Madras High CourtAkkaraju Visvanadham And Ors. vs Duthalur Anjaneyulu And Anr. on 28 March, 1935Equivalent citations: AIR1935MAD865, AIR 1935 MADRAS 865JUDGMENT
 

Pandrang Row, J.1. This is an appeal from the decree of the District Judge of Nellore, dated 29th July 1931 in appeal from the decree of the Subordinate Judge, Nellore, dated 19th September 1928, in O.S. No. 12 of 1927, a suit for a declaration that the plaintiff is entitled to the plaint mentioned immovable properties, and that the adoption of defendant 1, by the late Seethamma is not true and valid. The plaintiff claims as the heir of the last owner of the properties. The properties originally belonged to one Venkatanarasayya and he disposed of them by a will dated 26th February 1898. He died about a week later. The material portion of the will which is addressed to his wife runs as follows:On my death all my movable and immovable properties you should keep in your possession and enjoyment and at the time of your death deliver possession thereof to my daughter Seshamma, During the time you are in possession of the estate you should not make a gift or sale thereof. You should spend the income accruing therefrom not for improper purposes but only for necessary expenses. You should not only keep with you my daughter and my son-in-law and look after them, but also after your death your funerals should be got performed by my daughter and thereafter my daughter and the children to be born to her should enjoy the properties with powers of gift and sale as long as the sun and moon last.2. Under this will according to the construction placed upon it by both the Courts below the daughter got a vested interest and that therefore upon the termination of the life estate of the widow, the interest that was vested in the daughter and her children could be claimed by their heirs. The facts are that the daughter who was pregnant at the time of the making of the will died four or five months after the testator's death which was a week after the will, the male child that was born to her died two or three days either before or after her death. The widow however lived till 1917. The plaintiff is the undivided brother of the daughter's husband, who was also the sister's son of the testator and who died in 191.8 shortly after the widow's death. The only question argued in this appeal is whether the will created a vested interest in favour of the daughter and her children. There can be no doubt in my opinion that a vested interest has been created so far as the daughter and her children are concerned, and that the estate bequeathed to them was not a mere contingent remainder. The general rule of law is very clear, namely, that the mere fact that the possession of the estate bequeathed is to be given at a future time is not by itself a reason for coming to the conclusion that the estate was not to be vested at the time of the testator's death. This position is not disputed so far as a legacy to a single individual is concerned. The mere interposition of a life estate will not prevent the 'remainder from being a vested one.3. It is however contended that when the legacy is to a class, the class is to be ascertained not at the time of the testator's death, but only at the time when the life estate is terminated, and that the legacy does not vest at the time of the testator's death in that class. The authority quoted in support of this proposition is Srinivasa v. Dandayudapani (1889) 12 Mad. 411. That was however a case in which it was held that there was no legacy at all to the class in question, and the ruling in that case cannot therefore apply.This distinction was pointed out in the subsequent case reported inSivarama Ayyar v. Gopalakrishana Chettiar 1925 Mad. 88 at p. 341.The words used in the will in Srinivasa v. Dandayudapani (1889) 12 Mad. 411 did not disclose an actual legacy in favour of any class. In that case what the will declared was that the daughter to whom a life estate was given under the will was to transmit the corpus intact to her male descendants if she had any, and it was held that the ascertainment of the persons to whom the estate was to descend in succession to the daughter was postponed until the death of the daughter. In the present case the position is quite different. The will is clear enough so far as the actual legacy to the daughter and her children are concerned. It is even stated that during the life estate of the widow, the widow should keep with her the daughter and her husband and look after them. There can be no doubt that the intention of the testator was to bequeath the estate to his daughter and her children after the expiration of the life estate which he intended his wife to, enjoy. This intention is very clear, and I have no doubt that the ruling in Srinivasa v. Dandayudapani (1889) 12 Mad. 411 relied upon by the appellants' advocate does not apply to the present case.4. It is also argued that the reference in the will to the performance of the funeral ceremonies of the widow by the daughter constitutes a condition precedent to the vesting of the estate devised, to the daughter and her children, and that as the daughter and her only child predeceased the widow the devise fails altogether. I have no hesitation in dismissing this argument as being quite unfounded. It is impossible to regard the reference to the performance of the funeral ceremonies of the widow as a condition precedent, merely because the will states that the estate is to be enjoyed by the daughter and her children after arrangements are made for the funeral ceremony. Unless there are words clear enough in the will from which a. condition precedent could be inferred, it would not be right to draw such an inference. As stated in Thomas Duffield v. Henry Duffied (1829) 4 E.R. 1334 at p. 1358:It has long been an established rule in construing devises that all estates are to be holden to be vested, except estates, in the devise of which a condition precedent to the vesting is so clearly expressed, that the Courts cannot treat them as vested without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstance occasioning that doubt, and what seems to make a condition, is holden to have only the effect of postponing the right of possession.5. There is certainly nothing in the will concerned in the present case from which this reference to the funeral ceremonies can be construed as a condition precedent. It was apparently meant to give authority to the widow to set apart if she thought fit any portion of the estate that may be necessary for the purpose of arranging for her funeral ceremony, and it cannot possibly have been intended by the testator that his daughter and children should not get the property which they were to have otherwise, unless they had previously performed the funeral ceremony of his wife. The facts of the present case appear to be more or less of the same character as those in the case decided by their Lord-whips of the Judicial Committee in Bhagabati Barmanya v. Kalicharan Singh (1911) 38 Cal. 468. It was hold by their Lordships in that case with reference to the argument on the appellants' side that there can be no vesting until the death of the life-estate holders that it was clear that the nephews who were to take the estate not the life estate were intended to take a vested and transmitable interest on the death of the testator though their possession and enjoyment were postponed. The question whether it was the intention of the testator, that on the birth of nephews after his death, the interests vested should be divested so as to lot in such after-born nephews, was not decided by their Lordships, and that question does not also arise for decision in the present case.6. The general rule of law which is embodied inSection 111, Succession Act, though not directly applicable to the present case, is to the effect that when a be quest is made simply to a class of persons the thing bequeathed shall go only to such as are alive at the testator's death, subject to the exception that whore the class of persons to whom the property is bequeathed is described as standing in a particular decree of kindred to any person, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest, 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. As I already observed this rule of law found in theIndian Succession Actdoes not apply to the present case which deals with a Hindu will. But the principle of law recognized in that section is entitled to acceptance as a rule of general application, where there is no special rule to the contrary. I am satisfied in this case that the decisions of both the Courts below are right and that the appeal must therefore fail; it is therefore dismissed with costs of respondent 1.