KRISHNA AMMAL Vs. MAHADEVA IYER

JUDGEMENT

(1.) TWO of these appeals A.S.251 and 252 of 1959 are by the first defendant and the other two,A.S.269 and 270 of 1959 are by the second defendant,in two connected suits O.S.170 of 1954(renumbered as O.S.173 of 1957)and O.S.261 of 1953(renumbered as O.S.163 of 1957)and the four appeals are directed against the judgments and decrees of the Subordinate Judge,Trivandrum.One Anantharama Iyer died leaving him surviving Ammini Ammal,the widow of his predeceased son Subramonia Iyer,and two grand -daughters,Krishnammal who is the first defendant in the two suits and Rajammal.He had made a disposition of his properties which were considerable,by Ext.P -1,a deed of indenture as it is called,on April 28,1912.The first defendant bore no child and adopted the second defendant in the two suits as her son and Rajammal gave birth to a daughter Lakshmi Ammal,both after the date of Ext.P -1.The first defendant having died pending these appeals,the second defendant has been recorded as her legal representative in A.S.251 and 252 of 1959 on C.M.Ps.72 and 73 of 1961,and he may be referred to as the appellant.Ext.P -1 comprised seven schedules of properties.O.S.170 of 1954 being in respect of the properties in schedule 2 which are Government promissory notes and O.S.261 of 1953 being in respect of the pro­perties in schedule 3 which are immovable -properties,these appeals are concerned with those properties only,the immediate dispositions with respect to which,were in favour of Ammini Ammal and of the first Krishna Ammal defendant respectively each for life,with remainders as prescribed.The case of the plaintiff who is the son of Anantharama Iyer's deceased brother Padmanabha Iyer and who may be referred to as the respondent is,that as heir -at -law he is entitled to the properties aforesaid after the lifetime of the grand -daughters as on intestacy,the disposition of the remainder to the issue of the first defendant and to that of Rajammal in Ext.P -1 being void,as gifts to persons not born at the time.The appellant contended,that gifts to unborn persons are not void under the Hindu law and that in any event,by virtue of the provision in clause 4 of Ext.P -1,the first defendant was entitled to the properties either as a residuary legatee or as a donee.These contentions were negatived by the Subordinate Judge.In O.S.170 of 1954 he gave a decree calling upon the first defendant to account for and to make good to the respondent,the principal amounts of the promissory notes which she had collected and in O.S.261 of 1953,he gave a decree in terms of the plaint declaring the remainder after the first defendant's life -interest in the properties to belong to the respondent.The third defendant,who had married Rajammal's deceased daughter Lekshmi Ammal,had been struck off the array of parties in the trial court,but his name still continuing on record,we have ordered on C.M.P.7074/61,that the decree to be passed in these appeals would endorse that he had been so struck off. As stated,the immediate disposition of the properties in schedule 2 was in favour of Ammini Ammal and that of the properties in schedule 3 was in favour of the first defendant,each for life.In the former,after Ammini Ammal's lifetime the two grand -daughters were to take in equal shares for their lives.The dispositions of the remainder after the lifetime of each grand -daughter in the properties in schedule 2 and of the remainder after the lifetime of the first defendant in the properties in schedule 3 are similar and it is enough to quote one of them to the extent they are common.The dispositions are,in the case of the properties in schedule 2,that on the death of any one of the said grand -daughters the properties possessed and enjoyed by such grand -daughter  and in the case of the properties in schedule 3,that on the death of the said Krishna Ammal(the first defendant)the said properties  (then quoting from paragraph 2 of Ext.P -1) shall be possessed and enjoyed absolutely by her male issue then living and in the absence of male issue by her female issue then living if any absolutely and in the absence of any male or female issue to the said grand -daughter and if any other grand­daughter be surviving at the time,by her for life alone and in the event of her not surviving at the time,by her male issue then living absolutely and in the absence of male issue,by her female issue if any absolutely and in the absence of any male or female issue to that grand -daughter also,by fee Government of His Gracious Highness the Maharaja of Travancore absolutely to be managed and utilized ¦¦ ;.for the promotion,furtherance,assistance or help of useful public,charitable or religious purposes ¦ ;..  There is no dispute about the life -interest of each of the grand -daughters.The two main questions which arise in these appeals and which were canvassed before us were whether under pure Hindu law,a disposition in favour of a person not in existence at the date thereof is void,and whether in that event,the respondent can succeed in the suit as on intestacy,in the face of die disposition,by what was contended to be the residuary clause of testamentary character,or to be a gift over,contained in paragraph 4 of Ext.P -1. On the first question,the Privy Council had ruled long ago in Tagore v. Tagore 18 W.R.359,that under pure Hindu law a gift cannot be made in favour of a person not in existence at the date of the gift.For the appellant,this view was contended to be erroneous and the opinions of certain text writers were laid under contribution.His learned counsel invited our attention to the opinions recorded Mulla on Hindu Law,edited by B.K.Mukherjea,former Chief Justice of India,page 461,and edited by Sunderlal T.Desai,page 531,Mayne on Hindu Law edited by Srinivasa Iyengar at page 868,foot -note,and Golapchandra Sarkar Sastri on Hindu Law,7th edi­tion,page 1006.But the rule in Tagore 's case has been followed and applied in a large number of decided cases in the several High Courts,including those in the High.Court of the erstwhile Travancore State in Sinkaravelu Pillai v.Ramanatha Iyer 23 T.L.J.187,and in Pulamuthu Pillai Manakavalaperitmal Pillai v.Azhaku Pillai Muthamma 20 T.L.J.207 and in this Court in Kanthaswami Pillai v.Sivarama Pillai 1960 K.L.T.19,where the rule was considered to be well -settled.In the face of these pronouncements,we indicated our unwillingness to reconsider the matter.Counsel then requested us to record that he does not abandon the point in order that he may raise it before the Supreme Court if it becomes necessary and we hereby do so.We hold,that the dispositions in paragraphs 1 and 2 of Ext.P -1 by way of remainder to those who were not in existence at the date thereof were void and that such interest did not pass from Anantharama Iyer,but continued to vest in him. The sheet -anchor of the appellant was the disposition in paragraph 4 of Ext.P -1,which opened with a reservation of the properties in schedule 5 for the sole use and benefit of Anantharama Iyer,but which provided: ;.. that whatever is left out of the said properties(that is,the properties in schedule 5)and any other properties that,I may hereafter acquire or possess undisposed of by me at my death shall vest absolutely in equal half shares in my said grand daughters ¦¦ ;. The contentions as based upon this clause were two fold,first,that it is a residuary clause of a testamentary chara­cter which,as in a will,would operate on any interest which Anantharama Iyer had not effectually disposed of and died possessed of,and second and in the alternative,that it would take effect as a gift in praesenti of such interest,though subject to defeasance by a contrary disposition by him.But it has first to be established,that there is at all,a residuary clause which according to its plain meaning can take in the remainder in the properties in schedules 2 and 3 with which this appeal is concerned.If it cannot,none of the other contentions for the appellant can prevail,and intestacy with respect to such interest is inevitable.Having bestowed our anxious consideration we feel,that it would be unduly straining the language of the clause for which there is no warrant,to hold that the clause is residuary and can take in an interest in property which Anantharama Iyer had with him at the time of Ext.P -1,and which did not leave him in spite of the ineffectual dispositions he had made. The whole difficulty in interpretation has centred on the expression any other property that I may hereafter acquire or possess ;,and more particularly on the words may hereafter acquire or possess ;.It is useful at this stage to advert to the clause in paragraph 6 of Ext.P -1 which,despite its similarities to the one under discussion,has no application and is referred to only for the sake of completeness and clarity.That clause is in the following terms:" And I do hereby also declare and confirm that if by in advertance any property belonging to me and not specifically enumerated and described in any of the schedules hereinbefore referred to and hereunder written and affixed shall also be subject to the trust hereby created for the use and benefit of the public,charitable or religious purposes or any or all of them,or any two of them. The clause may be imperfect in point of grammar,but its meaning is not uncertain.The point of distinction of this clause from the earlier clause is,that it operated in praesenti, and only upon any property or interest not specifically enu­merated or described in any of the schedules and for the latter reason if not for the former,can have no application to an interest in property specifically enumerated and described in any of the schedules including schedules 2 and 3.Reverting to the clause in paragraph 4 extracted earlier,it may be assumed,that the term properties would include an interest in the nature of the remainder in question and that the term possess would apply to such interest though some of the properties are Govern­ment promissory notes.The clause was read by the learned counsel for the appellant in two ways.According to the first,the word hereafter was to qualify acquire and not possess ;.There is little difficulty in rejecting this for the reason,that the word may is common to both acquire and possess as distin­guished from the possible use of that word,say in the phrase may hereafter acquire or may possess ;.The word hereafter ™™as an adverb qualifies the two verbs acquire or possess succeeding it,and there is nothing to restrict it to one of them to the exclusion of the other.We do not feel justified in so dissociating the word hereafter ™™from the word possess and restricting to acquire only. The second reading of course accords with the grammatical use of the word hereafter as qualifying the verb possess also.The term possess as con­tended and as appears from the dictionaries to which our attention was drawn,has various shades of meaning.Black 's dictionary gives meanings such as,to have and hold as property,to own or be entitled to ;.Possessed ™™means one has property in a thing,that he has it as owner,that it is his ;.Learned counsel also referred to Kotturswami v.Veerayya A.I.R.1959 S.C.577,in which under section 14 of the Hindu Succession Act the word possession has been interpreted as meaning having a thing in one's own hands or power ;.None of these can really shake the meaning of the crucial word hereafter ;,as qualifying the word possess ;.Black's Law Dictionary gives the meaning of the word hereafter as a word of futurity,always used in statutes and documents as indicative of future time,excluding both the present and the past Ballentyne's Law Dictionary gives its meaning as at a future time ;,and Webster's New International Dictionary,Vol.1,as after this in time or order;in some future time or state.It is needless to multiply references to the dic­tionaries.There is therefore good authority for holding,that the word hereafter as an adverb excludes both the present and the past.So understood,the operation of the clause is restricted to such property or interest which Anantharama Iyer might acquire or come into possession of,after the date of Ext.P -1 to the exclusion of property or interest of which he had possession at the time of Ext.P -1 or of which he had had possession previously.There is no doubt in our minds,that this accords with Anantharama Iyer's intentions,for he was sure in himself that he had by Ext.P -1 made as full and complete a settle­ment of all his properties as can be,by grouping them in several schedules and making dispositions which he considered suitable with respect to them and even providing that whatever was left out inadvertently,which he thought can only be of properties not scheduled,shall pass to the trustee.All that he considered necessary was to make a disposition of future properties,that is,'of those which he might acquire or which he might come into possession in any manner in future.If we may conceive of property as a bundle of rights,on carving the life -interests;there,remained a smaller bundle of rights,of which Anantharama Iyer had possession in continuity with his previous posses­sion of the larger bundle giving that meaning to the term possession as it may bear in law in relation to such rights and as the appellant himself wanted to give to it.It seems to us,that it would be doing violence to the language employed to bring such remainder as it was,within the scope of the expression any other property that I may hereafter possess ;.This expression is different from the familiar one occurring generally in residuary clauses in testamentary dispositions,such as everything that I die possessed of ;,which is large enough to absorb whatever has not been effectually disposed of.It was not and cannot be disputed;that unless there is a residuary clause which on its terms is sufficiently comprehensive,an undisposed of interest or an interest not effectually disposed of,cannot fall into the residue.In one sense,and at first sight,the two clauses in paragraphs 4 and 6 may appear to be residuary,but on closer scrutiny they are only partially so and hence not residuary strictly so called,each of them operating in its own field,and both leaving a residuum that must pass as on intestacy. We have taken time to consider and have pondered as to the true interpretation of the clause.But we have heard counsel fully on all aspects presented to us,and also on proof and attestation of Ext.P -1 as a will,an aspect which appeared to us to be necessary to consider,if we were to accept the appellant s interpretation.The docu­ment Ext.P -1 being only a certified copy and section 90 of the Indian Evidence Act being inapplicable to the original which was not in court,learned counsel argued that on the pleadings,due execution of Ext.P -1 as a will must be taken to be admitted by the respondent.How­ever,by way of abundant caution the appellant has at the last stage,also produced the original of Ext.P -1 in court with civil miscellaneous petition 5045 of 1962 to admit it as additional evidence.This was also heard.On the interpretation which we have given to the relevant clauses we do not think it necessary to consider these arguments.We also dismiss C.M.P.5045 of 1962 for the above,reason. No other question arises for consideration in the light of the above discussion.The second defendant having preferred separate appeals and having been impleaded as the legal representative of the deceased first respondent in the other two appeals;we think that the normal rule as to costs need be applied only in A -S.251 and 252 of 1959 preferred by the first defendant.The result is,that A.S.251 and 252 of 1959 are dismissed with costs and A.S.269 and 270 of 1959 are dismissed without costs.The objection memorandum in A.S.251 of 1959 is also dismissed without costs.