A M KUPPUSWAMI MUDALIAR Vs. WRANGANATHA MUDALIAR

JUDGEMENT

(1.) On 6 July 1911 one W. Parthasarathi Mudaliar made a will (Ex. A) and died a few days afterwards. He left two sons named Jayaram and Ramachandra. Jayaram died on 21 April 1923 leaving a son, the plaintiff in this suit, and Ramachandra died on 31 August 1923 without issue and on 14 September 1923 his widow adopted defendant 2. Clause 32 of the will according to the Court translation reads as follows: Should the executors think that my sons have received education, etc., are of good behaviour and have good association, and would safeguard my properties without making any wasteful expenditure, and they hand over to them all the properties remaining after paying my debts and meeting the aforesaid expenses, the whole of my estate shall be handed over after Jayaram Mudaliar, of my sons, attains the age of 35 and Ramachandra Mudaliar the age of 30. Even if so handed over, both my sons may only enjoy but shall not have the power to mortgage or sell. Only the issue of my two sons shall, at the proper time, use and enjoy absolutely with rights to gift, mortgage, exchange and sell. Neither my sons nor my other heirs have any right.

(2.) The plaintiff filed the suit under appeal praying for a declaration of his rights under the will and questioning the adoption of defendant 2 and claiming the whole estate even if the adoption should be proved. The learned trial Judge found that the adoption was proved but held that the plaintiff alone was entitled to take the estate under the will. This question depends upon what, by reason of the will, was the period of distribution of the estate. Hera there is a gift to a class after the determination of what has been held in previous litigation with regard to the same will in this High Court to be a contingent life-estate, Jayaram and Ramachandra being the life-tenants. The class amongst whom the estate is to be distributed is the issues of Jayaram and Ramachandra, that is the grandsons of the testator. The difficulty in this case is caused by the adoption of defendant 2 after the death of Ramachandra. He had not been adopted on the date of Ramachandra's death and the only grandson of the testator then alive was the plaintiff. The appellant's case is that the period of distribution of the estate was, by reason of the terms of will, postponed until the attainment of majority of the plaintiff (he being the first to do so) and that this being a gift to a class, all persons who answered the description of grandsons on that date are entitled to share in the estate. On the other hand, the respondent contends that directly the contingent life-estate came to an end on the death of Ramachandra, the estate vested absolutely both in interest and possession, that that was the period of distribution and that on that date there being only the plaintiff alive and answering to the description "grandson", he alone could take the estate--the subsequently adopted son of Ramachandra therefore being excluded. The appellant contends that even if this be so, by reason of the fiction of relation back, defendant 2, although adopted after Ramachandra's death, is entitled to all the rights of his deceased father and to the estate of which he was the contingent life tenant at the date of his death.

(3.) The first question, namely, what is the period of distribution, depends upon Clause 32 of the will; and whether the words only the issue of my two sons shall, at the proper time, use and enjoy absolutely with rights to gift, mortgage, exchange, and sell. Neither my sons nor my other heirs have any right mean that at some time later than the death of the surviving life-tenant, the issue of the testator's sons, that is his grandsons, are to get possession of the estate. If that is the meaning of those words, then the class has got to be ascertained at sometime subsequent to the determination of the life-estate. In Andrews V/s. Partington (1791) 29 ER 610, there was a bequest of the residue to all the children of A, the daughters shares to be paid at 21, or marriage, the sons at 21, or to be sooner advanced for their benefit, with survivorship and interest for maintenance. It was held that The fund shall be divisible when the eldest attains 21, and the division shall be among those then in esse; and the Exception to Sections. 111 and 112, Succession Act (39 of 1925), embodies the rule laid down in Andrews V/s. Partington (1791) 29 ER 610 and other English decisions.