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

2. The father of the plaintiffs who are appellants herein was a Hindu Nadar, namely Raman Nadar. He had an elder brother named Krishnan Nadar. On May 9, 1946, the said Krishnan Nadar and Raman Nadar jointly executed a deed of will Ex. P-2 in respect of the assets of Krishnan 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 appellants mother was married to Raman Nadar who is the father of the appellants. It is 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 Krishnan Nadar to the exclusion of the daughters. The material portion of the will, Ex. P-2, reads as followsof will executed by Krishnan, aged 51, Nadar, son of Kaliyambi, merchant, Makkavazhi, Kuzhiamvilakathu Veettil, Melkaladi, Airanimuttam, Pakuthy, Nellamn 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 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 Snehappoo daughter of Sarah, Maraikkamuttath Veettil, Vazhuthoor Desom, Neyyatinkara 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 him 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 wasting 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 any they will not get any right.Soon after the death of Krishnan Nadar defendants 3and 4 and the mother of the 5th defendant as plaintiffs filed O. S. No. 37 of 1124 M. E. for the administration of the estate of the deceased Krishnan Nadar. The mother of the 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 Ex. D-1 in her favour in respect of some of the plaint items. O. s. 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 wife on February 7, 1951 during the pendency of the suit. The plaintiffs in O.S. No. 37 of 1124 filed A.S. 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 asdo not consider it proper to decide this question (of the legitimacy of the son born to the first 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 Nadars death. ....The plaintiffs do not and cannot get the right to possession of the properties until after the 1st defendants death....but a right to maintenance 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 1st defendant is not entitled to do any act which affects this right of theHigh 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 No. 1 preferred an appeal, A. S. No. 340 of 1959 to the High Court.4. 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 1st defendant was legal and the sons born out of that marriage were entitled to Krishnan Nadars property subject to the life estate of the first defendant. It was further held that the daughters of the 1st defendant, (plaintiffs in O.S. 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 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 appellant was dismissed. A.S. No. 34 of 1959 was partly allowed and appellants 1 and 2 (being the first two plaintiffs in O. 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 1st defendant. The other prayer sought by the plaintiffs in the appeal was disallowed.5. In dismissing 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 Nadars 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 Hind Law a gift cannot be made in favour of a person who was not in existence at the date of the gift. A persons 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 O. 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 first defendant, the daughters became entitled to the properties for their lifetime.

Reasoning:
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.