Judgement

Appeal from a judgment and decree of the High Court (December 9, 1910) affirming a judgment and decree of the Subordinate Judge of Thana (April 2, 1910).

The respondents (plaintiffs) were the administrators of the estate of Pallonji Dadabhoy, deceased, and the deceaseds heirs according to the Parsi Intestate Succession Act, 1865. The appellants (defendants) were the brother of Pallonji Dadabhoy and the formers son. The claim in the suit was (inter alia) that the rights and interests of the parties in the estate might be ascertained and partitioned.

The question for determination depended upon the construction and effect of the will of one Dadabhoy Byramji, a Parsi and the father of Pallonji Dadabhoy and of the first appellant.

The material provisions of the will, which was dated August 6, 1866, are set out in the judgment of their Lordships and appear shortly from the head-note.

The testator died on August 21, 1866, and the entire estate had since been in the possession and under the management of the first appellant as provided by the will. The appellants pleaded that Pallonji, the deceased, had in his lifetime taken Byramji, the second appellant, as his palak, this adoption being confirmed according to the customs of Parsis after his death, and that as the testators palak the second appellant was entitled under the will to a moiety of the testators estate.

The Subordinate Judge held that Pallonji and Jehangir each took absolute estates in one half of the estate of the testator, that there were no words of gift in favour of a palak, and that, if there were, the gift was void under s. 111 of the Indian Succession Act, 1865. He also held that the deceased had not adopted Byramji as his palak during his lifetime, and that among Parsis adoptions of this kind were obsolete, the only practice at the present time being the appointment of a palak on the third day after death for purely religious purposes; he also held that the Parsi Intestate Succession Act, 1865, did not recognize an adopted son as heir. He accordingly made a preliminary decree under Order xx., r. 13, of the Code of Civil Procedure, 1908.

The High Court (Rao and Batchelor JJ.) affirmed this decision. Rao J. was of opinion that the effect of the will was to make the absolute gift to Pallonji defeasible in the event of his having a son and that son attaining his majority, but as that event had not occurred the absolute gift became indefeasible. The learned judge rejected the contention that there was an executory devise in favour of Byramji as palak which took effect upon Pallonjis death, holding that there were in the will no words of gift in his favour, either as a persona designata or as a palak son. He held further that even assuming that there was an executory bequest to the second appellant as palak, it would be void under s. 111 of the Indian Succession Act, 1865. Upon this point he said "The bequest to the palak son is to take effect upon the happening of an uncertain event, namely, if no son is born to Pallonji. No time is mentioned in the will for the occurrence of this event. The bequest would therefore be void unless this event happened before the period of the payment or distribution of the fund bequeathed. So long as Pallonji was alive there was a possibility of his having male issue, and until his death there was no chance of Byramji becoming a palak son. It follows therefore that the event on the happening of which the legacy to Byramji was to take effect did not occur before the testators death, which would ordinarily be the period of payment on distribution of the fund bequeathed." The learned judge rejected the contention that the period of distribution in the present case was either the time when the natural born son of Pallonji came of age, or the death of Pallonji, and held that it was the testators death; Batchelor J. was of the same opinion for the same reasons.

De Gruyther, K.C., and Horace Miller, for the appellants. Upon the true c