KUDOPA VENKAYAMMA (MINOR BY HER FATHER AND GUARDIAN MALLINA KRISTAMMA) Vs. KAKARLA NARSAMMA AND FIVE ORS

JUDGEMENT

(1.) There are two questions arising in this appeal. The first relates to the construction of the will (Exhibit A). There can be no doubt that Subbanna, one of the sons of a daughter of the testator, acquired a vested interest under the terms of the will on the death of the testator. He lived for some time after the testator s death and then died leaving the plaintiff, his widow. It is argued on behalf of the plaintiff that upon a proper construction of the will, only such of the sons of the testator s daughter would take as were born and living at the time of the testator s death, and Mr. Ramesam relies for this construction upon a ruling of the Privy Council--Bangabati Barmanya v. Kalicharan Singh (1911) I.L.R. 38 Calc. 468 (P.C.). The question being one of construction, it has to be determined with reference to the terms of the document in each case, though in arriving at the true meaning of the document, one must have regard to any general rule of construction that bears on the matter. It is said that because under the Hindu law which governed the will of the Hindus at the date of the will in question, the unborn persons would take no interest, therefore the testator must be presumed to have intended that only persons that were born at the date of his death should take. No doubt that is an element to be taken into consideration and we do not think their Lordships of the Privy Council in alluding to that factor in the construction of the will meant to lay down anything further than that that this fact is to be borne in mind in arriving at the true intention of the testator. The terms of the will seem to be quite clear to show that not only the sons of the daughter of the testator born and living at the date of the testator s death but also others who may be born thereafter and existing at the period of distribution were intended to take. Here a life-estate in favour of the testator s widow has been interposed so that the property would not come into the possession and enjoyment of the residuary legatees until her death. The material pas sage in the will is to this effect: "The whole of the remaining property consisting of immoveable property, etc., should be enjoyed with right by the son already born to my second daughter, Kudapa Chinna Gopanna, viz., Subbanna and by the male issues who may be born hereafter to the said Chinna Gopanna. The will then goes on to provide for certain payments to be made by the testator s wife, and it is only the residue that is left that is to go to the sons of the testator s daughter. No good reason can be suggested why the testator should have intended to benefit only those sons of his daughter who might be born at the time of his death and not those who might be born thereafter and as I have said the terms of the will indicate the contrary. If there was no intervening life-estate, the argument of the appellant no doubt would have force, but the fact that the life-estate intervened prevents the application of the general rule that only the persons born at the death of the testator were intended to take.

(2.) The next question arises upon the construction of the Madras Act I of 1914. The Act came into operation only in March 1914, and the respondents were born after the Act came into force. The will itself was made long before the Act was passed. The question then is whether Clause (2) of Section 2 of that Act operates upon the dispositions of this will. That clause says: "In the case of transfers inter vivos or wills executed before the date of the Act the provisions of this Act shall apply to such of the dispositions thereby made as are intended to come into operation at a time which is subsequent to such date: Provided that nothing contained in this section shall affect bona fide transferees for valuable consideration in whom the right to any property has vested prior to the date of the Act." The language is general and has the effect of validating dispositions which are to come into operation at a future date in accordance with the intention of the testator. What is argued on behalf of the appellant is that the testator cannot be said to have intended that his disposition would be valid in favour of persons who were not in existence at his death. That is the very question we have already disposed of. Clause (2) of Section 2 of the Madras Act I of 1914 means that if the testator intended that his disposition should take effect at a future date and that date happened to be subsequent to the passing of the Act, then by virtue of this Act, the disposition will be valid and effective. The gift therefore to the respondents is valid. The result will be that the plaintiff as widow of Subbanna is entitled to the widow s interest in such shares as Subbanna would, if living, have taken along with persons who might be born to his mother at the time the distribution takes place that is to say, the plaintiff as representative of Subbanna will be entitled to share equally with other sons of Subbanna s mother including the sixth defendant who may be born before the death of the first defendant. The Subordinate Judge has dismissed the plaintiff s suit altogether on the ground that what was intended by the testator was that Subbanna and the other sons of the testator s daughter who might be born at any time would take as members of a joint family and as Subbanna died before his mother, he did not take anything or rather his interest survived to the other sons. It is difficult to understand how such a construction could be arrived at and no attempt has been made to support it before us.

(3.) The case will stand over till Monday for further hearing.