1. This appeal arises out of a suit (of 1919) for possession, the plaintiffs claiming to be entitled, after the death of one Vembu Ammal, to the suit properties, of which a lease for seven years had been granted by her to the original sole defendant on 19th June, 1918. The lessee pleaded that, under the will of the last male owner Cuppuswami Aiyar, Vembu Ammal's husband, Mr. T. V. Gopalaswami Aiyar is entitled to the properties after her death, and not the plaintiffs. He also contended that the lease was binding on the remainder-man. One of the issues originally framed was ' whether the suit is bad for the nonjoinder of T. V. Gopalaswami Aiyar as a party to it.' The case was set down for preliminary argument on this issue and on 28th September, 1920, T. V. Gopalaswami Aiyar was added as 2nd defendant in the suit. The Subordinate Judge found on the 6th issue that the lease by Vembu Ammal was not within her competency to grant. On the 11th and 12th issues, he found that the 2nd defendant (and not the plaintiffs) was entitled to the vested remainder in the suit properties after Vembu Animal's death. He accordingly dismissed the suit. The first defendant filed an appeal against the finding on the sixth issue but we are informed that he has since become an insolvent and his appeal has not been prosecuted. The present appeal has been preferred by the plaintiffs and in this appeal, neither party questions the correctness of the finding on the sixth issue.
2. The following pedigree shows the relationship of the parties:
______________________________________| |Cuppuswami Aiyar, Sundaram Aiyarthe testator |(died Sep. 1877) |Widow (died 1903) _____________________| | | || 1st Plff. 2nd file RVembu Ammal (died 1918) |Gopalaswami Aiyar, 2nd |Defendant _____________| | || 3rd Plff 4th PlffSon born and died1881.
4. The last male owner of the suit properties was Cuppuswami Aiyar. He died in September, 1877, leaving hisdaughter Vembu Ammal. His last will about the genuineness of which there is no question-is dated 24th July, 1876. He was a pleader of the Tanjore District Court. The will is in English. His widow died in 1903 and the daughter in 1918.
5. Two questions arise in Appeal (I) What is the proper construction of the will (2) If the construction is, as contended by the respondent, is the disposition validated by-Madras Act I of 1914 The will (Exhibit A) provides that the lands should be managed by his brother and half the income should be enjoyed by him, in his own right. He gave also one house to his brother. Another house and the other half of his landswere given ' to the wife and daughter with the right of survivorship to each other, i.e., wife and daughter.' Lower down he provides ' If my daughter does not beget male issue. in her life-time half the land and the house given to my wife and daughter by this will shall after their lives go to my brother and his male heirs. If a male is born to my daughter, it will inherit the real property given to my wife and daughter.'
6. The will provides for an estate during the joint lives of the wife and daughter, to be taken by them astenants-in-common with a remainder in favour of each for her life after the death of the other. In the events that happened, after the death of the widow in 1903, the daughter took the estate and it is conceded by both parities that it was an estate for her life.The question is Did the will dispose of the remainder after the daughter's life estate If so, what is the effect of the disposition The respondent's contention is that the will gave a contingent remainder to the daughter's sons the contingency being, the coming into existence of each daughter's son. He accordingly argues that, when a son was born in 1881, the contingent remainder was converted into a vested remainder whenthe boy died after living for a day; that it was then inherited by his mother who took the limited estate of a Hindu mother in it, and, after her, it was inherited by the 2nd defendant in 1918. It may be observed here that, at this stage we are concerned only with the construction of the will and not with the validity of such a disposition as is contended for by the respondent.
7. Mr. Varadachari, for the appellant, argues that the testator did not intend to make any disposition under the will in favour of the daughter's sons but intended that the Hindu Law of inheritance should operate in favour of the daughter's sons. When the daughter died in 1918, the daughter's sons, if any, would have taken it but as only one was born and even he did not survive up to 1918 the plaintiffs took the estate. In support of this argument, he lays special emphasis on the word ' inherit ' which he argues is not the same as ' take '. He also contends that the words 'beget male issue in her life-time ' should be construed as ' have male issue surviving her.' He relies on Srinivasa v. Datidayndapani I.L.R. (1889) M 411, the will in which is somewhat similar. But, as the Subordinate Judge points out, there is no disposition in favour of the daughter's son in the last case. The only bequest was in favour of the daughter who was to transmit the corpus intact to her male descendants. The words ' male descendants ' were held not to be words of purchase. Wilkinson, J., construed them to be words of inheritance, while Shepherd, J. thought that the daughter got a daughter's estate and there was an intestacy after her death, leaving the Hindu Law to take effect.
8. This case does not therefore help us. He also refers to Guruswami Pillai v. Sivakami Ammal I.L.R. (1895) M 347 : 1895 5 MLJ 106 where it was pointed out by the Judicial Committee (at p. 58) that ' the words 'have issue ' are often read as meaning ' leave issue ' but not without some reason derivable from the will.' I may at once say the appellant's contention about the construction of theexpression ' beget male issue in her life-time ' is only another way of stating his contention about the construction of the second sentence in the clause. If the second sentence can be construed, as he contends for, as a disposition in favour of only daughter's sons who survive Vembu Ammal or as providing for the succession of the daughter's son, as on an intestacy, in either case, the plaintiffs get the property. It is immaterial what the first sentence in the clause means as, either under the will (if 'beget male issue' means leaving male issue surviving her) Or otherwise, the plaintiffs are entitled. Thus, the construction of the first sentence need not detain us. It is the second sentence that has to be considered.
9. The question--Does the word ' inherit' indicate that the daughter's sons were intended to succeed, as on an intestacy after the daughter's death. In Bhagabati Barmanya v. Kali Charan Singh (1911) ILR 38 Cal 468 : 1911 21MLJ 387 a similar contention was raised as to the Bengali words ' Uttaradhikara Sutre ' translated as ' by rights of inheritance ' and negatived by their Lordships of the Privy Council. The Chief Justice who decided the case in the High Court of Calcutta [Bhagabati Barmanya v.KaliChar an Singh I.L.R. (1905) Cal 992] explained the expression as ' aftertakers : and Lord Machaghten concurred with it. In Watkins v. Frederick and Ors. 11 HLC 358 : 11 ER 1371 Lord Westbury was of opinion that the words ' to inherit ' are used by the testator as equivalent simply to the word ' to take'.
10. In Chunilal v. Bai Midi (1899) ILR 24 Bora 430 the daughter was described as ' heir ' in three places. Yet it was held that the will contained a disposition in favour of the daughter and the intention was not that she should succeed as heir. She pre-deceased the mother. In Harris v. Brown I.L.R. (1901) Cal 621, the words 'descend to the eldest son,' were said to be the same as ' devolve or go ' and it was held that the eldest son took under the will. In Mahomed Shumsool v. Shewallram I.L.R. (1874) A 7 their Lordships say ' The testator uses the word ' heir ' as signifying the person who is to take immediately in succession to another.' On the whole I am inclined to agree with the respondent's contention that the daughter's sons were intended to be devisees under the will and not to succeed as on an intestacy.
11. Mr. Varadachari next argues that the daughter's sons were intended to take only if they were born before the testator's death. He refers to Mann v. Thompson (1854) Kay 638 and Dias v. De Livera (1879) LR 5 AC 123 quoted by Lord Macnaghten in Bhagabati Barmanya v. Kali Charan Singh I.L.R. (1911) Cal. 468 : 1911 21 MLJ 387. I have no hesitation in rejecting this contention. Assuming such a rule gives effect to the intention of Hindu testators also (cf. the Hindu Wills Act of 1870, Section 2) the exception to the rule, recognised in English Law and in Indian Succession Act, Section 99, extended by Hindu Wills Act to Bengal should be applied to Hindu wills also as expressing a rule of common sense, giving effect to intentions of testators in favour of persons described as standing in a particular degree of kindred to a specified individual ' when the possession is deferred until a time later than the death of the testator, by reason of a previous bequest.' Even in Bhaga-bati Barmanya v. Kali Charan Singh I.L.R. (1911) Cal. 468 : 1911 21 MLJ 387 the rule was not actually applied in ascertaining the intentions of the testator. The consideration that the well-known doctrine of Hindu Law (laid down in the Tagore case) that a gift to an object not in existence is absolutelyvoid a consideration that must have been known to the testator in the present case also did not prevent the application of the exception to ascertain the intention in that case. It is true that in that case, the disposition failed as to those born after the testator's death on account of the rule of Hindu Law governing a gift to persons not in existence at the time of the testator's death, but it took effect as to those in existence at the testator's death, the rule in Leake v.Robinson (1817) 2 Mer. 363 not being applicable. I may also add that, in this Presidency, the rule in Mann v. Thompson (1854) R Kay 638 was not applied in Venkayamma v. Narasamma : (1916)31MLJ33 .
12. The next alternative contention of Mr. Varadachari is- even if the daughter's sons were intended to take under the will, they take only if they survive the daughter and do not take a vested estate immediately after birth. He points out that if the first son of the daughter takes a vested estate as soon as he was born other sons of the daughter would be deprived of all benefits under the will a result not intended by the testator, unless the somewhat complicated construction is adopted that, as a second or third son is born, the earlier born sons would be divested protanto so as to give the last born an equal share with the others. This complicated construction is the one suggested by the respondent and adopted by this High Court in Venkayamma v. Narasamma I.L.R. (1916) M 540 : 31 MLJ 33. The principle that a contingent estate becomes converted into a vested estate as soon as the contingency happens is not a principle peculiar to English Law or to the Indian Succession Act(Section 107). In Hick-ling v. Fair (1899) AC 15 at 35 Lord Darvey says : ' It is an elementary principle in the construction of the wills that a gift to a class after a life interest or life rent includes all persons within the description of the class who were alive at the testator's death, or have come into being during the life-time of the life tenant or life renter. That principle is common to Scotland and England, and is applicable, I should suppose, wherever the English language is used.' The Indian Legislature thought fit to extend it to Bengal Hindus. The better principle is to permit the vesting at the earliest possible moment consistent with the language of the testator, i.e., immediately after the person named comes into being, unless there are express words postponing the vesting till after the termination of the preceding life estate. (See also Jarman on Wills, Vol. II, p. 1667, Halsburry, Vol. XXVIII, p. 716, Section 1339).
13. I therefore agree with the respondent's contention that the will should be construed as giving a contingent remainder to the daughter's sons, such contingent remainder being converted into a vested remainder after the birth of the first daughter's son, subject to its diminution as the number of daughter's sons is augmented by further births.
14. The next question is. What is the effect of this disposition As the law stood up to 1914, the disposition is void by the rule in the Tagore case, as no child was born during the testator's life-time. No estate vested in the child born in 1881 as he died immediately. He did not transmit any estate to his heirs.
15. Does the Madras Act I of 1914 (commonly known as Seshagiri Aiyar's Act) make any difference In my opinion it does not.
16. The Act is not declaratory in the sense that it declares what the law always was. Still, it is certainly intended to be retrospective. The extent towhich it can be used retrospectively is indicated in Section 2 (2) and in various decisions of this Court, Venkayamma v. Narasamma I.L.R. (1916) M 54.0 : 31 M T, J 33, Muthuswami Iyer v. Kalyani Animal I.L.R. (1916) M 818 and Shunmuga Devar v. Shunmuga Devar 53 IndCas 203 andPerianayagi Ammal v. Ratnavelu Miidaliar (1922) 18 LW 625 the Act has been used retrospectively. The actual decision in the cases does not help the respondent who wants the principle of these cases to be extended.
17. The argument on the Act centered on the meaning of the expression ' come into operation.' The appellant contends that it is synonymous with ' vest.' The respondent points out such a construction excludes cases obviously within the intention of the Act, e.g., cases when a vested remainder becomes vested before the Act but the actual enjoyment is to begin after the Act. He also relies on the contrast between the words ' come into operation ' and ' vested ' in the Clause (2). To this last argument, the appellant replies that the words ' vest ' and ' operate ' are used somewhat indiscriminately in the Act and refers us to the other sections. This is true; and yet I 'do not agree with the appellant's contention that the term of vesting is all that was intended. Nor am I able to agree with the respondent's contention that the words were intended to denote only the term of distribution. In my opinion, the words ' come into operation ' are intended to include all cases of vesting after the Act though the testator died before the Act. [See Shunmuga Devar v. Shunmuga Devar 53 IndCas 203 where Seshagiri Aiyar, J. uses the words ' final vesting' a case of transfer.] But, in cases where the vesting may happen before the Act on a proper construction of the will, the Act will further help the devisee named if he survives until after the termination of the preceding estate, so as to be able to take actual possession of the property. But for the application of the second principle, he himself must survive. An analysis of thepossible cases may serve to clear my view on the application of the Act.
(1) The Act applies to all wills made after it and to all wills made before it, when the testators die after it. This is an obvious case.
(2) When the testator dies before the Act.
(a) If the vesting is after the Act and the legatee lives up to the termination of the preceding estate the Act ap plies. This also is an obvious case.
(b) If the vesting is after the Act the Act will apply even though the legatee died before the termination of the preceding estate e. g., a testator died in 1877 giving a life estate to his daughter and remainder to his daughter's sons. A son is born in 1915 but dies before the daughter who lives up to 1918. The remainder becomes vested in the son at his birth and when he dies, it goes to his heirs. (Perianayagi Ammal v. Ratnavelu Mudaliar (1922) 18 LW 625 is an example.) (Muthuswami Iyer v. Kalyani Ammal I.L.R. (1916) M 818 is an example of a declaratory suit before the death of the life tenant).
(c) If the vesting is before the Act, still the Act will apply if the devisee survives until after the termination of the preceding estate. E. g. In the last illustration, if a son was born in 1881 and survives his mother, he takes the estate. This case will be excluded from the operation of the Act if the appellant's contention is accepted. The further transmission of the estate to the devisee's heir is an obvious result.
(d) I would even concede a further case. If the vesting is before the Act, and the devisee lives until after the Act, but may not or does not live until the termination of the preceding estate, the Act will apply to him and he will transmit the vested estate to his heirs.
In this case, the proper construction of the will involves a vesting before the Act. The disposition is void by reason of the Tagore case; still, if the devisee lives beyond 1914, the void vesting will be converted into a valid vesting by reason of the Act. The estate having vested, descends to the heirs of the devisee. Muthuswami Iyer v. Kalyani Ammal I.L.R. (1916) M 818 is an example.
(e) This is the last case that can happen and it is the present case. When the vesting was before the Act and the devisee does not live up to the termination of the preceding estate nor even up to beyond the date of the passing of the Act so as to give an opportunity for the Act to operate upon his contingent and void estate and convert into a vested and valid estate, the Act does not apply. In such a case the devisee took no estate and transmitted no estate a result which is a bare statement of actual facts and does not involve any legal subtlety. To hold the opposite and to say that the Act applies to this case also is to say that an estate which never vested and which therefore never existed (not even as a contingent estatebeing void) descended by inheritance to the heir of the person who was intended to have it but never hadit a fiction for which there is no warrant in the language of the Act and to give effect to which would be unparalleled in the annals of legislation. Mr. Krishnaswami Iyer points out to the fact that, in Cases (a), (b) and (d) (when the vesting happens at a time different from the falling into possession), the estate will be transmitted to the heirs of the devisee. This Is true but this is not because of the Act but because the interest of the devisee was vested in him before his death. What interests descend by inheritance is a matter depending on general principles of law. The Act has nothing to do with it. All that it does is, it validates certain dispositions which, but for it, would be void. But one has to stop its application when the application sought is not the mere validation of a disposition but involves the transmission by inheritance of an interest which never existed up to the time of the succession. Mr. Krishnaswami Iyer argues that the effect of Section 2 (2) is, as if the Act existed prior to 1881, if not before 1877. I cannot accept this construction of the Act, as it involves, in my opinion, fictitious devolution.
19. Mr. Krishnaswami Iyer refers to Jarman, Vol. II, P-1353, to show that contingent remainders may descend. According to the passage cited, they descend only when the contingency is a collateral event not relating to the devisee; but the principle is inapplicable when the contingency is the passing of an Act validating the disposition and the devisee surviving, at least, after the passing of the Act. The real answer to the argument is that, there is not even a contingent interest, for contingent interest means a valid contingent interest not a void contingent interest.
20. I therefore differ from the Subordinate Judge on the application of Act I of, 1914, allow the appeal and decree the plaintiffs' suit. In appeal, the and defendant will pay their costs. In the Court below, both the defendants will be liable for (his) their costs. The Ist defendant will be liable for the mesne profits from 17th August, 1918, up to the date of the suit and for the mesne profits subsequent to suit. The Court below will ascertain the mesne profits up to the date of the suit and then pass a final decree. The mesne profits subsequent to suit will be determined in execution. The Subordinate Court of Kumbakonam will take up the point reserved and pass the final decree.
21. The Memorandum of Objections by Ist defendant is dismissed with costs.
22. I have had the advantage of reading my learned brother's judgment, and have arrived at the same conclusion though by a different route. Two circumstances lead me to interpret the will, Ex. A., as making the male born to the testator's daughter heir to the real property given to his wife and daughter after their death and without any intention that the property should vest in him at birth and come to him by survivorship. In the first place the testator having deliberately chosen to write his will in English may I think he presumed to have intended that the words employed should bear their commonly accepted connotation. In the second place, it will be found that the will originally ran, ' If my daughter does not beget male issue in her lifetime half the land and the house given to my wife and daughter by this will shall after their lives go to my brother and his male heirs. My earring, etc. ' This left it to be presumed what should happen if his daughter did have male issue, and no doubt the testator on reading over his will saw that it should not be a mere matter of presumption. So he inserted in smaller script, ' If a male is born to my daughter it will inherit the real property given to my wife and daughter, ' which I take to mean ' the property shall after their lives go to her male issue ' merely expanding the previous sentence; whereas if he had intended that property should vest in her male issue from birth, the testator would have made it clear in a separate clause.
23. If, however, the alternative and, of course, perfectly reasonable construction is adapted, so that the property vested in the male issue from the moment of birth, it remains to be considered how far this will can be validated by the retrospective effect of Act 1 of 1914. The will-is dated 1876. The testator died in 1877. A son was born to the daughter in 1881. The testator's widow died in 1903; his daughter in 1918. Therefore the will was executed before Act I of 1914 : but the provisions of the Act apply to such of the dispositions made in it as were intended to come into operation at a time subsequent to the passing of the Act. [Section 2(2), Act I of 1914]. It is argued for the appellants that ' dispositions ' can refer only to the vesting under the will, and inasmuch as the vesting on the birth of the son in 1881 was null and void, there is no disposition to be considered which can be said to have been intended to come into operation after 1914. For the respondents on the other hand it is argued that ' dispositions ' include distribution, and the provisions of the Act apply to the distribution, in 1918, on the death of the daughter. It is further argued that inasmuch as the Act applies to this disposition it must be held to apply to every disposition in the will; in other words the will must be read in the light of Act I of 1914 from the date of its execution, because one of its dispositions has come into operation after the passing of that Act. I find nothing in the language of Section 2 to give it this comprehensive character, and am sure that if that had been the intention of the legislature it both could and would have expressed it in plainer terms.
24. I agree, however, that disposition which is a word of most general import includes distribution, and what we have to consider is the effect of the Act on each disposition as that disposition come into operation. The ' vesting' should have come into operation in 1881 when the son was born, but obviously the Act could have no bearing at this date, and this disposition was void. The next disposition is the death of the widow in 1903 with which the Act has nothing to do. Then in 1918 the daughter dies and under the will as now interpreted if there is a son vested with the estate he as survivor succeeds to it's enjoy- ment. But there is no such son, and therefore at this point of time there is no one to inherit under the will. I do not. think the death of the son soon after his birth in 1881 and at any rate before 1914 affects the question. Under the will a male already vested with the estate must succeed the last life-holder. The son was certainly not vested in 1881 for that disposition was not intended to come into operation and obviously did not come into operation after 1914 and is therefore void. When then was he vested (supposing him to have survived) P Not in 1914. The Act itself cannot be regarded as a disposition vesting all the heirs who had failed to become vested previously owing to the Tagore case. And not, in my opinion, in 1918. The death of the mother could not vest the estate in her son. Of course he must inherit in the ordinary sense of the term but that brings us back to the alternative construction of the will. If the will is to be construed as allowing the male already vested to take the property as survivor on the decease of the life-holder, one can only say that no male was so vested in 1918. Because that disposition of the will i.e., the vesting on the date of birth, had become operative before the passing of the Act and therefore entirley null and void. There was no other vesting disposition which could or did occur. The only other disposition to come into operation was the distribution, and when that occurred there was no one with a vested title who could succeed. Of course the accident of the son's death simplifies the problem, but I agree with Mr. Varadachariar that the solution would be the same if he survived. Of course it might be an extremely hard case if he did survive; but no hardship would arise in the present case if on my construction the will was taken as giving him the succession by right of inheritance in the ordinary English sense.