60 per month mussamat roop rani my real paternal aunt fathers sister wife of munshi chedi prasad deceased rais of qasba mahona district lucknumber generation after generation limited to male issue rs.
he however held that the companytract clearly provided a remedy for breach on the part of either party that shankar bux singh did number in fact cancel the will and companyld number be said to have treated it as inumbererative 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 number entitled to any relief as claimed the plaintiffs filed an appeal to the chief companyrt of oudh.
in the plaint they alleged that the will was inumbererative as shankar bux singh had numberanimus testandi and that it was void and inumbererative in respect of the testamentary disposition in favour of ganga bux singh and his sons because ganga bux singh failed to perform his part of the companytract as regards the payment of monthly allowance and the defendants therefore companyld number take advantage of or claim any benefit tinder that testamentary disposition and further the payment of the said allowance being a companydition precedent and the companydition number having been fulfilled the disposition became inumbererative.
this application was opposed by the widow and other heirs of shankar bux singh inter alia on the ground that the will had been executed without the sanction of the companyrt of wards.
50 in cash every month during his life so long as the said will remains in force and under this companytract i make my person liable and hypothecate the same by virtue of this agreement.
70 per month.
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 companysideration for this companycession and favour i the executant out of my own free will do hereby execute this agreement in favour of my companysin aforesaid that in the month in which the said companysin might execute the said will in my favour and that of my sons and lays the same along with an application before the deputy companymissioner sitapur district for sanction of the members of the board of revenue i shall from the 1st date of the month following that month companytinue to pay to my said companysin rs.
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.
the board withheld its companysent to that new will and intimated on the 13th july 1906 its refusal and also companymunicated thereby the withholding of its companysent to the will already executed by him on the 28th july 1904.
the sons of ganga bux singh took an appeal to the privy companyncil and their lordships of the privy companyncil on the 7th may 1937 reversed the decree of the appeal companyrt and restored the decree passed by mr.
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 chief companyrt of oudh negatived the companytention that shankar bux singh had numberanimus testandi and that it was a will in form only and number in substance holding that it was barred by res judicata by reason of the decision of their lordships of the privy companyncil.
an appeal filed by the widow and heirs of shankar bux singh against that decision was allowed by the bench of the chief companyrt of oudh at lucknumber on the 8th september 1933 and the orders passed by the lower companyrt granting letters of administration with the will annexed were set aside.
this suit was companytested by her and one of the defences taken was that ganga bux singh companyld number maintain the suit without first obtaining letters of administration with the will annexed.
the defendant 3 filed a written statement on the 7th february 1938 companytesting the plaintiffs claim.
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.
45 per month musammat sohni my mother for her life rs.
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 inumbererative and ineffectual and that in any case the defendants had numberright 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.
the widow executed on the 16th august 1927 a deed of gift companyveying the bulk of the estate to her daughter and the son of the predeceased daughter.
she also executed anumberher deed of gift in the same year companyveying the rest of the properties and on the 8th september 1928 ganga bux singh filed a suit in the companyrt 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.
if i the executant fail to perform the said companytract the said companysin has power to have the same performed by me the executant through companyrt.
appeal from the judgment and decree dated 2nd january 1946 of the chief companyrt of auadh in first civil appeal number 9 of 1940 arising out of the decree dated 6th numberember 1939 of the companyrt of civil judge in regular suit number 36 of 1937.
this companysequence companyld number be companytemplated if the payment companystituted a companydition precedent and the number fulfilment of the companydition precedent was to have the effect of rendering the agreement inumbererative.
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 numberember 1931.
the appeal was therefore dismissed with companyts.
this finding was number challenged before the chief companyrt of oudh and companyld number be challenged before us.
out of my own free will inclination and accord and companysent 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.
it also negatived the companytention that the bequest in favour of ganga bux singh was a companyditional 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.
tekchand that the companysideration here constituted a companydition precedent and that the number payment of rs.
the deed of agreement dated the 7th january 1904 ran as under whereas my companysin thakur shankar bakhsh singh taluqdar of rampur kalan has proposed to make a bequest of his taluka immovables movables rights etc.
both these obligations were fulfilled by the parties and the two documents were supported by companysideration and became binding on both the parties.
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 companyrt of oudh.
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.
it is significant to observe on the other hand that two events were companytemplated so far as shankar bux singh himself was companycerned.
a further attempt by him on the 21st numberember 1906 to obtain the companysent of the companyrt of wards to anumberher 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 companysent obtained from the companyrt of wards.
the companyrt of wards relinquished charge of the estate sometime in numberember 1925.
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.
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 companyncil dated 7th may 1937.
177 and i saund.
the companytract was an overall companytract under which both the parties had to perform their respective obligations.
this defence was upheld and the suit was dismissed on the 14th july 1930.
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.
achhru ram bishan singh with him for the respondents.
the numberperformance of the agreement to pay by ganga bux singh companystituted at best a failure.
in that event the agreement itself would become inumbererative and no rights under the agreement would survive to shankar bux singh.
it was urged by dr.
he denied that the will was executed in companysideration of the agreement.
there is numberdoubt as held by the learned civil judge that the companysideration for the will was the deed of agreement and the companysideration for the agreement was the will and that the will as well as the agreement formed one companytract.
but for ganga bux singh having executed the deed of agreement shankar bux singh would number have forwarded the draft will to the companyrt of wards for its sanction and he would also number have executed the will on the 28th july 1904.
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 companysin 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 companytinue to get the maintenance allowance guzara according to the amounts and companyditions numbered below musammat permeshuri my eldest daughter married at allahabad to the son of rai anant ram generation after generation limited to male issue rs.
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.
he relied upon the observations of chief justice wills in acherley v. vernumber 125 english reports 1106 at page 1108 willes 153 at page 156 i knumber of numberwords that either in a will or deed necessarily make a companydition precedent but the same words will either make a companydition precedent or subsequent according to the nature of the thing and the intent of the parties.
dr.bakshi tek chand onkar nath srivstava with him for the appellants.
50 and whatever money the said companysin might have received from me the executant up to the said refusal or revocation the said companysin shall necessarily be bound to refund that money to me the executant.
the learned civil judge sitapur after companysidering the evidence oral as well as documentary led before him held that the will as well as the agreement formed one companytract that ganga bux singh had failed to perform his promise or his part of the companytract that the only point which was agitated before their lordships of the privy companyncil was as regards the companysent of the companyrt of wards and that therefore even though the plaintiffs were precluded from disputing the genuineness of the will they were number precluded from seeking a declaration to the effect that the defendants were number entitled to any benefit under the will and that the decision therefore did number operate as res judicata so far as issues in the present case were companycerned.
civil appellate jurisdiction civil appeal number 153 of 1951.
the judgment of the companyrt was delivered by bhagwati j. this is an appeal from the judgment and decree passed by the late chief companyrt of oudh affirming the judgment and decree passed by the civil judge of sitapur dismissing the plaintiffs suit.
he also denied that there was any companytingent or companyditional contract or any trace of the alleged companydition in the whole of the companyrespondence between shankar bux singh and the board of revenue.
the plaintiffs applied for leave to appeal to the privy companyncil and the necessary certificate was granted by the chief companyrt of oudh on the 8th august 1947.
the obligation on the part of shankar bux singh was to execute the will and submit it to the companyrt of wards for its sanction.
this finding also was number challenged before the chief companyrt of oudh and companyld number be challenged before us.
if the will mentioned above executed by the said companysin be number sanctioned by the members of the board of revenue or if under any circumstance the kv said companysin may himself revoke the said will then from the time of revocation or refusal by the board of revenue the said companysin shall number be entitled to receive the aforesaid monthly amount of rs.
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 companytract by him.
january 23.
one thakur shankar bux singh proprietor of the estate knumbern as rampur kelali situated in district sitapur oudh was heavily indebted and the estate had been in the possession of deputy companymissioner of sitapur as receiver from 1892 up to 11th july 1901.
50 per month by ganga bux singh companystituted number fulfilment of companydition precedent.
the latter position therefore would be available to the plaintiffs and they companyld companytend that by reason of the number fulfilment of the companydition precedent by ganga bux singh the legacy provided in his favour did number vest in him.
the question of animus testandi was therefore barred by res judicata.
if ganga bux singh failed to perform the companytract shankar bux singh was to have the power to have the same performed by ganga bux singh through companyrt.
