Kumarasami Sastri, J.
1. Plaintiffs who are the sons of one Munisami Mudaliar sue for a declaration that the bequests to the grandchildren of the said Munisami made by his will dated the 6th August 1898 are invalid, and for a portion of the properties left by him. The plaint sets out that by his will dated the 6th August 1898 the testator directed that his sons and daughters should have no interest in the estate and that the income should be accumulated for the benefit of the testator's grandchildren who were to take all the property, that defendants 2 and 5 obtained, probate of the will and nave been guilty of various acts of mismanagement, that the bequests to the testator's grandchildren are void as they were not in existence when the testator died and that there has been an intestacy which entitles the plaintiffs as the sons of the testator to claim the estate and a partition, thereof between the various heirs of the testator.
2. Defendants 1 and 3 filed a written statement praying for the construction of the will of their father and the ascertainment and delivery of their share. Defendants 2 and 5 the executors with probate deny that they undervalued the estate or were guilty of any of the acts set out in the plaint and pray that the will may be construed and the rights of the parties ascertained. The 4th defendant filed a written statement pleading that under the terms of the will there is a valid bequest of house and ground No. 2/60 (item 3 of the plaint schedule) in her favour. That she and her husband acting in accordance with the terms of the will contributed over Rs. 3,000 to the estate and that if the bequest in her favour be 'held to be invalid then the sum of Rs. 3,000 be returned to her. Defendants 6 to 8 filed no written statements. Defendants 9 to 21 were directed to be made parties as they were the grandchildren of the testator and had an interest in the suit which was to construe the will. The guardian ad litem of defendants 9 to 15 filed a written statement setting up that the bequests were valid and that they had a share in the will. Defendants 16 to 19 by their guardian ad litem filed a written statement stating that their rights should be established if the Court considers the bequests valid. Defendants 20 and 21 filed a written statement in similar terms.
3. The following issues were settled
I. Is there an intestacy to any and what extent ?
II. To what relief are the parties entitled.
4. 1st issue. Probate of the will of Munusami Mudali, has been filed as Exhibit, A.
5. Munusami Mudaliar left no grandchildren at the time of his death and the question is whether the terms of the will are valid. The will directs that his properties moveable and immoveable should be enjoyed by the children of his first and second wife in common but that they should have no right to the properties. It directs that the executors should collect the rents due, receive outstandings and pay liabilities and look after the maintenance of the family, perform the marriages of such of those children as are unmarried. The will proceeds as follows :-- ' Besides thus remaining as one family and conducting everything in common all these, namely, the income derivable from the aforesaid houses, the income derivable from the cart stand and the income derivable from the bazaars and the incomes which my sons may get by employment or trade should all be put together and both the aforesaid executors should look after those and on deducting the maintenance expenses of the family and Government tax and repairs, and etc. expenses should give meals to 100 persons as a matter of charity annually in the month of Purattasi. On meeting all these expenses the remaining sum should be added as assets to the other properties and augmented. Those that do not abide to do so and refuse to give their earnings shall have no right whatever in this. They must go out with such earnings. Those that do not consent to remain in the family and do quarrel, if by their remaining, anything bad should arise to the family, such of them should be removed from the family and if they have not any means of earning for their maintenance 4 or , 3 should be given every month and those should remain and live in a room in the aforesaid house.' It also provides that his second wife should continue to live in this family and conduct family affairs and that if she does not do so she should live in one room and receive a maintenance of 3 or 4 a month. The will proceeds as follows:-- ' No body has any right in the aforesaid properties. Even if sold, the sale, should be void. Of the aforesaid properties the house bearing door No. 6/20 should be given as Stridanam to my first wife's daughter Audi Lakshmi Ammal and Chiranjeevi Munusami Mudaliar, Chiranjeevi Ponnusami Mudaliar, sons of my sister and the members of that family should remain jointly with this family and from the total of all the incomes should be met (the expenses in connection with) the good and bad occurring to this family'. It states that after the death of the above persons house No. 6/20 should be enjoyed by their descendants. As regards the other properties the will provides as follows : -- ' All other properties should be enjoyed by my sons as long as they are alive and after that one-half should be enjoyed by the descendants of my first wife's sons and the other half share Dy the descendants of the second wife's sons.' The scheme of the will seems to be that his children by his first and second wives should remain together and hand over their earnings to the executors who are directed to support them, that the earnings so handed over and the rents of the properties collected with any surplus should be accumulated for the benefit of the grandchildren, and that the property should be taken by the grandchildren' on the death of his sons and daughters. It is not disputed that none of the grandchildren were alive at the death of the testator and it is proved by the 1st plaintiff that the first grandchild was born 3 or 4 years after the testator's death. It is a well settled law that a bequest to persons who are not born at the date of the testator's death is invalid, and consequently the dispositions in the will in favour of the grandchildren of the testator are invalid.' Madras Act I of 1914 which declares the rights of Hindus to make transfers and bequests in favor of unborn persons has no application as the testator died long before the Act came into force and the Act has retrospective effect only to the extent that it applies to wills' made before the passing of the Act where the dispositions made are intended to come into operation at a time which is subsequent to the passing of this Act. Where the testator dies before the Act came into force the properties would vest in his heirs in the event of an intestacy according to the law then in force and Section 2 of the Act as I read it floes not operate to divest such vesting. Moreover as no life estate is given to the sons it cannot be said that the gift to the grandchildren was intended to come into operation after the 14th February 1914 the date on which the Act was passed. Except the right to receive maintenance subject to certain conditions there has been no gift in favour of the sons. As the gift to children is invalid (except in the case of house No. 6/20, item 3 in the plaint to which I shall refer later on) there has been no gift in favour of the sons and daughters even for their lives, it follows that there has been intestacy so far as such properties are concerned. The directions in the will that the daughters are to be maintained out of the estate Is valid and due provision will have to be made for their maintenance. Provision will have to be made for the marriage of the testator's daughters who have not yet been married. The result is that the sons and daughters take the properties as heirs under the Hindu Law, the grandchildren taking no interest except as members of an undivided family who by birth acquire a right to the grandfather's properties. As regards house No. 6/20 there is, in my opinion a gift to the testator's daughter Audi Lakshmi Animal as the will says that house No. 6/20 should be given as Stridhanam to her. It no doubt goes to state that after her, the property should be enjoyed by her descendants, but the fact that the gift over is invalid would not defeat the estate given to her. It is unnecessary to consider in this suit whether as between her and her children she has a power of alienation or not over the properties.
6. Second issue:--The result of my finding is that there is a valid , direction in the will whereby 100 persons should be fed annually in the month of Purattasi out of the income of the properties except item 3 which is given to the daughter, that there is intestacy as regards the, said properties and the rights of the parties are therefore to be determined under Hindu Law. The. suit will be referred to the chambers for an account being taken of theestate and. effects of the deceased Munusami and the excutors will file accounts of the income and expenditure and the balance in their hands within a month from this date. Objections will be filed within two weeks after filing the accounts. After making provision for the feeding of one hundred persons in Purattasi every year the properties will be divided between the sons of the testator in equal shares subject to due provision being made for the maintenance of the daughters and the marriage expenses of such daughters as are unmarried. Costs will be reserved till after the accounts are filed and will be dealt with at the time of the passing of the final decree.