SIVAKAMISUNDARAM PILLAI Vs. MINOR NAVANEETHAKRISHNAN

JUDGEMENT

(1.) THE interesting questions of law that arise for decision in the second appeal are as follows: 1. Whether the subsequent bequest conditional on the happening of a specified uncertain event takes effect only if such event happens during the life-time of the testator"

(2.) WHETHER a bequest made to a person who was not in existence at the time of the testator's death, subject to a prior bequest contained in the will, is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed" 2. The facts of the case are briefly as follow s :the properties described in the first schedule to the plaint belonged originally to one Sivakami Ammal , the paternal grandmother of the appellant. Sivakami Ammal died on 4. 1. 1968 leaving behind her two grandsons Sivakamisundaram Pillai the appellant, and Maruthanayagam the father of the respondent, through his son Nava- neethakrishnan. Originally she executed a registered will dated 9. 12. 1960 whereby she bequeathed the plaint schedule properties for the charities making both the grandsons Sivakamisundaram Pillai the appellant herein, as well as Maruthanayagam as trustees. Not being satisfied with the conduct of the younger brother Maruthanayagam she cancelled the said will and executed another will dated 19. 8. 1965, which is marked as Exa1 in this case. According to the will she dedicated the properties to certain charities and constituted the appellant as a trustee to be in possession of the properties without the right of alienation and with an obligation to carry out the charities and to enjoy the remaining income after performing the charities. There is also a further provision that in case Maruthanayagam adopted a normal life and got married and begot a male issue, such male issue shall be the joint trustee and both the appellant and the male issue of Maruthanayagam shall perform the charities jointly and enjoy the plaint schedule properties alike. Marudhanayagam married one Bhagavatiammal and through her the minor respondent was born on 24-12-1974. The next friend of minor respondent Bhagavathiammal filed the suit O. S No 7 of 1977 on the file of the First Additional Subordinate Judge, Tirunelveli , for a declaration that as guardian of the minor respondent she is entitled to joint possession of the suit properties bequeathed for the conduct of the charities. The appellant herein contended that Sivakamiammal bequeathed the plaint mentioned properties to the appellant exclusively, providing that he should enjoy all the properties without any power of alienation and after him his sole issue should inherit the suit items and perform the charities and he has been given the exclusive right in the remaining proceeds after performing the charities and the subsequent bequest that in the event of Marudanayagam getting married and a male chile born to him, such male issue is entitled to joint right of enjoyment is void since the specified uncertain even of Marudanayagam getting married and giving birth to a male child happened long after the death of the testatrix. Hence the alleged bequest of joint management of the properties and the trusteeship in favour of the respondent did not and could not take effect. Even otherwise the bequest in favour of the respondent is void inasmuch as it was a bequest to an unborn person and the same does not comprise the whole of the remaining interest of the testatrix in the properties bequeathed since the respondent is not given any right in the surplus of the income. The respondent is therefore not entitled to any relief.

(3.) RELYING on both the abovesaid provisions it is contended that the bequest in favour of the respondent is not valid since the respondent was not in existence at the time of the death of the testatrix, and as such the bequest cannot take effect.