1. The decision of this appeal depends on the construction to be placed upon the will of K. Narayanaswami Naidu, a Hindu of Madras. He made a will on 3rd February, 1897, and a subsequent codicil on 21st May, 1897, and died on 23rd May, 1897 leaving a widow and one son, whose whereabouts are not known, and three granddaughters. One grandson, who is the 2nd defendant, was born in 1899 after the testator's death and, having become an insolvent, he is represented by the Official Assignee. The will having been made in the Presidency Town, the Hindu Wills Act is applicable to it, and Section 2 of that Act makes Sections 116 and 117 of the Indian Succession Act applicable. Among the dispositions the important passages run as follows:
Clause 9. I give and bequeath the whole of the residuary estate -to my grandson or grandsons who may be born or will be born to my son Kateri Sundararamanjulu Naidu within ten years after my death; if there shall be no such grandsons to be born as aforesaid the whole of my residuary estate is to be divided equally between ray said granddaughters after the death of my said wife.
The proviso to the clause provides that a sum should be placed in deposit in Messrs. Arbuthnot & Company's Bank to provide a monthly income for the maintenance of the testator's daughter-in-law, the widow of a son who died during his lifetime, and for the distribution of the amount to his granddaughters after her death. Clause 13 provides that the testator's son, K. Sundararamanjulu Naidu, having fraudulently spent more than half of his father's earnings and having executed a release in his favour should have no claims whatever in and upon the testator's estate. Clause 2 of the codicil revokes a provision of Rs. 5,000 in Clause 3 of the will in favour of charity and Clause 3 provides that the distribution of the residuary estate among the granddaughters should take place after the death of the testator's wife, daughter-in-law and son.
2. The facts necessary for understanding the case are that the testator's son Sundararamanjulu Naidu disappeared and has not been heard of for 25 years, the testator's granddaughter Kothanayaki died unmarried in 1903, the 2nd defendant was born in 1899, that is, within ten years of the testator's death in 1897; but the bequest in his favour being a bequest to a person not in existence at the death of the testator is invalid under the rule in the Tagore case [Ganendra Mohan Tagore v. Jatindra Mohan Tagore (1872) 9 Beng. L.R. 377.
3. The question we have to decide in this appeal is whether the effect of the first of the passages quoted from Clause 9 of the will is, in the events that happened to create a gift to the granddaughters or an intestacy. The learned Judge in the trial Court decided in favour of the former alternative. He was of opinion that Section 116 of the Succession Act applied to this case rather than Section 117. He referred to two cases, Narandas Vrijbhukhandas v. Bai Saraswati Bai I.L.R. (1914) B. 697 and Radha Prasad Mullick v. Rani Mani Dassee I.L.R. (1906) C. 947 as being cases in point. Narandas Vrijbhukhandas v. Bai Saraswati Bai I.L.R. (1914) B. 697 is a case which dealt with a will executed in the mofussil and consequently it contains no discussions of the sections of the Succession Act.Radha Prasad Mullick v. Rani Mani Dassee I.L.R. (1906) C. 947 followed the English case of Jones v. Westcomb (1711) 1 Eq. 248. The case Radha Prasad Mullick v. Rani Mani Dassee I.L.R. (1906) C. 947 went on appeal to the Privy Council and was confirmed on different grounds from those upon which the Calcutta High Court decided it. The decisive feature of that case was that there was no adoption in law because the authority given under the will for the widow and the executors to adopt was invalid.
4. Section 116 of the Succession Act runs as follows:
Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest fails the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.
5. This provides for cases of double contingencies as may be seen from the illustrations to the section, a subject which is discussed in Williams on Executors, 11th Ed., Vol. II, pp. 1014 to 1017.
6. Section 117 is as follows:
Where a will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner the second bequest shall not take effect, unless the prior bequest fails on that particular manner.
7. The illustrations to this section recall the facts of the cases of Underwood v. Wing (155) 4 De. G.M. & G. 633 and Wing v. Angrave (1860) 8 H.L. Cas 183. The will before us declares that the gift over in favour of the granddaughters shall take effect only if there are no grandsons born within ten years of the testator's death. There was a grandson born within ten years of the testator's death, namely, the second defendant. The question is whether the prior bequest in favour of the grandson has failed in the particular manner denoted by the will.
8. It was argued that we should read the words 'if there shall be no such grandsons to be born as aforesaid' as meaning, 'if there shall be no grandsons born who can take the estate as aforesaid' or in other words 'if the bequest in favour of grandsons fails on any account.' I think that the language used is quite specific and that it cannot be given the meaning-contended for by the respondent's vakil which involves a contradiction, viz., that grandsons born within ten years after the testator's death means grandsons born during his lifetime as they alone could take the estate. The testator clearly spoke of two classes of grandsons when he used the words 'grandsons who may be born (i. e. before my death) or will be born to my son K. Sundararamanjulu Naidu within ten years after my death.' The gift in favour of the granddaughters has been made expressly dependent on the condition that there shall be no grandsons born during the testator's lifetime or within ten years of the testator's death. We cannot make a new will for thetestator in the light of the events which happened. The wishes of the testator have to be given effect to so far as the Court is able to do so. We must therefore consider what the testator intended. It is evident from Clause 12 that he intended to disinherit his son and it may also be considered from the proviso to Clause 9 that he was in favour of benefiting his granddaughters to some extent, but he evidently preferred to benefit grandsons if any should be born within ten years of his death rather than his granddaughters. He wished to restrict the bequest to grandsons born within ten years as that was the period within which his son and daughter-in-law might be expected to have children but he showed no intention of disinheriting them altogether in case of there being a legal objection to the bequest taking effect in the manner stated. The will contains no indication that the testator wished to give preference to granddaughters supposing a grandson and granddaughters were both in existence at a date within ten years after his death. In Hall v. Warren (1861) 9 H.L. Cas 420. Lord Kings-down observed:
The gift over seems to have taken effect whether we regard the precise language of the particular clause or the general intention of the testator.
9. So here let us consider first what is the meaning of the precise language used by the testator, and secondly what were his general intentions and how may his wishes be best carried out. If the answers to both these questions lead to the same conclusion, we need have no hesitation in giving effect to the ordinary meaning of the language used. The testator did not contemplate intestacy, but he made no provision for the case of the bequest in favour of grandsons who might be born within ten years being found invalid owing to a provision of law. If he had contemplated the event, which actually happened, of a grandson being born within ten years of his death, there can be little doubt that he would have preferred that his grandson should succeed even though on intestacy, rather than that the granddaughters should take the whole estate and the grandson take nothing. The case of Underwood v. Wing (1855) 4 De. G.M. & G. 633 was a case in which the construction put upon a will by the Court of final appeal In England who gave effect to the intentions of the testator led to intestacy and the illustration (e) to Section 92 and the illustration to Section 117 of the Succession Act are also illustrations of cases of intestacy resulting. We should not therefore assume that the idea of intestacy would have been more repugnant to the mind of the testator than the preference of female to male descendants. I think that this specific language of the will and the intention of the testator lead to the same conclusion. I further think that Section 117, Succession Act, covers the case and therefore I would, as was done, in Maddison v. Chapman (1858) 4 k. & G. 709 construe strictly the condition tinder which the granddaughters were to take the estate and hold that as a grandson was born, the gift over failed and the granddaughters are not entitled to take the residue, and that, as the gift to the grandson is invalid and the gift over to the granddaughters failed by reason of its being subject to a contingency which actually happened, there is an intestacy and the heir-at-law, namely, the and defendant, in the absence of his father, who is presumably dead, will take the whole estate.
10. The appeal must therefore be allowed and the suit dismissed. Costs of the plaintiff and the Official Assignee in this Court will come out of the estate. The order as to costs in the trial Court may stand.
11. I agree but would add some reason of my own. The first illustration to Section 116 of the Succession Act is based on Meddows v. Parry (1812) 1 Ves & B. 124. The second illustration is taken from Avelyn v. Ward (1750) 1 Ves. Sen 420 Other cases illustrating the section are collected m William on Executors (11th Ed.), Vol. II, pp. 1015-1017, Theobald on Wills, 7th Ed., pp. 656-657, Jarman on Wills, 6th Ed., pp. 2195-2199. The reason for these decisions is that 'the intention of the testator is effectively fulfilled by regarding a clause of apparent condition, as a clause of conditional limitation, so as not to require, as in-the case of a gift on the condition that the very event, on which the gift is made contingent must be fulfilled with strict exactness, but paying regard, in the construction to the substantial effect of the contingency specified and as to the real intent of the testator.' (Williams, p. 104). In these cases 'there cannot be a shadow of doubt that, if asked whether in case of a prior gift failing altogether for want of an object he meant the alternative gift to take effect, his answer would have been in the affirmative. The conclusion that such was the actual intention has been deemed to amount to what the law denominates a necessary implication.' (Jarman, p. 2195). The Indian legislature has accordingly adopted the principle as a general rule in Section 116 of the Act making the case where the testator intends the gift over to take effect only if the first gift fails in a particular manner, an exception. Accordingly, the appellant has to show an intention that the second gift in this case should take effect only if there is no grandson born within ten years. If the appellant fails to show such an intention, the respondent succeeds even if he cannot show any clear intention the other way.
12. In many of the cases illustrating Section 116 the intention of the testator is so obvious that it cannot bear discussion. For instance, in the first illustration [cf. Meadows v. Parry (1812) 1 Ves & B. 124 by the time of the death of the testator, from which time the will takes effect, it was definitely known that the testator had no children though it might not have been known when the will was written and the testator could not have intended the second gift to take effect only if children are born but die within eighteen. The language of the clause could not have been the actual intention of the testator at the date of death. The same remarks apply to Murray v. Jones (1813) 2 Ves. & B. 313 and to Avelyn v. Ward (1750) 1 Ves. Sen. 420 though not to Jones v. Westcomb (1711) 1 Eq. Cas Abr. 245 or to Hall v. Warren (1861) 9 H.L. Cas. 420 or to Radha Prasad Mullick's case I.L.R. (1906) C. 947 [affirmed by Privy Council (1908) 18 M.L.J. 287. It seems to me that, if the word ' contemplated' in the section refers to the testator's state of mind on the date of death and not to the language in the will, the illustrations do not illustrate the section and the section is not happily, worded: for the manner contemplated by him could not be the manner apparently expressed in the condition. Even in Jones v. Westcomb (1711) 1 Eq. Cas Abr 245 Hall v. Warren (1861) 9 H.L. Cas 420 and Radha Prasad Mullick v. Rani Manx Dassee I.L.R. (1906) C. 947 there is no doubt as to what the testator's answer would have been, if the matter was put to him. As Lord Campbell stated in Hall v. Warren (1861) 9 H.L. Cas. 420, 'It was gravely argued at your Lordship's Bar that the testator wished the opinion of the inhabitants of Bays-water to be taken on the expediency of establishing this Hospital, and that a resolution of the Parish in the negative was the condition on which William Hall Warren was to take the two houses. But I apprehend that the failure of the foundation of the Hospital was the contingency on which he intended his godson to take.' There can be no analogy between that case in which the Hospital never came into existence and the present case in which a grandson had come into existence.
13. The illustration to Section 117 is based on Underwood v. Wing (1855) 4 G.M. & G. 633 and Wing v. Angrave (1860) 8 H.L. Cas. 183. That the result of these cases involved a hardship is clear from the observations of Lord Wensleydale in the latter case at pp. 214-15. 'This case (and there are many like it) is one in which the temptation from the supposed hardship of the case to swerve from the established rules of construction is strong. No one can doubt as to the testatrix's 'intention' in the loose sense of the word' then his Lordship relied on the language of the instrument. In the present case, I do not wish to rely merely on the language of the condition. Nor can it be said in the present case that the testator's 'intention' in the loose sense of the word was to give the residue to the granddaughters even if a grandson existed. This case is therefore stronger than the cases of Wing v. Angrave (1860) 8 H.L. Cas. 183 and, Underwood v. Wing (1855) 4 G.M. & G. 633. Seeing that the English Judges decided these cases in the way they decided in spite of the principle of the other group of cases [Jones v. Westcomb (1711) 1Eq Cas Abr. 245. Murray v. Jones' (1813) 2 Ves. & B. 313 and etc.], and in spite of the hardship involved and seeing that the Indian legislature adopted those decisions as their illustration to Section 117 to show what they meant by 'an intention that the second bequest shall lake effect only in the event of the first bequest failing in a particular manner ' I do not feel any hesitation in applying Section 117 to the case before us. The illustration in (e) to Section 92 also leads to the same conclusion. It seems to be based on the passage in Jarman, 6th Edition, at page 2203. This illustration might well have been an illustration to Section 117 also. It likewise relates to the intention of the testator that the second gift should not take effect unless the failure of the first happens in a particular manner.
14. If, in Wing v. Angrave (1860) 8 H.L. Cas. 183 as Theobald puts it (at p.654) that the event that happened (simultaneous death) and the event contemplated (one dying before the other) are two distinct and independent events and if in illustration (e) to Section 92 the death of the first legitee before the eighteenth year and his death after the eighteenth year in the lifetime of the testator are two distinct and independent events, in the present case the event contemplated non-existence of the grandson and the event that happened the birth of a grandson are not only two distinct and independent events but contrary or opposite events. The case in Elliott v. Smith (1882) 22 Ch. D. 236 is a further illustration of the rule. Section 117 is therefore applicable a fontiori.
15. The consideration that the Court should, if possible, lean against intestacy is not sufficient in my opinion to shake the above conclusion. In Underwood v. Wing (1855) 4 G.M. & G. 633 Wing v. Jn-grave (1860) 8 H.L. Cas 183 and the illustration to Section 92(e) this consideration was not strong enough to affect the result. I am not able to follow our learned brother Kumaraswami Sastri, J., when he says in his judgment in appeal ' Reference was made to Underwood v. Wing (1855) 4 G.M. & G. 633 but I do not think that the facts of the present case fall under this decision as I do not think that limitation was a condition precedent.'
16. It cannot be deduced from Hall v. Warren (1861) 9 H.L. Cas. 420 as the learned vakil for the respondent argued that whenever the first devise is ab initio void, the second bequest must be given effect to, whatever the condition may be. He also wished us to construe the words 'such grandson as aforesaid' to mean 'such grandson so taking.' I think that the words mean ' grandson born within ten years after my death. ' We cannot add the words ' so taking ' as we have been invited to do on the basis of Section 64 of the Act and Abbott v. Middleton (1858) 7 H.L. Cas. 68. It cannot be said that any words material to the full expression of the meaning are omitted in this case. Nor can we construe the will as a gift to the granddaughter subject to be defeated on the birth of a grandson within ten years after the testator's death. The mere fact that the testator wished to deprive his son of all the benefits of the will beyond the sum of Rs. 500 as capital for his trade and Rs. 250 for funeral expenses is not also strong enough to displace the application of Section 117, for, in case of intestacy, the son and grandsons take as members of a joint Hindu family if grandsons are born with the right to enforce partition by or on behalf of grandsons. But it is unnecessary to speculate in this direction as the testator never contemplated the event that happened, viz., the device to the grandsons being void under the Tagore case (1872) 9 Beng L.R. 377
17. Our brother Kumaraswami Sastri, J., thought that the decision in Narandas v. Saraswathi Bai I.L.R. (1914) B. 697 is on all fours with the present case. In that case, the testator wished to give life-estate to his widow Parvathi and on her death to his daughter's sons. He expected his daughter to have sons by the death of Parvathi. Not only did he not contemplate the gilt to the daughter's sons being void under the Tagore case (1872) 9 beng. L.R. 377 but also he did not provide for the case of his daughter having no sons at Parvathi's death but having sons some time after it. Either he did not contemplate it or thought a gift to them valid though it may not immediately follow the preceding life-estate. The events that happened are incompletely stated in the reports in the Indian Law Reports, a material date being omitted. The case is reported also in 16 Bombay Law Reporter, page 577; from this report it appears that Saras-wati's son was born in December, 1907. As the son did not come into existence on the termination of the preceding life-estate, Parvathi having died in April, 1907, the gift to him was void, apart from the Tagore case. On the analogy of Section III of the Succession Act (cf. Section 23 of the Transfer of Property Act) the clause 'My daughter Saraswathi's sons, if any, shall be the heirs' should be construed to relate to the termination of the preceding life-estate, i. e., to the time of Parvathi's death. It then means 'My daughter Saraswathi's sons if any existing at the time of Parvathi's death shall be (he heirs.' As Saraswathi's son was born later he could not take. The question then arises whether there is an intestacy on the death of Parvathi. The testator proceeded to give a life-estate to Saraswathi, 'In case my daughter may not have sons. ' This clause can mean only 'In case my daughter may not have sons at the time of Parvathi's death,' in which case, Saraswathi's life-estate takes effect, and there is no alternative possible at this stage so as to result in intestacy. The clause is not a condition subsequent defeating Saraswathi's life-estate on the birth of a son later than Parvathi's death. The question next arises do the cousins take after Saraswathi's death? It may be said that the words 'after the death of my daughter Saraswathi' (towards the end of paragraph quoted in the report) may be construed as if the words 'without sons' are added to them, on the principle of Abbott.v. Middleton (1858) 7 H.L. Cas. 68 but if this cannot be done, the cousin's estate takes effect which is the actual decision. The decision may be perhaps correct. But it is difficult to see where the principle of Jones v. Westcomb (1711) 1 Eq. Cas. 245 and similar cases on which Section 116 of the Succession Act was based came in or the necessity for discussing whether Section 116 or Section 117 applied arose. In that case, there was a life-estate before the grandson's estate but no life-estate in the case before us. I do not see how that case can be on all fours with the one before us. Neither the Hindu Wills Act nor the Succession Act applied to it as the case did not arise in the City of Bombay. Nor was there any reference to Sections 116 and 117 of the Succession Act, nor any discussion as between two opposing principles.
18. But there is another ground on which the bequest to the granddaughters fails. The testator intended the estate to wait for ten years after his death, and, if by that time grandsons are born (through his son) they shall take but, if no grandsons are born, the three granddaughters named shall take. The disposition in favour of the grandsons does not vest until the birth of the first grandson within ten years after the testator's death. Until then, the estate does not vest in any person. If no grandson is born within ten years, then also the estate does not vest in any person for ten years or up to his son's death if within that time. As Section 179 of the Indian Succession Act is not made applicable to Hindus, the estate does not vest in the executors. The result is, in either case, there is an interval after the testator's death during which the estate is not vested in any person. On this ground (apart from the Tagore case) the disposition in favour of the grandson is void and that in favour of the granddaughters is likewise void. The vakil for the respondent conceded this and even relied on this for inviting us to construe the will as devise to the granddaughters in the first instance, subject to be defeated by the birth of a grandson competent to take. This will be re-writing the will. Thus there is an intestacy on this ground
19. I agree with the order of my learned brother.