# RAMAN NADAR VISWANATHAN NADAR & ORS v. SNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4 OTHERS

- **Citation:** [1970] 2 S.C.R. 471
- **Court:** Supreme Court of India
- **Decided:** 1969-09-17
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raman-nadar-viswanathan-nadar-ors-v-snehappoo-rasalamma-alias-ammukutty-4-others-4846
- **Pages:** 10

## Headnote

Hindu Law-Will-Bequest to unborn person.
K, a Hindu had no issue, but had a brother R who had 3 daughters.
K, and R jointly executed a will bequeting the assets of K to son or sons
born in future to R, to the exclusion of the daughters, after the death o'i
K and R.
K died in 1947. The appellants claiming to be the sons of R
bv his subsequent marriage, filed a suit for a decfaration that R had only
Iii'e interest in K's properties with _the remainder Vested in them under the
will.
The trial court decreed the suit holding that the second marriage of
R was le.gal and the appellants were entitled to the properties subject to R's
life estate and that R's daughter had no right in the properties. R's
d•ughters filed an appeal to the High Court. Soon after K's death, an·
other suit was filed by R's daughters 'for administration of K's estate in
which the appellants mother
was a party. This suit was dismissed on
the ground"that the plaintiffs had lost th:ir ri~t on .the birth of appe]la~ts.
An appeal to ·the High Court was pendmg
10 this suit also. The High
Court by a common judgment held that tlle ,appellants, sons of R, were born
after K'.s death, so the devise in their favour was voicl, and that after the
hf.- €state of R, his daughters became entitled to the pJOperties for their
. life time.
<!"
.,,.,,,., ... ,
HELD : Although there is no authority in Hindu Law to justi'fy the
doc:i-ine that a Hindu cannot make a gift or bequest for the benefit of an
unborn person yet that doctrine has. been engrafted in Hindu Law by the
decision
of the Judicial Committee in Tagore v. Tagore,
I.A. (1872)
Supp. 47.
This doctrine was laid down for the first time in the case of
Tagore. ·This decision of the Judicial Committee has stood a great length
of time and on the basis df that decision rights have
been regulated,
arrangements as to property have passed.
Therefore this was a proper
ca.:;e in which maxim comn1unis error facit jus be, applied. The principle
underlying the maxim is that "the law so favours the public good, that it
\\"ill in some cases permit a common error to pass for right". The bequests
in favour of R'~ sons were void and of no legal conse.quence. [477 A;
4J8 F-GJ
.
.
H is, the!<.fore,· m>!, possible. to accept the argument that the will was
•• 0mt<!nded"lt'operate ot·to come mto effect after the death of both the testa·
G · to'tS. In ·regard to K's properties the life estate devised in favour of R
mu1t necessarily take effect and remain in force during the life of R and
not after that; it is true that at '.he end of the will there is a clause that
both the testators have the right to revoke the will during their lives and
that the wiir take effect only subsequent to their. death.
But the true in·
tentio.n of the tesfator has to be gathered ·nof by attaching impartanoe to
i1olated expressions but by reading the will as a whole with all its provi·
sions and ignoring none _Of-them as redlindant or contradictory.
It must,
therefore, be held. that as the express devise to R for his life is a disposition intended to take effect after the death of K and before the death of R
H
the last clause in the will could not he literally correct. The daughters also
could not take under the will as the bequest in their favour was subject to
the defeasance clause. [480 E·H]
472
SUPREME COURT REPORTS
[ 1970] 2 S.C.R.
Tagore's case, I.A. (1872)
Supp. 47 and Charles Dalton v. Henry
A
A.n,gus & Co., (1881) 6 A.C. 740, 812, referred to.
CIVJ,L APPE.LLATE JURISDICTION: Civil Appeal No. 2467
of 1966.
Appeal from the judgment and decree dated March 27, 1963
-Of the Kerala High Court in Appeal Suit No. 848 of 1960.
B
Sarjoo Prasad, P. K. Pillai and M. R. K. Pillai, for the appellants.
V. K. Krishna Menon, R. Thiagarajan and K. Jayaram, for
resp-0ndents Nos. 1 to 3.

## Text

471
A
RAMAN NADAR VISWANATHAN NADAR & ORS.
B
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F
v.
SNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4
OTHERS
September 17, 1969
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J
Hindu Law-Will-Bequest to unborn person.
K, a Hindu had no issue, but had a brother R who had 3 daughters.
K, and R jointly executed a will bequeting the assets of K to son or sons
born in future to R, to the exclusion of the daughters, after the death o'i
K and R.
K died in 1947. The appellants claiming to be the sons of R
bv his subsequent marriage, filed a suit for a decfaration that R had only
Iii'e interest in K's properties with _the remainder Vested in them under the
will.
The trial court decreed the suit holding that the second marriage of
R was le.gal and the appellants were entitled to the properties subject to R's
life estate and that R's daughter had no right in the properties. R's
d•ughters filed an appeal to the High Court. Soon after K's death, an·
other suit was filed by R's daughters 'for administration of K's estate in
which the appellants mother
was a party. This suit was dismissed on
the ground"that the plaintiffs had lost th:ir ri~t on .the birth of appe]la~ts.
An appeal to ·the High Court was pendmg
10 this suit also. The High
Court by a common judgment held that tlle ,appellants, sons of R, were born
after K'.s death, so the devise in their favour was voicl, and that after the
hf.- €state of R, his daughters became entitled to the pJOperties for their
. life time.
<!"
.,,.,,,., ... ,
HELD : Although there is no authority in Hindu Law to justi'fy the
doc:i-ine that a Hindu cannot make a gift or bequest for the benefit of an
unborn person yet that doctrine has. been engrafted in Hindu Law by the
decision
of the Judicial Committee in Tagore v. Tagore,
I.A. (1872)
Supp. 47.
This doctrine was laid down for the first time in the case of
Tagore. ·This decision of the Judicial Committee has stood a great length
of time and on the basis df that decision rights have
been regulated,
arrangements as to property have passed.
Therefore this was a proper
ca.:;e in which maxim comn1unis error facit jus be, applied. The principle
underlying the maxim is that "the law so favours the public good, that it
\\"ill in some cases permit a common error to pass for right". The bequests
in favour of R'~ sons were void and of no legal conse.quence. [477 A;
4J8 F-GJ
.
.
H is, the!<.fore,· m>!, possible. to accept the argument that the will was
•• 0mt<!nded"lt'operate ot·to come mto effect after the death of both the testa·
G · to'tS. In ·regard to K's properties the life estate devised in favour of R
mu1t necessarily take effect and remain in force during the life of R and
not after that; it is true that at '.he end of the will there is a clause that
both the testators have the right to revoke the will during their lives and
that the wiir take effect only subsequent to their. death.
But the true in·
tentio.n of the tesfator has to be gathered ·nof by attaching impartanoe to
i1olated expressions but by reading the will as a whole with all its provi·
sions and ignoring none _Of-them as redlindant or contradictory.
It must,
therefore, be held. that as the express devise to R for his life is a disposition intended to take effect after the death of K and before the death of R
H
the last clause in the will could not he literally correct. The daughters also
could not take under the will as the bequest in their favour was subject to
the defeasance clause. [480 E·H]
472
SUPREME COURT REPORTS
[ 1970] 2 S.C.R.
Tagore's case, I.A. (1872)
Supp. 47 and Charles Dalton v. Henry
A
A.n,gus & Co., (1881) 6 A.C. 740, 812, referred to.
CIVJ,L APPE.LLATE JURISDICTION: Civil Appeal No. 2467
of 1966.
Appeal from the judgment and decree dated March 27, 1963
-Of the Kerala High Court in Appeal Suit No. 848 of 1960.
B
Sarjoo Prasad, P. K. Pillai and M. R. K. Pillai, for the appellants.
V. K. Krishna Menon, R. Thiagarajan and K. Jayaram, for
resp-0ndents Nos. 1 to 3.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by certificate from the
judgment of the High Court of Kerala in A.S. No. 848 of 1962
dated March 27, 1963 reversing the decree of the principal Sub-
-Ordinate Judge, Trivandrum in O.S. No. 182 '<if 19'51 dated May
23, 1960,
The father of the plaintiffs who are appellants herein was a·
Hindu Nadar namely Raman Nadar. He had an elder brother
named Krishanan Nadar.
On May 9, 1946 the said Krishanan
Nadar and Raman Nadar jointly executed a deed of will Ex. P-2 ·
c
D
an respect of the assets of Krishanan Nadar. On the date of the
E
will, Raman Nadar had only three daughters and no sons. Krishnan Nadar died on December 5, 1947. · After the death of Krish-
'l!an Nadar the appellant's mother was married to Raman Nadar,
who is .the father of the appellants. It ise specifically provided in
the will Ex. p-2 that in the event of Raman Nadar begetting a son
or sons in future those male issues will succeed to the assets of
F
Krishnan Nadar to the exclusion of the daughters.
The material
portion of the will, Ex. p-2, reads as follows:
"Deed of will executed by Krishnan aged 51, Nadar,
son of Kaliyambi, merchant,
Makkavazhi, Kuzhiam·
vilakathu Veettil, Melkaladi,
Airanimuttan, Pakuthy,
Ne!lamn Adhikaram and his brother Raman son of the
said Kaliyambi of do.,
aged 39, merchant, on 26th
Madam, 1111 M.E. with their own consultation and to
their entire satisfaction.
Some
properties have been
acquired in the name of the 1st named and in 'the name
of the 2nd named out of love and affection towards him
and his children, with the self-acquired money of the 1st
named 'and without the income of the Tarwad properties
of the 1st named and without the help of the other members of the Tarwad or the 2nd named.
They are held
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R. NADAR v. AMMUKUTTY (Ramaswami, J.)
473
by the 1st named in his possession and enjoyed by him
till this date. The 1st named has, till the end of his life;
absolute freedom, authority and right to alienate (the
properties) in whatever manner he likes and to execute
dee4s.
The first named is unmarried and the seeond
1named has married Parvathy alias Snahappoo daughter
of Sarah, Maraikkamuttath Veettil, Vazhuthoor Desoni,
Neyyattinkara · Taluk, through whom he has three daughters Ammukutty aged 14, Chellamma aged 10 and
Rajammal aged 5 but no son.
As the first named felt
himself desirous of .making during his life provision for
the devolution after his life of the movable and immovable properties belonging to him in absolute rights as
aforesaid, the following provisions regai:ding them are
made: The first named till the end of his life will have
the right ~o pay the land revenue to enjoy and dispose in
any manner .. whatsoever all the movable and immovable
properties tliat belong. or may belong to himself.
After
the life ofthe first named, all the properties above said
will be tak~n and enjoyed by the second named maintaining his thHdrt\\\'"named above and those born to him
later and without alienating. or westing the properties.
After the life of the second named, if he leaves behind
no sons, the three dau~ters named above and the daughters, if any, born hereafter may enjoy all the movable
and immovable properties that may be found to belong
to the first named and the second named, either in common or in equal shares, effecting mutation, taking paf'
tabs and paying the revenue in their own names, but
without makfog 'any
aiienation .thereof. If there be
sons born to the second named, .they will take after the
life of the second named all the 'movable and immovable
properties of the first
named and the 211d named and
enjoy them for ever, effecting mutation, taking pattahs
and paying revenue, ·{Ind with all
powers of disposal;
and in that eve~', the daughters of the 2nd named will
not have and shuuld not claim any right and they will
not get any right."
Soon after the death of Krishnan Nadar defendants 3 and 4
and'the mother of the 5th defendant as plaintiffs filed 0.S. No. 37
of 1124 M .E. for the administration of the estate of the deceased
Krishnan Nadar. The mother of appellants was made one of the
defendants in thr i suit and the allegation was that Raman Nadar
had contracted an illicit relationship with her and that he had
executed a gift deed Ex. D-I in her favour in respect of some of
the plaint items.
O.S. no. 37 of 1124 was
dismissed on the
~round that the plaintiffs of that suit had lost their rights under ·
the will on the birth of a son to P.aman. Nadar through his second
,
. "
474
SUPREME COURT REPORTS
[ 1970] 2 S.C.R.
wifo on February 7, 1951 during the pendency of the suit.
The
A
plaintiffs in O.S. No. 37 of 1124 filed A.S. No. 98 of 1955 against
the aforesaid df>-eree and that was disposed of by a Division Bench
,of the Kerala High Court on February 2, 1957.
The High Court
<Observed as follows:
"We do not consider it proper to decide this question
'of the legitimacy of the son born to the !st defendant
in his second marriage) in this suit.
This can be gone
into in a suit, if any, instituted by or on behalf of the
son.
The I st defendant had no right to revoke the
will after Krishnan Nadar's death. . . . . . The plaintiffs do not and cannot get theo right to possession of
the properties until after the !st defendant's death
. . . . . . . . but a right to mainteinance from the income
of the properties ·has been provided for the plaintiffs
by Ex. A (the will) and this they are entitled to get.
The !st defendant is not entitled to do any act which
affects this right of the plaintiffs."
The High Court remanded the suit for fresh disposal to the Additiona:l Subordinate Judge, Trivendrum.
After the suit went
back on remand the Additional Subordinate Judge, Trivandrum
held that the plaintiffs were not entitlr.d to any relief and dismissed the suit.
The daughters of defendant no. I pref en ed an appeal, A.S. No. 340 of 1959 to the High Court.
Meanwhile the appellants instituted O.S. No. 182 of 1957
for a declaration that the first defendant had only a life estate
in the properties of Krishnan Nadar with the remainder vested
in them under the will referred to above.
The suit was decreed
by the Principal Subordinate Judge, Trivandrum who held that
the second marriage of the !st defendant was legal and the sons
'horn out of that marriage were entitled to Krishnan Nadar's
property subject to the life estate of the 1st defendant. It was
further held that the daughters of the !st defendant (plaintiffs
in O.S. No 37 of 1124) were not entitled to any right over the
properties.
The daughters of the 1st def€'"1ant preferred an
appeal against the decree of the Principal Subordinate Judge being
A.S. No. 848 of 1960. The High Court decided this appeal and
A.S. No. 340 of 1957 by a common judgment on March 27, 1963.
Appeal A.S. No. 848 of 1960 was allowed in whole and suit O.S.
No. 182 of 1957 filed by the appe11ant was dismissed.
A.S.
No. 34 of 1959 waS'partly allowed and appellants 1 and 2 (being
the first two plaintiffs in 0.S. No. 37 of 1124) were held entitled
to maintenance of Rs. 50/- per head per mensem from February
18, 1957.
The alienations, Exs. C, D and E were held not binding upon the plaintiffs in that suit nor to have any force beyond
the life of the !st defendant.
The other prayer sought by the
plaintiffs in the appeal was disallowed.
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R. NADAR'v. AMMUKUTTY (Ramaswami, !.)
475
In dismissir,g O.S. No. 182 of 1957 the High Court took the
view that the legal validity of the bequests in Ex. P-2 had to be
ascertained as on the date of Krishnan Nadar's death which was
December 5, 1947.
The marriage of the first defendant took
place on 14-1-1124 (corresponding to August 29, 1948) and the
first child of that marriage was born on February 7, 1951.
The
sons of the 1st defendant born of his second wife were, therefore,
not in existence at the time of the death of the testator Krishnan
Nadar.
Krishnan Nadar belonged to the State of Travancore and
all his properties were located in that Siate where the doctrine of
pure Hindu Law reigned supreme unaffected by any legislation.
The High Court held that according to pure Hindu Law a gift cannot be made in favour of a person who was not in existence at
the date of the gift.
A person capable of taking under a wi!l
must either in fact or in contemplation of law be in existence at
the death of the testator.
The devise in favour of plaintiffs in
0.S. No. 182 of 1957 was void as they were not born at the time
of death of Krishnan Nadar.
After the life estate of the 1st de·
fendant, the dalighters became entitled to the properties for their
life time.
The question involved in this appeal is whether the High Court
was right in holding that plaintiffs have not established their title
to the disputed properties.
Although there is no authority in Hindu Law to justify the
doctrine that a Hindu cannot make a gift or bequest for the benefit
of an unborn person yet that doctrine has been engrafted on Hindu
Law by the decision of the Judicial Committee.
This dOctrine
was laid dow1n for the first time in Tagore's case('), in which it
was held by the Judicial Committee that a Hindu cannot make a
gift in favour of a person who is not in existence either in fact or
in contemplation or law at the time the gift was to take effect.
The Judicial Committee purported to base its decision on a
passage in Dayabhaga, Ch. I, verse 21 as appears from the following passage in the judgment :
"This makes· it necessary to consider the Hindu Law
of Gifts during life and wills, and the extent of the testator's power, whether in respect of the property he deals
with or the person upon whom he confers it.
The Law
of Gifts during life is of the simplest character. As to
ancestral estate it is said to be improper that it should be
aliened by the holder, wi.hout the concurrence of those
who are interested in the succession, but by the law as
prevailing in Bengal at least (1) the impropriety of the
alienation does not affect the legal character of the act
(factum valet), and it has long been recognised as law
(!)I.A. ( 1872) Supp. 47.
476
SUPREME COURT REPORTS
[1970] 2 S.C.R
in Bengal that the legal power of transfer is the same
as to all property, whether ancestral or acquired. It
applies to ,Ul persons in existence and capable of taking from the donor at the time when the gift is to take
effect so as to fall within the principle expressed in the
Dayabhaga, chp. i, v. 2~, by the phrase 'relinquishment
in favour of the donee who is a s11ntient person.' By a
rule now generally adopted in jurisprudence this class
would include children in embryo, who afterwards come
i:J.to separate existence." (p~. 66-67).
But the Judicial Committee was apparently under some misconception with respect to the meaning of the words of Dayabhaga.
The whole sentence in the original is as follows :
<=:r.if~ 'lf~m~~e,q1•1ao;;ua;•!IT'ITTTlr ~r'l<ll ii:a!f t<11fq., ..
of which the following is the correct translation :
"Since in a gift the donee's ownership in the thini;;
(given) arises froin the very act of the donor, consisting
of the relinauishment of his ownership with the intention
of passing the same to a sentient being."
The sentence neither expresses nor implies that the "sentient
being" must be in existence or be present at the time and place
of the relinquishment.
On the contrary the whole argument contained in paragraphs 21 to 24 of Ch. I of Dayabhaga shows that a
gift is completed by the donor's act alone, the acceptance of the
don~ being not necessary.
Indeed, in the very next passage,
Dayabhaga speaks of gifts to God as showing that the validity of
the gifts does not depend upon acceptance.
Mr. Sarjoo Prasad sugges,ed that the matter required reconsideration.
But it is manifest that the decision of the Judicial
Committee in Tagore's case(') has stood a great length of time
and on the basis of that decision rights have been regulated,
arrangements as to property have been made and titles to property
have passed.
We are hence of the opinion that this is a proper
case in which the maxim communis error facit jus may be
applied.
· The principle underlying the maxim is that "the law so favours
the public good, that it will in some cases permit a common error
to pass for right"; as an example of which may be mentioned the
case of common recoveries ·in English law, which were fictitious
proceedings introduced by a kind of pia fraus to elude the statute
de Donis, and which were at length allowed by the Courts to be
a bar to an estate tail, so that these recoveries however clandestinely introduced, became by Jong use and acquiescence a legal mode
(I) I. A. (1872) Supp. 4 '·
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477
of conveyance whereby a tenant in tail might dispose of his lands.
There is a reference made to this principle by Lord Blackburn in
his speech i,n Charles Dalton v.
Henry Angus-& Co.(')
as
follows :
"I quite agree with what is said by the late Chief
Justice Cookburn (3 Q.B.D. at page 105) that where
the evidence proved an adverse enjoyment as of right for
twenty years, or little more, and nothing else, 'no one had
the faintest belief that any grant had ever existed, and
the presumption was known to be a mere hction'. He
thinks that thus to shorten the period of prescription
without the authority of the Legislature was a great judicial usurpation.
Perhaps it was.
The same thing may
be said of all legal fictions, and was often said (with, I
think, more reason) of recoveries.
But I take it that
when a Jong series of cases have settled the law, it
would produce.intolerable confusion if it were to be reversed because the mode in which it was introduced was
not approved of : even where it was originally a
blunder, and inconvenient, communis err~r facit jus."
The doctrine in Tagore's case(')
has
been
altered
by
three Acts, namely, the Hindu Tramfers and Bequests Act, I of
1914, the Hindu Disposition of property Act of 1916 and the
Hindu Transfers and Bequests (City of Madras) Act, 1921.
The
legal position under these Acts is that no bequest shall b~ invalid
by reason only that any person for whose benefit it may have been
made was not born at the date of the testator's death.
This rule,
however, is subject to the limitations and provisions contained
in ss. 113, 114, 115 and 116 of the Indian Succession Act, 1925.
It is, however, not disputed in the present case that on the
relevant date none of the three Acl was operative and the joc•.rine
Qr pure Hindu Law was applicable to the Travancore State. It
follows that the principle laid down in Tagore's case(') applied .
and the bequests in favour of the sons of the 1st defenda1nt are '
void and o.f no legal consequence.
.
On J:>ehalf of the appellants it was contended that the bequest
m favour of the sons of tjie !st defendant was in the nature of a
family provision and, therefore, fell outside the principle laid
~own. in Tagore's case('): In <;>ur opinion, there is no justification
1~ .this. argument .. Assummg without deciding that a family provision ~s. an ~xcept~QII to the rule of pure Hindu Law stated above
a prov~ston m. a will whereby tit~ testor directs that his properties
after his d.~ath shall be taken by'his n~phews or in their absence
(I) [1881] 6 A.C. 740, 812,
(2) I, A. (16i2) Supp. 47
,
478
SUPREME COURT REPORTS
( 1970] 2 S.C.R.
by his nieces cannot be characterised as a family provision.
The
object of such a disposition is obviously not to make a family provision but to chart a course for future devolution of the testator's
properties.
The argument was stressed on behalf of the appellants that
the will Ex. P-2 was a joint will executed by Krishnan Nadar and
Raman Nadar and it was designed to take effect only after the
death of both the testators.
As the sons of the 1st defendant must
necessarily be born before that event the principle in
Tagore's
case(') was not attracted. Reference was made to the following
passage from Jarman on wills 8th edn.
"Two or more persons may make a joint will, which,
if properly executed by each, is, so far as his own property is concerned, as much his will, and is as we!J entitled to probate upon his death, as if he had made a separate will.
But a joint will made by two persons, to
take effect after the death of both, will not be admitted
to probate during the life of either.
Joint wills are
_revocable at any time by either of the testators during
their joint lives, or, after the death of on.-:i of them, by
the survivor."
In our .opinion there is no warrant for this argument. Th.e
will Ex. P-2 contains separate provisions regarding the devolution of the properties of each of the testators. In regard to the
properties of Krishnan Nadar it devises a life estate to let 1st
defendant and the remainder to his sons or in their absence to his
daughters.
In regard to the properties of Raman Nadar the
devise is to his sons and in their absence to his daughters. It is,
therefore, not possible to accept the argument that the will was
inteinded to operate or to come into effect after the death of both
the testMors.
In regard to the Krishnan Nadar's properties the
life estate devised in favour of the I st defendant must necessarily
take effect and remain in force during the life of the 1st defendant
and not after that. It is true that at the end of the will there is a
dause that both the testators have the right to revoke the wiII
dur~ng the lives and that the will will take effect only subsequent
to their death.
But the true intention of. the testator has to be
gathered not by attaching importance to isolated expressions but
by reading the will as a whole with all its provisions anc! ignoring
none of the mas redundant or contradictory. It must, therefore,
be held that as the express devise to the 1st defendant for his life
is a disposition intended to take .'!ffect after the death of Krishnan
Nadar and before the death of !st defendant, the last clause in the
will cannot be literally wrrect.
It was then contended on behalf of the appellants that in any
event the High Court was in error in holding that the title of the
(I) I. A. (1872) Supp. 47.
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plaint properties vested in the daughters of the 1st defendant under
the terms of the will, Ex. P-2.
It apJlears that during the pend~cy of the appeal defendant no. 1 Raman Nadar died on May
20 1969 and the question, therefore, arises whether the daughters
are entitled to a· life interest in the plaint properties after the death
of defendant no. 1.
It is manifest from the will that the bequest
to the daughters is subject to the prior condition that the defendant no. 1 leaves behind no sqns at the date of his death.
The
relevant portion of Ex. P-2 states :
"After the life of the second named, if he leaves behind no sons, the three daughters named above and the
daughters, if any, born hereafter may enjoy all the movable and immovable properti.~~ that niay be found to belong to the first named and the second named, either in
common or in equal sharps ........ "
The bequest to the daughters was, therefore, defeasible on the sons
being born to defendant no. 1.
Hence upon the death of defendant no. 1 on May 13, 1969 there was no valid bequest to the
daughters.
In other words there was an int.~stacy and the provisions of the Hit:du Succession Act, 1956 (Act no. 30 of 1956)
would be applicable.
The sons of defendant nu. 1 cannot take
under the will because they were unborn on the date of the death
of the testator Krishnan Nadar. The daughters also cam1ot take
under the will as the bequest in their favour was subject to the defeasance clause.
It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan N adar
under the provisions of the Hindu Succession Act, 1956 and they
are entitled to a declaration to that effect and other consequential
reliefs.
But it is not possible for us to finally dispose of this appeal
because there was an issue in the trial court as to whether the
appellants were the legitimate sons of defendant no. 1.
The case
of the defendants 3 to 5 was that there was no legal marriage between the 1st defendant and the mother of the plaintiffs.
But
the assertion of the plaintiffs, was that their mother married the
1st defendant after getting herself converted into Hinduism and
such marriage was legally valid and the plaintiffs are the legitimate
children of the 1st defendant. The trial court decided the issue
in f~vour of the plaintiffs but the High Court has not gone into the
question nor recorded a finding as to whether the plaintiffs are the
legitimate sons of defendant no. 1.
For tllese reasons we hold tllat this appeal must be allowed,
tlle jildgment of the Kerala High Court dated March 27, 1963 in
A.S. No; 848 of 1960 should be set aside and the appeal should
be remanded to the High Court for determining .the issue whether
480
SUPREME COURT REPORTS
[1970] 2 S.C.lt
the plaintiffs were the legitimate sons of pefendant no. 1 and thereA
<1_fter dispose of the appeal in accordance with law.
The parties will bear their own costs upto this , stage. The
application made by the plaintiffs for the appointment of a Receiver will be dealt with by the High Court.
Y.P.
Appeal allowed.
8