JUDGMENT
S.S. Subramani, J.
1. 1st defendant in O.S. No. 390 of 1977 on the file of the District Munsif, Ambasamudram, is the appellant. After filing the appeal, she died and appellants 2 to 6 are brought on record as additional appellants.
2. Plaintiffs filed the above suit for declaration of their right over the plaint scheduled properties and for consequent reliefs including mesne profits.
3. The plaint properties originally belonged to one Krishnaswami Iyer, who died in the year 1932. He had a son by name Venkataraman, who died in the year 1958. Krishnaswami Iyer had a daughter and her daughter by name Gomathi Ammal, is the 1st defendant herein. It is seen that Krishnaswami Iyer executed a Will on 15.1.1932. As per the provisions of the Will, he did not provide anything for his son, but bequeathed his properties to Ramanathan, son of Venkataraman, for his life and the vested reminder to the male issues of Ramanathan. But Ramanathan died issueless. The plaintiffs herein are the daughters of Venkataraman, i.e., sisters of Ramanathan. The 7th defendant in this case is the widow of Ramanathan. It is the case of the plaintiffs that since Ramanathan died issueless on 20.11.1965 the vested reminders did not take effect and to that extent, there is intestacy. If so, the plaintiffs, who are daughters of Venkataraman, will be the legal heirs. They sought recovery of the properties claiming their right stating that the vested reminder has not taken effect.
4. As against that contention, the appellant contended that the succession opened only on the death of Ramanathan, i.e., on 20.11.1965, and at that time, the Hindu Succession Act was already in force. If so, as to who the legal heirs had to be considered as on that date. It was, therefore, contended that the 1st defendant will also be a legal heir. She, therefore, prayed for the dismissal of the suit.
5. Both the courts below, after evaluating the evidence and interpreting the Will Ex. A-1, held that the plaintiffs alone are entitled to the plaint scheduled properties and the 1st defendant will have no right. The courts below also held that the succession opened in 1932 itself and the legal heirs will have to be fixed as on that date. Since Krishnaswami Iyer died in 1932, his daughter will not be a legal heir and therefore, the 1st defendant cannot claim any right over the properties. They further held that Krishnaswami Iyer had only one son, who died in 1958 after the Hindu Succession Act came into force and therefore, the plaintiffs, who claim to be his daughters, are entitled to succeed to the properties. The suit was accordingly decreed. Aggrieved by the judgments of the courts below, the 1st defendant has preferred this appeal.
6. At the time of admission, the following substantial questions of law were raised for consideration.
1. Whether the lower appellate Court was right in holding that under the terms of the Will Ex. A-1 Ramanathan gat only a life interest.
2. Whether the lower appellate court was right in its conclusion that succession to the Estate of Krishnaswarny Iyer opened in 1932, when the testator died, when admittedly the life state holder under that Will died on 20.11.1965.
7. Before proceeding to deal with the questions of law, it is relevant to consider the wordings under the Will.
From the above, ii is clear that Ramanathan, son of Venkataraman, will be entitled to a right of enjoyment for his life along with the other male issues to be born to Venkataraman, without any right of encumbrance and thereafter, their male issues will be entitled to the properties with absolute power of disposal. The question that has to be considered is, when does the succession open. According to the appellant, the succession opened only in the year 1965, when Ramanathan died, whereas, according to the plaintiffs, the succession opened immediately after Krishnaswami Iyer died. If the contention of the appellant is accepted, she is also entitled to a share in the property. At the same time, if the case of the plaintiffs is accepted, the appeal has only to be decided upholding the decision of the courts below.
8. Chapter VI of Part VI of the Indian Succession Act, 1925 deals with construction of Wills. Section 119 coming under chapter VIII deals with ‘vesting of legacies’. The said section reads thus:
119 Date of vesting of legacy when payment or possession postponed : Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the Will, become vested in the legatee on the testator’s death, and shall pass to the legatee’s representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator’s death said to be vested in interest. Explanation : An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that, if a particular event shall happen the legacy shall go over to another person.
According to me, on a reading of the aforesaid provision makes it clear that there is vesting on the death of Krishnaswami Iyer, even though the legacy is in favour of the grand-children is postponed during the life time of Ramanathan, it is not opened till his death. The male children of Ramanathan will be entitled to the properties immediately on the death of Krishnaswami Iyer. They will not be entitled to possession during the lifetime of Ramanathan.
9. In this case, Ramanathan died without leaving any issues. If so, the vesting in favour of the grant children cannot take place Ramanathan was given only a right of enjoyment. The proprietary right, which is bequeathed to the grand-children, cannot take effect and to that extent, there is intestacy, as found by the courts below. That proprietary right can only vest on the legal heirs of Krishnaswami Iyer and the same has to be identified as on the date of his death. Even during the lifetime of Ramanathan, his father, Venkataraman died. If the succession opened in 1932, naturally, the legal heirs will be the sisters of Ramanathan, i.e., the daughters of Venkataraman. The findings of the courts below, are, therefore, according to me, is correct.
10. In this case, at this stage, counsel for the appellant relied on the decision in N. Krishnammal v. R. Ekambaram . In that case, in the year 1957, a Will was executed. Certain properties were bequeathed to each of the three sons, R, V and N. He also appointed R and V as Executors. The testator died in 1928. The wording of the Will reads thus:
After Nataraja’s lifetime, 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.
Interpreting this, their Lordships of the Supreme Court said that succession opened only on the son’s death and their Lordships were also considering the words ‘my heirs’ occurring in the Will. So interpreting, their Lordships said that the identity of the legal heirs, will have to be ascertained as if the succession opened only on the death of his son. According to me, the said decision will have no application to the facts of this case. Interpretation of one Will cannot be taken as a precedent for another Will. Everything depends upon the intention of the testator. Further, their Lordships had also not considered the scope of Section 119 of the Indian Succession Act. A very recent decision of the Supreme Court, in Dr. Mahesh Chand Sharma v. Raj Kumari Sharma , did consider this issue a life-estate was created in favour of the widow with vested reminder to the legal heirs of the testator. The question was, when did succession open. Their Lordships said that the succession opened immediately on the death of the testator, though the right to possession is deferred till the death of the widow. The identity of the legal heirs had to be ascertained or located as on the death of the testator, since the succession opened on that date. In para 18 of the judgment, their Lordships considered this question. In this case, the ultimate bequest was in favour of the grand-children of the testator. That bequest could not take place or come into effect, since the son died issueless. If that be so, the testator must be taken to have died intestate so far as the vested reminder is concerned. In para 18, it was held thus:
Let us first analyse Section 119 from the point of view of the facts of this case and see what does it say. According to it, unless a contrary intention appears from the Will, a bequest made to a legatee, who is not entitled to immediate possession of bequest, gets vested in such legatee on the date of death of the testator. The explanation appended to the section elucidates the words ‘unless a contrary intention appears by the Will’ occurring in the main limb of the section. The y Explanation says inter alia that merely because a prior interest in the bequest is given to some other person, it does not mean that a contrary intention is indicated in the Will. Illustration (iii) is of crucial relevance. It says that where a fund is bequeathed to A for life and after A’s death to B, the legacy to B, becomes vested in interest in B on the testator’s death. If we read the principle underlying the main limb of Section 119 along with the Explanation, and illustration (iii), it becomes abundantly clear that the present case squarely falls within the four corners of this section. It fits, in neatly into Illustration (iii) to Section 119. Here, the Doctor’s Lane house is bequeathed to Satyawati for life and after her death to the legal heirs of the testator. Once this is so, the legacy to the legal heir(s), on the date of the death of the testator – and admittedly on that death, first defendant was1 the only legal heir of the testator. We may mention that merely because a prior interest in the bequest is given to Satyawati, it cannot be said that the Will indicates a contrary intention within the meaning of the main limb of Section 119 See: Chilamakuri Chinna Pullappa v. Guruka Chinna Bayanna, A.l.R. 1962 S.C. 54, P.Somasunduram v. K. Rajammal (1976) 2 M.L.J. 444 : A.I.R. 1976 Mad. 295 in this behalf. Now, once the bequest to ‘the legal heirs of the testator’ provided by the Will got vested in the first defendant on the date of the death of the testator, there is no question of the first defendant being divested therefrom. On the death of Satyawati, the first defendant became entitled to possession of the Doctor’s Lane house which had already vested in him.
The decision relied on by counsel for the appellant in Krishnammal’s case A.I.R. 1979 S.C. 1208 has also been taken note of by the Supreme Court in the aforesaid case and the same was distinguished.
11. In the later decision, which I have cited above, their Lordships have accepted the principles enunciated by this Court in P.Somasundaram v. K. Rajammal (1976) 2 M.L.J. 444 : A.I.R. 1976 Mad. 295, wherein their Lordships have considered the distinction-between a vested and-contingent bequest. The Division Bench of this Court has held thus:
An interest is said to be vested when it is not subject to any condition precedent when it is to take effect on the happening of an event which is certain, whereas an estate is contingent when the right to enjoyment depends upon the happening of an uncertain event which may or may not happen. A person takes a vested interest in a property at the testator’s death when he acquires a proprietary right in it at that time; but the right or enjoyment is only deferred till a future event happens, which is certain to happen But a contingent interest is one in which neither any proprietary interest nor a right of enjoyment is given at the testator’s death, but both depend upon future uncertain events.
Here, there is contingent bequest. Though the grandchildren are to take the properties on the death of Ramanathan, his death was a certainty; but the date of death was uncertain. So, a vested interest, which was created, could not take effect.
12. In this view of the matter, the questions of law framed in this case are found against the appellants, confirming the judgments and decrees of the courts below. The second appeal is dismissed, but without any order as to costs.