FLOSSIE O COHEN Vs. OBEDIAH AARON COHEN

JUDGEMENT

(1.) This is an appeal from the judgment of my learned brother Panckridge, J., upon an originating summons taken out to decide certain questions raised under the will of one Aaron Obediah Cohen whereby he devised all his immovable property to his son Obediah Aaron Cohen to be held and enjoyed by him for the term of his natural life without impeachment for waste and from and after his death to my son's sons, namely Charlie O. Cohen, Seamantobe O. Cohen and Solomon O. Cohen and my son's daughter Flossie O. Cohen in equal shares absolutely, provided that if the said Flossie O. Cohen should be married before the death of my son, the said Obediah Aaron Cohen, then and in such case she will not take any interest under this my will.

(2.) Upon that provision, the question was argued before the learned Judge whether or not the provision that if the lady should be married before the death of her father, then she should take no interest under the will was not a condition that was bad, so that the effect of the will would be that she would take her share after her father's life interest unconditionally so far as this stipulation was concerned. The contention before us was that the condition operated as an unreasonable condition in restraint of marriage, and we were referred to a decision of Russel, J., In re Lanyon [1927] 2 Ch. 264 as an authority for the proposition that a condition of this sort might be void even although it was not a complete restriction on marriage. The learned Judge has taken the view that, under the Indian law, the only section upon which it could be contended that the condition was void is Section 127, Succession Act a bequest upon a condition the fulfilment of which would be contrary to law and to morality is "void," and the learned Judge points out that, under no reasonable construction of this clause it can be said that it would be contrary to law or morality if the lady was not married at the date of her father's death. It seems to me that it is very necessary in such a matter, having regard to the careful provisions of the Succession Act, that the Court should find in the words of the statute authority for holding such provision to be void. No doubt the testator thought as many people in India think, that it would be the recognized duty of his son to see to the marriage of his daughter in a suitable fashion during his lifetime. He may have thought that, if that was done, that would be a sufficient provision for her. Consequently he may have given to her an interest to be defeated if she was married upon the footing not that he had any desire or intention to prevent her getting married but upon the footing that it was in his view the most reasonable disposition of his property. In such a case it may or may not be said that the condition is unreasonable in that it tends to penalize her marriage in a sense, but fit cannot be said that the provision is hit by Section 127, and I can find no basis under Indian law for departing from that section and applying such a principle as was applied in England in the case decided by Russel, J. In my judgment, the observations of the learned Judge are correct and the appeal must be dismissed with costs. Buckland, J.

(3.) I agree.