AIYASAMI UDAYAN Vs. APPASAMI UDAYAN

JUDGEMENT

(1.) I agree with my learned brother in his conclusions and I shall state my reasons shortly. I feel myself unable to accept the contention of the appellants learned vakil that the document Ex. IV was not a will but a deed of settlement. The document calls itself a will in more than one place, it is not written on a stamp paper, the beneficiaries were to take only after the death of the executants and the latter do not use any expression in the deed by which they restricted their own rights in the properties till their deaths to mere life interests.

(2.) As regards the next, contention of the appellants vakil, it seems to be, (so far as I was able to understand it) that even if Ex. IV was not a deed of settlement, there was a proposal made in it by the executant to the 1st defendant and his wife (the 2nd daughter s husband and the 2nd daughter of the executant) to leave the properties by will if the 2nd daughter of the executants and her husband the 1st defendant protected the executants till their death, that that proposal was accepted by the 1st defendant and his wife, that accordingly a sort of binding contract was entered into by the executants to give a vested reversionary interest in the plaint properties by will to the 1st defendant and his wife and that the will therefore became irrevocable so far as the grant of such an interest was provided for in that will. Having carefully considered the terms of the will, I am unable to spell out therefrom any such proposal made by the testator or the testatrix to the beneficiaries. It only recites the motive for the making of the bequest, such motive being based on the facts assisting them in the cultivation of the lands and was expected that the son-in-law had been living with his parents- in-law and to protect them till their deaths, which events were expected to take place soon. That a will is to be understood as speaking only from the death of the testator and that it has only the same effect as if it was executed at the time of the testator s death cannot be controverted (See Bodi v. Venkatasami Naidu (1913) M.W.N. 779 and Shib Sabitri Prasad v. The Collector of Meerut I.L.R. 29 A. 82). As|the 1st defendant s father-in-law had adopted a boy before his death, and as that boy survived the 1st defendant s father-in-law, that is, the boy s adoptive father, the will became infructuous as regards the father-in-law s ancestral properties he having become incapable of bequeathing the properties so as to defeat the adopted son s right of survivorship. That the mere raising of expectations in the mind of a person that a bounty in the shape of a legacy would be left by will does not amount to a contract, and that even if some acts are performed by that person owing to the raising of such expectations, such acts will be referable to the expectation and not to a contract have been decided by the House of Lords in Maddison v. Alderson (1888) L.R. 8 A.C. 467 which was followed by Abdur Rahim J. in the case reported in Appa Row v. Venkayamma Row (1908) 19 M.L.J. 106 the judgment of Abdur Rahim J. having been confirmed in Letters Patent Appeal No. 105 of 1908. I would therefore dismiss the second appeal with costs.

(3.) As regards the memorandum of objections I see no reason not to accept the finding of fact by the lower appellate Court that the properties to which the memorandum relates belonged to the 1st defendant s mother-in-law absolutely in her own right. In that view her will was valid and the plaintiff cannot claim these properties as her adopted son s heir. The memorandum of objections will also be dismissed with costs. Napier, J.