L. Narsimha Reddy, J.In this appeal, the 1st defendant in O.S.No. 554 of 1976 on the file of the IV Additional Judge, City Civil Court, Hyderabad, challenges the Judgment and decree passed therein.

2. For the sake of convenience, the parties are referred to as arrayed in the suit. The plaintiffs (respondent Nos. 1 and 2 herein) filed the suit pleading as under:

3. One Smt. Lakshmi Narasamma, the mother of the father of the plaintiffs was the absolute owner of the suit schedule property admeasuring about 385 square yards situated at Ramkoti, Hyderabad. She purchased the said property during the course of execution of decree in O.S.No. 25 of 1958 on the file of II Additional Judge, City Civil Court, Hyderabad. During her lifetime, she executed a Will dated 10-3-1960 which was registered after her death. According to the bequests under the Will, the grandfather of the plaintiffs by name A. Brahmanandam was to have life interest in the said property. After his demise, the sister of Smt. Lakshmi Narasamma, by name Manga Tayaramma, defendant No. 8 was to have life interest. On her death, the property was to vest absolutely in the plaintiffs and defendant Nos. 4 to 7 who are the children of Smt. Lakshmi Narasammas son by name Sri Satyanarayana Murthy, the 2nd defendant.

4. It is further pleaded that claiming that Mr. Brahmanandam has executed a Release Deed dated 30-3-1965, the 2nd defendant started claiming and enjoying the said property. He has also executed a Sale Deed dated 1-2-1968 in favour of the 1st defendant. Mr. Brahmanandam filed O.S.No. 40 of 1976 against the 2nd defendant seeking recovery of possession of the suit property, alleging that the 2nd defendant played fraud upon him. Defendant Nos. 1 and 2 herein were made as parties to that suit. The suit was decreed on 13-11-1973. The 1st defendant filed C.C.C.A. No. 175 of 1973 before this Court. When that appeal was pending, another Sale Deed dt. 3-1-1976 was brought into existence, whereunder defendant Nos.2 to 8 have joined as Vendors and conveyed the property in favour of defendant No. 1 Taking this development into account, this Court, in its Judgment dated 28-1-1976 in the above said C.C.C.A. observed that sale in favour of Defendant No. 1 insofar as it concerns defendant Nos. 2 to 8 cannot be reopened. But, since the plaintiffs herein were minors and were represented by their mother in the sale deed, their rights are protected by observing that it shall be open to the plaintiffs to avoid the sale on any grounds available to them in law, after they attain the majority.

5. The plaintiffs, represented through their maternal uncle filed the suit for the relief of delivery of possession of the entire suit scheduled property, including the residential house thereon and for mesne profits.

6. The 1st defendant filed written statement admitting the factum as to the execution of Will by late Smt. Lakshmi Narasamma. The contents and purport of the Will is also not disputed. He has taken a plea that since the sale deed dated 3-1-1976 was upheld by this Court in C.C.CA.No. 175 of 1973 insofar as it concerns Defendant Nos. 2 to 8, the relief claimed by the plaintiffs cannot be granted at all. A further plea was raised that inasmuch as the claim of the plaintiffs is under the Will and since the plaintiffs did not place the Will before the Court, the suit was not maintainable. Defendant Nos. 2 to 8 remained ex parte. On the basis of the pleadings before it, the trial Court framed the following issues:

(1) Whether the plaintiffs are entitled to the possession of the suit house

(2) Whether the sale deeds dt. 1-2-1968 and 3-1-1976 in favour of Defendant No. 1 in respect of suit property are valid and supported by consideration

(3) To what relief

7. On behalf of the plaintiffs, P.W.I and P.W.2 were examined and the documents Exs. A-1 and A-2 were marked. On behalf of the defendants, D.W.1 to D.W.10 were examined and Exs.B-1 to B-14 were marked. The Court has also marked the documents Exs.X-1 to X-10 which are in the form of record relating to the particulars of the plaintiffs.

8. On an appreciation of the oral and documentary evidence, the trial Court decreed the suit as prayed for through its Judgment dated 2-8-1996. Hence this appeal.

9. Sri M.V.S. Suresh Kumar, learned counsel for the appellant submits that the suit which was based upon the Will, was not maintainable unless the Will itself was filed before the Court. According to him. the persons claiming the relief under a Will are required not only to place the Will before the Court, but also to prove it as required u/s 68 of the Evidence Act.

10. Secondly, he submits that the sale insofar as defendant Nos.2 to 8 are concerned was given finality by this Court in C.C.C.A. No. 175 of 1973 and it was not open to the plaintiffs to challenge the entire sale transaction. At the most, they can question the same insofar as their share is concerned. It is also his contention that admittedly the plaintiffs had withdrawn the amount representing their share of consideration during the pendency of the suit and with that the plaintiffs lose right to challenge the sale as regards their share also.

11. It is also submitted by the learned counsel that in the facts and circumstances of the case, at the most the plaintiffs can seek partition, in the event of the sale, to the extent of their share is annulled and not a suit for recovery of entire suit schedule property.

12. Sri T. Vishwanadha Sastry, learned counsel for the plaintiffs on the other hand submits that admittedly the sale deed under which defendant No. 1 purchased the property was executed at a time when the plaintiffs were minors and the Will prohibited the sale by any of the holders of vested remainder i.e., 6 children of defendant No. 2 till the last of them attains the majority and in that view of the matter, the entire sale deed was void.

13. He further submits that the Sale Deed dated 3-1-1976 is not binding on the plaintiffs, inasmuch as it was not for their benefit and since they were not properly represented as required under the law. It is his further contention that the permission as required under the law for alienating the property belonging to the minors was not obtained. On the basis of these submissions, the learned counsel stated that the relief granted by the trial Court cannot be found fault with and that it is strictly in accordance with the provisions of the law.

14. In view of the submissions of the learned counsel, the questions that fall for consideration in this Appeal are:

(a) Whether the suit was maintainable without filing the Will executed by late Lakshmi Narasamma

(b) Whether the suit for recovery of the entire suit scheduled property was maintainable

(c) Whether the condition contained in the Will that the property shall not be alienated till the last of the children of Defendant No. 2 attains majority is sustainable in law and

(d) Whether the sale by Defendant Nos. 4 to 7 during the lifetime of Defendant No. 8 in whom the life interest was created is valid and legal

15. It is true that the plaintiffs who claimed the rights under the Will are required in law to place it before the Court and prove it as required u/s 68 of the Indian Evidence Act. Admittedly, the plaintiffs did not place the Will before the Trial Court. Therefore, the question of proving it does not arise. If these facts are to be taken on their face value, the objection raised by the 1st defendant deserves to be accepted and the suit has to be rejected at the threshold. However, it is a matter of record that the Will in question was the subject matter of the dispute in O.S.No. 40 of 1966 on the file of the Additional Judge, City Civil Court, Hyderabad to which the first defendant is a party. The Will was discussed by the Trial Court as well as this Court in C.C.CA.No. 175 of 1973 arising out of the said suit extensively. That is the reason why the 1st defendant in his Written Statement has not only admitted the factum of the existence of Will, but also has extensively referred to the contents thereof. The plaintiffs did make some effort to procure the certified copy of the Will which was marked in the suit referred to above. However, they were informed that it was destroyed. When the Will is not available and when the existence as well as the contents were admitted by the 1st defendant, the objection raised by him cannot be sustained.

16. Coming to the second question, it needs to be observed that the dispute between the parties, particularly as regards alienation of the suit property was the subject matter of O.S.No. 40 of 1966 as well as C.C.CA.No. 175 of 1973. Initially the 2nd defendant claiming independent right, executed Sale Deed dated 1-2-1968 (marked as Ex.B-1) in favour of the 1st defendant. His father Mr. Brahmanandam disputed the entitlement of Defendant No. 2 The suit was decreed. During the pendency of C.C.CA.No. 175 of 1973, defendant No. 2 as well as other parties have reconciled to the operation of the Will. Defendant No. 8 had the life interest in the suit scheduled property in the year 1976. She, along with Defendant Nos. 4 to 7 as well as the plaintiffs in whom the vested remainder was to devolve joined and executed Sale Deed dated 3-1-1976 (marked as Ex.A-1). Defendant No. 2 also joined the same. Thereby, it is evident that the persons to whom the life interest as well as vested remainder were bequeathed under the Will have joined and executed the Sale Deed. Except the two plaintiffs, none of them incurred incapacity. It was obviously for this reason this Court in C.C.CA.No. 175 of 1973 preserved the rights of the plaintiffs to avoid the sale deed Ex.A-1, if they so want at an appropriate time. What the plaintiffs could have done in exercise of their right which was preserved by in this Court was to seek a declaration that Ex.A-1 is not binding on them insofar as their share is concerned. The relief prayed for in the suit is for recovery of the entire suit schedule property. This could have been possible if only at least Defendant Nos. 4 to 7 have joined the plaintiffs and claimed that Ex.A-1 was void abinitio. Defendant Nos. 4 to 7 who admittedly were majors as on the date of Ex.A-1 and who undisputedly had their share in the property have not chosen to question the Sale Deed Ex.A-1. Therefore, the relief claimed by the plaintiffs and granted by the Trial Court as regards entire suit schedule property is unsustainable in law.

17. Sri M.V.S. Suresh Kumar, learned counsel for the appellant submits that the claim of the plaintiffs that the Sale Deed is void inasmuch as it is contrary to the conditions stipulated under the Will to the effect that the property shall not be alienated till all the children of Defendant No. 2 attain majority; cannot be sustained. According to him, such a condition is opposed to the very concept of vesting the property absolutely.

18. Sri T. Vishwanadha Sastry, learned counsel for the respondents on the other hand submits that the various provisions of the Indian Succession Act and also the Judgments of various Courts insist that the wishes of the Testator as contained in the Will should be given their full effect and it is not open to any Court to alter the conditions or to permit the parties to act contrary to the clauses contained in the Will.

19. It is true that the Will provides for devolution of properties according to the wishes of the Testator and in a way the line of Succession as provided under the Personal Law is given a go-bye. A Testator is entitled to stipulate the chain of succession or the stages through which the property should pass until it vests absolutely in an individual or set of individuals. Law gives the right and liberty to the Testator to that extent. However, at a point where the property is to vest absolutely in a person or a set of individuals, the freedom of the Testator is circumscribed; in that he cannot restrict the method and manner of exercise of rights of ownership by the persons in whom the property vests absolutely. Law recognizes absolute vestiture and not the conditions circumscribing the enjoyment of the property by the persons in whom it vested absolutely. This proposition of law was laid down more than a century ago by the Madras High Court in "Administrator General of Madras v. Money", ILR (15) Madras Page 448 (1892) wherein it was observed by Justice Handley as under:--

"In my opinion, this being an absolute gift to the children of Mrs. Wilkins share and share alike, and the subsequent direction that the property shall not be sold until the youngest attains 18 years of age being of no legal effect, the children who survived the testator took each an equal share in the property which vested in them on the death of the Testator..... The postponement of the power of disposition over the property being of no legal effect there remains only the absolute gift to the children of Mrs. Wilkins jointly share and share alike."

20. Further, Section 138 of the Indian Succession Act provides for eschewing such condition or directions. Section 138 reads as under:--

"Direction that fund be employed in particular manner fallowing absolute bequest of same to or for benefit of any person:-- Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction."

21. Therefore, the contention of the plaintiffs that Ex.A-1 is invalid, since it was executed even when plaintiffs were minors cannot be accepted.

22. The last question is as to the competence of Defendant Nos. 4 to 7 and the plaintiffs herein to execute the Sale Deed even during the lifetime of Defendant No. 8.

23. Sri T. Viswanandha Sastry, learned counsel for the plaintiffs submits that the suit property would vest in the plaintiffs and the Defendant Nos. 4 to 7 only on the death of Defendant No. 8 and no title vests in them during the life time of Defendant No. 8. In that view of the matter, according to the learned counsel, Ex.A-1 has the effect of transferring the right, title and interest of the plaintiffs and defendant Nos. 4 to 7 which in fact did not exist at all. The learned counsel for defendant No. 1 on the other hand submits that there is nothing in law which prohibits a person from transferring the vested remainder even before the vesting takes place. In support of his contention he relied upon the Judgments in "Kali Prasad v. Ram Golam, AIR 1937 Patna 163 and "Sashi Kantha v. Promode Chandra, AIR 1932 Cal. 600.

24. In Kali Prasads case, it was held that "Vested remainder under a Will is not a mere Spes Successionis but it is vested interest and is capable of being transferred".

25. In Sashi Kanthas case, the Calcutta High Court elaborated the law on the subject and analysed the distinction between vested interest, contingent interest and Spes Successionis. While the first two categories of interests are transferable, the Transfer of Property Act prohibits transfer of mere spes successionis. The Court took the view that the life interest under a Will falls into the category of contingent interest and not a spes successionis. It is apt to quote relevant portion of the judgment.

"A spes successionis is merely an expectation or hope of succeeding to the property, a chance or possibility which may be defeated by an act of somebody else. In the case of a Will such as the present, which was executed before the Hindu Wills Act 21 of 1870, came into force the mere appointment of an executor did not cause any property to vest in him and if as an executor he was entitled to hold the property he held it only as manager. But the Will having constituted Hara Kumari not merely an executrix for administering the property with power to sell a portion thereof in order to pay off the testators debts, but also the owner for her lifetime, and having postponed the succession of plaintiff 1, till after her death, the property since the testators death and so long as she alive vested in her."

26. Sri T. Viswanadha Sastry, learned counsel for the plaintiff on the other hand submits that the Clauses in the Will have to be given their full effect and the Court cannot deviate from the same. In support of his contention, he relied upon the Judgment of the Calcutta High Court in Sriman Prabahan Mitra Vs. Sm. Madhuri Mitra and Others, ". That case, however, related to a situation where the person in whom the life interest was created had alienated the property. It did not deal with a situation where the transfer was caused by persons in whom the vested remainder was to devolve. Therefore, in my view the case is governed by the principles laid down in Kali Prasads case and Sashi Kanthas case (Judgments 2 and 3 supra). In that view of the matter, defendant Nos. 4 to 7 cannot be said to have been lacking capacity or right in effecting the transfers or that what was transferred by them was only spes successionis. The result is that there was a valid conveyance by defendant Nos. 4 to 7 in favour of defendant No. 1 to the extent of their shares in the suit property. In fact, this Court in its Judgment in C.C.CA.No. 175 of 1973 has accorded seal of approval of the sale under Ex.A-1.

27. As observed earlier, this Court has preserved the rights of the plaintiffs to avoid the sale on the grounds available in law. Now it needs to be seen as to whether the plaintiffs have made out any case to hold that the sales insofar as their shares are concerned vitiated in law or on facts.

28. Sri T. Viswanadha Sastry, learned counsel for the plaintiffs submits that there was no necessity relatable to the plaintiffs warranting the sale of their share. This argument could have held good had it been a case where the consideration proportionate to the share of the plaintiffs was utilized by their parents claiming to be for the benefit of the plaintiffs. It is not so.

29. It is evident from the judgment of this Court in C.C.CA.No. 175 of 1973 that the consideration for the property to the extent of shares of the plaintiffs was deposited in a Bank. Therefore, question of bonafide nature of the necessity of the sale qua - the plaintiffs does not arise. The plaintiffs could have certainly pleaded both on questions of fact as well as in law assailing the sale if they did not touch the amount representing the consideration of their share which was deposited into the Bank. Curiously in this case, the plaintiffs after attaining the majority and during the pendency of the suit have chosen to withdraw the amount. This fact has come in evidence and it is not disputed by the counsel for the plaintiffs. By withdrawing the said amount, the plaintiffs have waived whatever rights they had in them to question the sale. In a way, it is also a case of acquiescence by the plaintiffs of the validity of the sale, whether it is acquiescence or waiver, the plaintiffs have lost their right to challenge the validity of the sale.

30. Therefore, the decree of the Trial Court cannot be sustained either on facts or in law. The same is accordingly set aside and the appeal is allowed. There shall be no order to costs.