K.N. Kumarakrishnan vs Mrs. Sundarambal and others

Ismail, J.—One T.R. Sambasiva Iyer, who bad married Rajamani Ammal, the daughter of his sister and Nageswara Iyer, executed a Will on

20th September, 1931. The important provision of the will which has come up for construction in these proceedings is as follows:�

After my lifetime all the properties belonging to me shall be in the possession and enjoyment of my wife by name Rajamani Ammal. She shall enjoy

the income without any restriction and shall have life estate in all the properties without power of alienation and for purpose of management she

shall possess all such powers as may be necessary for the due protection and preservation of the properties. After the lifetime of my wife Rajamani

the properties shall go to my brother-in-law Mr. K. Nageswara Iyer, Inspector of Police, Tirupati, or his heirs who shall entitled to them absolutely

and with full powers of alienation.

It is stated that Nageswara Iyer referred to above died in 1942, survived by the plaintiff herein his son, the first defendant herein his widow, and

defendants 2 to 5 herein his daughters. The testator himself died on 1st August, 1959. Thereafter, in terms of the ill, his widow Rajamani Ammal

took possession of the properties and in O.P. No. 241 of 1964 on the file of this Court, Letters of Administration were granted to the said

Rajamaniammal. On 12th March, 1966 Rajamaniammal also died and Letters of Administration were granted to the plaintiff here in O.P. No. 117

of 1966.

The point that is raised in these proceedings before this court is whether after the death of Rajamaniammal, it is the plaintiff and the first

defendant alone who take the properties testamentary disposed of by Sambasiva Iyer or defendants 2 to 5 also, who are the sisters of the plaintiff

and daughters of the first defendant, will have a share in the properties along with the plaintiff and the first defendant.

Mr. V Thyagarajah, the learned Counsel for the plaintiff, contends that Nageswara Iyer having died in August, 1942, the heirs of Nageswara

Iyer, for the purposes of the distribution of the properties bequeathed by Sambasiva Iyer will have to be determined as on August 1942, and not

on a later date ; if that be the case, in 1942, defendants 2 to 5 who are the daughters of Nageswara Iyer were not the heirs under the Hindu law

and therefore they will not be entitled to a share in the properties along with the plaintiff and the first defendant. On the other hand, the contention

of the learned Counsel for defendants 2 to 5 is that the testator himself died only on 1st August, 1959 and Rajamaniammal died on 12th March,

1966; that is both these events took place subsequent to the coming into force of the Hindu Succession Act, 1956, and the determination as to

who are the heirs of Nageswara Iyer for the distribution of the estate will have to be determined in accordance with the legal position as on 1st

August, 1959 or on 12th March, 1966 and in either case defendants 2 to 5 will be entitled to a share. The question for consideration is which if the

constructions is the correct one. In my opinion, the proper construction of the provision in the Will is that the heirs of Nageswara Iyer have to be

determined with reference to the law on the date when the distribution of the estate to them has to be made. I have already referred to the passage

in the will and that passage clearly states that Nageswara Iyer of his heirs will take the properties only ""after the lifetime of my wife Rajamani"". And

the lifetime of the testator�s wife, Rajanani Ammal, came to an end only on 12th March, 1966, and, on that date. Nageswara Iyer not being

alive, any legacy in his favour having lapsed already, his heirs as on that date will be entitled to take the properties. In this connection, reliance has

been placed on S. 93 and S. 111of the Indian Succession Act,. Sec. 93 states that , where a bequest is made to the ''heirs'' or ''right heirs'' or

''relations or ''nearest relations'' or ''family'' or ''kindred'' or ''nearest of kin'' or ''next of kin'' of a particular person without any qualifying terms, and

the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed, as if it had belonged

to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property. And Sec.111

states that, where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator''s

death.

The important point to be considered is that the testator himself died only on 1st August, 1959, and therefore the will became operative only

from that date. On the date of the death of the testator, Rajamaniammal was alive and, consequently, under the terms of the will, she took

possession of the properties, and had a life estate in the same. That life estate came to an end only on 12th March, 1966, when she died, and the

distribution of the estate to the other class of person, namely, the heirs of Nageswara Iyer. Nageswara Iyer having died during the lifetime of the

testator himself--will have to take place only on that date and therefore the heirs of Nageswara Iyer have to be determined only on that date. A

Bench decision of this Court in A. Narayanan and Another Vs. Commissioner of Income Tax, in a way supports this conclusion. In that case, one

Chockalinga had left a will under which he provided that after his lifetime, the minor sons of Annamalai, his divided son, namely, Narayana and

Viswanatha and the male children that might be born thereafter to Annamalai should take and enjoy in equal shares and with absolute rights all his

assets and liabilities etc. On the date when Chockalingam died, Annamalai had only two sons namely Narayana and Viswanatha, though two other

sons were born to Annamalai subsequently. The question that arose for consideration was whether all the four sons of Annamalai would take the

properties, or only the two sons of Annamalai, namely, Narayana and Viswanatha, who alone were in existence on the dale of death of

Chockalingam, would take the properties. In coming to the conclusion that only the two sons of Annamalai who were in existence on the date of

death of the testator would take the properties, this Court observed as follows--

Where there is a bequest to a class under the will, the essential thing to be determined first, is the point of time when the class has to be

ascertained. The normal rule is that the date of death of the testator crystallises the class of legatees and those who come within the class and are

capable of taking on that date obtain the benefit; the subsequent expansion of the class cannot diminish that benefit. But if on a proper construction

of the will the ascertainment of the class is deferred to a later date, namely a date subsequent to the date of the death, those who become members

of the class within the extended period are admitted to the benefits of the bequest.

After referring to S. 111of the Indian Succession Act, this court proceeded to observe:

If there is postponement of possession of the property bequeathed beyond the testator''s death either by reason of a prior bequest in favour of

another legatee not belonging to the class or otherwise, the period of distribution for the purpose of ascertainment of the class is not the date of the

death but the date on which possession is to vest. The period of distribution may be postponed either by some prior bequest or by the nature of

the property given, or by the condition of the bequest.

The decision of this court was affirmed by the Supreme Court in A. Narayanan and Another Vs. Commissioner of Income Tax, Madras, .

In my opinion, the ratio underlying this decision is really in favour of the construction I have already indicated. In this case there is a prior

bequest in favour of Rajamani Ammal, and therefore distribution to the heirs of Nageswara Iyer is postponed during the life-time of Rajamani

Ammal. Consequently, the ascertainment of the class has to be made only as on the date of death of Rajamani Ammal, i.e., 12th March 1966, and

on that date, according to law then in force defendants 2 to 5 are also heirs.

Mr. V. Thyagarajan, the learned counsel for the plaintiff, relied on an unreported decision of Rajagopala Aiyangar J. in C.S. 45 and 55 of 1954

After having gone through that decision, I am of the opinion that decision has no bearing on the facts of this case. I have already referred to S. 93

of the Indian Succession Act. Though that section in terms does not apply to Hindus, the principle underlying that section will also support the

above conclusion of mine, that is, for the purpose of finding out the persons who fall within the class namely, the heirs of Nageswara Iyer, it has to

be proceeded as if Nageswara Iyer died intestate possessed of these properties, on the dale when the prior bequest in favour of Rajamani Ammal,

terminated and the bequest in favour of the class really became ineffective.

Under these circumstances, my conclusion is that the ascertainment of the heirs of Nageswara Iyer has to be made as on 12th March 1966,

when alone the distribution of the estate would take place, in view of the prior bequest in favour of Rajamaniammal; and, according to the legal

position as on that date, defendants 2 to 5 are also heirs of Nageswara Iyer. Consequently, the estate will have to be distributed not between the

plaintiff and the first defendant but between the plaintiff and defendants 1 to 5. I answer the questions posed for determination by this court against

the plaintiff. There will be no order as to costs.