Judgement

Appeal (No. 90 of 1926) from a decree of the High Court in its appellate jurisdiction (April 15, 1925),

3 Law Rep. 55 Ind. App. 74 ( 1927- 1928) Madhavrao Ganpatrao Desai V. Balabhai Raghunath Agaskar 264

which so far as material to the present appeal reversed a decree of that Court in its original jurisdiction.

The appeal related to a deed of trust executed on May 1, 1889, by a Hindu of Bombay who died in 1894.

The respondents 1 to 4, some of the heirs of the settlor, instituted an originating summons in the High Court against the appellants, the three surviving sons of Krishnabai, the daughter of the settlor. Respondents 5, 6 and 7 were also heirs of the settlor; respondents 8, 9 and 10 were the trustees.

The originating summons framed eight questions as to the effect of the deed, but the only question material upon the present appeal was as to the gift to the male heirs of Krishnabai after her death. The material provisions of the deed appear from the judgment of the Judicial Committee.

The originating summons was heard by Mulla J., who held that the male heirs of Krishnabai were entitled absolutely to the one-quarter each assigned to them by the deed.

Upon appeal the decision was reversed. The learned judges (Macleod C.J. and Coyajee J.) held that the gift to the male heirs of Krishnabai was void (1.) as excluding females, and so attempting to create an estate unknown to Hindu law, (2.) as a gift to a class some of whom might not have been born at the date of the deed, (3.) as being made with the object of creating a perpetuity.

1927. Nov. 8. Sir George Lowndes K.C. and E. B. Raikes for the appellants. The words of the deed should not be construed as though they were " to Krishnabai and her male heirs." It is conceded that upon that construction the gift would be invalid under Tagore v. Tagore (( 1872) L. R. I. A. Supp. 47, 64.) and Tarakeshwar Roy v. Shoshi Shikareswar. (( 1883) L..R. 10 I. A. 51.) Upon the true construction the words " male heirs " are not words of inheritance but of description ; the gift is to such persons who at the death of Krishnabai shall be her male heirs. As all her six sons were alive at the date of the deed the gift to all is valid. The fact that the gift would be bad to after-born children of Krishnabai does not make the gift bad as to the whole class Bhagabati Burmanya v. Kali Charan Singh. (( 1911) L. R. 38 I. A. 54.) The con struction contended for is supported by Bai Motivahoo v. Bai Mamoobai. (( 1897) L. R. 24 I. A. 93.) Although the gift was in terms of the income it was an absolute gift of the corpus, as there was nothing to limit it In re LHerminier. ([ 1894] 1 Ch. 675, 676.) Upjohn K.C. and Hyam for respondents Nos. 1 to 7. If the will is read as a whole, the intention of the settlor was to create a perpetual entail male. The words " male heirs " in their ordinary significance are words of inheritance ; there is nothing in the deed to displace that meaning. Even if the words are intended as words of description, the intention was to give the heirs an estate descendible in quality. In either case the settlement was invalid under the Tagore case (L. R. I.

A. Supp.47, 64.) as an attempt to create an estate descendible in the male line only, which is an estate unknown to Hindu law. Further the provisions were invalid for uncertainty. Krishnabai being a woman, the identity of her heirs depended upon the nature of the property see Maynes Hindu Law, para. 666. Heirship can be ascertained only in relation to property, but Krishnabai took no property, only a life interest. In any case the gift was not of the income generally but of the balance of the income after deducting management expenses, consequently the gift was for life only Johnson v. Johnson. (( 1887) 35 Ch. D. 345.)

Sir George Lowndes K.C. in reply. A Hindu woman takes generally subject to specified exceptions see Manu, ch. 9, v. 192. Having regard to the decision in Mithihai v. Limji Nowroji Banaji (( 1881) I.

L. R. 6 B.