K KRISHNAMACHARIAR Vs. VEERAVALLI KRISHNAMACHARIAR

JUDGEMENT

(1.) In this case I propose to deal first with the question of law, that is, can a Hindu minor make a will?

(2.) It was practically conceded by Mr. Ramachandra Aiyar that under the Hindu common law a minor cannot make any disposition of property during his life time. There can I think be no question that this is so. It has been so laid down in various authorities. I need only refer to the passage in Colebrooke s Digest of Hindu Law to which Mr. Srinivasa Aiyangar called our attention this morning. Title II, Chapter 4, Section 23, and Narada Title I, Chapter 2, Section 39. If the law is that a Hindu minor cannot make a valid gift during his life time it is difficult to see on what principle it can be said that he can make a valid disposition of property which is only to take effect after his death. The argument of Mr. Ramachandra Aiyar at any rate the argument which he advanced yesterday as I understood him, was this. The Hindu Wills Act and the Succession Act both enact that a Hindu minor cannot make a will. The question of the capacity of the man who made the will before us is not governed by either the Hindu Wills Act or the Succession Act; there is therefore no express prohibition and it follows that he can make a will. It seems to me it is only necessary to state that proposition in order to show - I won t say its absurdity but its unsoundness. Not only is there no authority in support of the view that a Hindu minor can make a will, but all the cases are the other way. I do not propose to discuss them but I would refer to the case of Subbaraya v. Kondayya (1901) 16 M.L.J. 135 the case of Deharam Buttayya v. Somanchi Seetharamayya (1911) 2 M.W.N. 383 the case of Bhaghirthi Bai v. Visvcmatha Damodar (1904) 7 Bom L.R. 92, the case of Bai Gidab v. Thahur (1912) I.L.R. 36 B. 622 and the case of Hardwar Lal v. Gome (1911) I.L.R. 33A 525. These are all authorities which hold that a Hindu minor cannot make a will. My rinding with regard to the question of law is that a Hindu minor cannot make a will.

(3.) Then as to the facts. Before dealing with them it is necessary to determine when would the minority of the man who purported to make this will have terminated? In my opinion the Indian majority Act of 1875 applies to this case. There is a saving clause in Section 2 of the Act dealing with capacity and in that saving clause it is provided that " nothing in the Act shall affect the capacity of any person to act in certain matters (namely)-marriage, dower, divorce and adoption." The question of the capacity of a person to make a will is not included in the saving clause. That means - so it seems to me, as a matter of construction--that when a question arises as to the capacity of a parson to make a will on the ground of minority the question as regards the age at which minority ceases is governed by the Indian Majority Act. The point arose in two reported cases and this was the view there taken. See cases reported in Bai Gulab v. Thahur (1912) I.L.R. 36 B. 622 and Hardwar Lal v. Gome (1911) I.L.R. 33A 525. I think this view is right.