Judgment

SHAH, J. : Chockalingam Chettiar and his son Annamalai were members of a Hindu joint family. On March 28, l939 the joint family status was severed. On February 2, 1943, Chockalingam executed a will devising the property which fell to his share, in favour of his two grandsons-Narayanan and Viswanathan and of other grandsons that may be born of his son Annamalai. The relevant provisions of the will were these:

"After my life time, the minor sons of my divided son the aforesaid Annamalai Chettiar, viz., Narayanan and Viswanathan and the male children that may be born "hereafter to the aforesaid Annamalai Chettiar shall take and enjoy in equal shares and with absolute rights all assets and liabilities in respect of immovable and movable properties * * I hereby appoint my divided son S. N. A. S. Annamalai Chettiar, * * * and his wife Meenakshi Achi, * * as executirs. Therefore they shall after my litetime manage and augment all my immovable and movable properties and firms, which are mentioned above, in their capacity as guardians and executors of the aforesaid minors, and when the aforesaid minors attain majority deliver the same to them".

After the death of Chockalingam on February 7, 1943, Meenakshi gave birth to two sons: Chockalingam on August 11, 1946 and Ramaswami on March 23, l948.

2. In the assessment year 1951-52 the Income-tax Officer assessed the income of the property devised under the will of Chockalingam Chettiar on the footing that Narayanan and Viswanathan who were in existence at the time of his death were each entitled to a moiety of the estate. Similar orders of assessment were made for the years 1952-53, 1953-54 and 1956-57. The Appellate Assistant Commissioner confirmed the orders of the Income-tax Officer, and appeals to the Income-tax Tribunal failed.

3. The Tribunal referred to the High Court of Judicature at Madras, the following question under S. 66 (1) of the Indian Income-tax Act:

"Whether the assessment on Viswanathan and Narayanan on a half share of the income of the estate of S.N.A.S. Chockalingam Chettiar is valid on a proper construction of the will, dated 2nd February 1943 ?"

The High Court recorded an affirmative answer. They observed:

"We are clearly of opinion that though the testator made a bequest to his grand children by Annamalai and that such a bequest was to a class of heirs, there being no provision in the will express or implied indicating of period of "distribution later than the death of the testator and there being no deferring of possession beyond the death, the date of ascertainment of the class must in view of S. 111 of the Indian Succession Act be taken to be the date when the testator died."

With special leave, Narayanan and Viswanathan have appealed to this Court.

4. Ordinarily the will of a testator speaks on the date of his death. If a bequest is made to a class of persons, then the thing bequeathed by the operation of Section 111 of the Indian Succession Act, l925 goes only to persons belonging to that class as are alive at the testators death. But to this rule there is an exception that if property is bequeathed to a class of persons and such class is described as standing in a particular degree of relationship to a specified individual and the possession of the legatees is deferred until some time after the death of the testator because of a prior bequest or otherwise, the legacy shall be taken by such persons belonging to the class as are alive at the date to which the possession is deferred and to the representatives of any of them who have died since the death of the testator.

5. There is no doubt that under the will there is a bequest in favour of a class of persons who are described as standing in a particular degree of relationship to the testator, and the sole question which falls to be determined is whether possession of the legatees to whom the legacy is bequeathed is deferred until a time later than the death of the testator. If possession of the legatees is deferr