The main legal point established in the judgment is that the legacies were not payable until after the final determination of the suit, and thus the suits were within the time allowed by Section 123 of the Indian Limitation Act, 1908.

Judgement

Consolidated Appeal (No. 25 of 1924) from three decrees of the High Court (April 4, 1922) in appeals under the Letters Patent, reversing three decrees of the Division Bench of the same Court, which affirmed three decrees of Subordinate Judge of Bezwada.

The three suits giving rise to the consolidated appeal were brought in 1916 by the respondents against the appellants to recover legacies bequeathed by the will of Venkayyamma Rao, who died in 1899.

The main questions arising upon the appeal were as to the construction and effect of the will, and whether the suits were barred by limitation. The facts, including the material parts of the will, appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the suits were barred by the Indian Limitation Act, 1908. In his view art.123 did not apply, as the defendants were not executors or administrators of the will, but he held that the suits were barred under either art.120 or art.52.

Upon appeal to the High Court, Sadasiva Ayyar J. agreed with the view of the Subordinate Judge, but Phillips J. was of opinion that the suits were not barred. Decrees dismissing the appeal were accordingly made.

Upon consolidated appeals under cl. 15 of the Letters Patent, the learned Judges (Schwabe C.J., Coutts Trotter and Kumaraswami Sastri JJ.) held that art. 123 applied, but that the suits were not barred thereby, as the period of limitation did not begin to run until there were available assets—namely, until after the decision of the Privy Council in 1913. The suits were remitted for inquiries and accounts.

1925. Dec. 8, 10, 11. Dunne K.C., Swaminadhan, Dube and Narasimham for the appellants. Clauses 5 and 6 of the will purported to deal with the whole fund derived from the income of the Medur estate; the testatrix was not competent to do that, and the legacies were therefore invalid. If the clauses can be construed as making the legacies payable out of that part only of the fund which the testatrix could deal with, cl. 5 restricts the fund to income paid into Court before the date of the will. But in any case the suits were barred by the Indian Limitation Act, 1908. Art. 123 is applicable. Under that article the period was twelve years from the date when the legacies "became payable." Having regard to s. 117 of the Probate and Administration Act, 1881, the legacies " became payable " within a year from the death of the testatrix. [Sects. 130, 131 also were referred to.] The plaintiffs could have brought suits earlier; if there were no assets they would have obtained a decree for administration. The decision of the Privy Council in 1913 had no effect upon the period of limitation. [Reference was made to Khetramani Dasee v. Dhirendra Nath Roy. (( 1913) I. L. R. 41 C. 271.) and Mating Tun Tha v. Ma Thit. (( 1916) L. R. 441. A. 42.)]

De Gruyther K.C., Clauson K.C., Parikh, P. Chenchiah for the first respondent were called upon only upon the question of limitation, and were stopped.

1925. Jan. 30. The judgment of their Lordships was delivered by

SIR JOHN EDGE. These are consolidated appeals from three decrees, dated April 4, 1922, of the High Court at Madras, which had reversed three decrees, dated April 22, 1921, of a Division Bench of that Court, by which three decrees, dated November 29, 1917, of the Subordinate Judge of Bezwada dismissing original suits numbered 30, 87 and 88 of 1916 had been affirmed. The suits had been instituted in the Court of the Subordinate Judge of Bezwada on the following dates No. 30 of 1916 on April 26, 1916; No. 87 of 1916 on December 6, 1916; and No. 88 of 1916 on December 9, 1916. It was agreed at the hearing of these appeals that in drawing up the decree of the High Court in original suit No. 30 of 1916, Letters Patent Appeal No. 20 of 1921, that the words "mesne profits" in para. 3 of the decree should have been "income" and their Lordships amended that decree by substituting in it for the words "mesne profits" the word "income." Th