IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 SA.NO. 137 OF 1999(G) --------------------------------- AS.67/1995 OF I ADDL.SUB COURT, KOZHIKODE OS.319/1992 OF PRL.M.C.KOZHIKODE-I .................... APPELLANT(S) - APPELLANT - DEFENDANT: ------------------------------------------------------- K. VASU, S/O.KAMBRATH KOROTTY, MAKKADA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.BALAGOPALAN SRI.K.SANEESH KUMAR RESPONDENT(S) - RESPONDENT - PLAINTIFF: --------------------------------------------------------- M. SUNIL KUMAR, S/O.BALAN, KASABA AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.M.P.MOHAMMED ASLAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.137 of 1999 -------------------------------------- Dated this the 27th day of March, 2009. JUDGMENT Will a bequest made by a Hindu in favour of a described class of persons fail in respect of such of those persons who were not in existence at the time of death of the testator even when possession of the property by such persons is not deferred until a time after the death of the testator by a prior bequest or otherwise? That is the substantial question of law arising for a decision in this Second Appeal at the instance of the defendant who has suffered a decree for partition. 2. Short facts of the case are thus: Respondent/plaintiff claimed share in the suit property on the strength of Ext.A1, Will dated 21.7.1955 executed by his paternal grandmother, Madhavi. Madhavi died on 15.6.1970. Respondent was born on 20.3.1971. His sisters sold the property to the appellant as per sale deed No.81 of 1975 dated 10.1.1975 (the certified copy of which is Ext.A3). Respondent who was a minor then, was represented in that sale deed by his sister as guardian though his father was then alive. Respondent claimed that the said transaction did not bind him and sued the appellant for partition and separate possession of his share in the property. Appellant contended that the date of birth of the respondent stated in the plaint is not correct and that as the respondent was represented by his lawful guardian SA No.137/1999 2 the sale is binding on him. Learned Munsiff rejected the contentions raised by the appellant and passed a preliminary decree for partition. Appellant carried the matter in appeal. At that stage appellant was permitted to amend the written statement to incorporate a contention that Ext.A3, sale deed No.81 of 1975 is executed and registered bonafide, in good faith for valid consideration and the title if any, of the respondent is lost by adverse possession and limitation. After consideration of those contentions also the first appellate court concurred with the judgment and preliminary decree passed by the trial court and dismissed the appeal. Hence this Second Appeal. 3. The substantial question of law first above stated was incorporated in the memorandum of Second Appeal as per order dated 10.3.1999 on C.M.P.No.574 of 1999. Learned counsel for appellant contended that the bequest as per Ext.A1, Will dated 21.7.1955 to the extent it concerned the respondent is not valid in law in view of Sec. 111 of the Indian Succession Act (for short, “the Act”) since according to the learned counsel, respondent was not in existence at the time of the disposition as per Ext.A1, ie., at the time of death of the testator on 15.6.1970 as Ext.A5 shows that the respondent was born only on 20.3.1971. Learned counsel also contended that though such a contention is not specifically taken in the written statement, that being a question of law apparent on the face on record can be urged in the Second Appeal. Learned counsel for respondent contended that the said plea is not available to the appellant either on facts or on law. SA No.137/1999 3 4. So far as Ext.A3, sale deed dated 10.1.1975 is concerned, no argument is advanced before me on behalf of the appellant as regards the correctness of the finding entered by the courts below that it does not bind the respondent. Respondent was a minor at the time Ext.A3 was executed on his behalf as well. Concededly, father of the respondent was alive at the time Ext.A3, sale deed was executed on behalf of the respondent by his sister acting as guardian. There is also no case or evidence for the appellant that the father of the respondent for any reason whatsoever, was incapacitated from acting as the guardian of the respondent. Therefore Ext.A3, sale deed cannot bind the respondent as rightly found by the courts below. 5. Ext.A5 shows the date of birth of the respondent as 20.3.1971. Ext.A2 shows that Madhavi, the testator under Ext.A1 died on 15.6.1970. Contention raised is that when the disposition as per Ext.A1 took effect on 15.6.1970, respondent was not in existence and hence the bequest to him is invalid. Sec. 111 of the Act relied on by the learned counsel for appellant is to the effect that if a bequest is made to a described class of persons, the thing bequeathed shall go only to such as are alive at the time of death of the testator. Exception to Sec.111 says that if the property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual but possession of the property by them is deferred until a time after the death of the testator by a prior bequest or otherwise, the property shall at that time go to such of them as are alive, and to the representatives of any of SA No.137/1999 4 them who have died since the death of the testator. Learned counsel, placing reliance on a decision of the Supreme Court in A.Narayanan and another Commissioner of Income Tax, Madras (1996 STPL (LE) 3679) contended that the mere fact that even if a guardian was appointed for the minor, that did not mean that the bequest in favour of the minor (who was not in existence at the time of the death of the testator) is deferred to a future time to fall under the exception to Section 111 of the Act. He pointed out that possession of the property by the respondent who was born after the death of the testator has not been deferred to a date later than the death of Madhavi, the testator by a prior bequest or otherwise and hence the respondent cannot claim right under the Will. 6. The bequest under Ext.A1, Will dated 21.7.1955 is in favour of the children then in existence and to be born to Balan, son of the testator in his wife, Yesoda. Respondent is the son of Balan and Yesoda born on 20.3.1971 after the death of the testator on 15.6.1970. The bequest under Ext.A1 is in favour of a class of persons, viz., the grandchildren of the testator then in existence and to be born. But possession of the property by the respondent who was born subsequently is not deferred under Ext.A1 to a time later than the death of the testator. Hence the exception to Sec.111 of the Act cannot apply. If the main part of Sec.111 of the Act were to apply, it may be contended that the bequest to the extent it concerned the respondent would have to fail. SA No.137/1999 5 7. But in my view, the bequest in favour of the respondent cannot be said to be invalid. Under Sec. 30 of the Hindu Succession Act, 1956, a Hindu may dispose of property which he/she is capable of so doing, by Will or other testamentary disposition in accordance with the provisions of the Act (Indian Succession Act) or any other law for the time being in force and applicable to Hindus. (emphasis supplied). Sec.2 of the Hindu Disposition of Property Act, 1916 states that subject to the limitations and provisions specified in that Act, no disposition of property by a Hindu, be it by a transfer inter vivos or by Will shall be invalid for the only reason that any person for whose benefit such disposition was made was not in existence at the date of such disposition. Sec. 3 of that Act prescribes the limitations and provisions referred to in Sec.2. Sub-sec.(b) of Sec.3 prescribes Secs: 113, 114, 115 and 116 of the Act (Indian Succession Act) as the limitations and provisions subject to which Sec.2 of that Act is enacted. To be more precise on the point, Sec.111 of the Act is not included as a provision or limitation prescribed by Sec.3 of that Act subject to which Sec.2 is enacted. 8. The Supreme Court in Raman Nadar v. S.Rasalamma (AIR 1970 SC 1759) considered the validity of a bequest in favour of an unborn person under Hindu Law (that was a Will executed on May 9, 1946 by a Hindu belonging to the erstwhile Travancore area). The Supreme Court stated that though 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 SA No.137/1999 6 engrafted on Hindu Law by the decision of the Judicial Committee, in Tagore's case” - (1872 ) Ind App. Supp.47 (PC) which was based on a wrong understanding of the relevant verse in Dayabhaga. It was however held that “.......since the decision had 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, this is a proper case in which the maxim 'communis error facit jus' may be applied”. Referring to the Hindu Disposition of Property Act, 1916 and two other enactments (which are not relevant here), the Supreme Court stated that, “The doctrine in Tagore's case has been altered by three Acts, namely, ................., the Hindu Disposition of Property Act, 1916............... 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's death. This rule, however, is subject to the limitations and provisions contained in Sections 113, 114, 115 and 116 of the Indian Succession Act, 1925.” SA No.137/1999 7 But, as it was admitted by counsel (in Raman Nadar's case) that none of the said Acts (including the Hindu Disposition of Property Act, 1916) was in force, the doctrine of pure Hindu Law was applied. It was so held since the Hindu Disposition of Property Act, 1916 was then applicable to British India and in Raman Nadar's case, the testator belonged to the erstwhile Travancore area, the Will was executed on May 9, 1946 and he died on December 5, 1947. It is not disputed before me by the learned counsel for appellant also that the Hindu Disposition of Property Act, 1916 is in force and applicable to the place where the testator in this case was residing, the place where Ext.A1 was executed and where she died. The Hindu Disposition of Property Act, 1916 was adopted by Adoption Law Order (No.2) of 1956. The Miscellaneous Personal Laws (Extention) Act, 1959 made the Hindu Disposition of Property Act, 1916 applicable to the whole of India except the State of Jammu and Kashmir. Sec.30 of the Hindu Succession Act, 1956 and Sec.2 read with Sec.3 of the Hindu Disposition of Property Act, 1916 would take the bequest so far as it related to the respondent out of the scope of Sec.111 of the Act 10. On facts also the contention raised by the learned counsel for appellant cannot stand. It is not pleaded by the appellant that respondent was not in existence on the date of death of the testator on 15.6.1970. Ext.A5 shows the date of birth of the respondent as 20.3.1971. Applying the principle stated in Sec. 112 of the Indian Evidence Act the period of gestation is 280 days and if that principle is applied, respondent should have been in the womb of his SA No.137/1999 8 mother on 15.6.1970 as the period of gestation should be counted from 11.6.1970 onwards. So, it could be said that the respondent was in existence on 15.6.1970 when the testator died and the disposition as per Ext.A1 took effect. If that be so, Sec. 111 of the Act has no factual application even if that provision were otherwise applicable. Hence the contention advanced by the learned counsel for the respondent cannot be sustained. It is also to be born in mind that right from the time of Ext.A1 onwards parties were conducting themselves as if the respondent had a share in the property and that was accepted by the appellant also by purporting to take his share by way of sale as per Ext.A3. Answering the substantial question of law against the appellant, this Second Appeal is dismissed without any order as to costs. THOMAS P.JOSEPH, Judge. cks SA No.137/1999 9 Thomas P.Joseph, J. S.A.No.137 of 1999 JUDGMENT 27th March, 2009.