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1944 Supreme(SC) 4
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT MAUGHAM, LORD MACMILLAN AND LORD WRIGHT.
SOPHER - Appellant
Versus
ADMINISTRATOR-GENERAL OF BENGAL - Respondents
On appeal from the High Court of Calcutta.
Decided On : Mar. 6. 1944.
Solicitors for appellants : Giles & Hunter.
Solicitors for first respondent: Morgan, Price, Marley & Rugg.
A bequest to an unborn person subject to a prior bequest is void unless it comprises the testator's entire remaining interest. Interests subject to contingencies, such as surviving a parent or attaining a specific age, are not absolutely vested and thus fail this requirement under Section 113.
Headnote:(A) Indian Succession Act, 1925 - Sections 113 and 116 - Bequest to a person not in existence at the time of the testator's death - Validity of bequests to unborn grandchildren - For a bequest to be valid under Section 113, it must comprise the whole of the remaining interest of the testator in the thing bequeathed - If the interest is subject to contingencies, such as surviving a parent or attaining a specific age, it does not constitute the whole remaining interest and is therefore void.
(B) Indian Succession Act, 1925 - Section 120 - Contingent legacies - Exception regarding attaining a particular age - Where a legacy is subject to a double contingency, such as the requirement to survive a named person and also attain a particular age, the exception to Section 120 does not apply, and the interest remains contingent.
(C) Indian Succession Act, 1925 - Section 116 - Effect of void bequests - Where a prior bequest to a person or class is void under Section 113, any subsequent bequest in the same will intended to take effect after or upon the failure of such prior bequest is also void.
Facts of the case:
A testator's will provided for an annuity to his widow and the balance of income to his children. If a child predeceased the testator or the widow, their share of income was to go to their children (grandchildren). After the widow's death, the corpus was to be divided among children, and upon their death, the shares were to be held for their children (grandchildren) until they attained eighteen years, at which point the grandchildren would take the corpus and income absolutely. The sons of the testator challenged the validity of the bequests to the unborn grandchildren under the Indian Succession Act.
Findings of Court:
The bequests of income to unborn grandchildren during the widow's lifetime were contingent on surviving the parent and did not exhaust the capital. The bequests of corpus were subject to double contingencies: surviving the parent and attaining the age of eighteen. Such contingent interests do not comprise the whole of the remaining interest of the testator.
Issues: Whether the bequests in favor of unborn grandchildren were void under Sections 113 and 116 of the Indian Succession Act, 1925, on the ground that they did not comprise the whole of the remaining interest of the testator.
Ratio Decidendi: Under Section 113, a bequest to a person not in existence at the time of death is void unless it comprises the whole of the remaining interest. If a bequest is subject to contingencies—such as the requirement to survive a parent or attain a certain age—the beneficiary does not receive the interest in the same unfettered form as the testator held it. The exception in Section 120 regarding attaining a particular age does not apply when there is an additional contingency, such as surviving a named person. Consequently, the bequests to unborn grandchildren were void, and by extension, subsequent bequests to the same class were void under Section 116.
Result: Decrees of the courts below set aside; questions answered in the affirmative.
Legal Category Hierarchy
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wills and succession
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void bequests
- bequests to unborn persons
- contingent bequests
- failure of prior bequests
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void bequests
Judgement
Appeal (No. 19 of 1943) from a judgment and decree of the High Court in its civil appellate jurisdiction (January 8, 1942), affirming a judgment and decree of that court in its ordinary original civil jurisdiction (May 23, 1941).
The question for determination in this appeal was whether, as held by both courts below, the bequests under the will of Edward Abraham Sopher hereinafter mentioned in favour of his unborn grandchildren were valid, or whether, as the appellants contended, they were invalid by reason of the provisions of ss. 113 and 116 of the Indian Succession Act, 1925. The following facts are taken substantially from the judgment of the Judicial Committee The questions raised in this appeal related to the construction of the will of Edward Abraham Sopher, a resident in Calcutta, domiciled in British India, who had carried on the business of a stock and exchange broker in that country. His will was dated April 16, 1926. He died on February 24, 1939, leaving him surviving a widow, the second respondent, and two sons, the appellants. The sons were of age at the date of his death, but unmarried. He had no children who predeceased him. On May 1, 1939, probate of the will was granted to the first respondent, the Administrator-General of Bengal, the sole executor and trustee of the will. By his will the testator, after certain bequests of the goodwill of his business and of other property not material to the present appeal, proceeded to dispose of his residuary estate by some very elaborate and somewhat confusing clauses. After the usual trusts for conversion, the trustee was directed to stand possessed of the residuary estate upon trust out of the income to pay the testators widow a monthly sum of Rs. 1,500 for her own use and benefit during the term of her natural life. As to the balance of the income, the trustee was directed to hold and stand possessed of the same " Upon " trust during the life-time of my said wife to pay the balance " of the net income thereof (after payment of the said monthly " allowance of Rupees one thousand and five hundred to my " said wife) to my children, if more than one, in shares such " that each male child shall take double the share of each " female child, and if there shall be only one such child the " whole of such balance of income shall be paid to such one " child. And if any child of me shall die in my life-time or " in the life-time of my said wife leaving children or a child " him or her surviving the share of the said balance of income " which would have been payable to the child so dying had " he or she been living, shall during the life-time of my said " wife be paid to his of her children, if more than one, in "shares such that each male child take double the share of " each female child, and if there shall be only one such child " the whole of such share of the said balance of income shall " be paid to such one child. And if any child of me shall die in the life-time of my said wife without leaving any children " or child him or her surviving the share of the said balance " of income which would have been payable to the child so " dying had he or she been living shall during the life-time “of my said wife be paid to such of my children as shall " survive the child so dying and the said child or children of " such of my children as shall have predeceased the child so " dying in shares such that males shall in all cases take double " the shares of females and the child or children of any such " predeceased child shall take only the share which his her or " their deceased parent would have taken, if living, and if " there shall be only one child or one grandchild of me who " shall be entitled to the benefit of this provision, then the “whole of such balance of income shall during the life-time " of my said wife be paid to such one child or grandchild as " the case may be."
The testator had been dealing in that clause with an annuity to the widow and the surplus income wh
