V KUPPUSWAMI PILLAI Vs. JAYALAKSHMI AMMAL

JUDGEMENT

(1.) Plaintiff sues for a declaration that certain alienations made by her deceased husband are in operative beyond his lifetime. She contends that under the will of her father, in-law, (Ex. A, dated 28 August 1901) her husband was given only a life interest in the properties in question, that she was given a life interest by way of remainder, after her husband's death, with a further gift by way of remainder, after her death to certain other persons. In this appeal we are concerned only with one of the husband's transactions, viz., a mortgage dated 5 May 1921, in favour of defendant 1. Defendant 1, who is the appellant, contends that as the plaintiff was not in existence at the testator's death and as the gift under Ex. A in her favour is not of the full interest in remainder, that disposition is void under Section 100, Succession Act of 1865 (corresponding to Section 113, Succession Act of 1925) and that the plaintiff therefore cannot maintain the suit. The learned Judge on the original side held that as a result of Act 8 of 1921 the disposition in favour of the plaintiff was valid and he has accordingly given her a declaration in terms of her prayer in the plaint so far as the mortgage in favour of defendant 1 is concerned. The judgment under appeal proceeds on the footing that the disposition would have been void under the Succession Apt, but it holds that this result is prevented by the Act of 1921, because that saves bequests from being defeated by the fact of non-existence at the time of death.

(2.) This line of argument was not pressed on us by the learned Counsel for the respondent, apparently because it does not give sufficient effect to the word "only" which is deliberately used in Section 3 Madras Act 1 of 1914 and India Act 8 of 1921. As is well known, the object of that legislation was to do away with the rule in Jatindra Mohan Tagore V/s. Ganendra Mohan Tagore (1872) I.A. Sup. Vol. 47, and care was accordingly taken to indicate by the word "only" that this was all that was intended. It was pot its purpose to do away with other statutory provisions, if and so far as such provisions governed Hindu wills. But as the act was to apply to the whole of the Presidency and there was no statutory restriction governing the Hindu-wills outside the Presidency town, it was considered expedient to embody in the Act itself the rule against perpetuities. The effect of this legislation will be dealt with more fully later on. It may, however, be observed at this stage, that Section 100, Succession Apt, applies to several communities who are not governed by any rule prohibiting gifts in favour of unborn persons merely on the ground of their non-existence and the removal of this prohibition in the case of Hindus pan only put them on the same footing with those communities (so far as that section applies to Hindus) and not preclude or defeat the operation of Section 100. It was suggested before us on behalf of the respondent that even under the law as it stood prior to 1914, the provision in favour of the son's wife would not offend the rule laid down in the Jatindra Mohan Tagore V/s. Ganendra Mohan Tagore (1872) I.A. Sup. Vol. 47 because their Lordships pf the Privy Council have in that case made a reservation in favour of family settlements.

(3.) It is unnecessary to deal with this question as we propose to rest our decision on the provisions pf Section 100, Succession Act of 1865. As observed in Sivasankara V/s. Subramanya (1908) 31 Mad. 517 the combined effect of Secs.2 and 3, Hindu Wills Act, is that a dig- position permitted by the Succession Act may be invalidated, but a disposition invalid under the Succession Apt cannot be validated by any rule pf Hindu Law: See also Soundararajan v. Natarajan 1921 Mad. 258 at pp. 461, 462, 4,69 and 470, In the arguments before us, Mr. Narasimha Iyer, the learned Counsel for the respondent contended that notwithstanding Section 2, Hindu Wills Act, Section 100, Succession Act of 1865 must not be held to invalidate the bequest in question, if it would be otherwise valid under the Hindu law and he relied on the decision in Dinesh Chandra Roy V/s. Biraj Kaminia Dasse (1912) 39 Cal. 87, in support of this contention. If this contention were correct, he was unable to suggest how any effect could be given to the express declaration in Section 2, Hindu Wills Act making Section 100, Succession Act, applicable to Hindu Wills of the class therein described. As pointed out in Radha Prasad V/s. Ranimoni (1911) 38 Cal 188, the legal effect pf that declaration is to write that section into the Hindu Wills Act.