KALI PRASHAD GOPE AND ORS Vs. RAM GOLAM SAHU

JUDGEMENT

(1.) This appeal arises out of a suit for the enforcement of two mortgage bonds dated respectively 25th September 1917 and 8th February 1922 which were executed by Ramkinker Thakur. Ramkinker s father Bharosi Thakur died on 8th March 1896, leaving him surviving his son Ramkinker Thakur, his second wife Arjunbati and a daughter-in-law Mt. Kuntabati, the widow of his second son Raj Narain Thakur. By his will Bharosi Thakur left that portion of his property with which we are here concerned to his widow and his daughter-in-law for their lives with remainder to Ramkinker. Arjunbati had a power of appointment, by which if she should have no male children, she was empowered to make a gift of not more than two specified items of property to her daughter s sons. Arjunbati died on 17th December 1909 without having exercised the power of appointment and Kuntabati died in 1930. It is not quite clear from the will whether if Arjunbati had a son the power of appointment was to be exercised in his favour or whether the remainder would vest in the son, or whether the life-estates would end; but as this event did not happen, the matter is of no importance.

(2.) The items of property with which we are here concerned are contained in two villages Tatpur Ranga and Narkatia in which the widows enjoyed a life-estate. On 15th December 1921 Mt. Kuntabati failed to pay cess, which led to the sale of Tatpur Ranga under the Public Demands Recovery Act when it was purchased by Kuntabati s grandson Pusp Narain. On 18th July 1927 Pusp Narain and his brother Anup Narain Jha mortgaged Tatpur Ranga to Kali Gope, who sued on his bond and obtained a decree, in execution of which he purchased Tatpur Ranga on 1st December 1930. On 24th January 1924 Ramkinker and Kuntabati sold Narkatia to Kali Sahu, the defendant (fifth party) of this suit. These items of property had already been mortgaged by Ramkinker in 1917 and 1922; and the suit with which we are here concerned is for the enforcement of those earlier mortgages. The subsequent purchasers Kali Gope and Kali Sahu, who are the appellants now before the Court, contested the suit alleging that the earlier mortgages were not for consideration, taking as a matter of course every defence which could be taken in a suit of this kind, but chiefly maintaining the ground that Ramkinker had no interest which he could transfer at the time of the mortgages. The suit was decreed by the Subordinate Judge.

(3.) No question of fact is in dispute in this appeal, so that the argument is limited to the question of whether Ramkinker at the time when he executed the mortgages had a transferable interest. The will of Bharosi Thakur on the face of it conveys a remainder which would vest on Bharosi s death, a point which, as the learned Subordinate Judge has observed, is made clear by the terms of Section 119, Succession Act. The existence of a power of appointment would not prevent the vesting of the remainder, because where estates are subjected to a general power of appointment in the first taker with remainder over in default of such appointment, the power does not suspend the remainder from vesting. If the remainder was contingent on the failure of male issue to Arjunbati, the point is certainly not made clear by will; and if Arjunbati had borne a son, the ambiguity in the will would have probably led to litigation on the question of whether the power of appointment or the remainder was cancelled. But nine months after Bharosi Thakur s death this contingency ceased to be of importance. Mr. Jayaswal suggests that so far as Ramkinker is concerned, the question of whether he took a vested or contingent remainder is to be regarded as res judicata. In 1916 Ramkinker sued Pusp Narain and his brother for a declaration that a deed of gift executed by Kuntabati was invalid. One of the issues in that suit was: