KALI SADHAN BANERJEE Vs. K K BANERJI

JUDGEMENT

(1.) This is an appeal from the decision of the learned Additional District Judge at Suri in Title Appeal No. 59 of 1971 affirming the judgment and decree of the learned Munsiff. First Court at Rampurhat by which he has decreed the Title Suit No. 163 of 1968 for a declaration of title and permanent injunction.

(2.) The only point that arises in this appeal relates to the construction of the terms of a deed of settlement. Admittedly the disputed tank in plot No. 1390 of Mouza Karkariya. 8 annas share in which is the subject matter of the suit, originally belonged to Janaki and Aghor Nath Baneriees who were two brothers. Janaki executed a deed of settlement dated 25th Aug. 1918 (8th Bhadra 1325 B. S.) in respect of his 8 annas share in the disputed tank and other properties in favour of his wife Brojendra Bala and son Dhwajadhari. The relevant recitals in the said deed of settlement are as follows:--

(3.) I cannot concur in the view taken by the learned Additional District Judge on the construction of the relevant clause in the deed of settlement according to which if both the wife and the son of the settlor died during the settlor's lifetime the properties would revert to the settlor as an absolute estate. In my opinion, the said clause is a defeasance clause and not a clause repugnant to the grant of absolute estate to the settlor's son Dhwajadhari because the effect of that clause IB to reduce or curtail the absolute estate granted to the son of the settlor to a life estate on the happening of the contingency. In a case where the donor grants an absolute estate to the donee and in a subsequent clause in the deed provides that on the happening of a contingency the absolute estate would be curtailed to a life estate after the death of the donee by exclusion of all the heirs at law of the donee from inheritance, such a clause is a defeasance clause as it defeats or extinguishes the absolute estate and not a repugnant clause. The test bringing out the nice distinction between a defeasance clause and a repugnant one has been formulated by the Madras High Court in the case of Govindaraja Pillai v. Mangalam Pillai AIR 1933 Mad 80 in the following words. Where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership the clause is a repugnant one and is therefore void. If, however, the intention expressed or to be necessarily implied is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be violation of any rule of law, the clause is a defeasance clause and would operate according to its tenor. In the Bench decision in the case of Golak Behari Mondal v. Suradhani Dasi, ILR (1939) 1 Cal 63 : (AIR 1939 Cal 226), the learned Judge Mitter J. held that the intention to terminate a gift or bequest may be an express one or may be inferred by necessary implication and where it is an absolute one, -- an estate of inheritance having been conferred on the donee or legatee -- and the conlingency is one which is to happen if at all, the moment the donee or legatee dies and not earlier, that intention would be necessarily implied if at that moment of time the donee or legatee's absolute estate is cut down by the words used by the donor or testator to a life estate. An absolute estate so conferred can only, where there are no express words of conversion into a life estate, be cut down to a life estate if the quality of heritability be destroyed and that can be done by exclusion of all the heirs of the donee or legatee then living. The exclusion by a subsequent clause of some of the heirs or only a class of heirs of the donee or legatee who has been given an absolute estate, an estate of inheritance, would not make the clause a defeasance clause but only a repugnant one. In the said reported case the testator after granting an absolute estate to his three sons in equal shares provided by a subsequent clause in the will that if any of his sons died without leaving any son then the widow and the daughter of the deceased son of the testator that is to say two only out of a large number of his possible heirs would be deprived of the inheritance. So, it was held that the said clause of the will could not be construed as a defeasance clause but must be taken to be a repugnant clause and so void. In that case the learned Judge Sen J. in his separate judgment observed as follows: