Thakurain Raj Rani And Others vs Thakur Dwarka Nath Singh And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 153 of 1951

Decision Date: 23 January, 1953

Coram: Natwarlal H. Bhagwati, Mehr Chand Mahajan

In the matter titled Thakurain Raj Rani and Others versus Thakur Dwarka Nath Singh and Others, the Supreme Court of India delivered its judgment on 23 January 1953. The opinion was authored by Justice Natwarlal H. Bhagwati, who sat on the bench together with Justice Mehr Chand Mahajan. The petitioners were identified as Thakurain Raj Rani and other individuals, while the respondents were Thakur Dwarka Nath Singh and other parties. The case was reported in the 1953 AIR 205 and in the 1953 SCR 913. The dispute arose under the provisions of the Indian Succession Act relating to a will, an agreement between a cousin of the testator and the testator, a grant of letters of administration, and questions concerning animus testandi, res-judicata, the nature of the payments, whether the payment constituted a condition precedent or mere consideration, the death of the cousin before the widow, and the legal effect of those circumstances.

According to the factual background, on 7 January 1904 a man identified as G, who was a cousin of S, executed a written agreement in favour of S. The material clause of that agreement stated that G would, as consideration for a concession granted to S, receive a monthly payment of Rs 50 in cash from S for the duration of S’s life, provided that S executed a will in favour of G and G’s sons and that the will, together with an application, was presented to the Deputy Commissioner of Sitapur district for sanction by the Members of the Board of Revenue. The agreement further provided that if S failed to perform the contract, G would have the right to enforce performance through the courts. This agreement was formally registered on 11 January 1904.

Subsequently, on 18 January 1904 S submitted a draft of his will for sanction. The will, after amendment and official sanction, was executed on 28 July 1904. The substantive provisions of the will declared that, after S’s death, his wife would enjoy possession of his entire estate for her lifetime, without any power to transfer the property or rights. Upon the wife's death, the entire estate and associated rights were to devolve upon G, the cousin, with full proprietary authority. Furthermore, after G’s death, the estate was to pass to X, Y, and Z, who were identified as the sons of G, in specified shares. The will also contained provisions for the maintenance of S’s daughter, sister, aunt, and mother.

Following the death of G, his sons applied for letters of administration with the will annexed. The Chief Court of Oudh granted the letters of administration to G’s sons, and that decision was later affirmed by the Privy Council, which upheld the grant of letters and the validity of the will as the last testament of S.

On appeal in 1937 the heirs of S filed a suit against the sons of G seeking a declaration that the will executed by S was inoperative and ineffective and that, consequently, the sons of G possessed no right whatsoever to S’s properties. The plaintiffs contended that S did not possess the requisite animus testandi when the will was made and that G had also failed to pay the agreed monthly sum of fifty rupees to S. The Court held that the deed of agreement and the will were not separate instruments but rather formed a single transaction and a single contract, with the agreement serving as consideration for the will and the will serving as consideration for the agreement. The Court further observed that the Privy Council had already ruled that the document was the last will and testament of S and had issued letters of administration; therefore, the issue of animus testandi was conclusively decided and could not be reopened (res judicata). The contention that the monthly payment of fifty rupees was a condition precedent to the validity of the will, and that non-payment rendered the will inoperative, was also barred by the same doctrine of res judicata because the Privy Council’s grant of letters of administration settled that question. Even on the merits, the Court found the plea untenable, noting that the wife and other relatives of the testator enjoyed rights under the will that did not depend on G’s monthly payments. However, the Court distinguished the question of whether the fifty-rupee payment was a condition precedent to the vesting of the legacy in G or his sons, stating that this particular issue had not been finally decided and the plaintiffs were therefore free to raise it. Upon proper interpretation of the agreement, the Court concluded that the fifty-rupee monthly payment was not a condition precedent to the vesting of the legacy in G; it was merely a consideration. Consequently, the appropriate remedy for the plaintiffs lay in enforcing the agreement if it had not been performed, rather than in challenging the will itself. Finally, the Court determined that G had obtained a vested remainder under the will; this vested interest did not revert to the residue upon his death before the widow but passed directly to his sons. Since the bequest to G did not lapse, there was no resulting trust or intestacy concerning the remainder, and the sons of G were entitled to the estate under the terms of the will.

The matter came before the Civil Appellate Jurisdiction as Civil Appeal No. 153 of 1951, an appeal arising from the judgment and decree dated 2 January 1946 of the Chief Court of Oudh in First Civil Appeal No. 9 of 1940, which in turn stemmed from the decree dated 6 November 1939 of the Civil Judge in Regular Suit No. 36 of 1937. Counsel for the appellants appeared as a senior advocate and his associate, while counsel for the respondents appeared as a senior advocate and his associate. The judgment was delivered on 23 January 1953 by Justice Bhagwati. The Court affirmed the decision of the late Chief Court of Oudh, which had upheld the decree of the Civil Judge of Sitapur that dismissed the plaintiffs’ suit.

Thakur Shankar Bux Singh, who owned the estate known as Rampur Kelali in the district of Sitapur in Oudh, was heavily indebted and consequently the estate had been placed under the possession of the Deputy Commissioner of Sitapur as receiver from 1892 until 11 July 1901. After that date he was declared a disqualified proprietor pursuant to Section 8(D)(1) of the Uttar Pradesh Court of Wards Act, 1899 (U.P. Act III of 1899), and the Court of Wards accordingly took possession of the estate on 1 August 1901. Under Section 34 of that Act he was not competent to dispose of his property by a will without obtaining the written consent of the Court of Wards. Nevertheless, before 1 August 1901 he had executed four successive wills, the last of which, dated 19 June 1901, devised his entire estate absolutely to his wife. On 30 November 1901 he executed another will that granted a life interest to his wife, gave the remainder to his cousin Ganga Bux Singh, and included certain legacies for the maintenance of his three daughters, his father’s sister and his mother. The Court of Wards refused to give its consent to that will, and consequently the will failed to take effect. On 7 January 1904 Ganga Bux Singh executed a registered deed of agreement in favour of Shankar Bux Singh, agreeing to pay him a monthly sum of Rs. 50 during his lifetime, provided that Shankar Bux Singh would execute a will in favour of Ganga Bux Singh and his sons and submit it to the members of the Board of Revenue for sanction. In compliance with that agreement, a draft of the will was prepared on 18 January 1904, whereby Shankar Bux Singh allotted a life interest to his wife, gave the residue of the property to Ganga Bux Singh and, after him, to his sons, and also provided legacies for the maintenance of his daughters, his father’s sister and his mother. The Board of Revenue, on 25 May 1904, communicated that it would not withhold its consent to a will that was substantially similar to the draft, provided that it incorporated the alterations suggested in a further letter dated 27 April 1904. Acting on that advice, Shankar Bux Singh executed and published a final will on 28 July 1904, cancelling all earlier wills, and he prepared it in accordance with the Board’s suggestions of 25 May 1904. He appears to have delivered the original of this will to Ganga Bux Singh but did not inform the authorities of its execution; the authorities learned of its existence only when Ganga Bux Singh handed the original will to the Special Manager around 19 December 1905. Subsequently, Shankar Bux Singh changed his religious affiliation, embracing Christianity, and expressed his intention to marry a Christian woman. He submitted a draft of a new will to the Court of Wards on 8 June 1906, intending to execute it in favour of his Christian wife. The Board withheld its consent to that new draft and, on 13 July 1906, also communicated its refusal to consent to the previously executed will of 28 July 1904. A further attempt by Shankar Bux Singh on 21 November 1906 to obtain the Board’s consent for another draft will also failed. Consequently, the will dated 28 July 1904 remained the sole last testament executed by him, and it was subsequently registered after obtaining the Court of Wards’ consent. Shankar Bux Singh died on 28 July 1922; at the time of his death he was a Christian, and therefore the succession to his property was governed by the Indian Succession Act. His wife received one-third of the estate, while the remaining two-thirds were divided equally between his surviving daughter and the son of a predeceased daughter. The mutation of the estate was effected in the records of rights, showing the widow as the owner.

The Board of Revenue refused to give its consent to the new will that the testator intended to make in favour of his Christian wife, and on 13 July 1906 communicated this refusal. In the same notice the Board also withdrew its earlier consent to the will that had been executed on 28 July 1904. The testator made another attempt to obtain the Court of Wards’ approval on 21 November 1906 by submitting a further draft will, but this effort also failed. Consequently the only will that remained valid was the one dated 28 July 1904, which after obtaining the Court of Wards’ consent was duly registered. The testator, Shankar Bux Singh, died on 28 July 1922. At the time of his death he was a Christian, and therefore his estate was administered according to the provisions of the Indian Succession Act. Under that law his widow was entitled to one-third of the estate, while the remaining two-thirds were to be shared equally between his surviving daughter and the son of a predeceased daughter. The land records were subsequently updated to show the widow as the owner in place of the deceased. The Court of Wards relinquished its charge over the estate in November 1925.

On 16 August 1927 the widow executed a deed of gift that transferred the bulk of the estate to the daughter and to the son of the predeceased daughter. In the same year she executed another deed of gift conveying the rest of the properties. On 8 September 1928 Ganga Bux Singh filed a suit before the Sub-ordinate Judge of Sitapur seeking a declaration that the widow possessed only a life interest under the aforesaid will and that the gifts she had made were void. The widow defended the suit, contending that Ganga Bux Singh could not maintain the action without first obtaining letters of administration with the will annexed. The court accepted this defence and dismissed the suit on 14 July 1930. While the suit was pending, Ganga Bux Singh died on 19 October 1929. On 25 September 1930 his sons applied to the Chief Court of Oudh for letters of administration with the will annexed. The widow and other heirs opposed the application, alleging that the will had been executed without the sanction of the Court of Wards. Justice Kisch delivered a detailed judgment, rejected all the objections, and granted the letters of administration with the will annexed on 16 November 1931. An appeal filed by the widow and the heirs was heard by the Bench of the Chief Court of Oudh at Lucknow, which on 8 September 1933 allowed the appeal and set aside the lower court’s order granting the letters of administration.

An appeal was made to the Privy Council, and on the seventh of May, 1937, the Lords of the Privy Council set aside the decree of the Appeal Court and reinstated the decree originally issued by Mr. Justice Kisch. While doing so, the Lords observed that the sole practical consequence of their judgment was that letters of administration, together with a copy of the will, should be granted as had been requested. They also clarified that this order would not, in any manner, prejudice any legal proceedings that might be instituted against any of the beneficiaries, whether by the respondents themselves or by any other interested party.

Subsequently, on the ninth of September, 1937, the widow, the daughter, and the son of the deceased daughter of Shankar Bux Singh—who were the plaintiffs—filed the suit from which the present appeal arose. The defendants in that suit were the three sons of Ganga Bux Singh. The plaintiffs sought a declaration that the will dated twenty-eighth of July, 1904, was inoperative and ineffective, and that, in any event, the defendants possessed no right, title, or interest in the properties that were the subject of the suit. They further claimed that the first plaintiff was entitled to hold the disputed property under the will of Shankar Bux Singh dated nineteenth of June, 1901, and that the three plaintiffs, as heirs-at-law of the deceased Shankar Bux Singh, were likewise entitled to the same under the provisions of the Indian Succession Act. Additional and other reliefs were also claimed.

In the plaint, the plaintiffs alleged that the 1904 will was inoperative because Shankar Bux Singh had no animus testandi, and that the will was void with respect to the testamentary disposition favoring Ganga Bux Singh and his sons. The plaintiffs argued that Ganga Bux Singh had failed to fulfil his part of a contract concerning the payment of a monthly allowance; consequently, they maintained that the defendants could not enjoy any benefit under that disposition. They further asserted that the allowance was a condition precedent, and because the condition had not been satisfied, the disposition became inoperative.

The third defendant filed a written statement on the seventh of February, 1938, contesting the plaintiffs’ claim. He contended that the issue of the validity or effect of the will was barred by res judicata due to the Privy Council judgment dated the seventh of May, 1937. He denied that the will had been executed in consideration of any agreement, rejected the existence of any contingent or conditional contract, and asserted that no trace of the alleged condition could be found in any of the correspondence between Shankar Bux Singh and the Board of Revenue.

The learned Civil Judge of Sitapur, after examining both oral and documentary evidence presented before him, held that the will and the alleged agreement together constituted a single contract. He found that Ganga Bux Singh had indeed failed to perform his promised part of that contract. The Judge observed that the only question presented before the Privy Council pertained to the consent of the Court of Wards. Accordingly, although the plaintiffs were barred from challenging the genuineness of the will, they were not precluded from seeking a declaration that the defendants were not entitled to any benefit under the will, and that the Privy Council decision did not operate as res judicata on the issues raised in the present case.

In this case, the Court observed that the plaintiffs sought a declaration that the defendants were not entitled to any benefit under the will, and that the earlier decision therefore should not operate as res judicata for the issues before this Court. The Court further held that the contract between the parties clearly provided a remedy for breach by either side. It found that Shankar Bux Singh had not, in fact, cancelled the will and could not be said to have treated it as inoperative. The Court concluded that Ganga Bux Singh had acquired a vested interest in the estate upon the death of the testator, and that on Ganga Bux Singh’s death that interest passed to his sons, who were the defendants in the present suit. Consequently, the Court determined that the plaintiffs were not entitled to any of the relief they claimed. The plaintiffs appealed this finding to the Chief Court of Oudh. The Chief Court rejected the plaintiffs’ contention that Shankar Bux Singh lacked animus testandi and that the instrument was a will in form only, holding instead that the matter was barred by res judicata in view of the Privy Council decision. The Chief Court also rejected the argument that the bequest in favour of Ganga Bux Singh was conditional, and rejected the proposition that Ganga Bux Singh, having failed to fulfil his obligation to pay the gujara, had thereby become a trustee holding the beneficial interest for the testator or his heirs. The appeal was dismissed with costs.

The plaintiffs then applied for leave to appeal to the Privy Council, and the Chief Court of Oudh issued the required certificate on 8 August 1947. At the outset of the Privy Council proceedings, it was necessary to set out the deed of agreement and the will executed by Ganga Bux Singh and Shankar Bux Singh on 7 January 1904 and 28 July 1904 respectively. The deed of agreement dated 7 January 1904 read as follows: “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, therefore by way of consideration for this concession and favour, I, the executant, out of my own free will do hereby execute this agreement in favour of my cousin aforesaid that in the month in which the said cousin might execute the said will in my favour and that of my sons and lays the same along with an application before the Deputy Commissioner, Sitapur district, for sanction of the Members of the Board of Revenue, I shall from the 1st date of the month following that month, continue to pay to my said cousin Rs. 50 in cash every month during his life, so long as the said will remains in force and under this contract I make my”. The will dated 28 July 1904 was executed by Shankar Bux Singh in the terms following: “I am Thakur Shankar Baksh alias S. John son of Thakur Anant Singh, Taluqdar of Rampur and Grantee of Piprawan, district Sitapur. Out of my”.

The agreement provided that the person who executed it would be liable for the obligations and would hypothecate the consideration by virtue of the agreement. It further stipulated that, should the executant fail to fulfil the contractual obligations, the cousin named in the agreement was vested with the authority to compel performance by initiating proceedings in a court of law against the executant. The agreement also contained a condition precedent related to the sanction of the will by the Members of the Board of Revenue. If the will, which the cousin intended to execute, failed to obtain such sanction, or if the cousin himself chose to revoke the will under any circumstance, the right to receive the monthly payment of fifty rupees would cease from the moment of such revocation or refusal. Moreover, the agreement required that any amount of the monthly sum already received by the cousin up to the point of revocation or refusal must be returned to the executant, thereby obligating the cousin to refund those monies.

The will dated twenty-eighth July, nineteen hundred and four, was drafted and signed by Shankar Bux Singh, who identified himself as Thakur Shankar Baksh, also known as S. John, son of Thakur Anant Singh, Taluqdar of Rampur and Grantee of Piprawan in the district of Sitapur. In clear and unequivocal language, he declared that, of his own free will and consent, he made a testamentary disposition that, after his death, his wife would retain possession of the entire estate—including both movable and immovable property and all associated rights—for the duration of her lifetime, without any authority to transfer such property or rights. Upon the wife’s death, the entire estate and rights were to devolve upon his real cousin, Ganga Bakhsh, who would enjoy full proprietary powers. After Ganga Bakhsh’s death, the estate and rights were to pass to Ganga Bakhsh’s sons—Dwaraka Nath, Ajodhia Nath and Tirbhuwan Nath—in the proportions of six annas to Dwaraka Nath and five annas each to Ajodhia Nath and Tirbhuwan Nath. The will further specified a maintenance allowance (Guzara) for certain family members: Musammat Permeshuri, the testator’s eldest daughter married to the son of Rai Anant Ram, was to receive one hundred rupees per month, limited to male issue; Musammat Chandrani, the testator’s younger sister married to Rai Raghubir Bakhsh, son of Rai Kunwar Bahadur, Rais of Shahabad, district Hardoi, was to receive sixty rupees per month, also limited to male issue; Mussamat Roop Rani, the testator’s paternal aunt (father’s sister) and widow of the late Munshi Chedi Prasad, Rais of Qasba Mahona, district Lucknow, was to receive forty-five rupees per month, limited to male issue; and Musammat Sohni, the testator’s mother, was to receive seventy rupees per month for her lifetime. The testator further affirmed that his estate was under the superintendence of the Court of Wards and that the Hon able Members of the Board of Revenue had authorized him to execute the will. Consequently, he declared this document to be his final will, revoking all previously executed wills.

It was evident from the wording of the deed of agreement that Ganga Bux Singh had undertaken to pay Rs 50 in cash each month for the duration of Shankar Bux Singh’s life, and that this payment was to be given in exchange for Shankar Bux Singh’s promise to devise the residue of his estate in favour of Ganga Bux Singh and his sons. The deed was registered by Ganga Bux Singh on 11 January 1904, and shortly thereafter, on 18 January, Shankar Bux Singh submitted a draft of his will to the Court of Wards. That draft was later altered by a letter dated 27 April 1904; the altered draft was incorporated into the final will, which was executed on 28 July 1904 after a sanction letter had been obtained from the Board of Revenue on 25 May 1904. The learned Civil Judge, considering these facts, correctly concluded that the deed of agreement and the will constituted a single transaction, that the consideration for the will was the deed and, conversely, that the consideration for the deed was the will, so that together they formed one contract. Neither the Chief Court of Oudh nor this Court received any challenge to that finding, and consequently the finding could not be reopened. The Civil Judge also recorded a further fact: Ganga Bux Singh had failed to make any of the stipulated monthly payments to Shankar Bux Singh under the deed, even though Shankar Bux Singh had executed the will and had presented it, together with the application, to the Deputy Commissioner of Sitapur for the Board’s sanction. This omission meant that Ganga Bux Singh had not performed his contractual obligation, and that factual finding likewise escaped any challenge before the Chief Court of Oudh and could not be revisited here. The question that now fell for determination was the legal effect of Ganga Bux Singh’s failure to make the agreed payments. Counsel for the plaintiffs, Dr Tekchand, argued that the non-payment and the resulting breach rendered the will ineffective and inoperative, contending that the monthly payment of Rs 50 during Shankar Bux Singh’s lifetime was a condition precedent to the vesting of the legacy in Ganga Bux Singh. Since that condition had not been satisfied, he maintained that the legacy never vested in Ganga Bux Singh and that, on a proper construction of the will, Ganga Bux Singh acquired no vested interest in the residue. He further submitted that the Chief Court of Oudh had misinterpreted the scope of the Privy Council judgment and that both issues concerning animus testandi and the condition precedent remained open for consideration.

The Court examined whether the monthly payment of fifty rupees was a condition precedent that could affect Ganga Bux Singh’s legacy, even though the issue of proper execution of the will had already been closed by res judicata. Regarding the last contention raised by Dr. Tekchand, both lower courts held that the question of animus testandi was barred by res judicata. The Privy Council decided that the disputed will had not been revoked and that it represented the final testament of Shankar Bux Singh. That decision necessarily meant that, when he affixed his signature, the testator was of sound mind, a free agent, and had duly executed the will in accordance with the law. The ruling was conclusive with respect to testamentary capacity, due execution, and the authority of the person to whom letters of administration with the will annexed were granted. Consequently, the plaintiffs could not argue that the will executed by Shankar Bux Singh was merely a formal document lacking substantive effect. The issue of animus testandi therefore remained barred by res judicata, while the question of whether the bequest to Ganga Bux Singh could take effect because of a default in payment was not decided by the Privy Council and thus was not covered by res judicata. Both lower courts therefore permitted the plaintiffs to raise that issue, even though they ultimately reached a conclusion adverse to the plaintiffs. This Court agrees that there is no bar of res judicata on that question and that the lower courts were correct in allowing the plaintiffs to argue it. The payment of fifty rupees per month to Shankar Bux Singh during his lifetime could be interpreted either as a condition precedent to the whole will becoming operative or as a condition precedent solely to the vesting of the legacy in favor of Ganga Bux Singh. If the plaintiffs advanced the former interpretation, that claim would be barred by res judicata because no court would grant probate or letters of administration for a will that had become inoperative and was merely a scrap of paper. Accordingly, the plaintiffs could not maintain that the entire will had become inoperative due to non-fulfilment of the condition precedent, as that position would contradict the Privy Council’s decision. Even on merits, that view was untenable because, besides Ganga Bux Singh, the widow enjoyed a life interest and the three daughters, the father’s sister and the mother were given legacies for maintenance, and they.

The widow, the three daughters, the father’s sister and the mother were certainly not guilty of any failure to satisfy a condition precedent. Consequently, the will remained operative with respect to those persons, and the only consequence of the alleged non-fulfilment of a condition precedent relating to Ganga Bux Singh was to prevent the legacy intended for him from vesting. This view could be relied upon by the plaintiffs, who could argue that because Ganga Bux Singh did not satisfy the alleged condition precedent, the legacy granted to him never became effective. If the monthly payment of Rs. 50 to Shankar Bux Singh during his lifetime was indeed a condition precedent, then the plaintiffs were on solid footing, and the defendants’ counsel had not contested this position before the Court. Thus, the remaining question for determination was whether the payment of Rs. 50 pet month to Shankar Bux Singh while he was alive constituted a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh.

The learned Civil Judge had already held that the consideration for the will was the deed of agreement, and conversely, the consideration for the deed of agreement was the will, so that the will and the agreement together formed a single contract. Had Ganga Bux Singh not executed the deed of agreement, Shankar Bux Singh would not have forwarded the draft will to the Court of Wards for sanction, nor would he have executed the will on 28 July 1904. The contract was an overall arrangement obliging each party to perform its respective duties. Ganga Bux Sigh’s duty was to execute the deed of agreement, thereby agreeing to pay the sums to Shankar Bux Singh according to the agreed terms. Shankar Bux Singh’s duty was to execute the will and to submit it to the Court of Wards for its sanction. Both parties discharged these obligations; the two documents were supported by consideration and therefore became binding on both. The failure of Ganga Bux Singh to make the agreed payments amounted at most to a failure to fulfil his contractual obligation, which gave Shankar Bux Singh the right to pursue his remedies for breach of contract. Dr. Tekchand urged that the consideration itself formed a condition precedent and that Ganga Bux Singh’s non-payment of Rs. 50 per month constituted a failure to satisfy that condition precedent. He relied on the observations of Chief Justice Wills in Acherley v. Vernon, 125 English Reports 1106 at page 1108 (Willes 153 at page 156), wherein it was stated: “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 this matter the Court examined the principle that when a person promises to give something in exchange for another thing, or agrees to perform a certain act or to pay a sum of money in consideration of another act to be performed, the promised performance is regarded as a condition precedent. The Court cited several authorities to illustrate this rule. In the case of Acherley v. Vernon, 125 English Reports 1106 at page 1108, the observations of Chief Justice Wills were quoted, noting that words in a will or deed may create either a condition precedent or a subsequent condition depending on the nature of the transaction and the parties’ intention. The Court further referred to Peters v. Opie, reported in I Ventr. 177 and I Saund. 350, where it was held that if a man agrees to pay a sum of money to another “pro labore suo” for pulling down a house, the demolition of the house constitutes a condition precedent to the payment. Similarly, in the case of Thorpe and Thorpe, I Salk. 171, a man’s agreement to pay money to another in exchange for the release of the equity of redemption in certain lands was treated as a condition precedent. The Court also mentioned Turner v. Goodwin, adjudicated by Lord Macclesfield and other judges of the Bar, where Goodwin was obliged to pay Turner fifteen thousand rupees for assigning a judgment, and it was held that the payor could not demand the money until he had performed the act that formed the consideration, which was deemed a condition precedent.

These authorities were relied upon by Dr. Tekchand in support of his contention that the requirement for Ganga Bux Singh to pay Rs 50 per month to Shankar Bux Singh during his lifetime operated as a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh. While the Court recognised the persuasive force of those observations, it was compelled to note that the specific terms of the deed of agreement expressly negated such a contention. The agreement itself set out the consequences if the stipulated payment was not made. It provided that, should Ganga Bux Singh fail to perform his contractual obligation, Shankar Bux Singh would have the power to compel performance through the Court. This remedial provision could not exist if the payment were merely a condition precedent, because the failure of a condition precedent would render the entire agreement inoperative, leaving no enforceable rights for Shankar Bux Singh. The very existence of the right to seek specific performance indicates that the parties intended the agreement to remain operative despite any breach, thereby allowing Shankar Bux Singh to enforce the contract against Ganga Bux Singh.

In this case the Court observed that the parties had intended the contract to remain in force and that, for Ganga Bux Singh, it was never contemplated that he could abandon his obligation to pay Rs 50 per month to Shankar Bux Singh for the duration of his life so long as the will remained unrevoked. The Court noted that, for Shankar Bux Singh, two separate events were envisaged: first, the possible withholding of consent by the Court of Wards, and second, the possible revocation of the will by Shankar Bux Singh himself. Under the agreement the sum of Rs 50 per month was to be paid by Ganga Bux Singh starting from the month in which Shankar Bux Singh executed the will and presented it to the Court of Wards for sanction. If the Court of Wards refused its consent, any payments made by Ganga Bux Singh during that interval were to be refunded by Shankar Bux Singh. Even if the Court of Wards gave its consent, Shankar Bux Singh retained the power to later revoke the will, and the agreement expressly required that, upon such revocation, Shankar Bux Singh refund to Ganga Bux Singh all amounts that had been paid up to the date of revocation. The Court emphasized that these provisions created independent obligations on the part of each party. Ganga Bux Singh was bound, for as long as the will stood unrevoked, to pay Rs 50 each month to Shankar Bux Singh throughout his lifetime. Simultaneously, Shankar Bux Singh was bound to obtain the consent of the Court of Wards and to keep the will unrevoked during his lifetime. Because the obligations were autonomous, the agreement specified the consequences of any failure by either party to perform. Accordingly the Court rejected the contention that the monthly payment was a condition precedent to the vesting of the legacy. Rather, the payment was a consideration provided by Ganga Bux Singh for Shankar Bux Singh’s execution of the will. If Ganga Bux Singh breached this part of the contract, the only result was that Shankar Bux Singh became entitled to recover the unpaid amounts by proceeding to a court of law. The contract therefore continued to subsist, leaving the parties with the rights and remedies envisaged by the agreement. In spite of the non-payment by Ganga Bux Singh of the sum of Rs 50 per month to Shankar Bux Singh

According to the terms of the agreement, Shankar Bux Singh never revoked the will at any time, and he also never initiated any legal proceeding against Ganga Bux Singh to recover the sums that Ganga Bux Singh had failed to pay. He kept the will in force, and when he died the instrument became operative as his final testament, thereby causing the interest in the remainder of his estate to vest in Ganga Bux Singh as the will expressly provided. The will itself contains no clause that makes the gift to Ganga Bux Singh dependent on the regular receipt of the payments contemplated in the separate agreement. The contention raised by Dr Tekchand, which relied upon section 81 of the Indian Trusts Act, could not succeed because the intention of Shankar Bux Singh had to be determined at the moment the will was executed, not at any later date. That intention was plainly to create a testamentary disposition of the remainder in favour of Ganga Bux Singh. Such an intention was wholly inconsistent with any notion that Shankar Bux Singh intended to retain the beneficial interest in the remainder and therefore it was impossible for a secret trust or a trust of imperfect obligation to have been created for the benefit of Shankar Bux Singh’s legal heirs. The further argument by Dr Tekchand that the remainder failed to vest in Ganga Bux Singh because he had predeceased the widow of Shankar Bux Singh was likewise untenable. The legacy to Ganga Bux Singh was a legacy of the remainder of the estate; it vested in him but its possession was deferred until the life interest granted to the plaintiff had terminated. That vested interest could then pass to the defendants, who were the heirs and legal representatives of Ganga Bux Singh, upon his death, and consequently the defendants, as such heirs and representatives, were rightfully entitled to the benefit. Because the bequest was unconditional and did not lapse, there was no basis for a resulting trust or any question of intestacy with respect to the remainder. Accordingly, the appeal was found to fail and was dismissed with costs. The appeal was dismissed. Agent for the appellants: Rajinder Narain. Agent for the respondents: C. P. Lal.