Validation of gift in favour of unborn son.

This appeal against the dismissal of O.S. No. 128 of 1950 on the file of the Subordinate Judge’s Court, Tiruchirapalli, is by the plaintiffs. The suit was laid against 32 defendants for declaration that the properties described in the Schedules to the plaint belonged to the Trust specified in the will of one Appavu Udayar who died on 31st July, 1902. The further reliefs claimed in the plaint were recovery of possession of the alienated properties from the alienors and restoration of possession to the first defendant or to such other person as the Court might deem fit for and on behalf of the Trust and recovery of mesne profits at Rs. 10,000 per annum. The case in the plaint is that the properties described in Schedules B and C to the plaint belonged to Appavu Udayar who executed a will on 17th September, 1885, bequeathing them to a Trust for feeding 10 Brahmins every day in a house bearing Door No. 211, North Chitrai Street, Srirangam, belonging to him. The three widows of the testator who survived him were appointed trustees of the charities for their lives. The first defendant to the suit was the only surviving widow of the testator on the date of plaint. The second defendant in the suit is the son of a daughter of the testator. On the date of the will, the testator had only one daughter, Annapoornam, by his wife Minakshi. The testator is said to have executed, according to the contesting defendants 1 and 2, a codicil, Exhibit B-27, on 31st July, 1902, by which he materially altered the dispositions made by his will. The truth and genuineness of this codicil are not admitted by the appellants. The second defendant was not born on the date of the will or codicil of the testator, but was born only in 1912. The first defendant was not in possession of any of the suit properties as she and her co-widow, Minakshi, are said to have relinquished their interest in the testator’s properties in favour of defendant 2 even in 1930 by the release deed Exhibit A-2. Defendant 2 is said to have alienated many of the trust properties in favour of the other defendants to the suit. The first plaintiff and another applied to the Advocate-General, Madras, in 1949, for sanction being granted under section 92, Civil Procedure Code, to file a suit in respect of the suit charity. The Advocate-General refused sanction on the ground that there was no charity in existence.

The defendants raised various pleas which are covered by the twelve issues framed in the suit. The principal issues were that no valid trust had been created by the will of Appavu Udayar, that the codicil had revoked the provisions of the will of 1885, that the bequest in favour of the charity was void and consequently there was intestacy and the second defendant as the grandson of the testator became entitled to all the properties, and the alienees had acquired title by adverse possession and the suit was barred by limitation.

The learned Subordinate Judge upheld the genuineness of the codicil, and, construing it, he held that the gift in favour of the charity was void and inoperative. He even held that there was no valid bequest in favour of any charity either by the will or by the codicil and that the suit was barred by adverse possession and limitation. On these findings, he dismissed the suit.

Mr. R. Ramamurthi Ayyar, learned counsel for the appellants, stressed two points before us. The first related to the genuineness of the alleged codicil, Exhibit B-27. The second related to the construction of the will as modified by the codicil.

Appavu Udayar died on 31st July, 1902. That is the date on which he is said to have executed the codicil on the back of the registered will, Exhibit A-1. Nobody questions the genuineness of the will. It is said that all the attestors to the codicil — there are three of them — were dead on the date of the suit. The writer also was dead. This fact is not disputed. The document Exhibit A-1 on the back of which is written the codicil,