GOPAL Vs. BAJRANG

JUDGEMENT

(1.) THE only question which I have to consider is the nature of the estate conferred on the legatees by the will of Sitaram. Sitaram had been adopted by one Jairamdas and the legatees were his natural brother and nephews. The will states that the legatees had no claim to the testator's property; they were in poor circumstances and out of pity for them a. field was given for their maintenance and a house for their residence. The will is very clear on the point that the field was given for cultivation, though it might be leased for a short period, and the house was given only for residence. The legatees were forbidden to transfer the property by sale, mortgage or gift and the will contains a clause that if they did so the heirs of the testator would be entitled to claim the property. There is, however, a clause which is admitted to mean that the descendants of the legatees should enjoy the property after them.

(2.) THE lower appellate Court has held that this will must be construed as giving an absolute estate to the legatees, the conditions restraining alienation being invalid and ineffectual. In appeal it is urged that the will does not transfer the entire rights in the property; it merely gives the legatees and their descendants a right of maintenance from the property, the remaining rights in the property devolved at the testator's death on his heirs. It is argued that a right to maintenance out of an estate enjoyed on the part of a person and his descendants is a right known to Hindu law: for instance, such a right may be enjoyed by the younger brothers of a zamindar where the zamindari is impartible.

(3.) AFTER careful consideration I have come to the conclusion that the legatees took an absolute estate under the will. The will cannot be considered merely to carve out an estate in the property mentioned leaving the testator's heirs with the remaining rights in the property for the: provisions of the 'will deprive the testator's heirs of any real interest in the property. There is no attempt to define with exactness the heirs of the legatees who were to enjoy the estate after the death, of the legatees and there is no clear statement that on failure of these heirs the estate will revert to the heirs of the testator. The provision that the? testator's heirs will be entitled to possession if the property is improperly alienated appears designed to prevent alienation, not to secure any benefit to the testator's heirs. The will then must be read as depriving the heirs of the testator of the property given to the leagtees. The legatees then take absolute estate and the restraints on alienation are invalid and ineffectual. The appeal therefore fails and is dismissed. Costs on appellant.