K T GANAPATHY PILLAY Vs. ALAMALOO

JUDGEMENT

(1.) This appeal concerns the distribution of residuary trust funds held under the will dated 20 May 1898, of a testator, K. Tamboosamy Pillay, who died in the year 1902. By that will, after giving directions for the sale, conversion and investment of his real and personal estate and constituting thereout a residuary trust fund (therein called the trust funds), the testator directed that for a period of 21 years after his death certain shares or parts only of the income of trust funds should be paid and applied as therein mentioned, and the residue of the income of the trust funds should be accumulated by investing the same and the resulting, income thereof to the intent that such accumulations should be added to and form part of the corpus of the trust funds. And after certain further directions not material to be here stated the testator made a final direction and bequest in the terms following, that is to say : "And I direct my trustees on the expiration of 21 years after the date of my death to divide my trust funds into five shares and to pay one of such shares to my said wife and such share shall be held to Vest in her at the date of my death and to pay one other of such shares to each of my said sons Parimanum, Komarasamy, Mootoosamy also called Ratanam, and Ganapathy and in the event of any such son of mine dying before the expiration of such period of 21 years leaving child or children surviving him such child or children and if more than one equally between them shall take the share to which such son of mine would have been entitled if he had survived such period of 21 years and in default of issue of any son the share of such son shall be payable to the surviving sons equally between them subject to such provision as my trustees shall think fit in their absolute discretion to make for the surviving widow of any son."

(2.) The general legal character of the interests created by these words of gift is reasonably clear. The widow's interest in her one-fifth, though postponed in possession for 21 years, is immediately vested and is indefeasible. On the other hand, the similarly postponed interest of each of the sons in his one-fifth is also immediately, though not indefeasibly, vested and is liable to be divested and given over should he die before the expiration of the term of 21 years from the testator's death ; and in that case two alternative and mutually exclusive events are considered and provided for in somewhat loose language. In the first event, namely, of his death, leaving a child or children surviving him, the share he would have been entitled to, had he survived is given to such child or children. In the second event namely, of his death without leaving issue (it is fortunately unnecessary to construe this word) his share is given to the surviving sons.

(3.) In the arguments and to some extent in the judgments in the Courts of the Federated Malay States expressions have been used which imply or suggest that the interests of the sons were not vested till the expiration of the term of 21 years, and, also that the case was one in which ordinary questions of accruer have to be considered. In their Lordships' view, neither of these implications nor suggestions is correct. The terms of the original gift to the sons is such as to create a plain vested gift, and the subsequent alternative gifts operate by way of divesting in certain events that vested gift. On the other hand, though the original gift to each son of his share is vested, there is not prior to the expiration of the term of 21 years any intermediate gift over as between the sons or their issue of the shares of sons dying successively within the period, such as would or might involve the ordinary problems as to accruer and the ultimate destination of accrued shares. The position of each son as to survivorship or as to prior death either with or without leaving issue has to be considered at one definite date and one date only, namely the expiration of the fixed period of 21 years from the testator's death.