K.N. KUMARAKRISHNAN Vs. MRS. SUNDARAMBAL AND OTHERS

JUDGEMENT

(1.) One T.R. Sambasiva Iyer, who bad married Rajamani Ammal, the daughter of his sister and Nageswara Iyer, executed a Will on 20th September, 1931. The important provision of the will which has come up for construction in these proceedings is as follows: -

(2.) The point that is raised in these proceedings before this court is whether after the death of Rajamaniammal, it is the plaintiff and the first defendant alone who take the properties testamentary disposed of by Sambasiva Iyer or defendants 2 to 5 also, who are the sisters of the plaintiff and daughters of the first defendant, will have a share in the properties along with the plaintiff and the first defendant.

(3.) Mr. V Thyagarajah, the learned Counsel for the plaintiff, contends that Nageswara Iyer having died in August, 1942, the heirs of Nageswara Iyer, for the purposes of the distribution of the properties bequeathed by Sambasiva Iyer will have to be determined as on August 1942, and not on a later date ; if that be the case, in 1942, defendants 2 to 5 who are the daughters of Nageswara Iyer were not the heirs under the Hindu law and therefore they will not be entitled to a share in the properties along with the plaintiff and the first defendant. On the other hand, the contention of the learned Counsel for defendants 2 to 5 is that the testator himself died only on 1st August, 1959 and Rajamaniammal died on 12th March, 1966; that is both these events took place subsequent to the coming into force of the Hindu Succession Act, 1956, and the determination as to who are the heirs of Nageswara Iyer for the distribution of the estate will have to be determined in accordance with the legal position as on 1st August, 1959 or on 12th March, 1966 and in either case defendants 2 to 5 will be entitled to a share. The question for consideration is which if the constructions is the correct one. In my opinion, the proper construction of the provision in the Will is that the heirs of Nageswara Iyer have to be determined with reference to the law on the date when the distribution of the estate to them has to be made. I have already referred to the passage in the will and that passage clearly states that Nageswara Iyer of his heirs will take the properties only "after the lifetime of my wife Rajamani". And the lifetime of the testator 's wife, Rajanani Ammal, came to an end only on 12th March, 1966, and, on that date. Nageswara Iyer not being alive, any legacy in his favour having lapsed already, his heirs as on that date will be entitled to take the properties. In this connection, reliance has been placed on S. 93 and S. 111of the Indian Succession Act,. Sec. 93 states that , where a bequest is made to the 'heirs' or 'right heirs' or 'relations or 'nearest relations' or 'family' or 'kindred' or 'nearest of kin' or 'next of kin' of a particular person without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed, as if it had belonged to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property. And Sec.111 states that, where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator's death.