Alfred Henry Lionel Leach, C.J.
1. The plaintiff in the suit is the appellant. He is a grandson of one Velayudha Naicker, who died on the 17th February, 1910. He sued on the Original Side of this Court for a decree declaring that he was entitled to a half share of the estate left by his grandfather under a will dated the 24th April, 1909. The suit was tried by Chandrasekhara Aiyar, J., who dismissed it mainly on the ground that the provisions of the will on which the plaintiff relied were invalid by reason of Section 114 of the Indian Succession Act which embodies the Indian rule against perpetuities.
2. Velayudha Naicker had four sons, Arumugam, Venkatachalam, Rajamanickam and Muthuswami. Rajamanickam died in 1924 without issue. The plaintiff is the son of Venkatachalam, who died in 1932. Velayudha Naicker had also three daughters, Papathi Ammal, Janaki Ammal and Baby Animal. Baby Ammal died in infancy and nothing further need be said with regard to her. Papathi Ammal died before the institution of the suit. Arumugam, his son Sampath, Muthuswami and Janaki Ammal were made parties to the suit, Seing the first, second, third and fourth defendants respectively,. Muthuswami died during the pendency of the action, also without issue. There were eleven other defendants who were made parties as alienees of properties which had formed part of the estate.
3. By his will Velayudha Naicker appointed his son-in-law Nagalingam Pillai, his brother Murugesam Pillai and three others, Davoo Pillai, Kesava Pillai and Muthuswami Naicker as his executors. He also nominated his daughters, Papathi Ammal and Janaki Ammal, as trustees of his will. Probate was granted by this Court on the 31st August, 1910, to three of the executors, namely, Nagalingam Pillai, Murugesam Pillai and Muthuswami Naicker. At the time of the testator's death all his sons were minors, but the two elder sons were married. He described his eldest son as a drunkard, a gambler and a shameless creature; and it is apparent that he feared that his other sons might develop similar bad habits, as all they were to receive under the will were small monthly allowances, and these subject to good behaviour.
4. In the course of his directions the testator said :
My principal object is that my grandsons, that is, the sons of my son, should get my estate equally divided when they become of age until which time the estate must be managed by executors who must be our relations and also who must always be five in number if possible.
4. In the penultimate paragraph of the will he said:
My present four sons have nothing to do with my estate and if they incur debt, they are only responsible for the same as the estate is my self-acquisition.
5. It is now common ground that these provisions are to be read as a bequest of the residue of his estate to all sons of his sons in equal shares.
6. The testator left to his daughter Papathi Ammal Rs. 6,000 to enable her to buy a suitable residence. After making certain minor provisions the testator directed that the surplus income of the estate should be invested pending the division of the residue of the estate among his grandsons. No grandson had been born to him at the time of his death, and only two have been born since, the second defendant and the plaintiff. The second defendant was born in the month of May 1921 and the plaintiff on the 20th November, 1921. The possibility of the birth of further grandsons cannot, however, be ruled out during the lifetime of Arumugam.
7. On the 14th February, 1921, that is, before any grandson had been born the testator's sons and his surviving daughters, Papathi Ammal and Janaki Ammal decided to ignore the will and executed a deed partitioning the estate among themselves. The testator's widow was a party to the agreement, which provided for her maintenance. The executors also acquiesced in the arrangement.
8. There were three main lines of defence, namely : (1) that the will contained no devise or bequest in favour of the grandsons; (2) that as there were no grandsons born at the time of the death of the testator, the Hindu Transfers and Bequests (City of Madras) Act, 1921, did not apply; and (3) that the properties referred to in the will were not the self-acquired assets of the testator, but belonged to the joint family. The learned Judge held that the will should be interpreted as a bequest of the residue of the estate to grandsons who might be born, that by reason of the Hindu Transfers and Bequests (City of Madras) Act, 1921, a bequest to unborn grandsons might be made and that the properties did not belong to the family, but to the testator in his own right. As we have already indicated, it is now accepted that the will must be read as leaving to the testator's grandsons the residue of his estate. The finding that the properties belonged to the testator is also accepted this Court is, however, called upon to consider and decide the question of the application of the Hindu Transfers and Bequests (City of Madras) Act, 1921, and, if it is of the opinion that the bequest in favour of unborn grandsons is valid, whether the suit is premature, as the possibility of further grandsons being born cannot be ruled out. The latter question was not raised in the pleadings and was not taken in the course of the arguments in the Court below. It was raised by this Court and it has here been fully argued. We consider that this is an important question and, if the suit is not maintainable at this stage, the Court will not be required to decide whether Section 114 of the Indian Succession Act has the effect of rendering the bequest to the unborn grandsons of the testator invalid.
9. Section 3 of the Hindu Transfers and Bequests (City of Madras) Act, 1921, states that, subject to the limitations and provisions specified in the Act, no disposition of property by a Hindu, whether by transfer inter vivos or by will, shall be invalid by reason only that a person for whose benefit it may have been made was not born at the date of the disposition. Sub-section (1) of Section 2 applies the Act to all transfers inter vivos and wills made by persons governed by the Hindu Law who are domiciled within the limits of the ordinary original civil jurisdiction of the High Court of Madras. Sub-section (2) of Section 2 states that in the case of transfers inter vivos or wills executed before the date of the Act, its provisions shall apply to such dispositions as are intended to come into operation at a time which is subsequent to the 14th February, 1914. The Act received the assent of the Governor-General on the 27th March, 1921. The Hindu Transfers and Bequests Act, 1914, which was an Act of the Madras Legislature, also provides that no disposition of property by a Hindu, by transfer inter vivos or by will, is invalid by reason only that a person for whose benefit it has been made was not born at the date of the disposition. That Act came into force on the 14th February, 1914. In Soundararajan v. Natarajan (1920) 40 M.L.J. 354 : I.L.R. 44 Mad. 446 on the 16th December, 1920, this Court held the Act of 1914 to be invalid so far as the City of Madras was concerned. By the Hindu Disposition of Property Act, 1916, the Central Legislature enacted similar provisions with regard to the whole of British India, except the Province of Madras. The Hindu Transfers and Bequests (City of Madras) Act, 1921, was passed in order to apply the same provisions to the City of Madras.
10. In Venkayamma v. Narasamma : (1916)31MLJ33 a Bench of this Court held that if a testator intended that his disposition should take effect at a future date, and that date happened to be subsequent to the passing of the Act of 1914, then by virtue of that Act the disposition would be valid. This decision was followed in Muthuswami Iyer v. Kalyaniammal (1916) I.L.R. 40 Mad. 818. In P. Shanmugha Devar v. T. Shanmugha Devar (1919) 53 I.C. 203 another Bench of this Court said that if the final vesting was to take place after the passing of the Act, it would validate the disposition. In Sivarama Iyer v. Gopalakrishna Chettiar : AIR1925Mad88 after a discussion of the authorities, Ramesam, J., observed that the words 'come into operation ' applied to all cases of vesting after the Act though the testator died before the Act. Therefore there is ample authority of this Court for the contention that the will falls within the Hindu Transfers and Bequests (City of Madras) Act, 1921, there being no difference between that Act and the Hindu Transfers and Bequests Act, 1914.
11. For the contesting respondents it has been suggested that despite the provisions of the Hindu Transfers and Bequests (City of Madras) Act, 1921, the bequest of the residue of the estate to unborn grandsons is invalid because the testator did not make any provision for an intermediate estate; and in this connection reference was made to the opinion expressed by Spencer, J., in Appu Bhattar v. Uma Sundariammal (1925) 51 M.L.J. 734 that there must be a life estate between. Spencer, J., referred to certain remarks of Abdur Rahim, J., in Venkayamma v. Narasamma, 2 but it appears to us that those remarks were made with reference to the general law and without regard to the effect of the Madras Act of 1914, which Abdur Rahim, J.; considered later.
12. The question in that case was whether the testator, who interposed a life estate, intended that all the grandsons who might be born before the death of his widow should take his estate, the death of the widow being the time fixed for distribution. It was suggested that the testator really intended to benefit only the sons of his daughter who might be born at the date of his death and not those who might be born thereafter. Dealing with this suggestion Abdur Rahim, J., said that if there was no intervening life estate, this argument of the appellant no doubt would have force, but the fact that the life estate intervened prevented the application of the general rule that only the persons born at the death of the testator were intended to take. Having made reference to the general rule, the learned Judge then went on to decide the effect of the Act of 1914 and held that by virtue of it a bequest in favour of the unborn grandsons was good as the disposition was under a will which was to take effect only after the date of the Act. We do not regard the judgment in that case as deciding that a life estate must be interposed before a gift to unborn persons can be valid under the Act of 1914.
13. The Act of 1914 and that of 1921 allow property to be left by will to a person unborn at the date of the will. The only restriction on this power so far as this case is concerned is the rule against perpetuities which is embodied in Section 114 of the Succession Act. This section says that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. The testator clearly intended that the residue of his estate should devolve upon his grandsons. In the meantime the estate was vested in his executors who were to hold the residue of it until all his unborn grandsons became of age, when there was to be an equal division among them. We consider that the Act of 1921 makes this provision valid.
14. We will now turn to the question whether the suit is premature. There can be no doubt that the partition which took place in 1921 contravened the terms of the will, and that the plaintiff and the second defendant are not bound by the action of their respective fathers in this connection. But, has the time arrived for the division of the residue of the estate among them as grandsons of the testator? The suit is not one for the declaration that the partition is not binding on the plaintiff, but for the division of the estate between him and the second defendant. The plaintiff has no right to demand a partition of the estate between himself and the second defendant unless it has vested in them, which is not the case. The testator directed that it should vest when all his unborn grandsons became of age and until then it should be held by his executors. The effect of this direction is that the executors are the lawful holders of the estate until the time comes for its partition among the testator's grandsons. Before the estate can be divided the possibility of other grandsons being born must be exhausted, and that cannot happen during the lifetime of Arumugam. The plaintiff is clearly not entitled at the moment to claim an equal division of the residue of the estate between himself and the second defendant and as that is his claim, the present suit cannot now be maintained. In these circumstances we do not propose to embark upon a discussion of the effect of Section 114 of the Indian Succession Act and we dismiss the appeal on the ground that the suit is premature.,
15. The contesting respondents are entitled to their costs of the appeal. The appeal was filed in forma pauperis and the appellant must pay the court-fee to Government.