The first and the eigth defendants are the appellants. The suit for declaration and permanent injunction was dismissed by the trial court. The first appellate court reversed the finding and allowed the appeal. Aggrieved by the judgment of the first appellate court, the first defendant filed the second appeal. Pending appeal, the eigth defendant got herself transposed into second appeallant. 2. The case of the plaintiff as found in the plaint is that, the suit property originally belong to one Duraisamy Naidu. He had three wives. Through his first wife he had one son by name Ramalingam. His second wife died issueless. Through the third wife he had three sons by name, Gopalakrishnan, Packirisamy and Mohanraj. The plaintiff is one of the grand son of Duraisamy Naidu. During the life time of Duraisamy Naidu, he executed a Will on 01.04.1943 bequeathing his property to the second and third defendants who are the sons born to his third wife Andal. As per the Will, the property has to be enjoyed by the 2nd and 3rd defendant for life without right of alienation. After their life time the properties should devolve on their male decendants. Duraisamy Naidu died on 07.05.1945. The plaintiff and the defendants 4 to 7 are the vested reminders. The defendants 2 and 3, who are the life interest holders, contrary to the recital of the Will, had sold the property to the first defendants on 18.6.1989 without any alienable right. The first defendant has settled the property in favour of the eigth defendant. The said sale and the subsequent settlement will not bind the vested reminders.
3. The first defendant in his written statement has contented that the suit is not maintainable. It is filed at the instigation of the second and third defendants. The suit property is the joint family property of the Duraisamy naidu and his sons. Duraisamy Naidu has no right to execute Will in respect of joint family property. Further the said Will was not given effect due to the birth of third son Mohanraj who born after the execution of the Will. After the death of Duraisamy Naidu in the year 1945, dispute arose between his sons and as a result partition was effected on 21.06.1966 among the four sons of Duraisamy Naidu and got it registered. The defendants 2 and 3 along with their mother Andalammal jointly sold the property for valuable consideration. On the date of Duraisamy death, the plaintiff and the defendants 4 to7 were not born. Therefore, the later part of the Will has become otise. The defendants 2 and 3 had become the obsolute owners of the property with right to alienate.
4. The 2nd and 3rd defendants remained exparte. Defendants 4 to 7 filed their written statement supporting the plaintiff. Whereas the 8th defendant supported the first defendant.
5. The trial court after examining the evidence held that, at the time of Will dated 01.04.1943 Duraisamy Naidu had only two sons born through his third wife. The third son Mohanraj born susequent to the Will. On examining the Will sitting in the armchair of the testator, he found that there is no reason to deprive property to the third son. After analysing Ex 3 Will executed by Duraisamy Naidu and Ex A-4 the partition deed entered between the family members of the Duraisamy Naidu after his demise the trial court has concluded that the Will of Duraisamy Naidu had been abondoned by his family members since it was not feasible for them to act upon it by excluding the latter born son. Therefore the Will of Duraisamy Naidu had been abandoned even before the birth of the plaintiff and the defendants 4 to 7. The Will has not been given effect by the beneficiaries. The first defendant has established that he is a bonafide purchaser for value. Hence dismissed the suit.
6. On appeal by the plaintiff, the lower appellate court, held that the the beneficiaries of the Will cannot cancel it or abondone the Will. Alienation of the property by the life interest holder is void. It is against the interest of the vested reminders. Therefore allowed the appeal and the suit for delaration and injunction was decreed.
7. The following substantial question of law is formulated in this second appeal.
1. Whether the lower appellate Court has not erred in law in failing to apply the provisions contained in Sections 13 and 14 of Transfer of Property Act and failing to hold that under the terms of the Will, the 1st respondent did not obtain any interest in the suit property?
2. Whether the lower appellate Court has not erred in law in rejecting Ex.A.4, a partition among the members of the family which establish that the Will did not take effect and not given effect to?
8. The learned counsel for the appellant submitted that the Will marked as Ex A-3 does not confer any right to the plaintiff in view of section 13 and 14 of the Transfer of Property Act. Further, the partition deed Ex A-4 among the family members who are otherwise entitle to get the property by intestate succession has superceded the Will which has not given effect. Even otherwise, the Will is repugnant to the rule against perpetuity and therefore the later part of the Will without absoulte vesting on the male decendants is void. Even if the Will has to be given effect ignoring the partition deed, the vendors of the appellant namely the 2nd and 3rd defendants are the absolute title holders and the sale made by them in favour of the appellant is valid.
9. The learned counsel after referring Section 13 and 14 of the Tansfer of Property Act and Section 113 of the Indian Succession Act, fairly submitted that, in case of Will, Transfer of Property Act is not applicable. Only the Indian Succession Act is applicable. Hence the Validity of the Will Ex.A.3 may be tested in the light of Section 113 of Indian Succession Act, which is analogous to Section 13 and 14 of Transfer of Property Act and contended that, the recital of the Will does not vest the reminder with the unborn male decendants of defendants 2 and 3 absolutely. As per the Will, the property has to devolve upon the male decendants perpectually and infinitely. The learned counsel read clause 10 of the Will marked as Ex A-3 and pointed out that, the testator has given life interest to his sons Gopalakrishnan and Pakirisamy without right of alienation and after their life time it will devolve upon the their male decendants for life and thereafter their decendants for generations.
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10. In support of his argument he quoted paragraphs 14 and 15 from the judgment of Hon'ble Justice K.Sampath in “Susila Ammal -vs Indiraniammal reported in 2000(IV) CTC 78”, wherein his Lordship has observed as under:-
“14. As stated in Section 87 of the Indian Succession Act, it the testators intention cannot operate to its full extent it shall atleast take effect to the extent possible 15. This is a rule of commonsense and justic. If often happens that ah entire Will or an entire provision therein could not be given effect to. A portion of the Will may be void for uncertainity or as offending any rule of law or of public policy. Still the rest of the Will could be easily separated from the void portion without violating the intentions of the testator. In those circumstances, the portion not objectionable may be given effect to.”
11. Per contra the learned counsel for the respondents submitted that, the sale in favour of the appellant is in absolute violation of the terms of the will and also against the wish of the testator. The will not only postpone the vesting but also restricts alienation. Therefore the alienation by the life interest holder is not binding on the vested reminders.
12. In support of his submission the learned counsel for the respondents quoted the judgment in “V.Nagarathinam -vs- Padmadevi and others reported in AIR 2001 Mad 53” wherein this Court has observed that, without adhering the intention of the testator and without the permission of the Court, selling of the property (by the life interest holder) is highly improper, though not illegal. In that case, the life holder after getting probate of the Will without any necessity or without permission of the Court sold away the property. Under the said circumstance the Court was to observe as above.
13. From the recital of Ex A-3, the intention of the testator is not difficult to infer. It is a lengthy Will containing 14 clauses. The testator having married three ladies, one dying issueless and other two having issues, he has taken note of the factual situtation of his family and dealt it in the Will extensively . He has recorded that his first wife son Ramakrishnan is employed as fireman in the Railways. He is earning Rs.50/- per mensum and well settled. The children born through the third wife, two are minor sons and 4 ummarried daughters and one married daughter. Four unmarried daughters needs support. So, he has bequeathed life interest in one of the residential houses, to his son Ramakrishnan but postponed its enjoyment till his younger son Pakkirisamy attains 22 years of age, (who was 7 years old at the time of executing the Will in 1943). However, he could not foresee the event, that he will be blessed with another son through his third wife and his demise soon after the birth of his son later to be named Mohanraj. The events not foreseen by the testator while executing the will Ex A-3 is the cause for the partition deed between his family members later in the year 1966.
14. As pointed out by the counsel for the appellant, the recital of Ex.A-3 does not ultimately vest the property to the plaintiff or the defendant 4 to 7 as claimed in the plaint. It is a bequeath in perpectuity. The words “the male decendants of Gopalakrishnan and pakkirisamy and later their decendants for generations”, makes the Will to undergo the scanning of Section 113 of Indian Succession Act. After scanning, this Court has no doubt, the Will Ex A-3 as it reads, squarely attracts the 'rule against perpectuity'.
15. In a similar case, the Hon'ble High Court of Madras in “G.Narayanan -vs- G.N.Rajagopalan reported in AIR 1987 Mad 75” has held that, successive life interest is not permissible in law.
“the testator bequathed the property which was the subject matter of the dispute, in favour of his grandson, one 'G', the legatee and his heirs, to be enjoyed by them from generation to generation 'without any power of alienation with a direction that they should feed Brahmins on a particular day. Two sons were bone in 1945 and 1947. There was alienation, and partition of suit properties in 1950. sons of 'G' filed a suit for decalaration their father 'G' was entitled to a life estate and the various alienations would not hold good beyond the life time of 'G'. It was held by the learned Judge that 'G' who was live at the testator's death in 1928 was conferred on life estate, which was valid and the subsequent life estates in favour of his sons void. Creation of successive life interes is not permissible in law and therefore the sons of 'G' took the reminder absolutely free from the restrictions imposed on the natural of the estate.”
16. It is appropriate to read Section 113 of the Indian Succession Act at this point which runs as follow :-
“113. Bequest to person not in existence at testator's death subject to prior bequest – Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
Illustrations :-
(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest son is a bequest to a person not in existence at the testator's death. It is not a bequest of the whole interest that remains to the testator. The bequest to A's eldest sons for his life is void.
(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters some of whom were not in existence at the testator's death. The bequest to A's daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A's daughters is valid.
(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any of them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life and may be divisible among her children after her death. A has no daughters living at the time of the testator's death, but has daughters born afterwards who survive him. Here the direction for a settlement has the effect in the case of each daughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a person not in existence at the time of the testator's death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void.
(iv) A bequeathed a sum of money to B for life, and directs that upon the death of B the fund shall be settled upon his daughters, so that the portion of each daughter may belong to herself for life and may be divided among her children after her death. B has no daughter living at the time of the testator's death. In this case the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest to person not yet born, of a life interest in the fund, that is to say, of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void.”
17. When the law clearly prohibits successive life interest, to give a purposive meaning to the Will of the testator, the surviving life interest holders when the Will came into force, has to enjoy the property absolutely and not the persons born subsequent to the death of the testator. In this case, Will is dated 1.4.1943. The testator died on 07.05.1945. On the date of his death, as per the Will the surviving life interest holders were his first wife son, his third wife Andalammal and her two sons. Even her third son Mohanraj born after the will is not a beneficiary under the will. More so the plaintiff and defendants 4 to 7 who were not born at that time. Therefore, when the succession opened, the life interest holders have become the absolute owners in the light of the law under section 113 of the Indian Succession Act.
18. At this juncture, the fact of partition among the beneficiaries mentioned in the Will gains significance. The recital of the partition deed Ex A-4 records the factum of Mohanraj birth subsequent to the Will, the alienation of joint family properties for the benefit of the family as the reason for abandoning the Will and for entering into partition in respect of the property covered under the Will Ex A-3.
19. After eschewing the latter part of the Will, which transfers the property for generations reserving the right of life interest to the male decendants and their decendant of the testators, if one read the Will and the partition deed harmoniously, one could find no illegality or infirmity in the sale of the suit property by the defendants 2 and 3 to the first defendant. More particularly, the parties executed the sale deed Ex.A-5 in favour of the first defendant though arrayed as defendants 2 and 3 had remained exparte. The sale deed Ex.A-5 is based on the partition deed Ex A-4 entered upon by all parties concern, after considering the non feasibility of enforcing the recital in the Will Ex A-3. While the beneficiaries of the Will had remained exparte, the persons who claim title through them are questioning the sale based on the recital of the Will, which does not confer any right to them, since it is hit by rule of perpectuity.
20. While the trial court has properly considered the documents Ex A-3 and A-4 by sitting in the armchair of the testator and had upheld the pragmatic solution arrived by the beneficiaries under the will by entering upon the partition deed. The lower appellate court had provided pedantic interpretation to the Will and had held that the beneficiaries cannot abondone the Will. Hence, for that reason also the lower appellate court judgment warrants interference.
21. For the afore said reasons, the substantial question of law is answered in favour of the appellants. In the result the lower appellate court judgment is set aside, trial court judgment restored. The second appeal allowed. No order as to costs.
28.02.2017
Index : Yes/No rts To
1. The Principal Sub Judge, Mayiladuthurai
2. The Additional District Munsif, Mayiladuthurai.
Dr.G.JAYACHANDRAN, J.
rts Judgment in S.A.No.857 of 1999 28.02.2017 http://www.judis.nic.in