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1949 Supreme(SC) 18
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PORTER, LORD DU PARCQ, SIR MADHAVAN NAIR AND SIR JOHN BEAUMONT.
ANIRUDDHA MITRA - Appellant
Versus
ADMINISTRATOR-GENERAL OF BENGAL - Respondents
On Appeal from the High Court at Calcutta.
Decided On : April 5, 1949.
Solicitors for appellant: T. L. Wilson & Co.
Solicitors for second respondent: Coward, Chance & Co.
Solicitors for first respondent, the Administrator-General of Bengal: Hy. S. L. Polak & Co.
A bequest to a class of unborn persons vests upon birth or adoption; postponement of possession is not a contingency. Under Section 115 of the Indian Succession Act, a class bequest is void only for members violating perpetuity rules, not the entire class.
Headnote:(A) Indian Succession Act, 1925 - Sections 87, 113, 114, 115 - Hindu Disposition of Property Act, 1916 - Bequest to unborn persons - Rule against perpetuities - Vesting of interest - Bequest to a class - Postponement of possession vs. Contingency - A bequest to the sons of a son, whether natural born or adopted, vests upon birth or adoption; the requirement to reach a certain age for possession is a postponement of enjoyment and not a contingency affecting vesting. (Paras 20-22)
(B) Indian Succession Act, 1925 - Section 113 - Bequest to a person not in existence at the time of testator's death - If the bequest comprises the whole of the remaining interest of the testator in the property, it is not void under this section. (Para 23)
(C) Indian Succession Act, 1925 - Section 115 - Bequest to a class - Where a bequest to a class is inoperative with regard to some members by reason of Sections 113 and 114, it is void only in regard to those persons and not the whole class - The application of this section is not limited to members of a class in existence at the date of the testator's death - Illustrations to a section should be used for construction but cannot restrict the plain meaning of the statutory text. (Paras 25-28)
Facts of the case:
A testator executed a will providing for life interests and maintenance for his wife, son, and daughter-in-law. The residuary estate was bequeathed to the legitimate sons of the testator's son, whether natural born or adopted, with possession deferred until the youngest son attained twenty-one years. The testator's son subsequently adopted a son. The son later challenged the validity of the residuary bequest, arguing it was void under the rules against perpetuities and bequests to unborn persons under the Indian Succession Act.
Findings of Court:
The residuary estate vested in the legatees immediately upon birth or adoption. The age requirement for possession was a mere postponement of enjoyment and not a contingency. The bequest was valid under Section 113 as it covered the entire remaining interest of the testator. Under Section 115, even if the bequest were void for some potential future members of the class, it remained valid for those whose interests vested within the statutory period.
Issues: Whether the residuary bequest to the sons of the testator's son was contingent upon attaining twenty-one years; whether the bequest violated the rule against perpetuities under Section 114; and whether Section 115 of the Indian Succession Act saves a bequest to a class if it is void for some members.
Ratio Decidendi: The court held that the phrase "shall become entitled to" indicates a transfer of ownership upon birth or adoption. Postponement of possession does not prevent vesting. Furthermore, Section 115 ensures that a bequest to a class is not wholly void if it is inoperative only for some members; this protection extends to members born after the testator's death, provided their interest vests within the legal limit. Illustrations to the Act should be used to understand the meaning but cannot curtail rights conferred by the plain words of the section.
Result: Appeal dismissed.
Legal Category Hierarchy
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succession law
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testamentary succession
- will construction
- rule against perpetuities
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testamentary succession
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family law
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hindu law
- adoption
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hindu law
Judgement
Appeal (No. 69 of 1947) from a judgment and decree of the High Court in its civil appellate jurisdiction (April 5, 1946) which affirmed a judgment and decree of that court in its original civil jurisdiction (March 28, 1945).
The following facts and statutory provisions are taken from the judgment of the Judicial Committee. This appeal arose out of a suit by way of originating summons instituted by the appellant for the construction of the will of his father, the late Rai Bihari Lal Mitra. The facts were not in dispute. The testator was a wealthy Hindu governed by the Dayabhaga School of Hindu law. He died on February 7, 1933, leaving him surviving his widow, Sreemutty Nayani Mitra, his only son, the appellant Aniruddha Mitra, and the wife of the appellant, Sreemutty Nivanani Mitra. At the time of the testators death the appellant and his wife had no children. On July 4, 1934, the appellant took the second respondent, Arabinda Mitra, in adoption as his son. He was born on October 19, 1932. On July 5, 1931, the testator executed his last will whereby he appointed the first respondent, the Administrator-General of Bengal, his sole executor with liberty to make over the property to the official trustee for carrying out the trusts. On August 24, 1936, the appellant was adjudicated an insolvent and his estate vested in the third respondent. On May 7, 1943, he was granted a conditional discharge.
The question for determination in the appeal was whether the residuary bequest in cl. 9 of the will in favour of " the " legitimate son or sons of the testators son Aniruddha Mitra, " whether natural born or validly adopted " was, as held by both courts in India (Das J. in the trial court, and Gentle and Ormond JJ. in the appellate court) valid, or whether, as contended by the appellant, it was invalid by reason of the provisions of ss. 113 and 114 of the Indian Succession Act, and the appellant was entitled to the property as on an intestacy. The relevant provisions of the testators will were as follows —
* * * *
" 5. I will and direct that after my death my wife Sreemutty " Nayani Mitra, my son Aniruddha Mitra and his wife shall " be entitled to reside for the respective terms of their natural " lives in my family dwelling house and use the furniture " therein, but they shall not be at liberty to remove or dispose of the said furniture in any way.
* * * *
" 7. I further will and direct that my executor or trustee " shall pay the sum of Rupees Seven hundred per month " to my wife Sreemutty Nayani Mitra, the sum of Rupees " Seven hundred per month to my son Aniruddha Mitra, " and the sum of Rupees Seven hundred per month to " Sreemutty Nivanani Mitra the wife of my son Aniruddha " Mitra for their maintenance respectively during the respective " terms of their natural lives. In the event of the death of “any one of the said three persons the monthly allowance” so payable to the person so dying shall be paid to the two “survivors in equal shares for life. On the death of one " of such two survivors, the last survivor of the said three " persons shall be paid the said monthly allowances payable " as aforesaid to the two that are dead in addition to his " or her own monthly allowance of Rupees seven hundred.
"8. I further will and direct that my executor and trustee " shall pay the sum of Rupees four thousand per month out "of the income of my estate to the University of Calcutta " for the advancement of female education amongst Hindu " females of Bengal.
" 9. I further will and direct that the legitimate son or sons " of my son Aniruddha Mitra, whether natural born or validly " adopted, shall become entitled to all the rest and residue of my " property. If there is only one son of my son such residue shall " be made over to such son of my son on his completing the " age of twenty-one years and if there are more sons of my " son than one then to such sons of my son Aniruddha Mitra " in equal shares on the youngest of the said sons comp
