TMI Blog2002 (1) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... a Devi. Jamuna Prasad married Smt. Sona Devi after the death of his first wife Smt. Suraja Devi. Jamuna Prasad had no male issue. He had three daughters from his first wife Smt. Surja Devi - Smt. Mishara, Smt. Partapa and Smt. Dulari. From second wife Smt. Sona Devi, Jamuna Prasad had also three daughters -- Smt. Gunjan Devi, Smt. Ram Sanwari and Smt. Dhupa. Smt. Mishra has a son Chandrakant. Smt. Partapa has three sons -- Ram Sureman, Ram Ujagar and Ram Millan. Smt. Dulari has two sons -- Sesh Chandra and Ram Chandra. Smt. Gunjan Devi -- daughter of Smt. Sona Devi, has a son Balghaddar. Smt. Ram Sanwari has a son Ram Kirpal and Smt. Dhupa has a son Bindhabasni. 2. After the Hindu Succession Act came into force, Jamuna Prasad executed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves inherited the property in accordance with the provisions of the Will. Defendant Nos. 1 to 10 contested the suit. Defendant-appellants' case was that Smt. Sona Devi - second wife of Jamuna Prasad, through the Will obtained an absolute estate and became full owner of the property on the death of Jamuna Prasad, and in that view of the matter, any subsequent bequeath in the same Will in favour of daughters' sons was invalid. It was also their case that after the death of Smt. Sona Devi, her daughters succeeded to her interest in respect of Bhumadhari plots under Section 174 of U.P. Zamindari Abolition Land Reforms Act, 1950 (hereinafter referred to as the Act). The trial court was of the view that Smt. Sona Devi having obtained an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad. 5. On the argument of learned counsel for the parties, the questions that arise for consideration are these: 1) whether under the Will Jamuna Prasad bequeathed an absolute estate in favour of his second wife Smt. Sona Devi or restricted right; 2) whether the subsequent bequeath in the Will in favour of the sons of the daughters of Jamuna Prasad is invalid if it is found that Jamuna Prasad bequeathed an absolute interest in the property in favour of his second wife Smt. Sona Devi; and 3) whether all the sons of all the daughters of Jamuna Prasad would inherit under the Act, if it is found that Jamuna Prasad bequeathed an absolute estate in favour of his second wife Smt. Sona Devi. 6. The first and the second question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and properties with the right of transfer and after death of Sona Devi..... 9. The first part of the Will provided that after the death of the testator or author of the Will, his wife whose name is Smt. Sona Devi would be entitled to the entire assets and properties of Jamuna Prasad with the right of transfer. The second part of the Will is that after the death of Smt. Sona Devi nine sons of daughters' would inherit the property. Here what we are concerned with is whether Smt. Sona Devi has acquired an absolute estate or a limited estate under the Will. In this connection the employment of words Pane ki Musthak and ba Akhtiar Intakal in the Will which means entitlement of properties with the right of transfer are very relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he later directions of disposition should be disregarded. In Radha Sundar Dutta v. Mohd. Jahadur Rahim and Ors. (Supra), it was held where there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Rameshwar Bakhsh Singh and Ors. v. Balraj Kuar and Ors., it was laid down that where an absolute estate is created by Will in favour of devisee, the clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid. 12. From the decisions referred to above, the legal principle that em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Will Smt. Sona Devi had got an absolute estate and, therefore subsequent bequeath in the Will by Jamuna Prasad in favour of nine daughters' sons was repugnant to the first bequeath and, therefore, invalid. We are, therefore, of the view that once the testator has given an absolute estate in favour of first devisee it is not open to him to further bequeath the same very property in favour of second set of persons. 14. Coming to the third question. Under Section 169 of the Act, a Bhumidhar with a transferable right is entitle to bequeath his holdings or any part thereof in favour of any one except as what is provided therein. In the present case, Jamuna Prasad by virtue of his Will has bequeathed an absolute interest in the Bhumi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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