1. The question in this case arises on the construction of Ex. A, a document drawn by unprofessional hands, and is whether under it the widow of one Srinivasa Aiyar, the vendor of plaintiff--appellant acquired any interest, which she could convey to him, The argument before the Lower Appellate Court was apparently based on a translation of Ex. A, which like that made here is inaccurate. It was conducted with reference mainly to the meaning of the expression ' with absolute right,' not to the general principles affecting the dispositions made. In the application of those principles to what actually occured there was a mistake as to the content of one phrase used. Here the argument proceeded on different lines.
2. By Ex. A Nanu Iyer and his sons, 1st defendant and Srinivasa Aiyar, husband of plaintiff's vendor effected a partition ; but we are concerned only with one portion of the settlement then agreed to, that relating to the property, of which half is claimed under Ex. A, which was left in the enjoyment of Nanu Iyer and Annapurniammal, his wife. The terms on which they were to enjoy it and it was to devolve, are according to the translation given in the District Munsif's judgment which with the consent of the parties we adopt except as to one point to be separately referred to as follows:--'(1) the properties shown in list I are to be enjoyed by Nanu Aiyar and Annapurniammal for their lifetime without any right of alienation. (2) Srinivasa Aiyar and 1st defendant (Appavier) shall pay the kist of the said properties epually. (3) After spending (for funeral expenses) at the death of each of the two parents. (4) Srinvasa Aiyar and 1st defendant shall divide equally a 1/16 pangu (a moiety of the whole) at the death of each of the two parents. (5) If the two do not agree and spend either for the payment of the kist of the said lands or for the funeral expenses, the survivor of the two, that is Nanu Aiyar and Annapurniammal, shall take the 7/8 pangu of lands (the whole of the land in list I) absolutely. (6) If the two do not agree and pay for the funeral expenses of the survivor and the kist of the lands, he who spends shall take absolutely the 1/16th pangu, which was in possession of the survivor.
3. The figures in this extract have been inserted for convenience of reference ; and, observing that no attempt was made here to dispute the Lower Appellate Court's interpretation of the words 'with absolute right' as conferring the full estate, I give in legal language the result as it appears to me, with reference to each clause. Under (1) and (4) there is a creation of a life-interest in favour of Nanu Aiyar and Annapurniammal in a moiety of the property each with remainder as regards each moiety to their sons. There are then conditions for the defeasance of these estates in remainder, the sons' obligation to pay the kist on the property throughout and to pay the funeral expenses on the death of each parent being stated generally in Clauses (2) and (3) and the defeasance in case of default of the defaulting sons' estate in either moiety being provided for later. If the default occurs during the lifetime of both parents that case is not provided for and it is fortunate that it has not arisen. If default occurs during the lifetime of the surviving parent, under Clause (5) such parent shall take an absolute interest in the whole property. If it occurs later after the death of the surviving parent the non-defaulting son shall take the moiety which is in his or her possession. What is expressed and what I must therefore take to have been contemplated is a life estate of each moiety in each of the parents (we have already decided to that effect in C.M.A. No. 310 of 1915) with remainder as regards each moiety to the sons, subject to the conditions for defeasance on each of two different dates, those of the deaths of the two parents, at the one of both moieties in favour of the surviving parent, at the other of the moiety still in that parent's possession in favour of the non-defaulting son.
4. There is no question of any defeasance on the death of Nanu Aiyar ; and plaintiff, claiming under Srinivasa Aiyar, contends that the latter then acquired an absolute interest, which his legal representatives could convey in Nanu Iyer's portion, the condition for defeasance in case of subsequent default, such as defendants allege, being unenforceable ; and we have to deal with this contention. Ex. A was subsequent to the Transfer of Property Act ; and, if its provisions are applicable there is nothing in them, against which the conditions for defeasance offend. For the last sentence of the explanation to Section 19 contemplates divesting of an estate once vested ; Sections 28 and 29 recognise conditions subsequent, as effective although they must be construed ; and there is nothing in these conditions, which offends against public policy or the rules contained in Sections 10, 12, 21 to 25 or 27.
5. It is further however necessary to consider with reference to Section 2(d) whether the conditions offend against any rule of Hindu law and in particular whether the principle that an estate once vested cannot be divested is such a rule. It does not appear that the expression 'rule of Hindu Law' has ever been the object of comprehensive definition by authority or that any criterion for the purpose of distinguishing between such rules and the principle deducible from particular classes of cases has ever been Jaid down. But for the present purpose it is sufficient that, as I shall show, the principle above referred to has been statedly or impliedly disregarded by the Judicial Committee in connection with disposition of property and has never been recognized as a general rule, even of the Hindu Law of Succession.
6. In Ram Lal Mookerjee v. Secretary of State I.L.R. (1881) Cal. 304 the Judicial Committee found it unnecessary to deal with a plea that certain disqualification, if they were conditions subsequent were in violation of Hindu Law. But in Tarokessur Roy v. Soshi Shikhuressur Roy I.L.R. (1883) Cal. 952 it was held that a gift of one-third share to each of the testator's three nephews with remainder to the survivor in case if any of them died without issue was valid ; Sreemutiy Soorjeemoney Dossee v. Denabundoo Mullick (1863) 9. M.I.A. 123 being followed and the ground of decision being that the gift over was to persons alive and capable of taking on the death of the testator, to take effect on the death of a person also then alive. And in Sreemutty Kristoromoney Dossee v. Maharaja Narendro Krishna Bahadoor (1888) 16. I.A. 29 the validity of a condition for the defeasance of a prior absolute interest by a subsequent event is assumed and it is added only that (1) the event must happen if at all immediately on the close of a life in being at the time of the gift ; and (2) a defeasance by way of gift over must be in favour of some one in existence at the time of the gift ; the Mullick and Tagore cases already cited being referred to as authority for these requirements. It is clear that in the case before us they are complied with.
7. To turn to the Hindu Law, it is true that Turner, C.J. in delivering the judgment of a Full Bench composed of all the learned Judges of this Court, referred to the rule that ' an estate which has once vested cannot be divested by the occurrence of a contingency which, if it had occurred prior to the period of vesting would have curtailed or avoided the rights of the person in whom the estate has vested.' Krishna v. Sami I.L.R.(1885) Mad. 64. But he went on to say that 'the rule that an estate once vested in a full owner cannot be divested is nowhere stated in so many terms by the Hiudu Commentators' and that it could not be 'land down without exception in respect of property governed by the Mitakshara.' The decision in the case before the Court one of removal of a disqualifica-tion, was against its application. But in Narasimha Razu v. Veerabhadra Razu I.L.R. (1893) Mad. 297 it was applied, Krishna v. Sami 1 being distinguished on the ground that the property there in question was unobstructed. In the later case the question was of divest-ing by the subsequent birth of a co-heir ; and reference may be made to the analogous cases in connection with subsequent adoptions, as between the adopted son and either the absolute estate of a reversioner or the estate of the widow, for instance Sri Rayhunadha v. Sri Bozo Krishore (1876) L.R 31 A. 154 Mussumati Bhoobum Moyee Delia v. Ramkishore Acharya Chowdhry (1865) 10 M.I.A. 272 Rajah Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi Narasayya and the authorities referred to in the recent Full Bench decision of this Court in Vaidyanatha Satri v. Savithri Ammal 33 M.L.J. 387. The inference is against the existence of any rule of general application or of any, which can be regarded as bind-ing in cases of transfer of property to living persons of in any class of cases, other than Thoseto which it has in fact been applied. We have been shown no instance of the application of such a rule to cases resembling that before us, in which there is no question of succession, much less of such succession as is involved in the authorities, to which reference has been mad. In these circumstances the conclusion must be in favour fo the validity of the in Ex. A.
8. To apply those conditions to the fact, two breaches of them are alleged. If the decision depended on one of them, the default of Srinivasa Aiyar's heirs in respect of the funeral expenses of Annapurniammal, it might be necessary to call for a finding because the Lower Appellate Court has lost sight fo the fact that the liability is, not for the expenses of the funeral, but for those of the obsequies up to the performance of the annual ceremony; and it might, if that default were material, be necessary to call for a finding as to whether plaintiff's tender was in time with reference to the latter. But that default is not material, when the other default relied on is established. The Lower Appellate Court has found and we must accept its finding, that Srinivasa Aiyar's legal representatives failed to pay the kist, as Ex. A requires them to do, from 1901 to 1912. No doubt plaintiff offered to pay it during the proceedings before the lower Appellate Court and he contends here that he should be awarded the property on his making the payment. But there is no doubt that the condition was infringed, because however strictly it is construed, in favour of the person in possession of the estate, it has not been complied with within a reasonable time ; and there is no authority for the application which plaintiff suggests, to the present facts of the principle on which transfers in favour of an innocent purchaser are avoided on the advantage received by the transferor being restored.
9. In these circumstances the appeal fails and is dismissed with costs.
Seshagiri Aiyar, J.
10. I agree. In this case we have to construe a partition deed and to determine what its legal effect is in the events that have happened. Ex. A is the deed of partition between the father and his two sons, It provides for the reservation of certain property for the father and his wife and for division in equal shares of the rest of the property between their two sons. There can be no doubt on the language of the document that the estate reserved to the father and the mother in the first instance was a life-interest. Similarly the estate reserved for the survivor of the two is also a life-estate. There are some conditions which have now to be noticed. The first one relates to the sons' paying the cist upon the reserved property. It states that in case the cist is not paid the parents will have, an absolute estate. A provision almost in identical terms is made with reference to the half estate of the survivor. Another clause is to the effect that the two sons should pay the funeral expenses of the father and of the mother. It provides that in case one of the sons alone pays the expenses and the other does not, the son who defrayed the expenses should be the sole owner of the reserved property.
11. What happened was this. The father died in 1898. Soon after one half of the property was divided between the sons equally. It must therefore be taken that the defeasance clause which gave the parents an absolute estate if there was a failure to pay the cist was not put into operation. In 1901 one of the sons died. He made a bequest of all his properties in favour of his wife. In that he specifically refers to the share which would accrue to him on the death of his smother. The mother died in 1912. After her death the pre-deceased son's widow sold the half share in the property in possession of the mother-in-law to the present plaintiff. On this title the plaintiff sues for partition and possession. The 1st defendant is the surviving son and the other defendants are his sons.
12. It has been found by the District Judge that after the death of the father the Government assessment was not paid by the widow of the deceased son. He holds that in consequence of this failure the property in the possession of the mother was converted into an absolute estate. He has also found that since the death of the mother one half of the funeral expenses have not been met by the daughter-in-law or her vendee. There was apparently an offer to pay the cist after 1912. In these circumstances the question arises whether on the death of the mother, the deceased son's widow acquired any right in the property of the mother in-law which would enable her to convey to the plaintiff her interest in it. The point is by no means an easy one. In the first place, we have to consider whether the rules contained in Chapter II of the Transfer of Property Act are applicable to this case. The last portion of Section 2 lays down that nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu, Muharn-madan or Buddhist law. Therefore if the provisions of the second chapter are in any way inconsistent with provisions of Hindu Law, they should not be applied to this case. I have come to the conclusion that the particular provisions in the Transfer of Property Act by which this case is affected do not lay down any rule inconsistent with the Hindu Law. First of all I shall clear the ground by saying that the estate which the partition deed secured to the two sons was a vested one. The definition section of Chapter II makes that clear. The explanation to Section 19 provides 'that an intention that an interest shall not be vested is not to be inferred from a provision that if a particular event shall happen, the interest shall pass to another person.' This is exactly what has been provided in the partition deed, and to my mind therefore the estate which the two sons took was a vestsd remainder subject to the life estate of the parents. The next section to which reference may be made is Section 28 which deals with the defeasance of a vested interest. By that section an interest already accrued may be subjected to a condition subsequent or a limitation as an English Lawyer would say that in case a specified uncertain event shall happen, or that in case a specified uncertain event shall not happen, such interest shall pass to another person. By the same section this ulterior disposition is made subject to the rules contained in Sections 10, 12, 2.1, 22, 23, 24, 25, and 27. Examining these latter sections it is clear that the condition in the partition deed is not obnoxious to any of them. They deal with restraints upon alienation, with property being divested in the event of insolvency or of an attempted alienation, with contingent interest with transfers to members of a class on attaining a particular age and so on. I might also refer to Section 31 of the Transfer of Property Act which lays down a principle identical with the one enunciated in Section 28. Therefore if this case has to be decided unde'r the Transfer of Property Act, there cannot be much doubt that the defeasance clause which converted the left estate of the mother into an absolute estate would be regarded as valid. The English Law to which I shall refer later on is also to the same effect.
13. Before proceeding further I shall have to see whether the rules contained in Sections 19, 28 and 31 of the Transfer of Property Act are in any way opposed to the principles of Hindu Law. As far as possible I shall refer only to the cases decided by the Privy Council. In Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (1858) 6 M.I.A. p, 526 it was laid down that a condition if one of the sons of the testator did not leave male issue, the other sons should take that share was an enforceable one. It was further held that the sons had become divided among themselves and that the widow of the deceased son was entitled to the accumulated income on her husband's share ; but it was laid down that she was not entitled to the corpus, as by the defeasance clause her husband's estate vested in the surviving brothers. In Sreemntty Soorjeemoney Dossee v. Devobundoo Mullick (1863) 9 M.I.A. 123 . Knight Bruce, L.J., said this : ' This being so, we are to say whether there is anything against public convenience, anything generally mischievous, or anything against the general principles of Hindu Law in allowing a Testator to give property, whether by way of remainder, or by way of executory bequest (to borrow terms from the Law of England) upon an event which is to happen, if at all, immediately on the close of a life in being. Their Lordships think that there is not ; that there would be great general inconvenience and public mischief in denying such a power and it is their duty to advise Her Majesty that such a power does exist.' This is a clear enunciation that a defeasance clause, like the one with which we are concerned, is not repugnant to any principles of Hindu Law. The next case of importance is the well known Tagore case reported in supplemental volume, p. 47. That case dealt with a large number of questions. One of the principles laid down was that it was not competent to a testator to create a new rule of succession ; another that an estate in favour of unborn persons should not be created by a will. At the same time their lordships laid down that ' It is competent to a Hindu in making his will to make a provision that the estate which he creates and gives to the recipient of his bounty may be divested or defeated by something which takes place after. This is established by this case. It is admitted by Mr. Evans and Mr. Kennedy, and may be taken as absolute law.' In Bhoobun Mohini Debya v. Hurrish Chunder Chowdhry the same principle was laid down. Towards the end of the judgment. Sir R.P. Collier, says ' that their effect is to make the absolute estate before given, defeasible in the event of a failure of issue living at the time of her death, in which event the estate was to revert to the donor and his heirs. That there is nothing in such a condition repugnant to Hindu Law appears from the decision of this tribunal as to an executory device.' In Kumar Tarkeswar v. Kumar Soshi Shikhareswar 9 C. 952 it was held that the gift over of a life estate was competent, it being to persons alive, and capable of taking on the death of the testator, and to take effect on the death of a person or persons then alive. No doubt this related to a life estate, but the principle is the same whether the divesting relates to a life estate or to a vested remainder. In Raikishori Dasi v. Debendranath Sircar (1887) 15 I.A. 37 a gift over on the death of a surviving son was held good. The last of the Privy Council cases on this point so far as I am aware is Sreemutty Kristoromoney Dossee v. Maharajah Narendro Krishna Baha-door (1888) 16 I.A. 29 . That case affirms the principles enunciated in the earlier decisions to the fullest extent. Lord Hobhouse states the law thus: ' In stating the rule relating to the defeasance of a prior absolute interest by a subsequent event, at is important to add ; first, that the event must happen if at all, immediately on the close of a life in being at the time of the gift as was laid down in Mullick case ; and, secondly, that a, defeasance by way of gift over must be in favour of somebody in existence at the time of the gift, as laid down in the Tagore case.' Both these conditions are complied with in the present case. The event happened while one of the donees was alive, and the gift over was to the same person who was alive at the time of the gift and is still living. As was laid down in Sonatum Bysac v. Seemutiy Juggutsoondree Dossee (1858) 8 M.I.A. p. 66 what a court has to see is whether the limitation either as regards the person who is to take or the estate that is to be taken violates any of the fundamental principles of Hindu Law. I am not aware of any rule of Hindu law which prevents a donor from adding a limitation to the estate which is to be taken by proving that certain conditions should be complied with. No doubt if the condition is opposed to public policy or in the language of in re Moore Trafford v. Macorchie (1888) 39 Ch. D. 116 is against the policy of the law the condition will be ignored and the bequest simpliciter will be given effect to. Section 23 of the Indian Contract Act recognizes this principle as part of the law of India, but if there is no such repugnant condition and if there is no text of Hindu Law or a course of decisions in India prohibiting a substitutional gift for failure of a condition, there is no reason why the principles which have governed English Courts and which have found expression in the sections of the Transfer of Property Act to which I have referred should not be applied to the construction of Hindu dispositions of property. I shall now very briefly refer to the rule of English law on this point. In Barshow v. Black : Pattison v. Henderson (1876) 1 H.L. (Sc & Di) 392 it was pointed out. ' The poistion of an absolute unlimited owner subject to a conditional gift over is unknown to the law of England but well-known to the Scotch Law. Hence in Scotland although a conveyance to a man 'and his heirs and assigns whomsoever' makes him an absolute owner, there may follow a valid conditional substitution or gift over to which, on the occurrence of the contemplated events, effect will be given.' The present day English Law is not as rigid as was believed in this last case. It has gone through various modifications which it is not necessary to refer to at any length now. In Avelyn v. Ward Ves. Sen. 420. the condition was that if the devisee failed to give a release within three months after the testator's decease, then the property should vest in somebody else. This condition was enforced. In XXVIII Halsbury the various cases in the English Courts are summarised in paragraphs 1477 on wards. Numerous clauses of forfeiture or defeasance have been recognized. I may refer to one case in particular namely, Comishy v. Bowring Hanbury (1905) A.C. p. 84. The House of Lords in that case held that an absolute estate subject to an executory gift was enforceable. In Re Lovell : Sparks v. Southall (1920) I. Ch. 122 Mr. Justice P.C. Lawrence has come to the conclusion that a defeasance clause of this description should be regarded as a limitation of the estate and not as a condition. What has been referred to in the Scotch Courts as a condition subsequent is dealt with in the English Courts either as an executory devise or as a limitation of an estate. When one remembers the tenacity with which precedents are adhered to, it is not surprising that the new nomenclatures should be utilised to get away from obvious inconvenient positions. However, if certain fundamental notions are not departed from it is clear that conditional dispositions of property will be given effect to even by English Courts. The language employed by Mr. Justice P.C. Lawrence in the latest case suggests that he is inclined to accept the Scotch view of the Law within proper limits without totally ignoring English precedents. The limits are approximately these.--(a) The condition must not be immoral or opposed to public policy ; (b) It should not merely be a restraint upon alienation or an impediment to the enjoyment of the property ; (c) It should not postpone the ultimate devolution beyond the lifetime of a life in being at the time of the bequest; and (d) The ultimate device must be either to the testator himself (this is not fully recognized by the text writers) or to some one who was alive at the date of the bequest. To these limitations if we add in India that the condition should not contravene any recognized principles of Hindu or Mahommedan Law, we have a set of principles, I do not say they are incapable of amplification--into which one can work in a greater principle than any of these, namely that as far as possible the intention of the testator should be effectuated. Examining the present case in the light of the above conceptions, I am of opinion that on the death of the mother who had acquired an absolute estate in the property by virtue of the failure of the other son's heirs and assigns to pay the Government kist the son's widow did not inherit the halt share which she sold to the plaintiff.
14. For these reasons, I agree with the order proposed by my learned brother.