JAGADISAN J.

Chockalingam Chettiar, a Hindu of the Nattukottai Chettiar community and his son, Annamalai, effected a partition of their family properties on the 28th March, 1939. Chockalingam executed a will on 2nd February, 1945, by which he made bequests of the properties got by him under the partition. On the date of the will, he had two grandsons by Annamalai, Narayanan and Viswanathan. Narayanan was born on 29th May, 1939, and Viswanathan was born on 17th September, 1941. Annamalai's wife was one Meenakshi Achi. Chockalingam died on 7th February, 1943. After the death of Chockalingam, two sons were born to Annamalai. They are Chockalingam born on 11th August, 1946, and Ramaswami born on 23rd March, 1948 The income from the estate of Chockalingam came in for assessment under the Indian Income-tax Act for the year 1951-52. The assessment was made by the Income-tax Officer on the footing that Narayanan and Viswanathan, the two grandsons of Chockalingam, who alone were in existence on the date of his death were each entitled to a moiety of the estate. Annamalai was in possession of the estate as executor under the will of the late Chockalingam. He raised the contention that his subsequent born sons, Chockalingam and Ramaswami, were also entitled to a share in the estate, having regard to the terms of the will and the statutory provisions of the Indian Succession Act. This contention was, however, not accepted by the assessing officer. The assessments for the subsequent years 1952-53, 1953-54 and 1956-57 were also made treating Narayanan and Viswanathan, the first two sons of Annamalai, as being entitled to the estate as between themselves to the exclusion of their after-born brothers. The assessee's appeal to the Appellate Assistant Commissioner of Income-tax against the order of the Income-tax Officer failed and a further appeal to the Income-tax Appellate Tribunal, Madras, also proved futile. On an application made by the assessee under section 66(1) of the Indian Income-tax Act, the Tribunal has referred the following question to this court

"Whether the assessment on Viswanathan and Narayanan on a half share of the income of the estate of S. N. A. S. Chockalingam Chettiar is valid on a proper construction of the will dated 2nd February, 1943."

It will now be convenient to extract the relevant provisions of the will

"After my lifetime, the minor sons of my divided son, the aforesaid Annamalai Chettiar, viz., Narayanan and Viswanathan and the male children that may be born hereafter to the aforesaid Annamalai Chettiar, shall take and enjoy in equal shares and with absolute rights all assets and liabilities in respect of immoveable and moveable properties, items, banks, chettiveettu firms, etc., as per the accounts of the aforesaid S. N. A. S. firm at Penang ...... I hereby appoint my divided son, S. N. A. S. A. Annamalai Chettiar, Nattukottai, Vaisia Caste, Banker, residing at Karaikudi, Tirupattur firka, Ramanathapuram Dt., and his wife, Meenakshi Achi, aforesaid caste and calling, residing at the aforesaid village as executors. Therefore, they shall, after my lifetime, manage and augment all my immoveable and moveable properties and firms, which are mentioned above, in their capacity as guardians and executors of the aforesaid minors, and when the aforesaid minors attain majority, deliver the same to them." *

The provisions of the will are fairly clear to indicate the mind of the testator. He has made a bequest of his properties to his grandsons by Annamalai, two of whom, Narayanan and Viswanathan, were already in existence on the date of the will. It is manifest that he did not intend that other male children that may be born to Annamalai subsequent to the execution of the will should also participate and come in for a share in the legacy. But did he intend that male children that may be born to Annamalai after his death should also be benefited is the crucial question. The answer to this question cannot easily