1. One Vincent Andrew Garrad a Travelling Ticket Examiner, died; on 2-6-1956. He left a will executed on 26-4-195S. By this will he made a bequest of Rs. 5000 to his daughter Brinnel; Garrad out of his assets consisting of the provident fund, gratuity, and other assets. He directed that Rs. 4500 out of this amount be deposited in the Reserve Bank till she attained age. The balance of Rs. 500 was to be given to her guardian Mrs. Harding, and directed the interest on the deposit to be utilised by the guardian for the upkeep and education] of the daughter. The amount remaining out of his provident fund, gratuity and other assets were to be' taken by the mother and the sister of the testator in equal shares.
2. Mrs. Harding sought for arid obtained Letters or Administration with the Will annexed. Mrs. Harding is the mother-in-law of the testator and the grandmother of the Brinnel Garrad.
3. The application out of which the present proceedings arise has been filed on behalf of the two legatees under the Will, the mother and the sister. The mother being dead, the husband of the sister was impleaded as the third applicant. In the affidavit accompanying this application, it was stated that in, the statement of accounts filed by Mrs. Harding, to whom the Letters of Administration had been granted, the amounts received by her had not keen correctly shown, it was alleged that Mrs. Harding had collected1 in addition a sum of Rs. 3335 towards the gratuity amount of the deceased and a further sum of Rs. 1512, and odd towards the arrears of salary payable to him. It was claimed that under the terms of the will the gratuity amount and the arrears of salary have to be paid to the applicants, and since Mrs. Harding was Disputing their right to these amounts, the Court was moved by this application for the issue of a direction to pay over those sums to them. In addition, the payment of interest upon the legacy given to the daughter was also disputed.
4. In the counter affidavit of the respondent Mrs. Harding, it is admitted that as the grantee of the letters of Administration, she realised a sum of Rs. 5607-25 being the provident fond, and a sum of Rs. 628-28 from the Southern Railway Employees Co-operative Bank. It was also stated that by an order of this court she was permitted to appropriate the sum of Rs. 20 per month towards the maintenance of the minor and a sum of Rs. 35 as cost of the application. The balance had been deposited by her into court it was further admitted that subsequently the railway had paid to her on behalf of the minor child of the deceased railway servant a sum of Rs. 3033-87 towards the gratuity payable to the child. According to her, this, amount is paid to a dependent minor child of a deceased railway servant, at the discretion, of the Railway and does not form part of the estate of the deceased which could be affected by the will. She denied the receipt or any other amounts.
5. In the reply affidavit filed by the applicants, the claim of Mrs. Harding put forward on behalf of the minor child that the minor child was exclusively entitled to this sum of money of Rs. 3033-87 nP is disputed, it is stated that the applicants also applied to the railway authorities for the payment of the gratuity, but the railway authorities purported to accept the application on behalf of the minor mode by Mrs. Harding and paid over the amount to her. Nevertheless, it is contended that the amount forms part of the estate of the testator and under the terms of the will, the applicants claim to be entitled thereto.
6. When the matter came to be heard on an earner occasion before Ramachandra Iyer J. (as he then was) the learned Judge, while accepting the position that in so far as the special contribution to the provident tuna, that is this amount of gratuity of Rs. 3033 and odd, is concerned, that item of property is not one which the deceased could validly dispose of. He proceeded to observe:
'But the testator had treated that as an asset of his own and made a disposition. It would certainly be open to the minor not to accept that disposition. The will includes not merely the special contribution to provident fund but other assets admittedly owned by the deceased. Under the circumstances, the provisions of Section 180 of the Indian Succession Act, would come into operation.'
The learned Judge proceeded to examine that provision of the Indian Succession Act. He rejected the contention that at the time of the death of the deceased the gratuity amount being only a discretionary payment of the railway authorities, could not be said to be the property of the minor daughter. If the minor had no property in the gratuity amount at that time, a disposition of that property could not be spelt out of the terms of the will. That was the contention urged by Mrs. Harding, the respondent, but that contention was not accepted by the learned judge. He observed that the fact that it was to be paid after the death of the deceased would not make it any the less the property of the person who ultimately received it, viz., the minor daughter. That would be sufficient to attract the operation of Section 180.
7. In the above view, therefore, the doctrine of election was held to come into play. The learned Judge observed that the minor could not elect and that the election should be made on behalf of the minor 'in such a way that the minor obtains what is most beneficial to her; that is to say, if the repudiation of the will is to her interest, the Court would permit it and if, on the other hand, the acceptance of the will would be beneficial in the circumstances of the case, the court would permit such acceptance.' Dealing with the further question, as to now the right of election was to be exercised in the matter, for the reason that no guardian dad been appointed' for the minor, he directed thus:
'Under the circumstances, I consider that the election should be made for the minor by the court. Following me English practice, I direct the Master to enquire into the matter after giving notice to the various parties and providing for the representation of the minor; and submit a report as to whether acceptance or repudiation of the will would be beneficial from the point of view of the minor. Further orders will be passed on the receipt of the report.
If, as a result of the enquiry, it is found that the acceptance of the will would be beneficial from the point of view of the minor child of the deceased, then the sum of Rs. 3033-87 will be treated as part of the estate of the deceased and the legacy of Rs. 5000 would be paid to her as directed therein. The balance will be divided between the mother and the sister of the deceased. If it is found that the acceptance of the legacy would not be beneficial to the minor, the sum of Rs. 3033-87 will be treated as the separate property of the minor, but she will have no further rights under the will.....'
8. In pursuance of this order, the matter came before the learned Master. At this stage, an application No. 6 of 1962 was filed by Mrs. Harding, the maternal grandmother of the minor, the administratrix for appointing her as the next friend of the minor in those proceedings and that was done. The next friend of the minor also contended before the learned Master that there was no need for the election, as the amount belongs to the minor. This question, the learned Master rightly declined to decide; and he finally held that it will be clearly advantageous and beneficial to the minor to accept the will and take the legacy of Rs. 5000, instead of repudiating it and getting only a sum of Rs. 3033-87 nP.
9. The matter has now come before this court for passing final order on the report of the Master.
10. At the outset it has been argued by Mr. Albuquerque, on behalf of the minor, that the decision rendered1 by Ramachandra Iyer J. in the absence of the minor will not bind her and that she is entitled to reagitate the question whether Section 180 of the Indian Succession Act at all applies. This contention to my mind is well founded. The party affected by the decision that this is a case which comes within the scope of Section 180 is undoubtedly the minor. It is not in dispute that when the matter was heard on the prior occasion, Mrs. Harding participated in the proceedings only in her capacity as the administratrix and not as representing the minor. It was only subsequently that she was appointed the next friend The minor is therefore entitled to say that the conclusion; reached by the learned Judge in the absence of the minor will not be binding upon her. Notwithstanding the decision upon this point earlier, I am satisfied that the question: has got to be necessarily gone into in the presence of the minor and adjudicated upon.
11. And the question that has to be examined is whether in the circumstances of the case, the principle of Section 180 would apply. Section 180 of the Indian Succession Act reads thus:
'Where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will.'
Simply put, the section states that where a testator, who has no power of disposition over a property, which does not belong to him, deals with that property, and by the same will gives to the owner of that property some other property belonging to himself, the testator, then that other person has two alternatives open to him. He can elect to abide by the terms of the will, that is to say, he may take the property bequeathed to him and give up his own property and leave it to be covered by the terms of the will. He may repudiate the bequest in which event his property will remain unaffected, but he will not be entitled to any other benefit granted by the will. So far the section, is quite clear. But the most important circumstance is that the testator should have actually dealt with the property belonging to another. That necessarily leads to an examination of the question whether, even if that some other property is purported to be dealt with under the will such property was in existence, as the property of that other person. For instance, if A while Bequeathing some properties of his own to B purports to dispose of same other property which does not belong, to B but which might become B's property by reason of other incidents and in which property B had no present interest whatsoever, would Section 180 apply to such a case? The section uses the expression 'the person to whom the thing belongs shall elect' and that thing should be professed to be disposed by the testator by his will. It seems to be implicit in the section that at the time the testator disposes of the property in question, that is to say, when the will takes effect, it should belong to that other person who is placed by reason of this section under an obligation to elect. It is principally this point that has been argued, the contention on behalf of the minor being that the thing, that is to say, this amount of gratuity, did not exist as property which belonged to her at the time when the will was either executed or came into operation on the death of the testator. It is this contention that has to be examined.
12. In Theobald on Wills, 11th Edn. it is stated that 'election arises where property given, away by a testator be vested or contingent or in possession of reversion', and further that 'in a case of election arising under a will, the amount of compensation payable and the rights generally are to be ascertained as at the testator's death. Thus there is no election1 if the property disposed of by the testator is not. acquired by the beneficiary till after the testator's death.' The first part of the above passage appears to state that even if the right of the minor was only contingent or in reversion, the doctrine of election would apply. The latter part states that if the property which is in question now was not acquired by the minor child till after the death of the testator, no question of election would arise. Certain English cases have been referred to by the learned author which it is not necessary to detail at length.
13. What is the nature of the property in this special contribution to the provident fund which the minor came to possess or was possessed of on the date of the death of the testator? Rule 14 (6) of the State Railway provident Fund Rules is in these terms:
'If a subscriber dies while in service and leaves behind him a widow or dependent, child or children, the controlling officer may, in addition to the contribution admissible under Rules 11 to 13, direct a special contribution to be made to the subscriber's provident fund account, calculated in the manner prescribed above, as if the subscriber had on the date of his death, quitted the service on retirement on account of personal incapacity.'
At first sight, it may appear that this rule vests an absolute discretion in the controlling Officer to make or not to make a special contribution to the provident fund of the deceased subscriber. The expression 'may' may perhaps lead to that conclusion. But it seems to me that having regard to the purpose and scope of the rules, that expression has a mandatory force. The only conditions requisite to the application of the rule are that the subscriber should die while in service and should leave behind him a widow or dependent child. If these conditions are satisfied, then, the special contribution to the provident fund is by virtue of this rule required to be made and no discretion appears to exist in the officer whether or not to make the special contribution. Th3 argument on behalf of the minor that this is wholly discretionary and is in the nature of an ex gratia grant winch the minor becomes entitled to subsequent to the death of her father and is not, therefore, property of the miner which the testator could be deemed to have disposed of fails to impress me. The moment a subscriber cites while in service, and is found to have left behind him a widow or a dependent child, the rule immediately casts a duty on the officer to make the special contribution and the right to receive that contribution accrues to the widow or the dependent child. On the Happening of the death of the subscriber, this right on the part of the widow or the dependent child conies into existence. (sic) his death, it was a certingent right of the minor; according to the authorities, a devise of even such a right by the 'testator could attract the doctrine of election.
13a. Before however the principle of Section 180 of the Indian Succession Act can come into operation, the intention of the torator that he purported to deal with the property in quest on must be clearly expressed, normally, an expression of the will of the testator cannot be construed to include a factual disposition of property which did not belong to him and that is why it ought to be plainly demonstrated on the terms of the will that he intended to dispose of an item of property. The terms of the will in this regard are these.
'I hereby bequeath and give Rs. 5000 out of ail my assets to my daughter Brinnel Gerrad, viz., of the provident fund, gratuity and other asses, out of which Rs. 4500 will be deposited in the Reserve Bank.....The remaining amounts of my provident fund, gratuity and other assets shall be taken by my mother......and my only sister .... in equal shares.'
13b. It is clear from the provisions above that the testator was aware that he had certain assets in the shape of provident fund and gratuity payable to him. He also indicated 'other assets' in the will his intention clearly is that out of these assets, his daughter is to get Rs. 5000 and the balance is to be divided between his mother and his sister. The testator should certainly have known that on his death a special contribution to the provident fund primarily for the benefit of his minor daughter would be made under the rules. it is undoubtedly a contingent interest which the minor had in the special contribution to the provident fund and on the terms of the will it can be reasonably concluded that the testator did intend that that item of property should also be dealt with in accordance with the terms of the will, it would therefore follow that there was a clear intention manifested by the terms of the will that the testator purported to deal with the special contribution to the provident fund as well. Even if under the rules this special contribution is payable to the dependent child and it would' normally be her property, the testator clearly dealt with that item of property in his will. It should follow accordingly that the minor is bound by the doctrine of election enunciated In Section 180 of the Indian Succession Act.
14. There is no doubt that if the principle of election should apply, the finding of the learned Master that it is more beneficial to the minor to take the sum or Rs. 5000 bequeathed to her in preference to the special contribution, which is far lesser amount, is correct. The application is accordingly allowed. The administratrix and the guardian of the minor will be directed to bring the amount of special contribution to the provident fund into court. There will be no order as to costs.