The main legal point established in the judgment is the invocation of Section 109 of the Indian Succession Act, 1925, based on the principles of justice, equity, and good conscience, to determine the impact of the death of a legatee prior to the testator's death on the bequest.

JUDGMENT :

M.S. Menon, J.

The plaintiffs in O. S. No. 39 of 1958 of the court of the Subordinate Judge of Parur are the appellants before us. The suit which has been dismissed with costs was for partition of the items of property specified in the schedule to the plaint. Ext. P. 1 is a will executed by one Poulose Upadesi on 6-2-1113 (22-9-1937). The items of property included in the C schedule to that will are the items of property described in the schedule to the plaint. The testator died on 1-2-1118 (17-9-1942).

2. The 1st plaintiff is the widow of the testator and plaintiffs 2 to 6 are his daughters. The testator had a daughter, Annam, who pre-deceased him on 17-12-1117 (2-8-1942). The items of property described in the C schedule to Ext. P. 1 and the schedule to the plaint are the items set apart to her under that will. The 1st defendant was her husband and defendants 2 to 5 are their children.

3. The only question for determination is what exactly is the impact of the death of Annam prior to the death of the testator on the bequest in her favor. According to the plaintiffs the death of Annam prior to her father's death precludes the operation of the bequest and the items become partible as if Poulose Upadesi had died intestate as regards those items.

4. Section 109 of the Indian Succession Act, 1925, provides:

Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will.

That Act was not in force in the Travancore State, where Poulose Upadesi lived and died. It came into force in that area only long after his death, by the Part B States (Laws) Act, 1951, on 1-4-1951.

5. Section 109 is modelled on section 33 of the English Wills Act, 1837, and embodies what we consider a wholesome exception to the doctrine of lapse. The three conditions necessary to attract the section are:

(1) that the bequest must be made to a child or other lineal descendant of the testator,

(2) that the child or other lineal descendant should die in the lifetime of the testator leaving a lineal descendant who survives the testator and

(3) that no contrary intention should appear from the will. It is not contended that these conditions are not satisfied and so the only question for determination is whether the principles embodied in section 109 of the Act should be invoked, as the lower court has done, on the grounds of justice, equity and good conscience.

6. The phrase justice, equity and good conscience goes back in the legal history of India at least to Sir Elijah Impey and the Regulation of 1781. Section LX of the Regulation laid down that "in all cases, within the jurisdiction of the Mofussil Diwani Adalats, for which no specific directions are hereby given the respective judges thereof do act according to justice, equity and good conscience", and section XCIII provided "that in all cases, for which no specific directions are hereby given, the Judge of the Sadar Diwani Adalat do act according to justice, equity and good conscience.

7. This rule of decision in accordance with justice, equity and good conscience in the absence of specific directions meant" according to Mr. Setalvad in his Hamlyn Lectures, the Common Law in India, "in substance and in the circumstances the rules of English law wherever applicable". He goes on to say:

In the words of Sir Henry Maine, India was then 'regard being had to its moral and material needs, a country singularly empty of law.' The inevitable result was that the courts of justice had to legislate. The 'vast gaps and interspaces in the substantive law' were filled by the principles of English common and statute law. The wide door of 'justice, equity and good conscience' made it easy for these principles to bec