Civil Appeal No 2085 of 1969
From the Judgment and Decree dated 15 11 68 of the Madras High Court in Criminal Side Appeal No 4565
M Natesan and Mrs section Gopalakrishnan for the Appellants
V section Desai P G Gokhale and section R Agarwala for the Respondents 1 2 702 Ex parte for the Respondents 38
The Judgment of the Court was delivered by SARKARIA J
This appeal by certificate is directed against an Appellate Judgment and Decree dated November 15 1968 of the High Court of Madras
The facts leading to this appeal are as follows The following pedigree table will be helpful in understanding the relationships of the parties Palaniandi Pillai died on 19 5 1928         Ramaswami Pillai Vadovelu Pillai Nataraja Pillai  dies in 1953 died in 31 1 57  Dharmambal  died in 1940      REkambaram RBala  subramaniam 1st Defdt 2nd Defdt   Rajamani Kamala Padma Sarada Laitha Selvaraj 3rd 4th 5th 6th 7th died in 1952 Defdt Defdt Defdt Defdt Defdt Rajammal 8th Defdt Palaniandi Pillai shown in the above pedigree table owned considerable properties
On December 12 1927 he executed a Will whereby he bequeathed certain properties to each of his three sons
He appointed his sons Ramaswami Pillai and Vadivelu Pillai as Executors of his Will
In regard to his third son Nataraja Pillai the testator in clause 5 of the Will stated My third son Nataraja Pillai shall take the income accruing from the properties namely my cast stand house and ground situate in the Western Row of Mint Street bearing Municipal Door No 278 Re survey No 600 Collector s Certificate No 750 and the 5 Godowns namely 2 Godowns situate in Varadaraja Mudali St bearing Municipal Door No 90 and 91 and 3 Godowns situate in 3rd North Beach Road bearing Municipal Door Nos 5 6 and 7 to 9 Re survey No 3158 and 3187 Collector s Certificate No 2550
After his life time if he leaves any male issue they shall take the aforesaid properties with 703 powers of alienations such as gift usufructuary mortgage and sale
If there are no male issue as aforesaid my heirs shall take the aforesaid properties
 Although the Will had not been probated yet by mutual arrangements between the first two sons who were named Executors in the Will and the third son Nataraja Pillai the properties were distributed in consonance with the terms of the Will and the Executors conveyed and transferred the same to the respective legatees and mutual release deeds were also executed by the three sons
Ramaswamy Pillai died in 1954 and Vadivelu Pillai in 1953 Nataraja Pillai died on January 31 1957 without leaving any issue
His widow Krishnammal the appellant herein filed the suit C section No 7 of 1959 out of which this appeal has arisen
She claimed a partition and separate possession of one third share in the plaint schedule properties left by her husband Palaniandi Pillai alleging that the properties  were in the possession of the joint family consisting of his sons or in the alternative b for a declaration of her title and for possession of the properties on the ground that her husband Nataraja Pillai got the same absolutely by way of partition under the deed dated July 14 1928 and she as his heir inherited the properties in the alternative c for a declaration of her rights to the properties on a true construction of the Will of her father in law Palaniandi Pillai and for possession of the properties
The sons of Ramaswamy Pillai respondents 1 and 2 herein were impleaded as defendants 1 and 2 and the daughters of Vadivelu Pillai respondents 3 to 7 were defendants 3 to 7
The daughter in law of Vadivelu Pillai respondent 8 herein was added as 8th defendant
The findings of the learned trial Judge material for our purpose were as follows i Nataraja Pillai got only a life estate in the properties set out in Schedule I of the Plaint ii the contingent interest in favour of the heirs of Palaniandi Pillai became vested only on the death of Nataraja Pillai iii it is not open to the plaintiff Krishnammal to invoke Section 8 of the  iv on the termination of the life interest given to Nataraja Pillai the gift over in favour of the male issues could not take effect as he did not leave any male issue with the consequence that the properties in effect became revested in Palaniandi Pillai but devolved on his heirs as if on intestacy v Section 111 of the Indian succession Act would be applicable
704 In the result the appellants  suit was decreed and it was held that she was entitled to one third share and separate possession of the same by partition of the Plaint Schedule 1 properties and defendants 3 to 8 were equally entitled to one third share together with mesne profits relating to their shares in the said properties while defendants 1 and 2 were entitled to the remaining one third share
Aggrieved defendants 1 and 2 preferred Letters Patent Appeal in the High Court contending that according to the terms of the Will of Palaniandi Pillai they were his only heirs and entitled to get the entire properties in which Nataraja Pillai held only a life interest and that neither the plaintiff nor defendants 3 to 8 were entitled to any share
The Appellate Bench of the High Court purporting to proceed mainly on the scope and construction of Clause 5 of the Will of Palaniandi Pillai held 1 By his Will exhibit P 2 the testator had made my heirs ie the testator s heirs as an artificial class of ultimate residuary legatees
2 This class of legatees or my heirs did not acquire a vested interest in the residuary bequest on the death of the testator
3 The ultimate bequest in their favour would become vested only in the event of Nataraja dying sonless
4 The mandate implicit in the words if there are no male issues as aforesaid occurring in Clause 5 of the Will exhibit P 2 is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when Nataraja died sonless and at no other
5 This class of my heirs of the testator would be ascertained with reference to the point of Nataraja s death without a son on January 31 1957 when succession opened out and the bequest became distributable on the hypothesis that Palaniandi Pillai had lived up to that time ie January 31 1957
6 Although this class of the heirs of the testator was to be ascertained on January 31 1957 on the hypothesis that the testator and Nataraja died simultaneously such ascertainment could not be done either by resorting to the Hindu Women s Rights to Property Act 1937 or to the  because Palaniandi Pillai actually died in 1928 long before the coming into force of these two enactments and he did not die intestate
705 7 Such class of heirs of the testator were to be determined according to the orthodox Hindu Law prevailing at the time of the testator s death on May 19 1928
8 Section 111 of the Indian Succession Act was not applicable
On the above reasoning the Appellate Bench of the High Court reversing the decree of the learned trial Judge held that Respondents 1 and 2 herein were the only persons entitled to the entire Schedule 1 property on the death of Nataraja Pillai to the exclusion of the latter s widow the plaintiff
Thus the appeal was allowed and the plaintiff s suit dismissed
After obtaining a certificate under Article 133 of the Constitution from the High Court the plaintiff Krishnammal has come in appeal before this Court
Controversy in this case hinges around the scope and construction of Clause 5 of the Will exhibit P 2
In that connection the first question that arises for consideration is Did the testator by this Clause create or carve out an artificial class of his heirs  and make a residuary bequest in their favour  In our opinion on a proper construction of the Will the answer to this question must be in the negative
It is well settled that legal terms such as heirs used in a Will must be construed in the legal sense unless a contrary intention is clearly expressed by the testator
The word heirs as pointed out by this Court in Angurbala Mullick vs Debabrata Mullick1 cannot normally be limited to issues only
It must mean all persons who are entitled to the property of another under the law of inheritance
There is nothing in the language of Clause 5 of the Will which compels the construction that by use of the expression my heirs the testator meant something different from his heirs under the law  The expression my heirs has therefore to be construed as equivalent to my legal heirs
Thus considered the words used in the last two sentences of Clause 5 of the Will are not words of gift over to any artificial  class of heirs
They only indicate that in the event of Nataraja s death without any male issue further devolution of the estate that had been given to him for life would be regulated in favour of the testator s heirs ascertained in accordance with Hindu Law of intestate succession
That is to say the testator did not specify or lay down any line of heirs deviating from the Hindu Law of intestate succession
706 The ground is now clear to consider the second question which is pivotal to the whole problem Whether the heirs of the testator on whom the estate was to devolve in the event of Nataraja dying sonless were to be ascertained according to Hindu Law in force at the time of Nataraja s death or according to Hindu Law prevailing in 1928 when the testator died
This question also is one of reaching at the real intent of the testator
In order to expatiate the true import of the last two sentences of Clause 5 of the Will exhibit P 2 the same can be legitimately expanded parenthesized and elucidated so as to read like this After Nataraja s life time if he leaves any male issue they shall take the aforesaid properties with powers of alienation
If Nataraja dies without leaving any male issue then my heirs then ascertained according to law of inheritance shall take the aforesaid properties Thus amplified and elucidated Clause 5 of the Will brings out expressly or by inevitable implication the intention and instructions of the testator in regard to the following a In the event of the termination of the life estate of Nataraja on his death without male issue the property will devolve on my heirs ie the testator s heirs
b Such heirs of the testator are to be ascertained according to the Hindu Law of intestate succession
c Such ascertainment of the heirs of the testator is to be done on the date of Nataraja s death without male issue when succession opens out in favour of those heirs and not with reference to the date of the testator s death
This necessarily implies that my heirs of the testator are required to be ascertained on the hypothesis that the testator lived upto and died a moment after Nataraja s death
If what is spelled out at a b and c be the true construction of Clause 5 of the Will it logically and inexorably follows therefrom that ascertainment of the heirs of the testator on whom the property was intended to devolve in the event of Nataraja dying sonless was to be made in accordance with Hindu Law of intestate Succession as in force on the date of Nataraja s death on January 31 1957 when succession opened out and not in accordance with the orthodox Hindu Law prevailing in 1928 which on the relevant date January 31 1957 stood abrogated and superseded by the 
The conclusion is therefore inescapable that my heirs referred to by the testator in Clause 5 of his Will have to be ascertained in accordance with the 
In so 707 doing we are only giving effect to the import and construction of the Will of the testator and no question of giving retrospective operation to the statute is involved
The learned Judges of the High Court have said that at the time of making the Will the testator could not predicate that at the time of Nataraja s death without leaving any son the Hindu Law of Succession would be different from the one prevailing at the time of making the Will or the testator s death
Nevertheless the testator was definitely contemplating the contingency of Nataraja dying without any male issue and the necessity of ascertaining the testator s heirs at that point of time for further devolution of the property
It cannot therefore be said that ascertainment of the testator s heirs according to the law in force at the time of happening of the contemplated contingency was wholly beyond the ken of the testator
In the view we take of the import and scope of Clause 5 of the Will exhibit P 2 ascertainment of the heirs of Palaniandi Pillai has to be done on the assumption that he died intestate a moment after Nataraja Pillai s death according to Sections 8 to 10 of the 
At that point of time the plaintiff who would be assumed to be the widow of a predeceased son and the defendants would all be heirs of the testator falling in Class I of the Schedule referred to in Section 8
According to Section 9 all the heirs in Class I of the Schedule shall take simultaneously to the exclusion of all other heirs
The distribution of the property among the plaintiff and defendants will be governed by Rules 3 and 4 in Section 10 which are as under Rule 3
The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share
 Rule 4
The distribution of the share referred to in Rule 3 i among the heirs in the branch of the predeceased son shall be so made that his widow or widows together and the surviving sons and daughters get equal portions and the branch of predeceased sons gets the same portion ii among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions
 708 In accordance with the aforesaid provisions of the  the plaintiff would be entitled to get 13rd share in Schedule I property in which her husband had a life interest while the remaining 23rd share in the property shall be equally distributed among the two branches of the defendants the branches of Ramaswami and Vadivelu getting 13rd share each
For the foregoing reasons we allow this appeal set aside the judgment of the High Court and pass a preliminary decree for partition and separate possession in favour of the plaintiff with respect to her 13rd share in the suit property
In the circumstances of the case the parties are left to pay and bear their own costs
PBR Appeal allowed


Summary:
By a will the testator bequeathed certain properties to each of his three sons
With regard to his third son NP the testator provided in Clause 5 of the will that if he had no male issues my heirs shall take the aforesaid properties after his life time
NP died in 1957 without any male issue
His widow plaintiff appellant filed a suit for declaration of her title to the properties on the ground that her husband got the same absolutely by way of partition and that she as his heir inherited the properties or in the alternative for a declaration of her right to the properties on a true construction of the testator s will
Defendants 1 and 2 were the sons of the testator s eldest son while defendants 3 to 7 were the daughters and defendant 8 the widowed daughter in law of the testator s second son The trial judge of the High Court decreed the plaintiff s suit holding that on the termination of the life interest given to NP who died sonless the properties devolved on the heirs of the testator as if on intestacy that the plaintiff was entitled to 13 share of the properties and that the remaining 23 share should be share by the defendants
Defendants 1 and 2 appealed to a Division Bench of the High Court claiming that as the only heirs of the testator they were entitled to get the entire property of NP who had only a life interest in it
Construing cl 5 of the will the Division Bench held  1 that by his will the testator had made his heirs as an artificial class of ultimate residuary legatees 2 that the mandate implicit in the words if there are no male issues as aforesaid is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when NP died sonless and at no other 3 that this class of heirs of the testator was to be ascertained on the death of NP on the hypothesis that the testator had been upto the time of NP s death but according to orthodox Hindu Law prevailing at the time of the testator s death in 1928 4 that neither Hindu Women s Right to Property Act 1937 nor the was applicable because the testator actually died long before the coming into force of these two enactments and he did not die intestate 5 that according to Hindu Law prevailing at the time of the testator s death in 1928 respondents 1 and 2 would be the only persons entitled to the property on the death of NP to the exclusion of the latter s widow the plaintiff
701 Allowing the appeal
 HELD 1a On a proper construction of the will the testator could not be said to have created or carved out an artificial class of heirs and made a residuary bequest in their favour
It is well established that the term heirs used in a will must be construed in a legal sense and cannot normally be limited to issues only
It must mean all persons who are entitled to the property of another under the law of inheritance
705E F Angurbala Mullick vs Debabrata Mullick 1951 2 SCR 1125 at p 1144 referred to
b The expression my heirs used in cl 5 of the will must be construed as equivalent to my legal heirs
The words if there are no male issues my heirs shall take the aforesaid properties are not words of gift over to any artificial class of heirs
705G 2
Construction of clause 5 of the will brings out expressly or by inevitable implication these instructions of the testator a In the event of NP s death without male issue the property would devolve on the testator s heir
b Such heirs of the testator would be ascertained according to Hindu Law of intestate succession
c Ascertainment of these heirs of the testator is to be done at the time of NP s death on the hypothesis that the testator lived up to and died a moment after NP s death
d It logically follows from a b and c that these heirs of the testator would be ascertained according to the  which was the law in force on 31 1 57 when NP died sonless and succession opened out
706 D F 3
On the port and scope of cl 5 of the will as spelled out above ascertainment of the testator s heirs on whom the property would devolve on NP s death is to be done according to sections 8 to 10 of the 
At that point of time the plaintiff who would be assumed to be the widow of a predeceased son and the defendants would all be the heirs of the testator falling in Class I of the Schedule referred to in section 8 and in accordance with Rules 3 and 4 in Section 10 of the Act the plaintiff would be entitled to 13rd share in the property while the remaining 23rd share shall go equally to the branches of Ramaswami and Vedivelu
707 DE