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1927 Supreme(SC) 92
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD CARSON, LORD DARLING, LORD WARRINGTON OF CLYFFE, AND SIR LANCELOT SANDERSON.
MADHAVRAO GANPATRAO DESAI - Appellant
Versus
BALABHAI RAGHUNATH AGASKAR (SINCE DECEASED), - Respondents
On Appeal from the High Court at Bombay.
Decided On : November 29, 1927.
Solicitors for appellants : T. L. Wilson & Co.
Solicitors for respondents Nos. 1 to 7: Barrow, Rogers & Nevill.
In Indian settlements, technical English legal terms are disregarded unless specified. A gift to "male heirs" is construed as a gift to persons fitting that description at the time of the life tenant's death, not as a male entail, provided the beneficiaries existed at the deed's execution.
Headnote:(A) Hindu Law - Interpretation of Trust Deeds - Use of technical English legal terms in Indian settlements - Technical meanings of words in English law, such as "right heirs" or the rule in Shelleys Case, must be disregarded in the construction of a settlement in India unless the deed provides a special reason to the contrary.
(B) Trust - Gift to "male heirs" - Words of description vs. words of inheritance - Where a gift is made to "male heirs" after a life interest, such words are to be construed as words of description of the persons who answer that description at the time of the life tenant's death, rather than words of inheritance creating a descendible estate. If the beneficiaries were alive at the date of the deed, the gift is valid and does not create an estate unknown to Hindu law.
(C) Trust - Gift of income - Absolute gift - A gift of income that is unlimited in point of time and contains no restrictions or limitations beyond the actual beneficiaries is an absolute gift of the corpus.
Facts of the case:
A settlor executed a deed of trust providing that a portion of the income be paid to his daughter for her life, and after her death, to her male heirs share and share alike. The daughter died leaving six sons, all of whom were alive at the date of the settlement. The heirs of the settlor contended that the gift to the male heirs was void as it excluded females, attempted to create an estate unknown to Hindu law, and was intended to create a perpetuity.
Findings of Court:
The gift to the male heirs was an independent gift to persons fitting the description at the time of the daughter's death, not a gift by inheritance. Since the beneficiaries were alive at the date of the deed, the gift is valid.
Issues: Whether the limitation in favour of "male heirs" was contrary to Hindu law and void for attempting to create a male entail or a perpetuity, and whether the gift of income constituted an absolute gift of the corpus.
Ratio Decidendi: The court held that technical English legal terms should not be applied to Indian settlements. The phrase "male heirs" served as a description of the beneficiaries and not as words of inheritance. As the beneficiaries existed at the time of the deed's execution, the gift did not violate the rule against perpetuities. Furthermore, a gift of income without time limits or further restrictions carries the whole estate.
Result: Appeal allowed.
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
