R. Ekambaram and another vs N. Krishnammal and others

Ramaprasada Rao, J.—In this original side appeal the 1st and the 2nd defendants in C. S. No. 7 of 1959 on the file of the Original Side of

this Court are the appellants. They are canvassing the correctness of the decision of Sadasivam, J., dated November 19, 1964. The appellants, in

the main, contend that they are solely entitled to the properties described in Sch. I to the plaint and no one of the respondents either individually or

collectively in entitled to any defined or definite share therein. Palaniandi Pillai, a self made man, acquired considerable properties by himself. He

left a will Ex. P. 2 reflects the relationship of the parties to the dated December 11, 1927, and died on May 19, suit, 1928, The genealogical tree

set out hereunder

Though Palaniandi Pillai died estate, yet his heirs and legatees thereunder were not interested in securing a probate or letters of administration of

the will as apparently there was no controversy by them as between the legatees inter se enumerated in the Will regarding the distribution of the

properties. In fact, the beneficiaries under the Will Ex. P. 2 distributed the properties amongst themselves in accordance with the letter and tenor of

the terms of the will and thus acted upon it. Such acceptance by the beneficiaries of the testator Palaniandi Pillai it seen from the conduct of

Ramaswami Pillai, Vadivelu Pillai and Nataraja Pillai, the sons of the testator. It would appear that soon after the death of Palaniandi Pillai, the

executors under the Will Ex. P. 2 were parties to Exs. P. 3, P. 4 and P. 5, where-by they conveyed to the respective legatees the properties given

by Palaniandi Pillai under the Will Ex. P. 2. We shall presently consider the nature, quantum and quality of the interest b quashed by Palaniandi

Pillai to his son Nataraja Pillai. It is however clear from the recitals in Ex. P. 4 which is a document executed by the executors in favour of Nataraja

Pillai that what was conveyed to Nataraja Pillai by that instrument was in substance and inform the right, title and interest which they could convey

under the terms of the Will and in particular Cl. 5 therein. It is the interpretation of this Cl. 5 of the Will that is the main and only bone of contention

of the parties in this appeal. The sons of Palaniandi Pillai therefore took possession of the properties as per the recitals in the Will Ex. P. 2 and

were enjoying the same as sole proprietors as per the recitals in the Will Ex. P. 2 and were enjoying the same as sole proprietors thereto. But it is

significant that no probate of the Will or letters of administration thereto was obtained by any person in connection with and In relation to the Will

Ex. P. 2. Sadasivam, J, rightly found that in the circumstances the three sons of Palaniandl Pillai did not succeed to his properties as members of a

Hindu not undivided family and that the 1st respondent in this appeal (plaintiff in the suit) was not entitled to put forward any claim dehors the Will.

It is however significant to note that the appellants apparently by way or caution and in order to confirm the title of the beneficiaries under the

various documents executed by the executors in favour of such beneficiaries, filed O. P. No. 6 of 1963 for the grant of letters of administration,

through limited which on a caveat being entered by the 1st respondent was converted into a suit, T. O. S. No. 2 of 1963, The learned Judge held

that the appellants were entitled to a decree in T. S. O. No, 2 of 1963 and that they were entitled even to a limited grant as prayed for by them.

There is no appeal as against the judgment and decree in T O. S. No. 2 of 1963 and it is conceded before us that the Will and the letters of

administration granted by this court have become final and binding on all the parties to this appeal.

To complete the narrative, the nature of the claim put forward by the 1st respondent as plaintiff in the original action may be summarised so as to

find the scope of this appeal. At already stated, the claim of the 1st respondent that the three sons of Palaniandi Pillai succeeded to their father as

members of a Hindu undivided family was rightly found against by the leaned Judge, In fact, it was admitted, as stated by the learned trial Judge,

that ''once It is admitted that Pataniandi Pillai left a Will, It could not be said that he died intestate''. Thus the claim of the 1st respondent (Plaintiff)

to a third share in the properties of Palaniandi Pillai as the widow of Nataraja Pillai on the ground that the three sons succeeded to the estate of

Palaniandi Pillai as members of an undivided Hindu family was rejected. Concurrently the learned Judge held Hat release deeds executed by her

husband in favour of the other beneficiaries confirming the distribution of the properties amongst the beneficiaries as per the recital in the Will Ex.

P-2. One other phase of the claim of the 1st respondent in the trial court was that by virtue of the partition arrangement on 14th July, 1928 her

husband became entitled solely to the plaint schedule properties. Apparently she was relying upon Ex. P-4 The finding of the learned Judge on this

issue, which also is not agitated before us, is that Nataraja Pillai, the husband of the 1st respondent, got only a life estate in the properties set out in

Sch. 1 to the plaint, and this finding also not disputed.

The next alternative and the third ground on which the 1st respondent desired to sustain her claims to the suit properties was based on the

construction of the relevant clauses in the Will Ex. P-2. It is this contention that has been pressed Into service by the 1st respondent before us to

sustain the findings of Sadasivam, J., and the correctness of which is canvassed to the contrary by the learned counsel for the appellants.

Before nothing the relative contentions of the parties, the provisions of the Will Ex. P-2 dated 11th December, 1927, may be extracted for

purposes of completion and appreciation. Cl. 5 is the relevant clause with which this appeal is concerned. It says :

My third son, Natarajan Pillai shall take the income accruing from the properties, namely, my cartstand, house and ground, situated in the Western

Row of Mint Street, bearing-Municipal Door No. 278, Re-Survey No. 610, Collector''s Certificate No. 750 and the 5 godowns, namely, 2,

godowns situate in Varadaraja Mudali Steet, bearing Municipal Door No. 90 and 91 and 3 godowns situate In 3rd North Beach Road bearing

Municipal Door No. 5, 6 and 7 to 9, Re-survey No. 3158 and 3187 Collector''s Certificate No. 2550. After his life-time, if he leaves any male

issue, they shall take the aforesaid properties, with powers of alienations such as gift, usufructuary mortgage and sale. If there are no male issue as

aforesaid my heirs shall take the aforesaid properties.

This clause can conveniently be divided into three compartments which become effective at a stated period of time. At the first stage, Nataraja

Pillai was to take the income accruing from the suit properties for life. The second stage is to ascertain whether he left any male issues, and if he left

any male issues, they shall take the properties. The third stage is if there are no male issues as aforesaid ,the heirs of Palanlandi pillai shall take the

suit properties. On a far reading of the three stages enumerated in this clause it is clear that the expression ''if there are no male issues'' mentioned in

the third stage indicates necessarily the point of time when distribution has to take effect. Compendiously the phrase ''if there are no male issues as

aforesaid'' can be electively expressed by the use of the adverb ''then''. With this background it has become necessary for us to consider the scope

of clause of the will Ex. P-2 which, as already stated, is the only point urged before us in this appeal by the counsel appearing on either side We

are not, therefore, adverting to the other findings of Sadasivam, J., in both C S. No. 7 of 1959 and T. O. S. No. 2 of 1963.

Sri V. Rajagopalachari, learned counsel for the appellants, contended that clause 5 expressly provides not only for the postponement of the

vesting of the request in favour of the ultimate next of kin of Palanlandl Pillai but it is also mixed up irretrievably with a contingency, namely, the

birth of a male issue to Nataraja Pillai. We have already noted that Palaniandi Pillai died on May 19, 1928. Nataraja Pillai died on January 31,

1957. Learned counsel proceeded that if clause 5 of the will Ex. P-2 is understood in its true true light, the heirs of Palaniandi Pillai, which is the

class ultimately to secure the bequest after the death of Nataraja Pillai have to be ascertained on the death of Nataraja Pillai and during the

intermediary stage when the distribution is postponed, there could be no vesting of the gift in favour of the class so carved out by the testator in the

Will. Learned counsel vehementaty contended that S. 111 of the Indian Succession Act is inapplicable to the facts of this case. He urged that the

ratio In re Wilson (1907) 2 Ch. 572 relied upon by the learned Judge Is Dot applicable to the facts of this ease and in fact the above decision was

distinguished even in English Courts in Helsby, In re 84 L.J. (Ch.)682, and by the House of Lords in Rutchinson v. National Refuges for Homeless

and Destitute Children (1920) A. C. 794. His contention is that the unreported judgment of Rajagopala Iyengar, J., in C. S. Nos. 45 and 55 of

1954 Visalakshimi Ammal v. Anjaneyalu Chetty is distinguishable and inapplicable in the light of the pronouncements of the Supreme Court in

Rajes Kanta Roy Vs. Santi Debi, and Eramma Vs. Verrupanna and Others, . The argument proceeds that the date on which succession opens out

in the instant case, should be the date on which Nataraja Pillai died and it should be fixed and taken as January 31, 1957 and the law applicable to

decide as to who are the heirs and how the distribution should be effected is the law that was applicable to Hindus on the date of the death of the

testator, namely, May 19, 1918, and that the provisions of the Hindu Succession Act, 1956, cannot be attracted at all. According to him, as S. 8

of the Hindu Succession Act, 1956, is not retrospective and as S. 8 in terms applies only to intestate succession, the orthodox Hindu Law

applicable to the parties as on the date of death of Palaniandi Pillai should determine the rights inter se of the class of the heirs designated and

carved cut by the testator in his will to be the ultimate residuary legatees of the properties mentioned in the schedule to the plaint. He also made an

alternative approach and reiterated that in the light of the provisions of Ss. 120 and 124 of the Indian Succession Act, the bequest having been

postponed till the happening of a contingency which is uncertain, it could not take effect on the death of the testator. Learned counsel for the

appellants states that the decision of Sadasivam, J., holding that the respondents are entitled to share contemporaneously along with the appellants

in the matter of the distribution of the gift over mentioned in the will relying upon S. 111 of the Indian Succession Act and In re Wilson (1907) 2

Ch. 572 Vol, 82-54 is not supportable. Mr. R. Ramamoorthi Iyer, learned counsel for the 1st respondent, no doubt conceded that succession

opened in 1957. He would however strongly rely upon the exception enumerated in S. 111 of the Indian Act and urge that such an exception being

a substantive provision by itself apart from the main body of the section, the principle adumbrated therein is applicable to the instant case. Applying

the same, his contention is that all the representatives of the three sons of Palaniandi Pillai who were alive on the date of death of the testator are

entitled to the gift over in spite of the postponement of its distribution by creating an antecedent life estate. Learned counsel expanding his argument

urged that the Hindu law of succession as was in existence in 1957 has to he applied and applying the same the 1st respondent being an heir

enumerated in class 1 of the schedule to the Hindu Succession Act, 1956, would be entitled to her legitimate share therein under the law in force

on the date of death of her husband. Learned counsel also would urge that the contingency mentioned In clause 5 of the Will Ex. P-2, cannot

independently be considered so as to infer postponement of vesting of the gift of the next of kin of Palaniandi Pillai as on the date of his death. He

however fairly conceded that the content of the exception to S. 111 does not contemplate or take in a provision for a contingency. But according

to him this would not however matter. The fact that the gift over is to take effect at a point of time posterior to the date of death of the testator

cannot militate against his contention that there was a vesting of the gift on the heirs of Palaniandi Pillai on his death not with standing the mentioning

of an uncertain event as decisive of the question as to who would ultimately take the gift over. Reliance was placed on S. 93 of the Indian

Succession Act As already stated, learned counsel would concede that succession opened only in January 1957, According to him, therefore, the

law then existing namely, the Hindu Succession Act, 1956, has to be applied not only to determine the heirs and the personnel of the class who are

entitled to the bequest, but also to determine quantitatively their respective shares in the properties bequeathed. Strong reliance was placed upon

the decisions reported in Lala Duni Chand v. Masammat Anar Kali (1946) II M. L. J. 291 (P.C.), Moniram Kolita v. Keri Koli tuni ILR 5 Cal,

776 Angurbala Mullick Vs. Debabrata Mullick, Bepin Behary Mullick and Others Vs. Sm. Lakshasona Dassi and Others, Kuldip Singh v. Karnail

Singh AIR 1961 Puajab 573 and Ramulu and Another Vs. Govur Venkanna (Died) Govur Narayana and Others, . Incidentally learned counsel

pressed into service the decision of Rajagopala Iyengar, J., in C S. Nos. 45 and 55 of 1954. He therefore strongly urged that the reasoning and

conclusion of Sadasivam, J., is well founded and that the appeal should fail. Mr. Rajagopalan, learned counsel for respondents 2 to 7 urged that in

so far as respondents for 2 to 6 are concerned, they were entitled to succeed even under the earlier Hindu law as sons'' daughters who have been

recognised as heirs under the Hindu Law of Inheritance (Amendment) Act, 1929. Learned counsel proceeded that in so far as the 7th respondent

is concerned, she is entitled to her share which has to be quantified under the Hindu Law prior to the Hindu Succession Act, 1956, and that she is

also an heir entitled to claim along with respondents 2 to 6 under the provisions of the Hindu Women''s Rights to Properly Act, 1937. A curious

contention was also urged by the learned counsel that in any event respondents 2 to 6 are entitled to their legitimate share by virtue of the release

deed Ex. P. 11 executed in favour of Nataraja Pillai by the other two sons of Palaniandi Pillai.

We may at once reject the argument of the learned counsel for respondents 2 to 7 that any absolute right was created in favour of the

predecessor-in-interest of respondents 2 to 7 by virtue of the release deed Ex. P. 11 as the recitals in the release deed themselves provide that

such arrangements inter se between the parties were subject to the main provisions under Ex. P. 2 which is the will of Palaniandi Pillai. It cannot be

pretended that Nataraja Pillai secured an absolute right by virtue of the release. In fact, this was rejected by the learned trial judge. We agree with

him.

The argument of the learned counsel for the respondents in this appeal involves the determination of answers to the following questions which

are framed by us for convenience:

(1) What is the date on which succession opened for the ultimate residuary bequest to take effect ?

(2) What is the law to be applied while effecting distribution of the residue ? Is it the Hindu Succession Act of 1956 or the earlier Hindu Law ?

(3) In the alternative, is S. 111 of the Indian Succession Act of 1925 or the exception there-under applicable to the facts of the instant case ?

(4) Who are the heirs of Palaniandi Pillai entitled to the bequest and when in point of time such heirs are to be ascertained ?

It is not disputed that 31st January, 1957, the date of death of Nataraja Pillai was the date when the ultimate bequest to the heirs of Palaniandi

Pillai became distributable and payable. It was therefore that date when succession opened to the class entitled thereto to receive the ultimate gift.

This is not disputed before us. There is however divergence between the parties as to the law to be applied and to be attracted to effectuate the

distribution.

Sadasivam, J., rightly held that it is not open to the 1st respondent to invoke S. 8 of the Hindu Succession Act, 1956 Even so, Mr.

Ramamoorthi Iyer, would contend that the law applicable on the date of the distribution of the residuary bequest is the statute law. Strong reliance

is place. on Lala Dunichcnd v. Mosemmat Anar Kali (1946) 2 M. L. J. 291 (P. C) and Monirom Kilita v. Keri Kolltani ILR 5 Cal. 776.

Reference was also made to Bepin Behary Mullick and Others Vs. Sm. Lakshasona Dassi and Others, Ramulu and Another Vs. Govur Venkanna

(Died) Govur Narayana and Others, . All those cases are easily distinguishable. They were net concerned with testamentary succession. In Lala

Dunichand v. Mosammat Anar Kali (1946) 2 M.L.J. 291 (P.C.) the question arose as to whether the Hindu law of Inheritance (Amendment) Act

applied to the case of a Hindu male dying intestate before the Act came into force. It was held that the Act applied not only to the case of a Hindu

male dying intestate on and after the date of operation of the Act, but it also applied to the case of a male dying intestate before that date.

Incidentally the words ''dying intestate ''were held to be merely descriptive of the status of the deceased and had no reference and were not

intended to have any reference to the time of death of a Hindu male. In the instant case however, Palaniandi Pillai left a Will and the finding of

Sadasivam, J., that once it is admitted that Palaniandi Pillai left a Will, it could not be said that he died intestate, takes the facts of the case under

consideration beyond the pale of the ratio in Lala Dunichand v. Mosammat Anar Kali (1946) 2 M.L. J. 291 (P.C.). Moniram Kolita v. Keri

Kalitant ILR 5 Cal. 776 dealt with a widow''s state. That was a case wherein it was held that a widow who succeeds to the estate of her husband

does not take a mere life estate, but the entire estate is for the time being vested in her though in some respects for only a qualified interest. It is not

known as to how the principle of ''time vesting'' in the widow on the death of her husband could be attracted so as to interpret Cl. 3 of the Will Ex

P-2 wherein an express life interest and no more was created in favour of Nataraja Pillai. Even so the learned Judges in Bepin Behari v. Sm.

Lakshasona Dassi A. I. R. 1959 Cal. 271 were concerned with the import of S. 3 of the Hindu Women''s Rights to Property Act, 1937. There

again it was held that a new and a firm right quite clearly vested in the widow by virtue of which the widow got a share in the estate left by her

husband as if she was an heir, though her enjoyment was made subject to certain limitations. It was not a share which the widow used to get under

the orthodox law at a partition, between her sons. So it was, the learned Judges held that the widow in that case obtained a vested interest. It has

no application to the facts of the present case. Kutdip Singh v Karnail Singh AIR 1961 (Pun.) 573 and Ramulu and Another Vs. Govur Venkanna

(Died) Govur Narayana and Others, dealt with the nature of a widow''s estate after the passing of the Hindu Succession Act, 1956 and in cases

where the last male holder died prior to the Act. We do not see low the cases cited have any bearing at all on the interpretation of Cl. 5 of the Will

Ex. P-2. Mr. Ramamoorthi Iyer referred us to a passage, torn out of its context and found in Angurbala Mullick v. Debabrata Mullick A.J.R. 1951

S,C. 293. The passage ran ''who their heirs are has to be determined according to the law in force at the time when succession opened."" This

passage is subject to the proposition now well established that S 8 of the Hindu Succession Act, 1956, is not retrospective-See Erramma v.

Veerapanu AIR 1956 S.C. 1879 S. 8 itself expressly refers to a person dying intestate. Even applying the rule of construction in Lala Dunichand v.

Mosammat Anar Kali (1946) 2 M.L.J. 291 (P.C.), the phrase means in case a person dies intestate. In the instant case, Palaniandi Pillai died

leaving a testamentary instrument. We are not therefore persuaded on the strength of the authorities cited which have no bearing on the facts of this

case, to agree within the learned counsel for the 1st respondent that the law existing on 31st January, 1957, when the succession opened was the

Hindu Succession Act, 1956.

One other limb of argument of the learned counsel for the respondent is that S. 111 of the Indian Succession Act, 1925, and the exception

carved out therein are applicable and that ought to be the law which should govern the heirs of Palaniandi Pillai, whoever they are on the date when

succession opened in the matter of the distribution of the ultimate bequest. S. 111 of the Indian Succession Act, 1925, and the exception thereto

runs as under:

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.

Exception-If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual but their

possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time

go to such of them as are then alive and to the representatives of any of them who have died since the death of the testator.

A prima facie reading of the above provision leads us on to the question whether on the facts and circumstances of this case there was a mere

postponement of the entitlement and distribution of the ultimate bequest to the heirs of Palaniandi Pillai or was there no vesting at all in them, as a

contingency was inextricably linked with the prior bequest, even though for life.

Cl. 5 of the Will which is the clause whose coverage and potentiality has to be weighed provides enough material by itself to throw light on this

aspect. In Cl. 5 of the Will there is given an interest in present over the properties in Nataraja Filial but as a life estate holder. If the ultimate

bequest stood with an anterior creation of only a life interest in Nataraja Pillal then it would be no doubt an interest debitum in present and

solvendum in future. But the gift to the class of heirs in Palaniandi Pillai as on the date of the opening of succession and the dependent distribution

of the bequest to them, is coupled with an uncertain evens, namely, the birth of a mala issue to Natara Pillai. Such a nexus or a condition precedent

between the deferred gift and the prior bequest in favour of Nataraja Pillai did not merely postpone the disposition of the ultimate gift to the heirs,

but the vesting of such a bequest on such a designated class had been contemporaneously postponed. The dispositive words in the Will Ex. P. 2

connotes a class gift, namely, a residuary gift to his own heirs uncertain in number at the time of gift and to be ascertained only later. It cannot

therefore be reasonably predicated as to who are the members of the class on whom the bequest has vested. Thus there was no vesting on the

persons ultimately comprehended under the description in the Will until the contingency disappeared. Further, a conditional bequest involving a

contingency which is personal to the legatee is not transferable inter vivos or by Will. This again provides a key to find out whether the bequest has

vested in the class of persons designated in the Will Ex. P. 2 who had to take it after an enumerated contingency. In this case since the ultimate

bequest to the class designated is postponed for the life of Nataraja Pillai and is concurrently made conditional upon Nataraja Pillai not having a

male issue, it is difficult to accept the contention of Mr. Ramamoorthi Iyer that there was a vesting on the class, on the residuary bequest being

made known to them or on the death of the testator. As the contingency prescribed is personal to Nataraja Pillai there can be no such immediate

vesting of the bequest on the residuary class. The period and lime for distribution did not arrive. Further, the condition precedent for the vesting of

the bequest on the class enumerated is the absence of a male child to Nataraja Pillai. This can be ascertained with reasonable certainty only on the

death of Nataraja Pillai and not before. Indeed law does not comprehend any impossibility in any male person begetting a child at any age. No

doubt, there can be a valid vested interest and a subsequent gift over by way of defeasance of the earlier vested interest either by way of life

interest or otherwise. If the Will in the instant case created a legacy in favour of a designated class without attaching to it the contingency of the

birth of a male issue to Nataraja pillai which ipso facto would operate as a defeasance clause, then the argument of Mr. Ramamoorthy Iyer based

on S. 111 of the Indian Succession Act may be weighty. But here the condition precedent, for the class to secure the bequest is the absence of a

male issue to Nataraja Pillai. This is an unpredictable event until the death of Nataraja Pillai.

The learned Judge rightly remarked that ''Nataraja Pillai died without any issue''. But this could be known only at the time of his death and the

contingent interest in favour of the heirs of Palaniandi Pillai became vested only on the death of Nataraja Pillai''. Having said this, the Learned Judge

was still of the view that the principle in S. 111 of the Indian Succession Act applied to the facts of this case. We are unable to agree:

Ss. 120 and 124 of the Indian Succession Act, 1925, read as under:

S. 120 (1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens.

(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible.

(3) in either case, until the condition has been fulfilled, the interest of the legatee is called contingent.

Exception :-Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to

arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary to be applied for his benefit, the

bequest of the fund is not contingent.

S. 124. Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the Will for the occurrence of that event, the

legacy cannot take effect unless such event happens before the period when the fund bequeathed is payable or distributable.

In the light of such express provisions we, with respect are unable to agree with Sadasivam, J. when he said, the fact that he has given a life

interest in the said properties to Nataraja Pillai cannot lead to the inference that he did not Intend to give any Interest in the said properties of any

of his own heirs if they happened to be the heirs of Nataraja Pillai''. A bequest in a Will, whatever may be its nature has to be interpreted on its

own merits and force. One should sit in the arm-chair of the testator and visualise and comprehend what his intentions were when he wrote the

Will. One of the accepted tests to find such an intention is the avoidance of comparison of the literature employed by the testator in connection with

one bequest with that used by him in connection with others. Each bequest and the words employed thereto has to be considered in its own light.

S. 120 deals with the date of vesting when the legacy is contingent upon a specified uncertain event. S. 124 deals with a bequest contingent upon

specified uncertain events, no time being mentioned for its occurrence. Applying the tests so laid down in statute, it is not possible to state that in

the instant case the ultimate bequest to the artificial class created by the testator became vested in them on the date of his death. Being linked with

a specified uncertain event, the ultimate bequest did not vest until the happening of that event became impossible. In fact, the ultimate bequest did

not take effect at all because it is connected with the specified uncertain event and whether the event happened or not, can only be ascertained with

certainty on the death of Nataraja Pillai. Mr. Ramamoorthi Iyer incidentally referred to S. 93 of the Indian Succession Act which defines, for

purposes of the said Act, what a bequest to ''heirs'' etc., of a particular person without qualifying terms, means. Whatever may be the import and

significance of S. 93, this Section does not apply to the Wills of Hindus. Apparently the fact that the Section is not so applicable escaped the

attention of the learned counsel. In our view, therefore, the main part of S. 111 of the Indian Succession Act or the exception thereto does not

govern the facts of this case.

If therefore S. 8 of the Hindu Succession Act, 1956, and S. 111 of the Indian Succession Act, 1925 are not attracted, then it necessarily

follows that the orthodox Hindu law as was prevailing on the date of death of Palaniandi Pillai is the appropriate law to be applied in construing the

provisions in Cl. 5 of Ex. P-2. Even S. 4 of the Hindu Succession Act, 1956, is a pointer to this effect. We shall of course consider at a later stage

that in spite of the governance of the facts by the earlier Hindu Law, yet what would be the Impact of the Hindu Law of Inheritance (Amendment)

Act, 1929, and the Hindu Homen''s Rights to Property Act, 1937, on it.

It is the text of Cl. 5 of the Will of Palaniandi Pillai that has come up for scrutiny after having been noted by Sadasivam, J who was of the view

that the content and the dispositive provision in the clause is indicative of the fact that the testator while postponing the ultimate gift to his heirs or

next of kin, intended that there should be a present vesting of the same on his heirs and its enjoyment only should be postponed till the lifetime of

Nararaja Pillai and in the absence of male issues to him. Reliance was placed by the learned Judge on S. 111 of the Indian Succession Act and on

an unreported decision of Rajagopala Iyengar, J. in C. S. Nos. 45 and 55 of 1954 and in particular on the decision in In re, Wilson (1907) 2 Ch.

572 which according to the learned Judge is a direct decision applicable to the facts of the case. Cl. 5 of the Will inter alia reads as under:

My third son Nataraja Pillai shall take the incomes accruing from the properties After his lifetime, if he leaves any male issue they shall take the

aforesaid properties, with powers of alienations such as gift, usufructuary mortgage and sale. If there are no male issue as aforesaid my heirs shall

take the aforesaid properties.

Whilst considering the clause in the Will, the learned Judge observed: ''On the termination of the life interest given to Nataraja Pillai the gift over

in favour of his male issues could not take effect as he did not leave any male issues, with the consequence the properties in effect became reverted

in Palaniandi Pillai to devolve on his own heirs as if on intestacy. There can be no doubt that in such a case the heirs of Palaniandi Pillai as on his

death are entitled to succeed to the properties in which Nataraja Pillai was given a life estate. It is an undisputed fact that the three sons of

Palaniandi Pillai were his only heirs under the Hindu law at the time of his death As already stated, reliance was placed on the principle enunciated

in S. 111 of the Indian Succession Act for the purpose. The learned Judge was also of the view that Palaniandi Pillai did not give the residuary

interest in the properties gifted to Nataraja Pillai to the heirs of Nataraja Pillai and by comparing the words ""similarly employed by the testator in

such circumstances in relation to the bequests of Ramaswami Pillai and Vadivelu Pillai ""the learned Judge was of the view that in the absence of any

specific indication, it should be deemed that the heirs of Palaniandi Pillai, as on the date of his death were the only heirs who are entitled to the

bequest. Support was sought to be gained by the decision of Rajagopala Iyengar, J. in the case already referred to and the ratio in In re Wilson

(1907) 2 Ch. 572. Before we consider the import and the meaning of the dispositive terms in Cl. (5) of the Will it is necessary to note the various

clauses which were interpreted by English judges at various times with varied results In the learned Judge of the Court of Appeal were bound by

the earlier decisions of the House of Lords in Bullock v. Downes (1860) 9 H.L C. 1 and Mortimore v. Mortimore (1879) 4 A. C 448. The words

which were employed by the testators in those decisions may be usefully referred to In Bullock v. Dowries (1860) 9 H.L C. 1. The words were

''such person or persons of the blood of the as would by virtue of the Statutes of Distribution of Intestates'' Effects have become and been entitled

thereto in case I had died intestate''. in Mortimore v. Mortimore (1879) 4 A. C 448 the words were ''such person or persons as will then be

entitled to receive the same as my next of kin''. The words used in In re. Wilson (1907) 2 Ch. 572 appear to be indistinguishable from those upon

which Mortimore v. Mortmore (1879) 4 A. C 448 was decided. It would be necessary for us to refer to the words which were the subject matter

of the Will in the case of Hutchinson v. National Refuges for Homeless and Destitute Children (1920) A.C 794. They ran as as follows: ""for such

person or persons as on the failure of such trusts shall be my next of kin and entitled to my personal estate"" At this stage we shall also refer, for

purposes of completion, the words used by the testator in Helsby In re (84) L.J. (Ch.)682. There were ''such one or more of the persons who, at

the time of the daughter''s decease, shall he my next of kin''. The words used by Palaniandi Pillai in Ex. P-2 in juxtaposition to the words quoted

above are ''if there are no male issues as aforesaid, my heirs shall take the aforesaid properties.

We have quoted the text of the dispositive words in each of the Wills in the above important decisions only to find that reliance placed by

Sadasivam, J., on the ratio in In re. Wilson (1907) 2 Ch. 572 does not appear to us to be apposite. We shall now presently give the reason. In

fact, the decisions of the House of Lords in Bullock v. Downes (1860) 9 H.L.C. 1 and Mortimore v. Morti more (1879) 4 A.C. 448 rested upon

the conclusion of the learned Law Lords that the primary intention of the testators therein was that in point of time the heirs of them have to be

reckoned on the date of their death and there was no artificially by creating a class which was not in existence at the time of their death. On the

other hand the Law Lords deciding Hutchinson v. National Refuges for Homeless end Destitute Children (1920) A.C. 794 were definitely of the

view that the terms of the disposition in the said Will and already quoted above established that the clear and clinching intention of the testator was

that the heirs of his had to be redetermined on the date of the failure of the trust and on such determination the bequest of the residuary legacy

should go to such an artificial class so reckoned and sought. In Helsby In re (84) L.J. (Ch.) 682, Eve. J. who was considering the import of the

terms already referred to had, to necessarily probe into the authorities which stood by then and which had to be considered by him. Upon a review

of such authorities, Eve, J., in Helsby, In re, (84) L.J. (Ch.) 682 was of the view that

......there are two distinct lines of cases in which a testator has made an ultimate gift to his next-of-kin according to the Statutes for Distribution of

Intestate Estates where such gift will not take effect until some period after his death, and in which the question arises whether the class who are to

take is to be ascertained at the death of the testator, or at the death of a tenant for life, or some other subsequent period. First, there is the line of

cases such as Bullock v. Downes (1860) 9 H.L.C. 1 and In re Wilson (1907) 2 Ch. 572, where there was no indication that the testator intended

that the parties to take should be ascertained at some period subsequent to his death. Secondly there is the line of cases such as Sturge to Great

Western Railway, In re. 51 L.J. Ch. 185 = 19 Ch. D. 444 and Mc fee In re Mc Fee v. Toner 79 L J. Ch. 676 in which the intention that the class

to take should be ascertained at a later date than his own death is not controlled by the reference to the Statutes of Distribution.

In the case before him, the learned Judge held that it would fall within the second line of cases. He proceeded to observe:

No one can read the first part of the gift in default of issue of the daughter without seeing that the testatrix contemplated a class of next-of-kin to be

ascertained at the death of her daughter. It has been suggested that the words ""such one or more of the persons who at the time of my daughter''s

decease shall be my next of kin"" point to the survivors of the next-of-kin at her death, but the words ""such one or more'''' clearly refer to the

discretion of the trustees, and not to survivorship.

In Hutchinson v. National Refugees for Homeless and Destitute Children (1920) A. C, 794 Viscount Findlay, commenting upon the words

employed by the testator in Bullock v. Downes (1860) 9 H.L.C. 1, observed (at page 801).

...Prima facie, the next of kin are to be ascertained at the death of the testator, but, that if there is a sufficient indication to that effect in the words of

the Will the time for ascertaining the class may be the time fixed by the Will as the period of distribution. The question in this as in every other case

of the kind must be whether there is in the Will a sufficient indication that the period of distribution is the time at which the class is to be ascertained.

On a consideration of the authorities and the balanced view expressed by Eve, J., in Helsby, In re 84 L. J. Ch. 682 we are of the view that the

case is not governed by the principle in In re Wilson (1907) 2 Ch. 572 . On the other hand, Cl. 5 in Ex. P. 2 creates a gift to an artificial class of

persons who are to be found and ascertained at a later date, namely, on the failure of the previous disposition in (he Will. Here there is

undoubtedly a failure of the initial gift over because Nataraja Pillai died without male issue. In Bullock v. Downes (1860) 9 H.L.C. 1 which was the

basis for the decision in In re Wilson (1907) 2 Ch. 572 , there is no clear indication that the heirs are to be ascertained on the date of failure of the

previous trusts. The ratio therein provides only a rule of construction which is susceptible to variation, if the testator dearly intended to the contrary.

Further, the hypothesis set by the testator in that case which is reflected in the words ""in case I had died-intestate"" is positive in nature and provides

the date as to when the heirs ere to be ascertained. On the other hand, the words ""if there are no male issues as aforesaid"" in Ex. P-2, which is an

adverbial clause of time, derots that the mandate to follow has to be worked at that point of time and at no other. The mandate is that ""my heirs

shall take the aforesaid properties"". It means ""then my heirs shall take the properties"". It is true that the word ''then'' does not appear in the clause.

But the introduction of the word is but sequential and indeed innocuous. We have inserted it only to expatiate the clear intention of the testator,

being obliged to interpret the Will sitting in his arm chair. This is a case in which there is an intention to the contrary expressed by the testator which

is conspicuously absent in Bullock v. Dowries (1860) 9 H.L.C. 1 and In re Wilson (1860) 9 H.L.C. 1. The other case decided by Rajagopala

Iyengar, J., referred to be the learned Judge may now be noted. The Judgment in that case was the subject matter of an appeal and the appellate

Judgment is reported in Visalakshmi Amma v. Anjaneyalu Chetty 74 L. W. 192. The learned trial Judge has set out succinctly the facts of the case

decided by Rajagopala Iyengar, J. One Yellamanda Chetty executed first a deed of settlement and later a Will substantially dividing his estate into

two parts and gave a life estate to each of his two sons Arjaneyalu and Sanjeevi and absolute remainder in favour of their respective male issues,

Sarjeevi died without male issue, but left only his widow Visalakshmi, who adopted one Ramakrishnan. It was held that when the life interest of

Sanjeevi terminated on his death, the gift over in favour of the male issue could not take effect, with the consequence that the properties became

revested in Yellamanda Chetty to devolve on Yellamanda''s heirs as on intestacy Even on the facts a distinction could be drawn. The testator in

that case did not create a vested interest in favour of the life estate holder It is not so in the case under consideration. Rajamannar, C J., speaking

for the Division Bench in the Appellate Court held, on a review of the facts, that they were unable to find any initial absolute grant in favour of

either son We shall, however, refer to certain experts in Visalakshmi Amma v. Anjaneyulu Chetti 74 L. W. 192 which are quite apposite for our

case. The learned Judges observed (at page 197):

The question wholly turns on the proper construction of the particular document in the case, and so, other decisions in which other instruments

have been interpreted are really not of much assistance, and it is rather the impression which one forms of the intention of the settlor or the testator

as the case may be, of the entire settlement or Will before the Court read in the context of the circumstances surrounding this disposition that

should ultimately furnish the answer"".

We are unable therefore, with great respect to our learned brother Sadasivam, J., to agree that the ratio in Visalakshmi Amma v. Anjaneyalu

Chetty 74 L. W. 192 or the observations of Rajagopala Iyengar, J., in C. S. Nos. 45 and 55 of 1954 which was decided on its own facts, are in

any way useful to interpret Cl. (5) of Ex. P-2 in this case, in which there are specific and special dispositive terms which have to be scanned,

understood and interpreted. Jarman on Wills, 6th Edition, pages 1357-58, states:

The law is said to favour the vesting of estates; the effect of which principle seems to be that property which is the subject of any disposition,

whether testamentary or otherwise, will belong to the object of gift immediately on the instrument taking effect, or so goon afterwards as such

object comes into existence, or the terms thereof will permit. As, therefore, a Will takes effect at the death of the testator, it follows that any device

or bequest in favour of a person in esse simply (i. e. without any intimation a desire to suspend or postpone its operation) confers an immediate

vested interest. If the words of futurity are introduced into the gift, the question arises whether the expressions are inserted for the purpose of

protracting the vesting, or point merely to the deferred possession or enjoyment...... It may be stated as a general rule, that where a testator creates

a particular estate and then goes on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the words

descriptive of such event, occurring in the latter devise, will be construed as referring merely to the period of the determination of the possession or

enjoyment under the prior gift, and not as designed to postpone the vesting. Thus, where a testator devises lands to A for life, and after his decease

to B in fee, the respective estates of A and B (between whom the entire fee simple is parceled out) are both veated at the instant of the death of the

testator, the only difference between the devises being, that the estate of the one is in possession, and of the other is in remainder.

But here in this case we have already observed that the artificial class did not acquire a vested interest in the residuary bequest on the date of

the death of the the testator Palaniandi Pillai and for that reason too the heirs of Palaniandi Pillai who were alive on 31st January 1957 when

Nataraja Pillai died, are the only heirs entitled to the distribution of the bequest and not the heirs of Palaniandi Pillai who were alive on the date of

his death. This is based on the ordinary rule of construction of Wills that the testator intended that there should be no vesting of the ultimate bequest

in his heirs at the time of his death.

Having arrived at this conclusion the next of kin of Palaniandi Pillai who were alive on 31st January, 1957, have to be ascertained on the

hypothesis that Palaniandi Pillai had lived up to that time. This is no doubt based on a fiction. Undoubtedly all the respondents and the appellants

would be engulfed in the artificial class of heirs created by Palaniandi Pillai, as on the above date.

After having thus ascertained the artificial class or group of persons who are entitled to the distribution of the ultimate residuary bequest, the

problem still remains as to who amongst the said group would succeed in accordance with the Hindu Law as was applicable to Hindus on 19th

May, 1928, when Palaniandi Pillai died. S. 2 of the Hindu Law of Inheritance (Amendment) Act, 1929, no doubt made an inroad into the normal

law of succession amongst the heirs of a Hindu. It was an Act to alter the order in which certain heirs of a Hindu male dying intestate are entitled to

succeed to his estate. S. 2 therein providing for the new order of succession of certain heirs created by the Act reads:

A sons'' daughter, daughter''s daughter, sister, end sister''s son shall, in the order so specified be entitled to rank in the order of succession next

after a father''s father and before a father''s brother.

The proviso is not relevant. Thus, the ranking of the statutory heirs were made subject to prior rights in the other normal heirs according to

Hinda Law. In fact, the son''s daughter with whom we are concerned in the instant case, ranks in the order of succession next after father''s father

and before a father''s brother. Though therefore the daughters of Vadivelu Piliai come within the benefit conferred upon the newly created heirs

under the Hindu Law of Inheritance (Amendment) Act, 1929 yet they only rank after the father''s father and in the absence of the other prior heirs.

In the instant case it is not so, and therefore respondents 2 to 6 cannot be included in the class of heirs who are entitled to the ultimate bequest

under Ex. P-2. As regards the Hindu Women''s Rights to Property Act, 1937, it is needless to say that the Provisions therein are inapplicable as

under S. 4 therein makes it clear that the Act did not apply to succession to the property of a Hindu dying intestate before the coming into force of

the Act. Palaniandi Pillai died in 1928. The Hindu Women''s Rights to Property Act, 1937, came into force on 14th April, 1937. The Act therefore

is expressly inapplicable to the facts of this case, and therefore neither the 1st respondent nor the 7th respondent are to be taken in the circle of

artificial heirs created by the testator in the instant case.

Thus the argument of the learned Counsel for respondents 2 to 7 that in any event they ought to be included in the artificial class of heirs

created by the testator either under the Hindu Law of Inheritance (Amendment) Act, 1929, or under (he Hindu Women''s Rights to Property Act,

1937, is without any force and has to be rejected. Thus eliminating such of those heirs who could not find a place in the ambit of the artificial class

of heirs created by Palaniandi Pillai under Ex. P-2 it is clear that the appellants who are the son''s sons of Palaniandi Pillai are the only heirs entitled

to the ultimate bequest when succession opened out for its distribution in accordance with the principles of Hindu Law prevailing on the date of

death of Palaniandi Pillai. The appellants therefore would be the only persons who would be entitled to the entire Sch. I properties on the death of

Nataraja Pillai and we are unable to agree with the finding of the learned trial Judge that the respondents would also be entitled to the same as

cosharers thereto. The judgment and decree of the learned Judge is therefore set aside and the appeal is allowed. As the parties are very close

relations and as the matter involved is one of the interpretation of a Will, we feel that the parties to the appeal should bear their own costs

respectively in this appeal.