1. These appeals and civil revision petitions arise out of proceedings instituted in the Court of the Subordinate Judge of Devakottah, with reference to the estate of one RM.AR.AR.RM. Arunachalam Chettiar, who died on 23rd February 1938. Appeals Nos. 321 of 1940, 3,104 and 239 of 1941 are from a preliminary decree passed by the Subordinate Judge in a suit for the administration of the estate. The petitions ask for the revision of orders passed in the suit. C. M. A. No. 282 of 1941 is against an order granting probate of a will executed by Arunachalam on 8th January 1938. These matters have been heard together and can be dealt with conveniently in one judgment.
2. The testator, who was a member of the Nattukottai Chettiar community was a very wealthy man. His personal assets have been estimated to be worth Rs. 39,66,100. He had assets in British India, Burma, Federated Malay States, Ceylon and French Cochin China. In addition, he was the trustee of numerous charities, the endowments of which are said to aggregate in value Rs. 24,00,000. He married three times. By his first wife, who predeceased him, he had a son and three daughters. The son also predeceased him. The daughters are alive and have married. His second and third wives survived him. There was no issue of the second marriage and by the third wife he had a daughter, who died during the pendency of the administration suit. His son married Umayal Achi, the plaintiff in the administration suit. There was no issue of this marriage.
3. By his will the testator nominated as his executors AR.SM.A. Sundaresan Chettiar (a cousin) and CT.L.RM. Arunachalam Chettiar (a son-in-law). He directed that his widows should each adopt a son and that the plaintiff should do likewise. Only boys approved of by the executors were to be adopted. The testator directed that certain legacies should be paid. The legacies were substantial in amount but they absorbed comparatively little of the estate. He indicated that the trusts should devolve upon his heirs, and after making other provisions to which reference is not necessary he gave these directions:
As soon as each of the adopted sons becomes a major as stated above they shall also manage the properties along with the executors.
The matters relating to charity and trust shall be kept in common and managed and as soon as all the sons become majors, the estate and the properties relating to charity and trust should be handed oven to them. They (the adopted sons) shall co-operate with each other and maintain and manage the estate in common to the extent that it is possible for them to maintain and manage it in common. At the time when they wish that a division should be effected, they may do so.
The will contains no directions with regard to the disposal of the residue of his personal estate. Neither of the widows has adopted a son, nor has his daughter-in-law.
4. On 11th July 1938 the daughter-in-law filed the suit for the administration of the estate and the partition of the assets among the heirs. The senior widow was made defendant 1, the junior widow defendant 2 and the two executors defendants 3 and 4 respectively. The plaintiff averred that the will was invalid because the testator was not in a sound state of. mind when he signed it and that the executors had exercised undue influence on him. Defendant 3 was an undischarged insolvent and it was said that defendant 4 was in indigent circumstances. She alleged that it would be disastrous to leave them in the management of the estate. She claimed that by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937, she was entitled to a half share in the whole of her father-in-law's estate and defendants l and 2 to the other half. In the event of the Court holding the will to be valid there was, she said, still an intestacy with regard to the bulk of the estate. Further she claimed that sums constituting her own stridhanam and that of her deceased mother-in-law to which she said she was also entitled had been deposited with the testator and asked that these monies should be paid over to her.
5. While supporting the plaintiff in her attack on the will and the management of the estate by the executors defendant 1 averred that a fortnight before his death the deceased had orally authorised her to adopt a son to him; that even if the will were valid the direction that the executors should approve of the boy to be adopted was merely advisory, not mandatory, that the directions given to the junior widow and to the daughter-in-law to adopt sons were invalid; that the Hindu Women's Rights to Property Act, 1937 and the amending Act of 1938 (Act 11 of 1938) were ultra vires the Indian Legislature; and that she, as the senior widow was entitled to inherit the full estate and have the management of the trust properties. In her written statement defendant 2 supported the will, but averred that in the event of the Court holding it to be invalid she and defendant l were entitled to share the inheritance. She denied any right in the plaintiff for the same reason as defendant 1 had advanced, namely, that the Hindu Women's Rights to Property Act, 1937 and the amending Act of 1938 were ultra vires the Indian Legislature. Inferentially she denied that there was any intestacy. Defendants 3 and 4 maintained that the testator was in a sound state of mind when he executed the will and denied that they had exerted any undue influence. They averred that the will was valid and that it disposed of the whole of the testator's estate. They claimed that they were bound to administer the estate and accumulate the income for the benefit of the boys to be adopted in accordance with the directions given in the will. The pleadings contain other averments, but it is not necessary for the purpose of deciding the questions which arise in the appeals and petitions now under consideration to refer to them.
6. On 12th July 1938, the day after the institution of the administration suit, the plaintiff applied for the appointment of a receiver for the preservation and management of the estate until the disposal of the suit. This application was opposed by the executors, but it was granted by the Subordinate Judge in an order dated 18th August 1938. He appointed two receivers, both of whom were advocates practising in his Court.
7. On 4th August 1937 the executors applied for probate of the will. The grant was opposed by the plaintiff, defendant l and two of the daughters of the testator by his first wife. The third daughter of the testator by his first wife is the wife of defendant 4. She supported the grant as did Alamelu Achi, a sister of the deceased; The application for probate was heard with the administration suit and was dealt with in a judgment dated 26th October 1940, when judgment was also delivered in the administration suit. In his judgment in the probate proceedings the Subordinate Judge held that the allegations that the testator was not of a sound disposing state of mind and that the executors had exerted undue influence on him had not been proved. C. M. A. No. 282 of 1941 was filed by the plaintiff with the object of obtaining the reversal of this decision. In this Court all the parties have, however, accepted the validity of the will, although they are not in agreement as to the effect of some of its provisions. As the will is now accepted c. M. A. NO. 282 of 1941 will be dismissed and the appeals from the preliminary decree passed in the administration suit proceeded with on the basis that the will was executed by the testator when in a sound disposing state of mind and without being subjected to any undue influence.
8. The finding of the Subordinate Judge in the administration suit, so far as they are relevant, to the appeals were (i) the testator had died intestate except with regard to the legacies; (ii) the residue of the estate devolved upon his heirs according to his personal law; (iii) the testator had no power to give, directions with regard to the management of the trust properties, which also devolved upon his heirs; (iv) the Hindu Women's Rights to Property Act, 1937, was intra vires the Legislature; (v) by reason of that Act the plaintiff was an heir and was entitled to a half of the residue of the personal estate of the deceased; (vi) the testator's widows were entitled to the other half in equal shares; (vii) the Hindu Women's Rights to Property Act, 1937, did not make the plaintiff an heir so far as the trust properties were concerned; (viii) the testator's widows alone could claim the right to possession and management of the trust properties; (ix) the estate was of such magnitude that it would be dangerous to entrust the assets to the plaintiff and defendants l and 2 without safeguards and it was desirable that the properties should be left in charge of an officer or officers of the Court until safeguards had been furnished; and (x) the receivers already appointed should continue to act pending the passing of the final decree.
9. Appeal No. 321 of 1940 has been filed by the plaintiff; Appeal No. 3 of 1941 by defendant l; Appeal No. 104 of 1941 by defendants 3 and 4 and Appeal No. 239 of 1941 by defendant 2. The plaintiff says that the Subordinate Judge erred in not giving her a share in the management of the trust properties, that he erred in directing that the estate shall remain in the possession of an officer or officers of the Court until the heirs entitled to a partition of the assets have furnished safeguards and that he had omitted to deal with her claim to the stridhanam moneys deposited with the testator. In this Court defendants 1 and 2 joined hands. They say that the Subordinate Judge's decision that the Hindu Women's Rights to Property Act, 1937, is intra vires is erroneous and that in any event the plaintiff is not entitled to a share in any of the properties left by the deceased outside British India. The complaint of defendants 3 and 4 is that the Subordinate Judge did not leave them in the management of the trust properties. Mr. R. Gopala-swami Aiyengar, who appeared on their behalf, said that they had no objection to the personal estate of the testator being administered by the Court in the administration suit, but that his clients were interested in the proper management of the trusts and they claimed a right to be associated in the management.
10. It is quite clear that the testator died intestate with regard to the bulk of his estate. In fact the appeals have proceeded on that basis. At present the Court is not in a position to decide on whom devolve the immovable properties left by the deceased outside British India because succession here will, it is agreed, be determined by the lex loci rei sita and there has been no inquiry into the law of succession in the various foreign countries. In these circumstances the parties desire that the trial Court shall, in the course of the administration of the estate, investigate this matter and in the final decree direct on whom the foreign immovables are to devolve. It has also been agreed that the plaintiff's claim to the moneys described by her as stridhanam shall be investigated by the trial Court in the course of the administration and likewise dealt with in the final decree. Further, it has been accepted that the Subordinate Judge erred in directing the estate to remain in the hands of an officer or officers of the Court until the heirs have provided safeguards against waste. The heirs of the testator are entitled to a division of his personal estate without furnishing such safeguards. A female heir only takes a limited interest, but she is entitled as of right to be placed in possession of her share. Should it transpire that she is dissipating moneys which have come to her and is thereby defeating the reversioner he can ask the Court to insist on security being furnished, but such a position could only arise after partition. An unlawful alienation of immovable property does not affect the reversioner's rights. He is entitled to gain possession of it when the estate falls in. The same principles apply to the trust properties. Either the heirs or the executors are entitled to be placed in possession of them as soon as it is conveniently possible. Therefore the directions given by the Subordinate Judge in this connexion must be set aside.
11. The questions which remain for decision in the appeals from the preliminary decree passed in the administration suit are these : (1) Is the Hindu Women's Rights to Property Act, 1937, intra vires the Legislature? (2) If it is, what rights does it confer upon the plaintiff? and (3) Who are entitled to possession and management of the trust properties?
12. After the Subordinate Judge had delivered his judgment the Federal Court considered the validity of the Hindu Women's Rights to Property Act, 1937, on a reference made to it by the Governor-General in Council, In re Hindu Women's Bights to Property Act , and held that its provisions are intra vires the Legislature except in so far as they affect agricultural lands in the Governor's Provinces. To that extent the Act is unlawful, and therefore persons who are constituted heirs by the Act are given no share in agricultural holdings left by a deceased Hindu in a Governor's Province. Sub-section (1) of Section 3 as it originally stood was in these words:
When a Hindu governed by the Dayabagh School of Hindu Law dies intestate his property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property that separate property shall, subject to the provisions of Sub-section (3) devolve upon Ms widow along with his lineal descendants, if any, in like manner as it devolves upon a son;
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son; Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
Sub-section (3) states that any interest devolving on a Hindu widow under the provisions of the section shall be the limited interest known as a Hindu Women's estate, provided, of course, that she shall have the same right of claiming partition as a male owner. By Act 11 of 1938, para. l of Sub-section (1) was amended. When there is more than one widow, the widows together are now entitled, subject to the provisions of Sub-section (3) to the same share as a son. The amending Act also inserted a new section, Section 5, which states that for the purposes of the Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.
13. It is manifest that this Legislation has made the plaintiff an heir to the separate property left by the deceased in British India, exclusive of course, of the agricultural lands. It has, however, been contended on behalf of defendants 1 and 2 that the personal estate left by the testator was not separate property within the meaning of the Act because the testator was joint with his father and what he died possessed of was property which had come to him as the surviving member of the joint family. It is said that the Act only applies to property which a person has acquired otherwise than by survivorship. We are not prepared to interpret the Act in this restricted sense. It was placed on the statute book in order to give a widow and a predeceased son's widow a share in the estate of the deceased over which he had a disposing power. In our opinion the insertion of Section 5 puts this beyond doubt. The testator had full disposing power over all the properties of which he died possessed except with regard to the trust properties and Mr. T. R. Venkatarama Sastriar who has appeared for defendant l and whose arguments have been adopted by Mr. N. Raja-gopala Iyengar on behalf of defendant 2, has conceded this. We hold that the personal estate of the testator constituted his separate property within the meaning of the Act.
14. With regard to the trust properties the position is different. In no sense can they be regarded as the separate property of the testator. In Bhabatarini Debi v. Ashalata Debi the Privy Council held that Sebaiti is property, it is not a catena of successive life estates, but it is heritable-heritable property which in the first instance is vested in the founder. Sebaiti is trust property and the various trust properties held by the deceased constituted heritable estates because in respect of all of them succession to the trusteeships passed to his heirs. The plaintiff cannot claim to be an heir to the trust properties under her personal law. She can only come in if the statute allows her to do so and it does not. It only applies to property which belonged to deceased person in his own right. The Subordinate Judge came to the correct decision when he held that the only heirs of the testator, so far as the trust properties are concerned, are the testator's widows.
15. It has now to be considered whether the Hindu Women's Eights to Property Act, 1937, gives the plaintiff a share in the moveable properties which were held by the testator in foreign countries because here the lex loci rei sita does not apply. Succession is governed by the law of domicile of the deceased/Defendants 1 and 2 contend that the Hindu Women's Rights to Property Act does not give the plaintiff a share in the moveable properties held abroad, and we consider that the contention must be accepted. The presumption is that a Legislature deals with matters only within its own jurisdiction. This principle was fully discussed by Lord Esher M. R. in Colquhoun v. Heddon (1890) 25 Q.B.D. 129. The respondent in that case had insured his life with the New York Life Insurance Company, which had been incorporated by a Special Act of the Legislature of the State of New York. He claimed to be entitled to deduct the amount of the premium in calculating his income liable for English Income-tax. The surveyor of taxes contended that the deduction was only allowable by the Income-tax Act then in force in respect of insurances effected with companies registered in the United Kingdom, and this contention was upheld. Lord Esher said:
What is the rule of construction which ought to be applied to such an enactment, standing alone? It seems to me that, unless Parliament expressly declares otherwise in which case, even if it should go beyond its rights as regards the comity of nations, the Courts of this country must obey the enactment, the proper construction to be put on general words used in an English Act of Parliament is, that Parliament was dealing only with such persons or things as are within the general words and also within its proper jurisdiction and that we ought to assume that Parliament (unless it expressly declares otherwise) when it uses general words is only dealing with persons or things over which it has properly jurisdiction. It has been argued that that is so only when Parliament is regulating the person or thing which is mentioned in the general words. But it seems to me that our Parliament ought not to deal in any way, either by regulation or otherwise, directly or indirectly, with any foreign person or thing which is outside its jurisdiction, and, unless it does so in express terms so clear that their meaning is beyond doubt, the Courts ought always to construe general words as applying only to persons or things which will answer the description and which are also within the jurisdiction of Parliament.
In this case there is more than a presumption that in placing the Hindu Women's Eights to Property Act on the statute book the Indian Legislature intended to legislate only with regard to properties within its jurisdiction. Sub-section (2) of S. l, as it originally stood stated that the Act extended to the whole of British India, including British Baluchistan and the Sonthal Parganas, but excluding Burma. The Act received the assent of the Governor-General on 14th April 1937; but when it was passed by the Legislature Burma was a part of British India. The separation only took place on 1st April 1937. The very fact that Burma was excluded shows that the Legislature intended the Act to apply only to property within British India. The words 'including British Baluchistan and the Sonthal Parganas but excluding Burma' were taken out of the sub-section by the Repealing and amending Act of 1940 (Act 32 of 1940). By this time it was not necessary to have a provision expressly excluding Burma because Burma was no longer a part of British India. There is here very strong indication that the Act was never intended to apply to any kind of property situate outside British India.
16. It follows that in our judgment the plaintiff is entitled to a half share of the personal estate of the deceased lying within British India, exclusive of agricultural lands, but that she is not entitled to any share in the moveable properties outside British India. Whether she is entitled to any share in the immovable properties abroad will depend upon the result of the investigation to be held with regard to the laws of succession in the various foreign countries.
17. The last question relates to the rights to possession of the trust properties and this is the only question with which the executors are now concerned. They maintain that the will entitles them to remain in possession of the properties until an adopted son has attained the age of majority. We have already indicated that in no case had the testator the right to appoint his successor. Some of the trusts had been created by himself and others by his father, but in no instance was the holder of the office of trustee for the time being empowered to nominate his successor. In respect of some of the trusts the testator shared the duties of trustee with others. Three of the deeds of trust have been exhibited, and marked as Exs. 3, 4 and 5. Exhibit 3 is a declaration of trust signed by the testator on 23rd November 1924. He created himself the trustee for life and directed that his heirs and after their lives their heirs should be the trustees 'hereditarily'. Exhibit 4 is dated 31st July 1926. It would appear to apply to trusts created before the testator's time. It states that,
for the proper conduct of the above charities we shall during our lifetime be the trustees and then our heirs, and, after their lifetime their heirs shall be trustees, hereditarily and manage the same maintaining proper account therefor.
Exhibit 5 is a deed of a similar nature and contains the same provision.
18. As in England the law in this country is that where a trustee is the sole or surviving trustee the estate descends to his personal representative unless the deed of foundation otherwise provides. Therefore all the trusts of which the testator was the trustee devolved upon his personal representatives. The executors say that they are his personal representatives by reason of S, 211, Indian Succession Act, 1925, and this is true, but this does not mean that they are entitled in law to retain possession of the trust properties. These properties devolve on the testator's heirs, who are here his widows and the duty of the executors, had receivers not been appointed, would have been to deliver them to the widows. The testator had no power to direct that the executors should remain in possession until such time as his directions with regard to adoption were fulfilled. In Varada Narayana Iyengar v. Vengu Ammal See(38) 47 M.L.W. 217 this Court held that a widow could not be compelled to follow her husband's wishes in the matter of adopting a son, however strong the directions of her husband might have been and the could not be deprived of her widow's interest in his property because she might at some ... later stage decide to follow his directions. In this case there has been no adoption and for the time being the testator's directions in that respect must be ignored, even if they are all valid as to which we express no opinion.
19. We will now deal with the two civil revision petitions, C. R. P. No. 814 of 1941 has been filed by defendant 2. The will provided for the payment of the sum of Rs. 75,000 to each of the testator's daughters. In the books of the deceased the sum of Rs. 1004-1-0 stands to the credit of his deceased daughter by defendant 2, and the sum of Rs. 2300 to the credit of defendant 2 herself. Defendant 2 desired to file an additional written statement claiming that the Rs. 75,000, the Rs. 1004-1-0 and the Rs. 2300 should be paid over to her. The Subordinate Judge dismissed the application because he considered that it had been filed too late and the will itself was in dispute. All parties are now agreed that defendant 2 should have been allowed to file the additional written statement and that the question whether she is entitled to these sums shall be decided in the further proceedings which must take place before the final decree is passed. This is a very proper attitude and the petition will be allowed.
20. C.R.P. No. 1493 of 1941 has been filed by the executors. The Subordinate Judge allowed them their costs in both the administration suit and in the probate proceedings and directed that the costs should be paid out of the estate. The executors applied for further time in which to file their bills of costs and time was granted. They filed them in time, but notwithstanding his earlier order, the Subordinate Judge refused to allow these costs in the preliminary decree. Again all parties are agreed that this was an error and that the executors shall be allowed such costs as are found due to them on taxation. There will be an order accordingly.
21. The preliminary decree passed by the Subordinate Judge will be amended in accordance with the directions given in this judgment and the administration of the estate by the Court will be continued on the lines indicated. The costs of all parties in the appeals and the civil revision petitions both here and below will be paid out of the estate. There will be a certificate for two counsel where two counsel have appeared. A certificate will issue under Section 205, Government of India Act, 1935.