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1921 Supreme(SC) 75
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD ATKINSON, AND LORD CARSON.
KHAW SIM TEK - Appellant
Versus
CHUAH HOOI GNOH NEOH - Respondents
On Appeal from the Supreme Court of the Straits Settlements.
Decided On : October 21, 1921.
Solicitors for appellant:Nisbet, Drew & Loughborough. Solicitors for respondents: Rawle, Johnstone & Co.
The limitation period for claiming a distributive share of an estate runs from when the share becomes payable, not from a court's declaration of intestacy. A "specific purpose" trust exception applies only to explicitly defined purposes, not to interests arising because a trust is void.
Headnote:(A) Limitation of Suits Ordinance, 1896 - Section 4 and Schedule II, Article 99 - Suit for distributive share of an estate - Limitation period of twelve years from the time the share becomes payable or deliverable - The limitation period does not begin to run from the date a competent court declares a trust void or an intestacy exists - If an intestacy exists, it exists from the outset, and the distributive share is claimable from the time the intestacy arose, not from the date of a judicial declaration. (Paras 10-11)
(B) Limitation of Suits Ordinance, 1896 - Section 10 - Trust for a specific purpose - Exception to limitation periods applies only where property is vested in trust for a purpose that is either actually and specifically defined in the terms of the will or settlement, or a purpose which, from the specified terms, can be certainly affirmed - A situation where an interest arises only upon the hypothesis that the trust provisions are void does not constitute property vested in trust for a "specific purpose" - The provision is intended for the purpose of restoring property to a specified trust, not for taking it away upon the trust being void. (Paras 12-14)
(C) Interpretation of Will - Ancestor Worship - Provisions for sacrificial rites intended for male issue - In the context of ancestor worship and succession, daughters and granddaughters are excluded from performing such rites and are therefore not intended beneficiaries of gifts designated for such purposes. (Paras 16-17)
Facts of the case:
A suit was instituted by the legal representative of a granddaughter of a testator to obtain a declaration that a gift for yearly and other sacrifices contained in the will was void and that the property should be distributed among the next of kin as an intestacy. The testator had died in 1882, and the will provided that the residue of the estate remain undistributed for sixteen years. The suit was brought in 1916, well after the twelve-year limitation period prescribed by the relevant ordinance for claiming a distributive share of an estate had elapsed, regardless of whether the period was calculated from the date of death, the end of the sixteen-year period, or the date the estate was ready for division.
Findings of Court:
The court found that the suit was barred by the limitation ordinance. The trial judge's view that time ran from the date of a court's declaration was erroneous. Furthermore, the exception for trusts for a "specific purpose" did not apply because the claimants' interest was contingent upon the trust being void, rather than being a specifically defined purpose within the trust itself. The alternative claim that the respondent was a beneficiary under a specific clause was rejected as the rites involved were exclusively for male descendants.
Issues: Whether the suit was barred by the twelve-year limitation period; whether the limitation period commenced only upon a judicial declaration of intestacy; and whether the property was held for a "specific purpose" under the ordinance to exempt the suit from limitation.
Ratio Decidendi: The court ruled that the limitation period for claiming a distributive share runs from the time the share becomes payable or deliverable, and not from the date of a court's decree. A "specific purpose" trust under the law requires a purpose explicitly defined or certainly affirmed in the instrument; an interest arising from the failure of a trust does not qualify for this exception.
Result: Appeal allowed; suit dismissed.
Legal Category Hierarchy
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succession
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wills and testamentary dispositions
- void gifts
- ancestral worship and succession
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wills and testamentary dispositions
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practice and procedure
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limitation of actions
- statutory limitation periods
- trust exceptions
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limitation of actions
Judgement
Appeal from a judgment (August 12, 1919) of the Supreme Court of the Straits Settlements, Penang, affirming a judgment of Woodward J.
The suit was brought by the respondent on February 25, 1916, in the Supreme Court and related to the estate of one Khaw Soo Cheang, a Chinese resident) in the Straits Settlements who died in 1882 ; the executors of the will, represented by the appellants, were defendants. The respondent, one of the next of kin, by her plaint claimed a declaration that certain trusts, dispositions, and directions contained in the will were void, and that the part of the estate thereto allocated should be distributed as on an intestacy.
The facts, including the material terms of the will, also the terms of the Limitation of Suits Ordinance
(VI. of 1896), upon which the decision of the appeal depended, appear from the judgment of their Lordships.
The trial judge (Woodward J.) held that the gift to the " kong lin " was void as a perpetuity, that there was not an absolute gift charged with an invalid condition, and that there was an intestacy as to the " kong lin." He held that the suit was not barred by the Ordinance, because in his view time did not begin to run until the gift had been declared void by a competent Court.
The decision was affirmed on appeal. Ebden J. held that time did not begin to run until an intestacy had been declared by a decree not subject to appeal. Sproule J. dissented from that view, but held nevertheless that the suit was not barred. In his view s. 10 applied. Maltby J. in substance agreed with Sproule J.
1921. Oct. 20. Upjohn K.C., F. B. Fuller, and W. E. Cleaver for the appellants. The suit was barred by the Limitation of Suits Ordinance, 1896 , Sch. II., art. 99, whether time ran from the death of the testator, from 1898, or from the time when the estate was ready for division. The view that time did not begin to run until a Court had set aside the trust is erroneous. The word "payable" in art. 99 is not confined to payment in the course of administration. Sect. 10 of the Ordinance does not apply. That section is in the same terms as s. 10 of the Indian Limitations Act (IX. of 1871), which it has rightly been held in India applied only to suits to enforce a trust specifically created Balwant Rao v. Puran Mai (( 1883) I. L. R. 6 All. 1.); Kherodomoney Dossee v. Durgamoney Dossee . (( 1878) I. L. R. 4 Cal. 435.) An executor is not a trustee for the next of kin In re Lacy . ([ 1899] 2 Ch. 149.)
Disturnal K.C. and Gavin Simonds for the respondent. The suit was not barred by the Ordinance. If, contrary to the respondents contention, art. 99 applies, the period of twelve years did not begin to run according to the terms of the article until the distributive share was "payable." The executors were bound by the directions of the will until the trust was set aside by a competent Court. Further, until the residue was ascertained no distributive share was payable Barnardos Homes v. Special Income Tax Commissioners ([ 1921] 2 A. C. 1.) ; In re Johnson . (( 1885) 29 Ch. D. 964.) No residue was ascertained until May, 1904, when the beneficiaries entered into a deed defining their respective rights under the trust. But having regard to s. 10, the suit was not barred by any article of the schedule. The trust being void the executors were vested with the share of the residuary estate as trustees for the next of kin ; that was a specific purpose within the meaning of s. 10 Salter v. Cavanagh (1 Dr. & Wal. 668.); Patrick v. Simpson . (( 1889) 24 Q. B. D. 128.)
Upjohn K.C. in reply referred to Cooper v. Cooper . (( 1874) L. R. 7 H. L. 53, 64, 65.)
Oct. 21. The judgment of their Lordships was delivered by
LORD BUCKMASTER. The real question that arises on this appeal is whether the respondent is disentitled by lapse of time from maintaining the proceedings which she instituted on February 25, 1916, for the purpose of obtaining (1.) a declaration as to the effect of a gift for yearly and other sa
