S SOUNDARARAJAN Vs. CMNATARAJAN

JUDGEMENT

(1.) This is an appeal from a Judgment of Coutts Trotter, J. upholding the provisions of the will of the late C. Ratna Mudali which have been questioned on the ground that they are opposed to the Hindu Law notwithstanding the passing of Madras Act 1 of 1914, and also as infringing the provisions of Section 101 and S. in of the Indian Succession Act which have been applied by the Hindu Wills Act, 1870, to wills made by Hindus in a Presidency Town. The case has been very fully argued before us and the appellants have taken the fresh ground that Madras Act 1 of 1914, if not wholly ultra vires is ultra vires, in so far as it purports to affect the Presidency Town where the rules of Hindu Law as to succession and inheritance were made applicable by the Supreme Court Charter which could only be modified by the legislative authority of the Governor-General in Council under the provisions of the Indian Councils Act, 1861 read with Section 11 of the Indian High Courts Act, 1861. The respondents on the other hand have put forward the fresh contention that, assuming the disposition in the will to be invalid, it shows an intention on the part of the testator to make an absolute gift of her share to each of his three daughters and to sever such share from his estate, and that consequently the disposition comes within Section 126 of the Indian Succession Act which embodies what is sometimes referred to as the rule in Lassence v. Tierney (1849) 1 Mac. and G. 551. Mr. Radhakrishniah also raised the contention on behalf of some of the daughter s daughters who were born during the life-time of the testator that they were in any view entitled to take under the will, but it will be unnecessary to go into this question in the view we take of the case.

(2.) The material provisions of the will are as follows. "They (the residuary trust funds) are vested in trustees in trust to apportion the residuary trust funds into as many equal parts or shares as there may be daughters of mine living at the time of my decease or who having predeceased me shall have left issue her or them and me surviving and to pay the income of each of such equal parts or shares to my said daughters respectively during their respective lives and from and after the decease of each of my said daughters to stand possessed of the share of the residuary trust funds so appropriated as aforesaid to such daughter upon trust for all the children of such daughter who shall attain the age of twenty-one years in equal shares and if there shall be only one such child the whole to be in trust for that one child and in the event of any of my said daughters dying without leaving lawful issue her or them surviving I direct that my trustees shall stand possessed of the share or shares so appropriated to her or them as aforesaid upon trust for all the children of the other or others of my said daughters who shall attain the age of twenty one years as tenants in common in equal shares per stirpes provided always and I hereby declare that if any daughter of mine shall die in my life-time leaving lawful issue living at the time of my death such issue as shall attain the age of twenty-one years shall take and if more than one as tenants in common in equal shares per stirpes the share which would have been so appropriated as aforesaid to such daughter of mine and her issue if she had survived me".

(3.) This disposition undoubtedly infringes the established rule of Hindu Law as to gifts to unborn persons, and I agree with the learned Judge that according to the current of decisions in India this rule was not affected by the Hindu Wills Act, and that the observations of Lord Moulton in Ranimoni Dasi v. Radha Prasad Mullck (1914) I.L.R. 41 C. 1007 even if they be taken to show that the question may still be open before the highest tribunal, afford this Court no sufficient ground for refusing to follow the current of Indian decisions on this question until they are overruled by higher authority.