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Dr. Mafaldo U. Mascarenhas Vs. Annie Dias - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberO.C.J. Suit No. 5 of 1957
Judge
Reported in(1958)60BOMLR369
AppellantDr. Mafaldo U. Mascarenhas
RespondentAnnie Dias
Excerpt:
.....by section 117 can come into play. if the period of accumulation happens to be more than eighteen years, that period is cut down to eighteen years and the disposal of the corpus is accelerated and takes effect immediately. if, however, the disposal of the corpus is not so co-related with the period prescribed for accumulation of income, but is independent, then section 117 would have no application whatever. - - 2 has yet not become entitled to receive the income of one-third part of the residue during his life time as the trustees have yet not been satisfied that defendant no. 40 per month only and under clause 11(b) the trustees are directed to accumulate the balance of the income payable to him until the trustees in their absolute discretion are satisfied that defendant..........property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.the parallel provision in england was contained in what is known as the thellusson act, being the accumulation act, 1800. that act was repealed by the law of property act, 1925, and re-enacted with slight modifications by section 164 of that act, sub-section (1) whereof is in the following.....
Judgment:

Mody, J.

1. His Lordship after dealing with questions not material to this report, proceeded Questions Nos. 7 and 8 are again co-related. These two questions involve the construction of the latter part of the said Clause 11(b). As already-noticed, defendant No. 2 has yet not become entitled to receive the income of one-third part of the residue during his life time as the trustees have yet not been satisfied that defendant No. 2 has improved in his behaviour and has given up his vices. As defendant No. 2 does not board and Lodge with Bella Wallis, he is entitled to be paid a sum of Rs. 40 per month only and under Clause 11(b) the trustees are directed to accumulate the balance of the income payable to him until the trustees in their absolute discretion are satisfied that defendant No. 2 has improved in his behaviour. under Section 117 of the Indian Succession. Act, 1925, certain limitations have been imposed on the accumulation of income, one of the important limitations being that the income cannot be accumulated beyond the period of 18 years from the date of the death of the testator. The said question No. 7, therefore, raises the point whether the said accumulation directed under the said Clause 11(b) is valid after the expiry of 18 years from the death of the testator. Mr. Madon on behalf of defendant No. 1 argued that the direction for accumulation in so far as such accumulation is to be made after the expiry of 18 years from the death of the testator is invalid by reason of the provisions of the said Section 117. He further argued that under the circumstances the income arising after the said period of 18 years, viz., the released income, will go as undisposed of because the released income is income of a part of the residuary bequest itself and, therefore, cannot fall into the residue, if the provisions of Section 117 apply and the provision for accumulation beyond the period of 18 years is invalid, then it cannot be disputed that the released income must be dealt with and disposed of as upon an intestacy. Mr. Madon, however, relying upon the language of the said Section 117 further argued that at the end of the said period of 18 years 'the property' i.e. the corpus, that is, the one-third part of the residue, being the subject matter of the said Clause 11(b) itself, has to be dealt with and disposed of immediately as if the disposal contained in the will in connection with that corpus is accelerated. In this connection Mr. Madon relied upon certain passages from Jarman on Wills and Theobald on Wills. I do not propose to refer to these particular passages because of the view which I take as mentioned hereinafter.

2. The decision of this point involves a careful consideration of the relevant provisions of law in India and in England. Section 117(1) of the Indian Succession Act provides as follows:

Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

The parallel provision in England was contained in what is known as the Thellusson Act, being the Accumulation Act, 1800. That Act was repealed by the law of Property Act, 1925, and re-enacted with slight modifications by Section 164 of that Act, Sub-section (1) whereof is in the following terms:

No person may by any instrument or otherwise settle or dispose of any property in such manner that the income thereof shall, save as hereinafter mentioned, be wholly or partially accumulated for any longer period than one of the following, namely:

(a) the life of the grantor or settlor, or

(b) a term of twenty-one years from the death of the grantor, settlor or testator; or

(c) the duration of the minority or respective minorities of any person or persons living or en ventre sa mere at the death of the grantor, settlor or testator; or

(d) the duration of the minority or respective minorities only of any person or persons who under the limitations of the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed to be accumulated. In every case where any accumulation is directed otherwise than as aforesaid, the direction shall (save as hereinafter mentioned) be void ; and the income of the property directed to be accumulated shall, so long as the same is directed to be accumulated contrary to this section, go to and be received by the person or persons who would have been entitled thereto if such accumulation had not been directed.

A comparison of these two relevant provisions of law in India and in England shows that there is a material difference between them. There is of course a difference in the period during which accumulation is permitted, but that itself for the purpose of the consideration of the point in issue is of no consequence. Both in India and in England the direction for accumulation at the expiry of the permissive period is made void but at the end of the permissive period, in England only the released income is to go to and be received by the person or persons who would be entitled thereto as if such accumulation had not been directed. It is to be noticed that what the English Statute provides for is only in connection with the income arising at the end of the permissive period, but does not contain any direction or provision whatever in connection with the corpus which yields that income. Section 117 of our Indian Act deals not only with such released income, but also with the corpus itself. Section 117 provides that at the end of the permissive period, which under that section is eighteen years from the date of the death of the testator, the property and the income thereof shall he disposed of as if the period during which the accumulation has been directed to be made had elapsed. It is to be noticed that the provision in India is different in so far as the said section provides that at the end of the permissive period not only the released income but also 'the property' that is, the corpus are to be disposed of immediately. Mr. Madon fairly conceded that under the English Act there could be no acceleration so far as the corpus is concerned, but he argued that it is the said provision contained in our Section 117 which causes such acceleration in India. This ; additional provision in Section 117 requires that the principles of English law when sought to be applied in India in this connection should be carefully considered. Let me first consider what would be the effect of the submissions made by Mr. Madon on the facts of the present case. Section 117 deals with 'property'. What is that property so far as Clause 11(b) is concerned? It can be either defendant No. 2's right to receive the income of the residue during his life time or it can be the one third part of the residue itself. At the outset I may mention that that right of defendant No. 2 to receive the income during his life time cannot correctly be treated as 'property' within the meaning of Section 117, because-what is being received every month is not in the nature of income of that property, but is a realisation of that right itself. What would be received every month is not of the nature of interest on government securities or rents of an immoveable property where the capital remains intact and is itself not used up but yields some benefit periodically which benefit is the income. But although in my opinion such right to receive the income cannot be treated to be the 'property' in this case, I will still proceed to consider the interpretation of Section 117 on the basis as if such right to income could be said to be the 'property'. Now, taking the first case, namely, that the 'property' can be taken to be the said right to receive the income, it is obvious that if the provisions of Section 117 are applied to the facts of this case, the provisions contained in Clause 11(b) are defeated because on Section 117 being applied, on Mr. Madon's argument, the property itself must be disposed of at the end of the permissive period of eighteen years. But Clause 11(b), however, as already noticed before, contains a conditional bequest, the condition being, in effect, defendant No. 2 improving his conduct. Now Clause 11(b) itself does not limit the period during which defendant No. 2 can improve his conduct so as to entitle him to the benefit of the conditional bequest in his favour. So far as Clause 11(b) itself is concerned, defendant No. 2 need not necessarily improve his conduct within the said period of eighteen years. Even if he does not improve his conduct within the said period of eighteen years, he does not lose the entire right to that bequest. So far as Clause 11(b) is concerned, defendant No. 2 would become entitled to the bequest even if he improves his conduct some time after the said period of eighteen years. But construing and applying Section 117 as contended by Mr. Madon would, however, require an immediate disposal of that 'property' upon the expiry of the said period of eighteen years which would lead to the result of depriving defendant No. 2 of all chances of getting the benefit of the said bequest by improving his conduct some time after the said period of eighteen years. This would result in defeating the provisions of Clause 11(b) and the intention of the testator as disclosed in that clause. Such an interpretation would also defeat Section 120 of the Indian Succession Act itself. Under that section a conditional legacy is valid and the time during which the specific uncertain event-upon the happening of which the legacy is to vest-should happen is not limited to the said periodof eighteen years. Even if that specified uncertain event happens after the said period of eighteen years, the legacy can validly become vested. Whereas if Section 117 is construed and applied as Mr. Madon contends, in the event of the specified uncertain event not having happened within the said period of eighteen years, it must follow either that defendant No. 2 cannot thereafter get that legacy at all even if he fulfils the condition or that defendant No. 2 becomes entitled to the legacy immediately upon the expiry of the said period of eighteen years even if he has by then not even fulfilled that condition. If, however, 'property' is taken to mean the one third part of the residue itself and Section 117 is interpreted as contended by Mr. Madon, then the provision of Clause 11(c) of the will would be defeated. Clause 11(c) provides for the disposal of the corpus, viz., the one-third part of the residue. Clause 11(c) provides inter alia that on the death of defendant No. 2 the corpus is to go absolutely to the child or children or the remoter issue or issues of the second defendant. That right in favour of the child or children is possible of being interpreted either as a vested right or as a right contingent on their being alive at the time of the death of defendant No. 2. Which of the two interpretations is correct is immaterial for the present consideration and I do not decide the same. But whichever it may be, it is clear that so far as Clause 11(c) is concerned, the right of the child or children would vest-in possession if the former is the correct interpretation and in interest if the latter be the correct one-on the death of defendant No. 2. But if Section 117 is to be construed and applied as contended by Mr. Madon, due to the resulting acceleration the corpus would devolve and get vested at the end of the said period of eighteen years even though defendant No. 2 may at that date be alive. Such devolution of the corpus during the life time of defendant No. 2 is totally inconsistent with and as a matter of fact contradictory of the provisions of Clause 11(c) which provide for such devolution only after the death of the second defendant. It is, therefore, clear that whatever may be the meaning of the word 'property' in Section 117-whether it may mean the said right or the said one third part of the residue and it cannot mean any third thing-the effect of acceleration as to 'property' would be to defeat as aforesaid one or the other relevant provision of the will itself and the intention of the testator as expressed therein. To my mind this difficult situation arises by reason of the construction put upon Section 117 by Mr. Madon. In my opinion as Section 117, unlike its said parallel legislation in England, provides for an immediate disposition at the end of the said period of eighteen years not only of the income, that is, the released income, but also of the property itself, that section was intended to apply and applies only in a case where under the provisions of the will the disposal of the corpus, whether by way of vesting in interest or vesting in possession, is to take effect immediately upon the cessation of the period prescribed by the will for the accumulation of income. In other words s. 117 can apply only when there is no interval between the date when the period prescribed by the will for accumulation of income ends and the date on which the disposal of the corpus is according to the provisions of the will to become effective. It is only in such circumstances that the acceleration contemplated by Section 117 can come into play. If the period of accumulation happens to be more than eighteen years, that period is cut down to eighteen years and the disposal of the corpus is accelerated and takes effect immediately. If, however, the disposal of the corpus is not so co-related with the period prescribed for accumulation of income, but is independent, then Section 117, in my opinion, would have no application whatever. In this case the bequest under Clause 11(6) is conditional and the disposal of the corpus, namely, the one third part of the residue, is not so co-related to the period of accumulation. In my opinion, therefore, Section 117 has no application to this case at all. I, therefore, answer question No. 7 in the affirmative and question No. 8 in the negative.


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