1. The questions arising on this originating summons are to be answered in the following circumstances and facts of the case. The testatrix Bai Hirabai Nusserwanji Motisha died in Bombay on April 10, 1934, leaving a will in the Gujarati language dated April 9, 1934. After giving and setting out certain legacies the testatrix by Clause 9 of her will states as follows:
If the 'legacies' which I have (directed to be) given by this my 'will' cannot be given for any reason whatever, as to the amounts of those legacies and all my remaining punji (and) property (which I may not have left as 'Bakshis' (gift) to anyone under this will), all that (which I shall hereafter describe in this will as my 'remaining punji') my executors shall divide into four equal parts, and they shall give one such equal part to the persons mentioned below.
(a) To (my) sister Alamai Dhunjishaw Bhandara,
(b) To (my) brother Burjorji Nusserwanji Motisha,
(e) To (my) brother Hormusji Nusserwanji Motisha,
(d) To Piroz, son of (my) sister Meherbanoo Homji Munshi.
My remaining punji referred to above includes the sum which stands to my credit in the Imperial Bank (of India).
2. After setting out the said clause in which she states that the executors shall give one such equal part to the persons mentioned in the said clause, she sets out Clause 10 of her will as follows:
I direct my executors that they shall hand over the share of Piroz, son of my deceased sister Meherbanoo, as stated in the above clause, to his trustees (1) Mr. Nusserwanji Hor musji Sethna, and (2) Dr. Nusserwanji Icchaporia, and they shall make a formal 'trust' thereof, so that it may go to the children of the said Piroz.
By this clause the testatrix states that the share falling to Piroz, her nephew, shall be handed over by the executors to the trustees of Piroz who are the same trustees as of another deed of settlement by Piroz himself dated December 14, 1931, and such trustees shall make a formal trust thereof so that 'it,' that is, the share may go to the children of Piroz.
3. Pursuant to the directions contained in Clause 10 the executors executed a declaration of trust dated October 23, 1934.
4. At the date of the will and at the time of the death of the testatrix the said Piroz was unmarried and he married on December 28, 1939. On November 23, 1942, a daughter was born to Piroz and his wife and she was named Vilarbanoo, and the said Vilarbanoo, daughter of Piroz, died on June 25, 1943. A few months thereafter, that is, on October 23, 1943, Piroz died leaving his widow, defendant No. 1, and without leaving any issue surviving him. By his last will and testament dated January 11, 1943, the said Piroz appointed his wife defendant No. 1 as the sole executrix thereof and bequeathed absolutely to defendant No. 1 the whole of his estate save and except three-fourths of a trust fund which is the subject-matter of the deed of trust referred to above dated December 14, 1931.
5. On the facts and circumstances set out above the main questions arising for determination by this Court are as follows:
1. Whether on a true and proper construction of the will of the testatrix Hirabai, Piroz took the one-fourth share set out in Clause 9 of the will absolutely, or whether he took a life interest in that one-fourth share?
II. Whether Under Clause 10 of the will of the testatrix there was an absolute bequest to the children of Piroz or whether the bequest to the children of Piroz is void in the circumstances of the case?
6. The answers to these questions would determine the questions set out and annexed to the plaint as questions arising on the originating summons.
7. The facts of the case are short and are not complicated. The first question arising is, what is the manner in which the will of the testatrix Hirabai should be construed. It is plain that the will must be construed as a whole and if there are any two clauses conflicting with each other the Court must try and reconcile them with each other. The Court has to see on the plain reading of the will first of all what was the dominant intention of the testatrix. The meaning of Clauses 9 and 10 of the will must be concluded from the entire instrument and all parts of the will are to be construed with reference to each other as laid down by the Privy Council in the case of Rameshwar Baksh Singh v. Balraj Kwar : (1935)37BOMLR862 so as to form one consistent whole, and it is only where it is not possible to reconcile all the parts of the will that the latter must prevail. As observed by the Chief Justice Sir Amberson Marten who was then Mr. Justice Marten at p. 385 of the case of Gulabji v. Rustomji (1924) 27 Bom. L.R. 380. quoting the observations made in In re Sanford (1901) 1 Ch. 939:.it is equally clear that the whole of a will is to be looked to, to ascertain the intentions of a testator, and that the Court must, if it can reconcile the various clauses in a will. Further, as pointed out by Mr. Justice Joyce in re Sanford as being an observation which has been made in a large number of cases, one has first to endeavour to see what is the true construction of the particular will before the Court irrespective of any authority, and then to see whether there is any authority which prevents one from coming to that conclusion, and not first to turn to the authorities, and then to see whether the particular will before the Court comes nearest to one will or to another will in the decided cases.
I have said this because a series of English and Indian cases were cited before me by Mr. Kalyaniwalla on this and other points. Looking at the whole will and the tenor of different clauses I cannot resist coming to the conclusion that although in Clause 9 the testatrix says 'and they shall give one such equal part' to Piroz, yet the clear statement in Clause 10 that that particular share shall be handed over to the trustees so that it may go to the children of Piroz clearly shows that the intention and dominant intention of the testatrix was that Piroz should enjoy the income for life and the corpus should go on the death of Piroz to his children. It is true that Piroz was not married at the date of the will and at the date of the death of the testatrix. But it is clear that she was providing for the marriage of Piroz as she set aside a certain saree for the wife of Piroz to be given to her on the marriage of Piroz and she contemplated evidently that the corpus should go to the children of Piroz after the death of Piroz. In these circumstances I have come to the conclusion that Piroz did not take an absolute interest in the one-fourth share set out in the will in favour of Piroz and that he took only a life interest in the said share and that he would be entitled to will away the said accumulation of interest due to him during his life. This conclusion which I have arrived at is the only conclusion I can think of on a proper reading of the whole will and which is in consonance with the dominant intention expressed in the will read as a whole and it does definitely reconcile the two clauses, namely Clauses 9 and 10 of the will.
8. The next question is the one on which there has been considerable argument on both sides, namely whether Vilarbanoo did take under this settlement at all and whether the corpus in, the hands of the trustees goes to the estate of Piroz as one of the heirs of Vilarbanoo with defendant No. 1 as the other heir or whether the gift in favour of Piroz's child or children fails for any reason and that therefore the corpus reverts to the residuary estate of the testatrix Hirabai.
9. The Court has now to see whether Vilarbanoo did or did not take. I have said the dominant intention was that the trustees were to hand over this share to the children of Piroz during his lifetime did have a child but she predeceased him. The question therefore is there anything in the gift over to the child or children of Piroz repugnant to any principle of law or contrary to any of the sections of the Indian Succession Act which have a bearing on this question.
10. The relevant sections to be considered in this connection are Sections 111, 112 and 113 of the Indian Succession Act. Section 111 refers to a simple gift to a described class of persons directly and says that the thing bequeathed shall go only to such of that class as are alive at the testator's death. But the exception to that section clearly lays. down that where property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual but the possession of that class is deferred until a time later than the death of the testator because of or by reason of a prior bequest or otherwise, then the exception says that 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. In this connection see illustrations 2 and 3 under the section. The bequest after the intervention of the life interest as set out in this exception vests in each member of the class as and when he or she comes into being and this is so although he or she may die before the period of distribution in which case the representatives of such as have died since the death of the testator would be entitled along with those alive at the period of distribution. So far as Section 1ll is concerned I do not see how that can come in the way of Vilarbanoo taking an interest under the will.
11. The next question is with reference to Section 112 of the Indian Succession Act. This section refers to bequests that are void if made to persons who are not in existence at the testator's death and where the bequest is made by a particular description. The section in terms says that where a bequest is made to a person by a particular description and there is no person in existence answering to that description at the testator's death, the bequest is void. This section would have made the bequest under the will void but for the exception to the section read with illustrations 3 and 5. This exception saves the bequest in the event of there being an intervening life interest or by reason of a prior bequest and it says that if such a person answering the description is alive at the death of the testator or conies into existence between that event and such later time, the property shall, at such later time, go to that person. Illustration 3 clearly indicates that where there is an intervening life interest and thereafter the bequest goes to a person by description who is not born at the date of the death of the testator but is born later and dies before the life interest falls in, the legacy in these circumstances goes to the representatives of such person. The exception therefore depends entirely on the vesting of life interest before the bequest to unborn person takes effect, and if that unborn person is born, it is clear under this illustration that whether he or she is alive or dead at the termination of the prior estate it says that his or her representative will take under the bequest. In these circumstances I do not see how Section 112 can come in the way so as to make the bequest in this case void.
12. The only other section which is to be considered and which was relied upon very strongly is Section 113 of the Indian Succession Act. Now this section says that where a bequest is made to a person not in existence at the time of the testator's death and is made subject to a prior bequest, the later bequest shall be void in the event of it not comprising the whole of the remaining interest of the testator in the thing bequeathed, This section comes into operation when the bequest to such unborn person is postponed by the intervention of the life or some other interest in the thing bequeathed, and it comes into operation to that extent in the present case. But it says that in order that the bequest to such a person should be valid the only condition is that it must comprise the whole of the remaining interest of the testator and that there should be nothing in the way of a contingency or in the way of a defeasance clause which would restrict the whole of the interest of the testator being bequeathed to such a person. This section is in terms the same as Section 13 of the Transfer of Property Act. The section has nothing to do directly with the question of perpetuity which is provided for in the next section but deals with the conveying of the whole of the interest of the testator to the person to whom it is bequeathed, the bequest being deferred in the manner set out in the section and has nothing to do with the vesting of the bequest in an unborn person. In this connection the English law is different and has no bearing on the construction of this section. If the matter had rested here, there would have been no difficulty in my coming to a conclusion that there, is nothing under any of these sections to prevent the child born to Piroz taking the bequest and Piroz being entitled as an heir of his child. I have, however, been referred to a recent decision of their Lordships of the Privy Council the case being Sopher v. Administrator General of Bengal . In that case their Lordships have construed the implication of Section 113 of the Indian Succession Act and have made certain observations which are very pertinent. Their Lordships referred to the section at p. 102 and said that the section must of course be read and construed in connection with the illustrations to be found in the Act and those illustrations ought to be considered. Viscount Maugham observes at pp. 102 and 103 as follows:
The first illustration to the section shows that a bequest by a testator to his children for their respective lives and after their deaths to their children respectively, unborn at the testator's death, is void, for it is not a bequest of the whole interest that remains in the testator, since it is not certain. A bequest to a son for life and after his death to his children who shall survive him must be bad for the same reason, since there may be no such children. 'His Lordship thereafter went on to say that the illustrations show the strict sense in which the Legislature has used the words 'a bequest is made' and the words 'subject to a prior bequest.' His Lordship went on to say as follows (p. 103):
It may be that a particular bequest must comprise all the testator's remaining interest, if the legatee under it is not in existence at the testator's death; and it is clear that in cases like those two illustrations further gifts, however complete in their operation, do not save 'the bequest'.
The test laid down is at p. 103:
Whether the later bequest (whatever that means in a particular case) is a complete disposition of the testator's interest.
In that particular case after considering the complicated facts of the case and the manner in which the will was drawn up their Lordships came to the conclusion that if under a bequest in the circumstances mentioned in Section 113 of the Indian Succession Act there is a possibility of the interest given to a beneficiary being defeated either by a contingency or by a clause of defeasance, the beneficiary under the later bequest does not receive the interest bequeathed in the same unfettered form as that in which the testator held it, and that the bequest to him does not therefore comprise the whole of the remaining interest of the testator in the thing bequeathed.
13. I have read very carefully this judgment of their Lordships where these propositions are laid down, viz. that where there is any contingency or where a clause of defeasance was there which cuts down or does not convey the whole of the interest of the testator in any manner whatsoever, then that would be repugnant to the provisions of Section 113 and the bequest would be void. I have also quoted the above words of his Lordship Viscount Maugham to show that in that case their Lordships held that where according to ill. (1) to the section a bequest is made by a testator to his children for their respective lives and after their deaths, to their children respectively, unborn at the testator's death, it is void as it is not a bequest of the whole of the interest that remains in the testator, and as pointed out it will not be certain that there will be any grandchildren.
14. These observations of their Lordships must be respected, even if it is argued that these are obiter, as laying down the law under the section. The question remains whether they are applicable to the particular facts of the case before me, The Exceptions to Sections 111 and 112 expressly provide for the vesting of the bequest to persons unborn, and I have already drawn attention to ill. (3) of Section 112. In the case before me I cannot find the likelihood of any contingency arising nor is there any defeasance clause which would bring this particular case before me within the four corners of the observations made by their Lordships in the case of Sopher v. The Administrator General of Bengal or within ill. (1) to Section 113 of the Indian Succession Act as explained by their Lordships and set out by me above. The child Vilarbanoo immediately she was born and came into existence became entitled to the bequest and it is immaterial whether she was alive or dead at the termination of the prior life interest or life estate given to Piroz under the will, as in the latter event her representatives would take.
15. In these circumstances I do not find anything repugnant in the bequest made in favour of the child or children of Piroz. I, therefore, hold that Piroz's daughter Vilabanoo did take the bequest and that on the death of Vilarbanoo her heirs were her representatives, namely Piroz and defendant No. 1 to the suit therefore, hold and answer the second question formulated above by saying that the bequest made in Clause 10 is a good bequest and not void.
16. Costs of all parties to the suit as between attorney and client to come out of the estate. Costs to be taxed on the long cause scale.