Section 46 provides that every person deemed or declared to be a malik makbuza under section 33 or section 33 and every other malik makbuza in a mahal, shall be entitled to any right which a tenant has under the village wajibul arz.
The appellant therefore got entitled to such rights of a tenant.
It is clear from the various provisions of the Act already discussed in relation to the facts of this case, that the respondent was not recorded 139 and could not have been recorded to have khudkhast in the land in suit in the papers of 1948 49 and therefore could not have claimed this land as his home farm.
In fact, he did not claim so.
He therefore lost his proprietary rights in this land and they got vested in the State; He therefore had no subsisting right to recover possession of the land in suit, in spite of; the decree in his favour passed on the basis of his being the proprietor of the land in suit, and the appellant being in wrongful possession of that land.
On the other hand, the appellant continued in possession and has, on the basis of the entries in the village papers which had to be presumed correct for the purpose of assessment of compensation secured a declaration of his being malik makbuza of such land from an officer of the State in whom the land in suit now vests.
His right to occupy the land under this right was not adjudicated by the High Court in the judgment leading to the decree ought to be executed.
He can therefore object to the execution of the decree for the delivery of possession as the respondent has no subsisting right and as he has secured from the State a good right to possess it as malik makbuza, even though it be on the basis of a wrong entry in the village papers.
The right to possession vests in the State and under section 7, the Deputy Commissioner formally takes possession of the land, which is not home farm or occupied land within the definition of these expressions in the Act.
If the land in suit be treated to be the appellant 's occupancy tenancy, his right to remain in possession as occupancy tenant continues after the vesting of the land in suit, in the State.
If the land in suit be not taken to be occupancy land of the appellant in view of the finding of the High Court, the Deputy Commissioner would be deemed to have taken possession of the land from the appellant and any subsequent 140 possession of the appellant would be deemed to be possession under the State.
The contention that the Executing Court can not question the decree and has to execute it as it stands, is correct, but this principle has no operation in the facts of the present case.
The objection of the appellant is not with respect to tho invalidity of the decree or with respect to the decree being wrong.
His objection is based on the effect of the provisions of the Act which has deprived the respondent of his proprietary rights, including the right to recover possession over the land in suit and under whose provisions the appellant has obtained the right to remain in possession of it.
In these circumstances, we are of opinion that the Executing Court can refuse to execute the decree holding that it has become inexecutable on account of the change in law and its effect.
Chhote Khan 's Case (1) has net much bearing on the question under consideration in the present case, as it did not deal with the executability of the decree obtained by a proprietor against a trespasser subsequent to the coming into force of the Act.
It dealt with the executability of decrees in favour of the proprietors and passed prior to the enforcement of the Act and held that they had become inexecutable as the effect of sections 3,4,5,7,50 and 60 of the Act was that the rights which were exercisable by the proprietor, lambardar and sadar lambardar by reason of holding that character could no longer be exercised by them and that, even though the cause of action for enforcing those rights arose before the Act came into force, they could not be continued by those persons after the Act came into force as they had ceased to hold that character.
The fact in Rahmatullah 's Case (a) were as follows: The plaintiff sued for possession in respect of 9.18 acres khudkasht lands on the allegation that his predecessor.
in interest, Khubiram, had purchased the defendant 's interest in the village (1) I.L.R. (2) I.L.R, (1955) 983.
141 including khudkasht lands at a revenue auction sale on April 29, 1936.
It was contended that the defendant has no right to remain in possession of the khudkasht lands which along with the, proprietary interest, passed at the revenue sale The defendant contented the suit on the grounds that his khudkasht lands did not pass in the revenue sale, that he had continued all along in possession in respect of the same and had thus acquired the rights of occupancy tenancy which were confirmed in consolidation proceedings.
The suit was decreed in its entirety by the trial Court but the 1st appellate Court confirmed the decree with respect to a portion of khudkasht land which was held to be included in the revenue sale.
By the time the second appeal was heard in the High Court, the Act had come into force.
It was contended on behalf of the defendant judgment debtor that the suit must fail in view of the provisions of the Act as interpreted in Chhote Khan 's Case (1).
In view of the difference of opinion between the learned Judge who heard the second appeal, two questions were referred to a third Judge for opinion and one of the questions was: Does the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) 'Act, 1950 (No. 1 of 1951) bar a suit by an ex proprietor for recovery of khudkasht lands purchased by him before the Act came into force ?" Mudholkar, J., to whom the questions were referred said at p. 996: It is clear from the documents on record that Khubiram had obtained possession of the land in suit after he purchased it along with the village share.
The land was thus khudkasht of Khubiram and accordingly it continued to be khudkasht of the respondent who is a successor in title of Khubiram.
No doubt, this land, though the khudkasht of the 142 respondent, was wrongly recorded as occupancy land of the appellant.
But an erroneous recording of a khudkasht land as an occupancy land would not in law alter the real character of that land.
Thus, despite the wrong entry, the land must be regarded as having always been the khudkasht of the respondent.
If this Court affirms the decree of the two Courts below, the effect of its decision would not be to alter the character of the land and convert a land which is not khudkasht into a khudkasht land.
" Interpreting the definition of `home farm ' in the Act to include such land, which, though not recorded as khudkasht of the proprietor in the annual papers of 1948 49, ought to have been recorded as such, he held that the suit was not barred.
This is not a correct view, for the reasons stated by us earlier.
As we are of opinion that the land in suit could not be the `home farm ' of the respondent as it was not recorded as his khud kasht in the annual papers of 1948 49, the respondent 's proprietary right of this land was lost and got vested in the State on the coming into force of the Act.
On the other hand, we have also held that the appellant obtained a declaration of malik makbuza in his favour from the State, and thus has secured a right to possess it.
In these circumstances, the decree ought to be executed by the respondent has become inexecutable and therefore the order under appeal deserves to be set aside We accordingly allow the appeal and set aside the order of the Court below and Allow the objection of the appellant to the execution of the decree and dismiss the execution application filed by the respondent.
In the circumstances of the case, we make no order as to costs.
Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent purchased at a revenue auction sale eight anna share of and obtained formal possession of that share on September 23, 1938.
relinquished his share in Khudkasht lands and they were recorded as the occupancy lands of his wife and sons.
In 1940 the appellant got a lease of those fields.
The respondent instituted a suit for possession of the lands against the appellant basing his claim on his proprietary right to recover possession, and obtained a decree on July 12, 1944.
The trial court 's decree was confirmed on April 20, 1951, by the High Court which held that the respondent was entitled to the lands as they were originally Khudkasht fields as part and parcel of the eight anna share purchased by him.
In the meantime on March 31, 1951, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, had come into force but the High Court did not consider the effect of the Act on the appeal before it.
Under section 3 of the Act the proprietory rights in an estate specified in the notification passed from the proprietor and became vested in the State free from all encumbrances, rand by section 4, after the issue of the notification under section 3 124 notwithstanding anything contained in any contract, grant or document or any other law for the time being in force, all rights, title and interest which a proprietor possessed on account of his proprietorship of the land within the estate became vested in the State, except, inter alia, His home farm land and occupied land.
Under section 2(g) of the Act home farm lands were those which were recorded as Sir and Khudkasht in the name of a proprietor in the annual papers for the year 1948 49, but in the present case the lands in respect of which a decree had been passed in favour of the respondent, were not so recorded.
On the other hand, the lands were declared Malik Makbuza of the appellant under section 41 of the Act.
In the execution application for the recovery of possession filed by the respondent the appellant raised objections that the respondent was not entitled to execute the decree for possession as his proprietary rights except his home farm lands, ceased to exist on March 1, 1951, by virtue of sections 3 and 4 of the Act and became vested in the State thereafter, and that the State had, after the date of vesting recognized the lands in suit to be tenancy land of the appellant.
The respondent 's plea was that The appellant was not entitled to raise such objections ill the executing court, that the executing court could not go behind the decree and, therefore, must execute it and deliver possession to the respondent.
The executing court dismissed the objections raised by the appellant, and the High Court took the view, relying upon Rahmatullah Khan vs Mahabirsingh, I. L. R. , that the lands in suit must be treated as home farm as it was the duty of revenue authorities to make correct entries in the village papers.
^ Held, that: (1) the principle that the executing court cannot question the decree and has to execute the decree has no operation on the facts of the present case because the objection of the appellant was based not with respect to the invalidity of the decree but on the effect of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, which deprive the respondent of his proprietary rights including the right to recover possession over the lands in suit; (2) the word "document" ill section 4(1) of the Act includes a decree of the court; (3) the lands in suit could not be the home farm of the respondent as they were not recorded as his khudkasht in the annual papers of 1948 49, and consequently, his proprietary right was lost and got vested in the State on the coming into force of the Act; Rahmatullah Khan vs Mahabir Singh, I. I,.
R. , disapproved.
125 Chhote Khan vs Mohammad Obedullakhan, I. L. R. , distinguished.
(4) since the Act did not provide for the outgoing proprietor to recover possession of land by any process of law if he had become entitled to the possession of that land before the date of vesting, his right to get possession by executing his decree got lost to him after the date of vesting; and (5) the executing court should, therefore, have refused to execute the decree holding that it became inexecutable on account of the change in law and its effect.