Appu Bhatta vs Uma Sundari Amma and Another

Spencer, J.—The plaintiff in this suit claimed the-property of his deceased great-grandmother on the strength of a will executed by her in

1883. The testatrix died in 1886. The plaintiff was born in 1899 and he must have come of age in 1917. The suit was brought in 1920. The will

(Ex. II) provided that the testatrix''s grandson Subraya, who is the 2nd defendant in this suit and his wife, Yamuna Bai, should manage the estate as

agents for the testatrix, collect the amount due to her under a mortgage and out of it pay off mortgages due by her and meet the expenses of her

funeral ceremonies and maintain their children and lastly, without alienating the property in any manner, they should deliver all the properties,

moveable and immovable, to the greatgrandchildren of the testatrix upon their attaining their majority. At the time when the will was made and also

when Laxmi died, no great-grandchildren had been born. The will on the face of it is in favour of a person unborn at the decease of the testatrix.

Madras Act 1 of 1914 has since validated bequests and transfers in favour of unborn persons in the Presidency of Madras. In Kudapa

Venkayamma by her father and guardian Mallina Kristnamma Vs. Kakarla Narasimma and Others, and Muthuswmami Aiyar v. Kalyani Ammal

ILR (1916) M. 818 it has been held that this Act has the effect of validating dispositions made under wills executed before the date when the Act

came into force, provided that some life-estate was interposed. Abdul Kahim, J., observed that if there was no intervening life-estate, the argument

of the appellant''s vakil that only persons born on the date of the death of the testator could take, would no doubt have force. In Shanmuga Devar

v. Shanmuya Devar (1919) 53 I.C. 203 it was held for similar reasons that if a life-restate was created and an ulterior estate was bequeathed to a

person on his attaining age, the disposition would be valid provided that the final vesting took place after the passing of the Act. It has, therefore,

been argued in the first place by Mr. Sitarama Rao that Ex. 11 creates a life-estate. But 1 cannot accept this contention, because the will provides

that the 2nd defendant, Subraya, and his wife were to hand over all the properties, moveable and immovable, upon their great-grandchildren

attaining their majority. The will does not give them authority to retain those properties for the length of their lives. The testatrix speaks of her

grandson and his wife as her ""agents"". It is obvious that after her death they could no longer fulfil the capacity of agents. Assuming that her intention

was that they should be trustees or executors to carry out the provisions of her will, the question then arises whether a person unborn at the date of

the will can avail himself of the provisions of the Act of 1914 in a case where no life-estate is interposed between the death of the Testatrix and the

time provided for his taking the property. The case referred to in the Lower Appellate Court''s judgment, Varadaraja Mudaliar and Another Vs.

Narayanasami Mudaliar and Others, , is not of much help as it was a decision of Mr. justice Kurnaraswami Sastri in a case arising within the limits

of the City of Madras to which Madras Act I of 1914 did not apply, although similar provisions have been applied subsequently by the Imperial

Act VIII of 1921. If there was no person in whom the estate could vest at the date of the testatrix''s death it follows that there was an intestacy.

The vesting of an estate cannot be kept in abeyance or be, as the District Munsif observes, indefinitely postponed upon the bare contingency of the

second defendant having male issue. It is hardly necessary to quote authorities. But Mayne''s Hindu Law, page 512, West and Buhler''s Hindu

Law, pp. 179 and 112 and Nilcomul Lahuri v. jotendro Mohun Lahuri ILR (1881) C. 178. make it clear that the vesting of an estate cannot Be

kept in abeyance pending the happening of an uncertain event, nor by the intervention of trustees, as was the case in Gordhandas Soonder Das v.

Bai Ramcoover ILR (1901) B. 449.

Mr. Sitarama Rao''s second argument therefore was that the testatrix''s grandchildren took a life-estate which was determinable by the birth of

children. The will, however, contains no valid gift of the remainder at the date when it Was executed. There is no direction in it as to the disposal of

the surplus income. To treat the grandchildren as having a life-estate defeasible upon the birth of children to them makes the gift in favour of unborn

persons no more valid, as there is no provision in the will that if there should be no great-grandchildren bom at the date of the testatrix''s death the

grandchildren should take the estate absolutely. In Nafar Chandra Kundoo v. Ralan Mala Debt 15 C.W.N. 66 both the sons,.and his wife whom

he was to marry were made beneficiaries under the will and were alive at the time of the testatrix''s death and the property was vested in the

executors. Jamna Bat v. Dharsey (1902) 4 Bom L.R. 893 was a case in which all the estate vested in trustees for the benefit of the son who was to

be adopted by the testator''s widow. It does not appear that the son to be adopted was unborn at the date of the testator''s death. It was held in

the end that the widow took an absolute estate. The facts in Amrito Lall Dutt v.Surnomoyee Dassee ILR (1897) C. 589 which came up in Amrito

Lall Dun v. Sumomoni Dasi ILR (1898) C. 662 and Watkins v. Administrator-General of Bengal ILR (1914) C. 88 can be distinguished from the

present case. The will in that case created a power. The question was whether a direction to accumulate the income of the estate was valid during

the continuance of the life-estate. It was held that the accumulation could go on for so long a time as the absolute vesting of the entire interest could

be withheld. No case has been quoted in which a disposition has been made in favour of a person unborn in which the vesting of the estate was

postponed without the interposition of any life-estate.

I am therefore of opinion that the Lower Courts were right in finding that the dispositions in this case in favour of a person unborn were invalid

and had not been validated by the passing subsequently of Madras Act I of 1914, seeing that if the validity of the transaction had been questioned

at any time in probate or other proceedings undertaken after the testatrix''s death but prior to the passing of that Act it must have been held that the

will was invalid and that in consequence an intestacy had been created, and a disposition invalid at the date of the testatrix''s death could not be

rendered valid by the subsequent birth of a great-grandson, nor could an intestacy be converted into a testacy in consequence of an event

happening after the death of the testatrix.

The Second Appeal is dismissed with costs.