OFFICIAL ASSIGNEE OF MADRAS AND AS SUCH THE ASSIGNEE OF THEESTATE AND EFFECTS OF K S VENKATARATHNAM NAIDU, THE INSOLVENT Vs. VEDAVALLI THAYARAMMAL

JUDGEMENT

(1.) The decision of this appeal depends on the construction to be placed upon the will of K. Narayanaswami Naidu, a Hindu of Madras. He made a will on 3rd February, 1897, and a subsequent codicil on 21 May, 1897, and died on 23rd May, 1897 leaving a widow and one son, whose whereabouts are not known, and three granddaughters. One grandson, who is the 2nd defendant, was born in 1899 after the testator's death and, having become an insolvent, he is represented by the Official Assignee. The will having been made in the Presidency Town, the Hindu Wills Act is applicable to it, and Section 2 of that Act makes Secs.116 and 117 of the Indian Succession Act applicable. Among the dispositions the important passages run as follows: Clause 9. I give and bequeath the whole of the residuary estate -to my grandson or grandsons who may be born or will be born to my son Kateri Sundararamanjulu Naidu within ten years after my death; if there shall be no such grandsons to be born as aforesaid the whole of my residuary estate is to be divided equally betweenray said granddaughters after the death of my said wife. The proviso to the clause provides that a sum should be placed in deposit in Messrs. Arbuthnot & Company's Bank to provide a monthly income for the maintenance of the testator's daughter-in-law, the widow of a son who died during his lifetime, and for the distribution of the amount to his granddaughters after her death. Clause 13 provides that the testator's son, K. Sundararamanjulu Naidu, having fraudulently spent more than half of his father's earnings and having executed a release in his favour should have no claims whatever in and upon the testator's estate. Clause 2 of the codicil revokes a provision of Rs. 5,000 in Clause 3 of the will in favour of charity and Clause 3 provides that the distribution of the residuary estate among the granddaughters should take place after the death of the testator's wife, daughter-in-law and son.

(2.) The facts necessary for understanding the case are that the testator's son Sundararamanjulu Naidu disappeared and has not been heard of for 25 years, the testator's granddaughter Kothanayaki died unmarried in 1903, the 2nd defendant was born in 1899, that is, within ten years of the testator's death in 1897; but the bequest in his favour being a bequest to a person not in existence at the death of the testator is invalid under the rule in the Tagore case [Ganendra Mohan Tagore V/s. Jatindra Mohan Tagore (1872) 9 Beng. L.R. 377 (P.C.)].

(3.) The question we have to decide in this appeal is whether the effect of the first of the passages quoted from Clause 9 of the will is, in the events that happened to create a gift to the granddaughters or an intestacy. The learned Judge in the trial Court decided in favour of the former alternative. He was of opinion that Section 116 of the Succession Act applied to this case rather than Section 117. He referred to two cases, Narandas Vrijbhukhandas V/s. Bai Saraswati Bai (1914) I.L.R. 38 B. 697 and Radha Prasad Mullick V/s. Rani Mani Dassee (1906) I.L.R. 33 C. 947 as being cases in point. Narandas Vrijbhukhandas V/s. Bai Saraswati Bai (1914) I.L.R. 38 B. 697 is a case which dealt with a will executed in the mofussil and consequently it contains no discussions of the sections of the Succession Act.Radha Prasad Mullick V/s. Rani Mani Dassee (1906) I.L.R. 33 C. 947 followed the English case of Jones V/s. Westcomb (1711) 1 Eq. Cases Dbr. 248. The case Radha Prasad Mullick V/s. Rani Mani Dassee (1906) I.L.R. 33 C. 947 went on appeal to the Privy Council and was confirmed on different grounds from those upon which the Calcutta High Court decided it. The decisive feature of that case was that there was no adoption in law because the authority given under the will for the widow and the executors to adopt was invalid.