Case: Raman Nadar Viswanathan Nadar &amp; Ors Vs. Snehappoo Rasalamma Alias Ammukutty &amp; 4Others

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 testator directs that his properties after his death shall be taken by his nephews or in their absence by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to a make a family provision but to chart a course for future devolution of the testators properties.14. 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 Tagores case, (1872) Ind App Supp 47 (PC) (supra) was not attracted. Reference was made to the following passage from Jarman on Wills, 8th Edition."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 2 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."15. In our opinion there is no warrant for this argument. This 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 as life estate to the 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 intended to operate or to come into effect after the death of both the testators. In regard to Krishnan Nadars properties the life estate devised in favour of the 1st 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 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 the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of the 1st defendant, the last clause in the will cannot be literally correct.16. 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 plaint properties vested in the daughters of the 1st defendant under the terms of the will, Ex. 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 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 properties that may be found to belong to the first named and the second named either in common or in equal shares...."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 intestacy and the provisions of the Hindu Succession Act, 1956 (Act No. 30 of 1956),would be applicable.The sons of defendant No. 1 cannot taken 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 defeasance 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. 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 to Chap. I of Dayabhaga shows that a gift is completed by the donors 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.9. Mr. Sarjoo Prasad suggested that the matter required reconsideration. But it is manifest that the decision of the Judicial Committee in Tagores case, (1872) Ind app Supp 47 (PC) (supra)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 a proper case in which the maxim communis error facit jus may be applied.It is, however, not disputed in the present case that on the relevant date none of the three Acts was operative and the doctrine of pure Hindu Law was applicable to the Travancore State:It follows that the principle laid down in Tagores case, (1872) Ind app Supp 47 (PC) (supra), applied and the bequests in favour of the sons of the 1st defendant are void and of no legalour 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 testator directs that his properties after his death shall be taken by his nephews or in their absence by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to a make a family provision but to chart a course for future devolution of the testators properties.In our opinion there is no warrant for this argument. This 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 as life estate to the 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 intended to operate or to come into effect after the death of both the testators. In regard to Krishnan Nadars properties the life estate devised in favour of the 1st 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 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 the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of the 1st defendant, the last clause in the will cannot be literallyappears 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 hisbequest 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 intestacy and the provisions ofthe Hindu Succession Act, 1956 (Act No. 30 of 1956),would be applicable.The sons of defendant No. 1 cannot taken 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 defeasance clause. It is evident that the appellants would be entitled to their lawful share of the properties of Krishnan Nadar under the provisions ofthe 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 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.