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1923 Supreme(SC) 22
Privy Council
Ameer Ali, Parmoor , Shaw, Justice Viscount Haldane, JJ.
Putlibai and others -Appellant
Versus
Sorabji Naoroji Gamdia and others -Resopndent
P. C. A. No. 9 of 1922
Decided On : 15-05-1923
Kenneth Brown, T. L. Wilson and Co., Mac Nair, De Gruy ther , B.J. Bai, J. Wood, J. Simon, E. B. Raikes, Ashwist-Morris Crips and Co., Baker, W. H. Upjohn
Bequests to unborn persons are void under Section 100 of the Indian Succession Act if they do not comprise the testator's entire remaining interest. Forfeiture clauses and reserved contingent rights prevent such bequests from being absolute, rendering the limitations void and granting primary beneficiaries an absolute interest.
Headnote:(A) Indian Succession Act - Sections 100, 101 and 102 - Bequest to persons not in existence at the time of testator's death - Validity of bequests - Where a bequest is made to a person not in existence at the time of the testator's death, it is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed - If a will creates life interests and subsequent contingent interests subject to forfeiture clauses (such as for alienation or change of faith), such bequests fail to comprise the whole of the remaining interest and are therefore void - In such instances, the primary beneficiaries are entitled to an absolute interest in the residue, and any direction to postpone the division of the estate becomes inoperative.
(B) Construction of Will - Right of residence - Where a will grants a right of residence to sons and their respective families, such right is construed to include the right to occupy the premises with wives, children, and necessary servants - The term "strictly personal" in the context of a prohibition against alienation does not exclude the natural right of a head of household to reside with his family.
Facts of the case:
A testator bequeathed residential properties to his daughter and sons, granting the sons and their families a right of residence. The will provided for the division of the estate into shares for the sons after a period of ten years or the death of the last surviving son, creating life interests and granting powers of appointment to the sons for their descendants. The will also contained forfeiture clauses if a beneficiary alienated their interest or ceased to profess a specific faith.
Findings of Court:
The court found that the right of residence granted to the sons extended to their wives and families. Regarding the distribution of the estate, the court held that the limitations and powers of appointment created in the will contravened the statutory rules against delaying vesting and the requirement that bequests to unborn persons must comprise the whole remaining interest of the testator.
Issues: Whether the right of residence and maintenance extended to the families of the sons, and whether the limitations on the residue of the estate were valid under the Indian Succession Act, thereby entitling the sons to an immediate division of the property.
Ratio Decidendi: The court reasoned that the forfeiture clauses and the reservation of contingent rights meant that the bequests to unborn beneficiaries did not dispose of the entire remaining interest of the testator, violating Section 100 of the Indian Succession Act. Consequently, the limitations were void, and the sons' interests became absolute and immediate, overriding any direction to postpone division.
Result: Decree varied.
Legal Category Hierarchy
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wills and succession
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construction of wills
- residential rights
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indian succession act
- vesting of bequests
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construction of wills
Viscount Haldane:-
This is an appeal from a decree, made on the 8th April, 1920, of the High Court at Bombay, in its appellate capacity, affirming with variations a decree, dated the 14th March, 1919, of Macleod, J., the Judge of first ins tance. The questions decided arose in a suit for the construction and administration of the trusts of the will of the late Naoroji Jehangir Gamadia, who left a large estate, mainly in Bombay.
The chief questions which their Lord ships have to decide are whether certain provisions made by the will for persons other than the testator's sons and daugh ters, relating to residential property, are valid and whether other and more gene ral dispositions also made by the will can be treated as effective.
The Courts below have decided that all the dispositions referred to, with certain limited exceptions, are invalid, and that consequently the property is now present ly divisible between the testator's sons equally under a gift of the residuary estate but subject for a limited period to a right of maintenance out of the income of such persons as during that period may be entitled to the benefit of such of the excepted dispositions of residential pro perty as have been found to be valid.
The suit was originally brought by the first respondent against the respondents Nos. 4, 2, 3, 5 and 6, and the present ap pellant. The respondents Nos. 7, 8 and 9 were added as defendants by order. The respondent No. 10 is a child of the first appellant, and was added as a defend ant during the proceedings in the appel late Court below.
The first appellant is the daughter-in-law, and the second and third appellants are sons of the testator, who left, in addi tion, three other sons and a daughter, who are respondents. The second and third appellants were defendants to the suit, and by an order in Council of the 27th March, 1923, were ordered to be added as co-appellants.
By the will the testator, after declar ing certain charitable trusts of a house in Bombay, as to which no question now arises, disposed of by Clause 9 other houses in Bombay describ ed as the Mahalaxmi Bungalow and 56 Homjee Street, along with certain furni ture and other effects :-
"Upon trust to permit my daughter during her life and until her death or marriage whichever shall first happen, and also all my sons and also their res pective families during as well as after the respective lifetimes of such respec tive sons, including the widows of any of my male lineal descendants to occupy the said premises and make use of the said furniture and effects free of rent during their respective lifetime and until the youngest of my grandsons living at the death of the last survivor of my sons shall attain the age of 18 years and from and after such youngest of my grandsons as aforesaid shall attain the age of 18 years to sell, realise and convert the same into money and divide the sale proceeds after deducting all expenses among such per sons as shall be entitled to the proceeds of my other Bombay properties under the directions in that behalf contained in Clauses 11, 12 and 13 hereof, provided always and I hereby direct that the right of residence hereby granted to every member of the family as aforesaid is strict ly personal and will entitle such member personally to right of residence and use of the furniture and effects, but that such rights shall not entitle any member entitled thereto to transfer or alienate the same."
There then followed provisos that on any attempted alienation or transfer the right should cease, and also provisions directing that in case of any son marry ing a daughter or son's daughter of a cer tain person or ceasing to profess the Zoroastrian faith or marrying a person who did not profess that faith or was not born of Parsi parents professing that faith, "then and in any such case the trust in favour of such person and his family for the right of residence and use of furniture herein contained shall forth with cease and determine and becom
