Appeal No 2467 of 1966
Appeal from the judgment and decree dated March 27 1963 the Kerala High Court in Appeal Suit No 848 of 1960 
Sarjoo Prasad PK Pillai and MRK Pillai for the appellants
VK Krishna Menon R Thiagarajan and K Jayaram for respondents Nos 1 to 3
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 AS No 848 of 1962 dated March 27 1963 reversing the decree of the principal Subordinate Judge Trivandrum in OS No 182 of 1957 dated May 23 1960
The father of the plaintiffs who are appellants herein was a Hindu Nadar namely Raman Nadar
He had an eider brother named Krishanan Nadar
On May 9 1946 the said Krishanan Nadar and Raman Nadar jointly executed a deed of will exhibit P 2 in respect of the assets of Krishanan Nadar
On the date of the will Raman Nadar had only three daughters and no sons
Krishnan Nadar died on December 5 1947
After the death of Krishnan Nadar the appellant s mother  was married to Raman Nadar who is the father of the appellants
It is specifically provided in the will exhibit 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 Krishnan Nadar to the exclusion of the daughters
The material portion of the will exhibit p 2 reads as follows Deed of will executed by Krishnan aged 51 Nadar son of Kaliyambi merchant Makkavazhi Kuzhiamvilakathu Veettil Melkaladi Airanimuttan Pakuthy Nellamn Adhikaram and his brother Raman son of the said Kaliyambi of do
 aged 39 merchant on 26th Madam 1111 ME 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 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 deeds
The first named is unmarried and the second named has married Parvathy alias Snahappoo daughter of Sarah Maraikkamuttath Veettil Vazhuthoor Desom 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 regarding them are made The first named till the end of his life will have the right to pay the land revenue to enjoy and dispose in any manner whatsoever all the movable and immovable properties that belong or may belong to himself
After the life of the first named all the properties above said will be taken and enjoyed by the second named maintaining his children 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 daughters 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 pattahs and paying the revenue in their own names but without making any alienation 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 2nd named and enjoy them for ever effecting mutation taking pattahs and paying revenue and with all powers of disposal and in that event the daughters of the 2nd named will not have and should 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 OS No 37 of 1124 ME for the administration of the estate of the deceased Krishnan Nadar
The mother of appellants was made one of the defendants in that suit and the allegation was that Raman Nadar had contracted an illicit relationship with her and that he had executed a gift deed exhibit D 1 in her favour in respect of some of the plaint items
OS No 37 of 1124 was dismissed on the  ground that the plaintiffs of that suit had lost their rights under the will on the birth of a son to Raman Nadar through his second 474 wife on February 7 1951 during the pendency of the suit
The plaintiffs in OS No 37 of 1124 filed AS No 98 of 1955 against the aforesaid decree 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 1st 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 1st defendant had no right to revoke the will after Krishnan Nadar s death 
The plaintiffs do not and cannot get the right to possession of the properties until after the 1st defendant s death but a right to maintenance from the income of the properties has been provided for the plaintiffs by exhibit A the will and this they are entitled to get
The 1st 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 Additional Subordinate Judge Trivandrum
After the suit went back on remand the Additional Subordinate Judge Trivandrum held that the plaintiffs were not entitled to any relief and dismissed the suit
The daughters of defendant no1 preferred an appeal AS No 340 of 1959 to
the High Court
Meanwhile the appellants instituted OS 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 1st defendant was legal and the sons born 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 1st defendant plaintiffs in OS No 37 of 1124 were not entitled to any right over the properties
The daughters of the 1st defendant preferred an appeal against the
decree of the Principal Subordinate Judge being AS No 848 of 1960
The High Court decided this
appeal and AS No 340 of 1957 by a common judgment on March 27 1963
Appeal AS No 848 of 1960 was allowed in whole and suit OS No 182 of 1957 filed by the appellant was dismissed
AS No 34 of 1959 was partly allowed and appellants 1 and 2 being the first two plaintiffs in OS No 37 of 1124 were held entitled to maintenance of Rs 50 per head per menses 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 1st defendant
The other prayer sought by the plaintiffs in the appeal was disallowed
475 In dismissing OS No 182 of 1957 the High Court took the view that the legal validity of the bequests in exhibit 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 State 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 will 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 OS 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 defendant the daughterrs 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 down for the first time in Tagore s case1 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 of law at the time the gift was to take effect
The Judicial Committee purported to base its decision on a passage in Dayabhaga Ch 1 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 of 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 without 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 1 IA 1872 Supp
476 in Bengal that the legal power of transfer is the same as to all property whether ancestral or acquired
It applies to all 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 cup
iv 21 by the phrase relinquishment in favour of the donee who is a sentient person  By a rule now generally adopted in jurisprudence this class would include children in embryo who afterwards come into separate existence pp 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 of which the following is the correct translation Since in a gift the done s ownership in the thing given arises from the very act of the donor consisting of the relinquishment 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
1 of Dayabhaga shows that a gift is completed by the donor s act alone the acceptance of the donee 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 suggested that the matter required reconsideration
But it is manifest that the decision of the Judicial Committee in Tagore s case1 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 pea 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 long use and acquiescence a legal mode 1 IA 1872 Supp
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 in Charles Dalton vs Henry Angus  Co1 as follows I quite agree with what is said by the late Chief Justice Cookburn 3 QBD 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 fiction 
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 a11 legal fictions and was often said with 1 think more reason of recoveries
But I take it that when a long 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 error facit us
 The doctrine in Tagore s case has been altered by three Acts namely the Hindu Transfers and Bequests Act 1 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 be invalid by reason only that any person for whose benefit it may have been made was not born at the date of the testator section death
This rule however is subject to the limitations and provisions contained in sections 113 114 115 and 116 of the 
It is however not disputed in the present case that on the relevant date none of the three Act was operative and the doctrine or pure Hindu Law was applicable to the Travancore State
It follows that the principle laid down in Tagore s case2 applied and the bequests in favour of the sons of the 1st defendant are void and of no legal consequence
On behalf of the appellants it was contended that the bequest in favour of the sons of the 1st defendant was in the nature of a family provision and therefore fell outside the principle laid down in Tagore s case2
In our opinion there is no justification in this argument
Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testor directs that his properties after his death shall be taken by his nephews or in their absence 2 1 A 1872 Supp
1 1881 6AC 740812
478 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 testators properties
The argument was stressed on behalf of the appellants that the will exhibit 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 case1 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 well 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 one of them by the survivor
 In our opinion there is no warrant for this argument
The will exhibit 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 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 intended to operate or to come into effect after the death of both the testators
In regard to the Krishnan Nadar s properties the life estate devised in favour of the 1 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 clause that both the testators have the right to revoke the will during 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 and ignoring none of the has 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 effect after the death of Krishnan Nadar and before the death of 1st defendant the last clause in the will cannot be literally correct
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 1 I A 1872 Supp
479 plaint properties vested in the daughters of the 1st defendant under the terms of the will exhibit P 2
It appears that during the pendency 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 sons at the date of his death
The relevant portion of exhibit 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 properties that may 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 defensible on the sons being born to defendant No 1
Hence upon the death of defendant not 1 on May 13 1969 there was no valid bequest to the daughters
In other words there was an intestacy and the provisions of the Act No 30 of 1956 would be applicable
The sons of defendant No 1 cannot take under the will because they were unborn on the date of the death of the testator Krishnan Nadar
The daughters also cannot take under the will as the bequest in their favour was subject to the defeatisms clause
It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan Nadar under the provisions of the 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 favour 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 these reasons we hold that this appeal must be allowed the judgment of the Kerala High Court dated March 27 1963 in AS No 848 of 1960 should be set aside and the appeal should be remanded to the High Court for determining the issue whether 480 the plaintiffs were the legitimate sons of defendant No 1 and thereafter 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
Appeal allowed


Summary:
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 of K and R K died in 1947
The appellants claiming to be the sons of R by his subsequent marriage filed a suit for a declaration that R had only life 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 legal 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 daughters filed an appeal to the High Court
Soon after K s death another 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 their right on the birth of appellants
An appeal to the High Court was pending in this suit also
The High Court by a common judgment held that the appellants sons of R were born after K s death so the devise in their favour was void and that after the life estate of R his daughters became entitled to the properties for their life time
HELD 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 engraved in Hindu Law by the decision of the Judicial Committee in Tagore vs Tagore
IA 1872 Supp
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 of that decision rights have been regulated arrangements as to property have passed
Therefore this was a proper case in which maxim communis error facit jus 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
The bequests in favour of R s sons were void and of no legal consequence
477 A 478 F G It is therefore not possible to accept the argument that the will was intended to operate or to come into effect after the death of both the testators
In regard to K s properties the life estate devised in favour of R must necessarily take effect and remain in force during the life of R and not after that it is true that at the 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 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 and ignoring none of them as redundant 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 the last clause in the will could not be 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 Tagore s case IA 1872 Supp
47 and Charles Dalton vs Henry Angus  Co  812 referred to