JUDGMENT
S.S. Chadha, J.
(1) The dec ision of these appeals turns upon the construction of the Will as to the nature of the estate granted by the testator to his widow, whether it was a “woman’s estate” or “widow’s estate” under Hindu Law or merely a limited “life estaie’ and to the scope and effect of Section 111 of the Indian Secession Act, 1925 as to the vesting of the estate in the class of persons described as legal heirs of the testator.
(2) The plaintiff who is the appellant herein and defendants 6, 7 and 8 are the daughters of Shri Ram Nath Dewan and defendant No. 1 was his son (now represented by his legal heirs). Smt. Satyawati was the wife of Shri Ram Nath Dewan and the mother of plaintiff, defendants 1, 6, 7 and 8. Shri Ram Nath Dewan acquired perpetual lease hold rights in respect of plot No. 5, Doctor’s Lane, New Delhi. He constructed a building on the said plot of land known as No. 5, Doctor’s Lane, New Delhi. Shri Ram Nath Dewan executed a registered Will and testament on April 10, 1942. According to the Will Shri Ram Nath Dewan, the testator, bequeaths the user, enjoyment and interest of his house on part plot No. 5 in Block No. 88, Doctor’s Lane, New Delhi worth Rs. 50,000 to his wife, Smt. Satyawati, the demisee during her life after his (testator) death and declares that after her (demisee) death the property will go to the legal heirs of the testator. It is directed that the said demisee will continue to live in the said house according to her sweet Will and shall also have a right to give the said property on rent to any tenant and that the said demisee shall have no right to transfer the property in any way whatsoever. The demisee is also given the right without interference of the legal heirs to appropriate and spend the rents and profits thereof and to make additions, alterations in the building accommodation in accordance with her sweet will and desire and she is made the whole and sole manager and beneficiary of the said property during her lifetime. She is made liable to pay the lease money and to effect repairs.
(3) Shri Ram Nath Dewan is alleged in the plaint of the suit to have owned and possessed property bearing No. 56, Todar Mal Lane, New Delhi and lands measuring 400 square yards comprised in two plots situate in Vishwas Nagar Colony in Shahdara. According to the plaintiff, Smt. Satyawati owned and possessed property No. 58, Todar Mal Lane, New Delhi as her absolute property, that Ram Nath Dewan died on April 3, 1953 and that on his death Smt. Satyawati acquired life estate/life interest in property No. 5, Doctor’s Lane, New Delhi under the Will and in other properties left by him under Hindu Law. Smt. Satyawati died on July 2, 1972. According to the claim made by the plaintiff in the suit, the legal heirs of the testator Shri Ram Nath Dewan acquired the property bearing No. 5, Doctor’s Lane, New Delhi as absolute owners on the death of Smt. Satyawati in equal shares. They also, on the death of their mother, acquired property Nos. 56 and 58, Todar Mal Lane, New Delhi, lands situated at Shahdara and other movable properties as mentioned in the schedule to the plaint. Reference is then made to the power of attorney alleged to have been executed by defendant No. 1 in favor of Shri G.C. Sharma, defendant No. 2 who is alleged to have executed the sale deed dated March 4, 1971 in respect of property No. 5, Doctor’s Lane, New Delhi in favor of defendants 3 to 5. This sale deed dated March 4, 1971 is alleged to be wholly fictitious, illegal and without consideration and not binding on the plaintiff and other defendants.
(4) The plaintiff prayed that it be declared that the sale deed d.ated March 4, 1971 alleged to have been executed by Shri G.C. Sharma, defendant No. 2 purporting to have acted as an Attorney of defendant No. 1 in respect of property No. 5, Doctor’s Lane, New Delhi in favor of defendants 3 to 5 wholly false, fraudulent, fictitious, collusive, sham, unauthorised, without consideration and void and not at all binding on the plaintiff and does not affect at all the rights, interests and claims of the plaintiff, her brother defendant No. 1 and her sisters defendants 6 to 8 in any manner whatsoever. It was further prayed that a decree for partition of the properties mentioned in the schedule annexed to the plaint including 5, Doctor’s Lane, New Delhi, 56 and 58, Todar Mal Lane, New Delhi, lands at Shahdara and some movable properties at New Delhi and rendition of accounts of rents and profits in respect of the said properties be passed in favor of the plaintiff and against the defendants,
(5) The suit is contested by defendant No. 2 and by a joint defense by defendants 3 to 5 and not by other defendants. Besides taking preliminary objections which are the subject matter of issues, the main defense is based on a compromise/settlement dated January 27, 1955 between Smt. Satyawati and her son Shri Rajinder Nath Dewan, defendant No. 1, recorded in suit No. 701 of 1953 and the consequent judgment of the Court. The plea is that the settlement dated January 27, 1955 is binding on the plaintiff because she claims through Smt. Satyawati who had herself disowned under the compromise right, title or interest in property No. 5, Doctor’s Lane, New Delhi and as such the question of the plaintiff claiming inheritance from her regarding this property No. 5, Doctor’s Lane, New Delhi does not arise. It is pleaded that the power of attorney was validly executed by defendant No. 1 in favor of defendant No. 2 who transferred the property to defendants 3 to 5 under a valid sale deed. Subsequently the President of India by virtue of the supplementary lease deed dated June 3, 1972 has granted the perpetual lease hold right of property No. 5, Doctor’s Lane, New Delhi to defendants 3 to 5 and thus defendants 3 to 5 are the absolute owners of the said property.
(6) On the pleadings of the parties, the following issues were framed : (1) Whether the suit is correctly valued for the purpose of court fee and jurisdiction ? Opp (2) Whether the suit as framed is not maintainable ? Opd (3) Whether the plaintiff has no locus standi to sue ? Opd (4) Whether the Government of India is a necessary party to the suit ? (5) Whether the suit is within time ? Opp (6) Whether the Will dated April 10, 1942 executed by Shri Ram Nath Dewan was revoked by him by his alleged subsequent Will dated September 25, 1950 ? If so, what is its effect ? Opd (7) Whether the power of attorney alleged to have been executed by defendant No. I in favor of Shri G.C. Sharma, defendant No. 2 is invalid and consequently, sale deed executed by the defendant No. 2 is also invalid and not binding on the plaintiff ? Opp (8) Whether the plaintiff and defendants No. 6 to 8 are the co-owners of property bearing No. 5, Doctor’s Lane, New Delhi ? If so, what is the extent of their share therein ? Opp (9) If the above issue is found in favor of the plaintiff and defendant No. 6 to 8, whether they are in joint possession of the said property ? Opp (10) Whether the plaintiff and defendants 6 to 8 are entitled to partition of the suit properties ? If so, what is their share in it ? Opp & Defendants 6 to 8. (11) Relief.
(7) The plaint was allowed to be amended by the learned Single Judge by his order dated December 6, 1983 regarding valuation of the properties in suit and the requisite court fee was paid. Issue No. I was not contested and ¦ was decided in favor of the plaintiff. Under issue No. 2 it was held that the suit as framed for declaration, partition and possession cannot be said as not being maintainable. Issue No, 3 was decided in favor of the plaintiff as she has interest in the properties in suit. Issue No. 4 was also decided in favor of the plaintiff as no relief was claimed against the Union of India. Issue No. 5 was decided in favor of the plaintiff. Initially Shri Arun Mohan. the learned counsel for the respondents had contested before us the due execution of the Will and its proof but when confronted with the statement dated November 14, 1983 recorded by the learned Single Judge, he gave up his objection that the Will, Ex. P-5 was not proved. The Will dat April 10, 1942 which had been registered with the Sub-Registrar was presumed to have been duly executed as the frame of issue No. 6 suggests. It was found not to have been revoked. The decisions of above issues are not contested by the parties in this appeal and, therefore, the findings of the learned Single Judge are hereby confirmed.
(8) Issue Nos. 8 and 9 cover the main dispute between the parties. The plaintiff claims her share in property No. 5, Doctor’s Lane, New Delhi under the Will dated April 10, 1942 and in property Nos. 56 and 58, Todar Mal Lane, New Delhi and lands at Shahdara on the ground that she is one of the legal hairs.of Smt. Satyawati who prior to the Hindu Succession Act, 1956 had limited estate/interest, which limited interest upon coming into force of the said Act, blossomed into an absolute right by virtue of and under the provision of Section 14 of the said Act. The learned Single Judge accepted the claim of the plaintiff relating to property situated at 56 and 58, Todar Mal Lane, New Delhi and the lands at Shahdara.
(9) The defendants’ plea is that Smt. Satyawati Dewan had herself disowned right, title or interest in the property No. 5, Doctor’s Lane, New Delhi in a settlement recorded on January 27, 1955 in suit No. 701/53 and as such, the question of the plaintiff’s claiming inheritance from her regarding property No. 5, Doctor’s Lane, New Delhi does not arise. The main thrust of the arguments of Shri Arun Mohan before the learned Single Judge was that whatever right, title or interest Smt. Satyawati had as a result of the Will of 1942, the same was surrendered by her. A number of decided cases were cited to bring out the full scope and ambit of the doctrine of surrender. Reliance was placed on Mt. Bhagwant Koer & Ors. v. Dhanukdhari Prasad Singh, Air !919 Pc 75, Rangaswami Gounden v. Nachippa Gounden 46 1.A.72, Natyurlal Punjabhai and Anr. v. Dadubhai Manubhai and Ors. and Jai Kumar and Ors. v. Sher Singh, . It was observed by the learned Single Judge from a reading and extensive quotations of the aforesaid decisions that a widow can accelerate the inheritance by surrendering her rights in the estate but the surrender of her rights must be complete and not partial. The learned Single Judge then considered the question whether the aforesaid principles are attracted in the present case or not. On a construction of the Will and the compromise dated January 27, 1955, the learned Single Judge held that the widow Smt. Satyawati had surrendered her rights which she had acquired by virtue of the Will of 1942 in favor of the next reversioner Rajinder Nath, that there is no law which could compel Smt. Satyawati to accept the life estate in respect of 5, Doctor’s Lane, New Delhi and that she was free to surrender that right. The learned Single Judge found that the claim of the plaintiff against defendants 2 to 5 with regard to declaration that sale deed dated March 4, 1971 of 5, Doctors’s Lane, New Delhi in favor of defendants 3 to 5 being illegal has to be rejected and similarly the claim of the plaintiff against the said defendants for rendition of accounts of rents and profits in respect of the said property could also not be granted. The relief at the time of arguments was confined only in respect of rendition of accounts and rents with regard to 5, Doctor’s Lane, New Delhi and it was found that no evidence was led as to whether any rents/profits had been earned by anyone for which accounts were to be taken. No relief for rendition of accounts or rents regarding other immovable properties was granted.
(10) A preliminary decree for partition in respect of the properties No. 56 and 58, Todar Mal Lane, New Delhi and lands at Shahdara and movable properties was granted. It was declared that the plaintiff, legal representatives of Shri Rajinder Nath Dewan, defendant No. I and defendants 6 to 8 would be entitled to l/5th share each in 58, Todar Mal Lane, New Delhi and they would be entitled to claim for the partition of the said property. It was further ordered that the plaintiff as well as the legal representatives of Shri Rajinder Nath Dewan and defendants 6 to 8 have l/10th undivided share each in property No. 56, Todar Mal Lane, New Delhi, lands at Shahdara and movable’ properties. A Local Commissioner was appointed to suggest the mode of partition of the properties mentioned above. The present appeal is against the judgment and the preliminary decree rejecting the claim of the plaintiff to property No. 5, Doctor’s Lane, New Delhi.
(11) The first submission of Mr. M.C. Bhandare, Senior Advocate, the learned counsel for the appellant on issues 8 and 9 in the suit is that Smt. Satyawati was not holding the property No. 5, Doctor’s Lane, New Delhi as a “widow estate” or “women’s estate” by inheritance under Hindu Law from her husband, but was holding the property under the Will merely a limited life estate with limited rights as a trustee for the heirs of the testator to be. passed on her death. She had absolutely no right to surrender any right, title or interest in the said property in any manner and in fact she was prohibited from transferring the property. Reference is then made to the terms of the compromise dated January 27, 1955 to contend that it does not challenge or set aside the Will of 1942 and thus the rights under the Will bequeathing the remainder to the legal heirs of the testator are not touched. She had no right of self effacement or relinquishment or abandonment of rights beyond her lifetime in the said property and in fact did not do under the alleged compromise. Initially, Mr. Arun Mohan, the learned counsel for the contesting defendants supported the reasoning and conclusions of the learned Single Judge that Smt. Satyawati was granted under the Will a Hindu widow’s estate and that the compromise of 1955 Ex. D-2/A was a ‘surrender’ within the meaning of Hindu Law. The settlement-cum-compromise totally effaces the widow except for bare maintenance and does not give her any authority of supervision over the property and thus, urges the counsel, Rajinder Nath being the only heir succeeded to the property absolutely. Reference is also made to the subsequent conduct and the acknowledgements by the widow disowning any claim or interest in the property. Our attention is invited to documents Exs. D-28, P-12 P-9, P-18 and to the oral evidence of the plaintiff that she never dealt with the property or asserted any right, title or interest; on the contrary she made admissions against her interest by dealing as attorney of her son and of consenting to the mutation of the property in favor of her son. The counsel urges that the Court should approach with a bias to uphold the family settlement. Reliance is placed on Muturi Pullaiah & Anr. v. Maturi Narasimham & Ors. Air 1966 Sc 1836, S. Shanmugan Pillai Ors. v. K. Shanmugam Pillai & Ors. and Kale and Ors. v. Deputy Director of Consolidation & Ors. to urge that family arrangements and settlements are given wide latitude and every effort is made to uphold them. Later during the course of arguments, the counsel urged in the alternative that the Will does not create what is known to Hindu Legal Jurisprudence a “widow’s estate” but what is known in legal parlance a “life estate”. In “life estate”, he urges, there is no ‘reversioner’ but what we call a ‘remainderman’ and Shri Rajinder Nath was the latter. This aspect is not raised before the learned Single Judge but can certainly be raised in the regular first appeal which is a continuation of the suit.
(12) The first question that falls for consideration is as to the nature of estate that was intended that Smt. Satyawati should take under the Will. It will be a question of construction of the document to ascertain the intention of the testator upon the language employed and surrounding circumstances. The rules of construction of Wills are contained in Chapter Vi of Indian Succession A.ct, 1925 (for short called the Succession Act) in Sections 74 to 111 and we will only refer to the provisions relied upon. Under Section 74, it is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known there from. The cardinal rule to be observed by the Court in construing the Will is to endeavor to ascertain the testator’s intention which is the sovereign guide. It should collect the intention, either expressly declared or ascertained by just reasoning upon the terms of the Will, that the Court should proceed to adjudicate upon the rights of the rival claimants. The Court is entitled to put itself into the testator’s armchair and consider the position of the testator, his relations, his family circumstances and surrounding circumstances in which the testamentary disposition was made to ascertain the intention. The intention of the testator is primarily to be collected from the Words used by the testator himself. If there is no ambiguity in the terms of the Will, then no extrinsic factors are admissible in construing the Will. Under Section 82 the meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other. The meaning has to be ascertained from a conspectus of the entire instrument. The whole Will has got to be considered and from it a judgment is to be formed of the testator’s intention. Under Section 84, where a clause is susceptible of two meanings a.ccording to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred. Under Section 85, no part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it. Under Section 86, if the same words occur in different parts of the same Will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears. Under Section 98, where a bequest is made to a class of persons under general description only, no one to whom the words of the description are not in their ordinary sense applicable shall take the legacy.
(13) In Lakshmana Nadar & Ors. v. R. Ramier, 1953 Scr 848, it was held: "AT one time it was a moot point whether a Hindu widow's estate could be created by Will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a Will on his widow the same estate which she would get by inheritance. The widow in such a case takes as a demise and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc., in other words, to ascertain his wishes by putting itself,. so to say, in his armchair." Shri Ram Nath Dewan was admittedly absolute owner of property No. 5 Doctor's Lane, New Delhi, 56, Todar Mal Lane, New Delhi, lands at Shahdara besides miscellaneous movable assets and they were all his self-acquired properties. He made the Will dated April 10,1942 in favor of his wife Smt. Satyawati and included only the house No. 5. Doctor's Lane, New Delhi. It is a testamentary instrument. Paras 1, 2 and 3 of the Will read as under : "1. That the testator bequeaths the user, enjoyment and interest of my house on lower part of plot No. 5, in Block No. 88, Doctor's Lane New Delhi worth Rs. 50,000 to my said wife, the demise during her life after his (testator) death and declares that after her (demise) death the property will go to the legal heirs of the testator. 2. That the said demise will continue to live in the said house according to her sweet will and shall also have a right to give the said property on rent to any tenant. 3. That the said demise shall have no right to transfer the property in any way whatsoever." In the other paragraphs of the Will, she was given the right to enjoy and appropriate to herself exclusively the rents and profits thereof and to make additions and alterations in the said property. She was also given the right to be the whole and sole manager and beneficiary of the property during her lifetime. A bar was imposed on the legal heirs of the testator to object/ interfere in the enjoyment of those rights.
(14) It bears repetition that the bequest under the Will of 1942 in favor of Smt. Satyawati was to the extent of use, enjoyment and interest during her lifetime with a declaration that after her death the property would go to the legal heirs of the testator. She did not have any right to transfer the property in any manner whatsoever. It was not the typical form of estate inherited by a woman from her husband compendiously known as the widow’s estate. She inherited the “widow’s estate” with respect to the property No. 56. Todar Mal Lane, New Delhi and lands at Shahdara and if it was intended by the testator to give her only “women’s estate” or “widow’s estate” then the bequest need not have been made under a Will. Shri Ram Nath Dewan intended that it should be a testamentary disposition of one property. The intention must be attributed to the testator that he bequeathed her somewhat different estate than she wa.s entitled as an heiress. A widow under the Hindu Law takes a special and qualified estate. Her position is that of an owner though her powers in that character are limited. She has a limited power of disposition of her husband’s property. In certain circumstances she can pass an absolute and complete title. She can transfer the property for legal necessity or for religious or charitable purposes or for the benefit of the estate or with the consent of the next reversioner. The bequest in favor of Smt. Satyawati under the Will dated April 10, 1942 specifically says that she had no right to transfer property in any manner whatsoever. A Hindu widow would have powers of alienation binding the reversioners in certain limited circumstances, but a bare life estate holder would not have any such powers. In this case there is a specific reiteration of that restriction. Further, if Smt. Satyawati took the estate only of a Hindu widow, one of the consequences would have been that she would be unable to alienate the profits. Under the Will she is empowered to realise the rents of the property and appropriate and spend it on herself or anyone else in accordance with her sweet will. No legal heir of the testator had any right to interfere in tha In other words she has been expressly empowered to appropriate the profits. Thus she had the power of making whatever use she choose of the rents and profits of her estate without any let or hinderance.
(15) A distinction between a bare life estate and widow's estate under the Hindu Law has been brought out in the decision of the Supreme Court in Lakshmana Nadar's case (supra) wherein it was ruled : "THE widow cannot be held to have been given a full Hindu widow's estate under the Will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. xxx xxx xxx xxx In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised." (16) The conferment of the power to appropriate the profits and absolute prohibition to transfer the property in any manner whatsoever under the Will, Ex. P-5 are inconsistent with notions of "widow's estate" under Hindu Law. A Hindu "widow's estate" was not given to Smt. Satyawati under the Will, Ex. P-5 and what was given, in our view, was only a "life estate".
(17) It is ”unnecessary to deal separately with several cases cited at the Bar before the learned Single Judge and again before us on the question of Jaw of surrender by a widow, under strict. Hindu Law because of our view that Satyawati was given the life estate’ and not ‘widow’s estate’. As stated in Hindu Law by Mulla 15th Ed. Para 197, there can be surrender of estate by a widow in the circumstances stated therein and the cases relied upon. The principle upon which the whole transaction rests is the effacement of the widow an effacement which in other circumstances is effected by actual death or civil death-which opens the estate other deceased husband to his next heirs at that date. Under the Will she had no power to transfer the property in any manner whatsoever and, therefore, she could not relinquish of abandon her rights in the said property beyond her lifetime. We are unable to accept the argument of Mr. Arun Mohan that there is no principle of law or authority to be found which may take the view that a life estate holder has no power to surrender the same in favor of the remainderman. Reliance by the counsel on Rudra Pratap Singh & Anr. v. Mt. Umral Kunwar and Anr, Air 1918 Oudh 389 is misplaced. It. was merely stated there that transfer effected by the widow of her life interest in favor of remainderman, operates as a surrender, accelerating the devolution in favor of the latter by relying on the decision in Behari Lul v. Madho Lal Ahir Guyawal 19 I.A 30 (PC). The latter case dealt with the surrender by the widow or other limited heir of the estate inherited by her under Hindu Law and not bequeathed to her as life estate’, under a Will.. Surrender of her estate by a widow inherited under Hindu Law stands on a different fooling. No reasoning is advanced for extending this principle in Rudra’s case. In this case, Smt. Satyawati had absolutely no right to surrender any right, title and interest in any manner whatsoever and in fact she was prohibited from transferring the property. She had only a ‘”life estate” with limited rights to pass on the estate to legal heirs of the testator. There can be no surrender accelerating the devolution “in favor of the legal heirs of the testator” which is a gift to a cla.ss of persons to be ascertained later.
(18) Apart from it, there cannot be a widow who is partly effaced and partly not so, and consequently there can be no surrender of part of the estate. A surrender or self-effacement by widow of her husband’s estate may be valid if it is shown to be a surrender of her where interest in the whole estate in favor of the next reversioner. Reference may be made only to Mt. Kamlabai & Ors v. Sheo Shankar Dayal &. Anr. . Besides 5, Doctor’s Lane, New Delhi, Shri Ram Nath Dewan left behind 56, Todar Mal Lane New Delhi and lands at Shahdara. On his death half of the said properties stood inherited by Shri Rajinder Nath Dewan whereas his widow Smt. Satyawati inherited a widow’s estate to the other half of the properties. It is not the case of the contesting defendants that there was any surrender of her rights with respect to 56, Todar Mal Lane, New Delhi and the lands at Shahdara. ‘ Thus there is no complete effacement of Smt. Satyawati of her ‘widow’s estate’ assuming that we are wrong in our view that she was given a life estate’ under the Will Ex. P-5.
(19) The next question on which elaborate arguments have been addressed by the counsel for the parties is the scope of the gift to a class of persons and to the vesting of the legacies. In legal language a class is a body of persons included under some general description and bearing a certain relation to the testator. It is a gift to a body of persons uncertain in number at the time of bequest to be ascertained at a future time. They may take in equal or some other definite proportions as specified in the Will. The share of each will be fluctuating to be ascertained upon the ultimate number of persons included in the class. The gift to the class implies an intention of the testator to benefit all those who constitute the class. The addition or dimunition of the members of the class does not affect the class. The class of persons has to be defined by a general or collective formula. No one who does not come within the words of the description can take the legacy (Section 98). What is a class gift has been brought out by Lord Davey in Kingsbury v. Walter, 1901 A.C. 189 in these words : “……PRIMA facie a class gift is a gift to a class, consisting of persons who are included and comprehended under some general description and bear a certain relation to the testator. That definition is in accordance with that given by Lord Selborne in the case referred to in North judgment, Pearks v. Moseley, (1880) 5 App. Cas. 714, and by Lord Hatherley, then Wood V.C., in a case which has also been referred to at the bar. In re Chaplin’s Trusts, (1863) 33 L.J. (Ch.) 183. But it may be nonetheless a class are named. For example, if a gift is made “to all my nephews and nieces including A.” or if a gift is made “to C. and all other my nephews and nieces,” each of those would be a class gift. Stanhope’s Case, (1859) 27 Beav. 201 is an example: there the gift was to four named daughters and all his after-born daughters, and that was rightly, as I think, held to be a class gift.”
(20) The doctrine in reference to gifts to a class is stated by Jarman on Wills, 8th Edition at pages 448-449 in these words’,: “GIFTS to a Class.-Where the devise or bequest embraces a fluctuating class of persons, who, by the rules of construction, are to be ascertained at the death of the testator, or at a subsequent period, the decease of any of such persons during the testator’s life will occasion no lapse or hiatus in the disposition, even though the devisees or legatees are made tenants in common, since members of the class antecedently dying are not actual objects of gift. Thus, if property be given simply to the children, or to the brothers or sisters of A, equally to be divided between them, the entire subject of gifts will vest in any one child, brother or sister, or any larger number of these objects surviving the testator, without regard to previous deaths ; and the rule is the same where the gift is to the children of a person actually dead at the date of the Will, or to the present born children of a person, in either of which cases, it is to be observed, there is this peculiarity, that the class is susceptible of fluctuation only by dimunition, and not by increase; the possibility of any addition by future births being in the former case precluded by the death of the parent, and in the latter by the express words. So if the gift is to such of the testator’s children as shall be living at the death of A, and A dies in the testator’s lifetime, this is a gift to a class; consequently the share of a child who survives A and dies in the testator’s lifetime does not lapse, and the children who survive the testator take the whole. Again, if one who would other wise be a member of the class is incapable of taking by reason of his being an attesting witness, or by reason of the gift to him being revoked, the whole property goes to those members who are capable of taking.”
(21) Section 111 with Exception is based on these principles in English Law and deals with bequest to a class and survivorship in case of bequest to described class. It lays down the rules for ascertaining the class. The ultimate question in this case is the scope of the Exception to Section 111 which reads as under: “WHERE a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator’s death. Exception- If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them as are then alive, and to the representatives of any of them who have died since the death of the testator.”
(22) Ordinarily the Will of a testator speaks on the date of his death. If a bequest is made to a class of persons, then the thing bequeathed by the operation of Section 111 of the Succession Act goes only to persons belonging to that class as are alive at the testator’s death. But to this rule there is an Exception that if property is bequeathed to a class of persons and such class is described as standing in a particular degree of relationship to a specified individual and the possession of the legatees is deferred until some time after the death of the testator because of a prior bequest or otherwise, the legacy shall be taken by such persons belonging to the class as are alive at the date to which the possession is deferred and to the representatives of any of them who have died since the death of the testator (See A. Narayanan and Anr. v. Commissioner of Income Tax, Madras ). The device under the will. Ex. P-5 is a gift after life estate of Smt. Satyawati to “legal heirs of the testator”. In other words, a life estate is bequeathed to Smt. Satyawati with an absolute gift of the remainder to the legal heirs of the testator. This, in our view, is a bequest of the remainder in favor of a class of persons who are described as legal heirs of the testator. It is a bequest in favor of a class of persons uncertain in number at the time of the gift, but to be ascertained at a future date. The testator has in express terms devised the property to his legal heirs. It appears that the testator had the primary intention of benefiting all the members of the class specified as his legal heirs. It must be attributed to the testator that he knew his properties and the persons he chose to benefit. He created a life estate under the Will in favor of his wife and did not declare that the remainder would go to his sons, or to his daughters, or to his issues or to his children or to his descendants but devised it to his legal heirs. It is clear that the testator was looking to the body of the legal heirs as a whole rather than the members constituting the body as individuals.
(23) The question then is whether the class is to. be ascertained at the death of the testator or at a later date. The. normal rule under Section 111 is that persons belonging to that described class who take Benefit of the bequest are those who are alive at testator’s death, in this case, on testator’s death Shri Rajinder Nath was the only son. Mr. Arun Mohan does not dispute that on ascertainment of the legal heirs of the testator on his death, Shri Rajinder Nath is the only person answering to that description. He is right that under the first part of Section 111 it is a simple gift to a described class of persons. The thing bequeathed goes to only such of the members of the class as are alive at the death of the testator. But to this rule, there is an exception contained in Section 111. The possession of the class of persons is deferred until a time later than the death of the testator by the reason of a prior bequest. There is a postponement of the possession of the legatees. It is deferred after the testator’s death because of the life estate in favor of Smt. Satyawati who died on July 2, 1972. Under the Exception, the legacy is to be taken by the class of persons described as standing in a particular degree of kindred to a specified individual as are then alive, and to representatives of any of them who have died since the death of the testator. We will deal with the description of the class “as standing in a particular degree of kindred” later. At the moment, we express about the time of ascertaining the class. The class of persons is to be ascertained at the deferred date. The ascertainment to a later date would also be of those who become members of the class within the extended period. They have to be admitted to the class. There are several decided cases and they all agree in establishing the general principle viz. when the enjoyment of the estate devised is by the testators’ express declaration not to be immediate by those, among whom it is to be finally divided, bat it is postponed to a later dale, as the death of a life estate holder, then individuals who answer to the general description at that time, when the distribution is to be made, are entitled to take it. The lawful heirs are to be ascertained by the application of the rules of inheritance. “The word ‘heirs’ cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned, there is nothing in the language or in the context to suggest that the word ‘heirs’ has not been used in its ordinary or natural sense” (See “Angurhala Mullick v. Deburata Mullick“, ).
(24) Before dealing with the scope of the Exception to Section 111 as to “a class of persons described as standing in a particular degree of kindred to a specified individual”, it is necessary to determine whether the gift of the remainder in favor of a specified class of persons on the termination of the life estate should be deemed to be a vested interest or only a contingent interest. Section 119 of the Succession Act specifies the date of vesting of legacy when payment or possession is postponed. Section 120 deals with the scope and nature of interest called contingent and the date of its vesting. The corresponding provision to Section 119 of the Succession Act is contained in Section 19 of the Transfer of Property Act which says that when on a transfer of property, an interest therein is created in favor of a person without specifying the time when this is to take effect, or in terms specifying that it is to take effect forthwith, or on the happening of event which must happen, such interest is vested, unless contrary intention appears from the terms of the transfer. Section 119 reads as under : “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 death, and shall pass to the legatee’s representative 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 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. Illustration: (iii) A fund is bequeathed to A for life, and after his death to B. On the testator’s death the legacy to B becomes vested in interest in B.”
Section 120 reads as under : "DATE of vesting when legacy contingent upon specified uncertain event (1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens. (2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible. (3) In either case, until the condition has fulfillled, the interest of the legatee is called contingent. Explanation.-Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent." (25) The question as to whether the interest of a person under a Will is vested as opposed to contingent interest is to be determined by the principles contained in Section 119 and 120, the presumption is in favor of vested against contingent interest (See Rajesh Kanta Roy v. Smt. Shanti Debi & Anr., ). The rule as to the vesting of interest on or after the date of the testator's death is controlled by the intention of the testator. There is no term in the Will, express or implied, to indicate any contrary intention on the part of the testator so as to make the interest of the legal heirs a contingent one. No contrary intention appears from the Will Ex. P-5. Under the Will, the testator has bequeathed the user, enjoyment and interest of house No. 5, Doctor's Lane, New Delhi to his wife Smt. Satyawati during her lifetime. This is the bequest of prior interest of the life estate in favor of Smt. Satyawati but there is a declaration that after her death, the property will go to the legal heirs of the testator. The bequest of prior interest cannot be a ground for holding that a subsequent bequest stated in the Will will not be a vested interest. Illustration (iii) quoted above is indicative of the vesting of the legacy. A mere intervention of the life estate does not prevent the vesting. The postponement of possession does not also lead necessarily to the inference of an intention that the legacy shall not become vested but the case before us is one of exception. The principle is stated in Jarman on Wills, 8th Edition at pages 1346-1347 in these words: "General rule in regard to Vesting- "THE law", says Mr. Jarman "is said to favor the vesting of estates ; the effect of which principle seems to be, that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of gift immediately on the instrument taking effect, or so soon afterwards as such object comes into existence or the terms thereof will permit. As, therefore, a will takes effect at the death of the testator, it follows that any device or bequest in favor of a person in case simply (.i.e. without any intimation of a desire to suspend or postpone its operation), confers an immediately vested interest. It words of futurity are introduced into the gift, the question arises whether the expressions are inserted for the purpose of protecting the vesting, or point merely to the deferred possession or enjoyment. A simple illustration of this question occurs in those cases where property is given to a person followed by a direction that it shall be paid or transferred to him on his attaining a certain age, or on some other event." (26) Mr. Arun Mohan has relied upon various authorities cited at the Bar as to vesting of a legacy when possession is postponed or where there is a bequest of prior interest, namely, Periunayagi Ammal v. A. Ratnavelu Mudaliar & Anr., Air 1924 Mad 316, Darshan Singh & Ors. v. Wali Khan & Ors , Sissir Chandra Maitra & Ors. v. Ajit Kishore Maitra, & Ors. , Hazara Singh & Ors. v. Banta Singh & Ors , Chilamakuri Chinna Pullappa v. Guruka Chinna Boyanna & Ors., . Papammal (died) & Ors. v. K. Kuppuswamy, , P. Somasundaram v. K. Rajammal, Air 1976 Mad 295 and two Supreme Court judgments, viz. Ramachandra Shenoy & Am. v. Mrs. Hilda Brite & Ors., wherein it was held that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at A's death, A is prima facie held to take a life interest and B an interest in remainder the apparently absolute interest of A being cut down to accommodate the interest created in favor of B and "A. Sreenivasa Pal & Anr. v. Saraswathi Ammal alias G. Kamala Bai, ."
(27) A reading of the above case law makes it clear that if the interest created in favor of a person should take effect on the happening of an event which must happen, it is a vested interest but if it is to take effect on the happening of specified uncertain event which may or may not happen the interest is a contingent one. None of the above cases, however, deals with a gift to a class of persons but only to gifts to individuals after the creation of the life estate. Under the main part of Section 111 where a bequest is made simply to a described class of persons, the thing bequeathed goes only to such as are alive at the testator’s death. When a legacy is given to a class and no period of distribution is mentioned in the Will, it is upon the death of the testator that the rights of the parties are to be ascertained. The Exception to Section 111 lays down that in cases where possession is deferred to sometime after the testator’s death by reason of a prior bequest or otherwise, then in such cases, the property shall go to such of them as are then alive and the representatives of any them who have died since the death of the testator. Here the words of futurity have been introduced into the gift. The gift under the Will is not immediate but postponed. It may vest in all the legal heirs of the testator at his death, subject to the dimunition of the shares, in other words to their being divested pro tonto, as the number of objects is augmented by future inclusions during the lifetime of the life estate’ holder. Another aspect is that where a legatee was alive at the testator’s death, but died between that date and the period of distribution leaving a heir, then that heir has to be included in the class of persons. It shows that the intention of the legislature is that there is a vesting to a limited extent in the class of persons. In other words when the bequest is to a described class of persons, it does not get vested absolutely on the testator’s death, when the possession is postponed till the later time of distribution. If the property gets vested, then it is vested in the class of persons and not merely those who constitute the class on the death of the testator. The property 5, Doctor’s Lane, New Delhi, therefore, vested in the legal heirs of the testator’ as a class gift and not in Rajinder Nath who was the only person answering to that description at the testator’s death. The life estate was bequeathed to Smt. Satyawati with an absolute gift over of the remainder to the legal heirs of the testator. The nature of interest created under the Will is in favor of class of persons comprising of the legal bears of the testator. The gift of the absolute remainder in favor of a specified class of persons would get vested absolutely on the termination of the life estate in persons who are included in that class of persons to be found on ascertainment.
(28) It is apposite to refer at this stage to a decision of the Supreme Court in N. Krishnammal v. R.. Ekambaram & Ors., . Controversy in that case hinged around the scope and construction of Clause 5 of the Will. The testator in Clause 5 of the Will stated : "MY third son, Nataraja Pillai shall take the income accruing from the properties.........After his lifetime, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienation ' such as gift, usufructuary mortgage and sale. If there are no male issues as aforesaid, my heirs shall take the aforesaid properties." 'N' died on January 31,1957 without leaving any issue. His widow filed a suit for declaration of her rights to the properties on a true construction of the Will and for possession of the properties. . There Lordships ruled that legal terms such as heirs, used in the Will must be construed .in the legal sense, unless a contrary intention is clearly expressed by the testator and that the word "heirs" cannot normally be limited to issues only and that it must be in all persons who are entitled to the property of another under the law of inheritance. Clause 5 was construed that it only indicated that in the event of N's death without any male issue, further devolution of the estate that had been given to him for life, would be regulated in favor of the testator's heirs ascertained in accordance with the Hindu Law of intestate succession, that is to say, the testator did not specify or lay down any line of heirs, deviating from the Hindu Law of intestate succession. Another question posed was whether the heirs of the testator on whom the estate was to be devolved in the event of 'N' dying sonless, were to be ascertained according to Hindu Law in force at the time of N's death or according to Hindu Law, prevailing in 1928 when the testator died. The last sentence of Will was construed so as to read like this: "IF Nataraja dies without leaving any male issue, then my heirs, then ascertained according to law of inheritance, shall take the aforesaid property." In other words, the ascertainment of the heirs of the testator is to be done on the date of N's death without male issue when succession opens out in favor of those heirs, and not with reference to the date of the testator's death. This necessarily implies that "my heirs" of the testator are required to be ascertained on the hypothesis that the testator lived up to and died. a moment after N's death, it was ruled on a true construction of Clause 5 of the Will that it logically and inexorably follows there from, that the ascertainment of the heirs of the testator, on whom the property was intended to be devolved in the event of N dying sonless was to be made in accordance with Hindu Law of intestate succession as in force on the date of N's death i.e. January 31, 1957 when succession opened out and not in accordance with the orthodox Hindu Law prevailing in 1928, which on the relevant date stood abrogated and superseded by the Hindu Succession Act, 1956.
(29) Mr. Arun Mohan made a vain attempt to distinguish the judgment of the Supreme Court on facts. Legal heirs, according to him, are to be understood according to the knowledge and intention of the testator and not by expansion with the change of law even after the death of the testator. The testator could not have contemplated subsequent change in law and did not intend to benefit the daughters. He says that if the vesting occurred in the remainderman i.e. Rajinder Nath on April 3, 1953 on the death of the testator, then firstly the vesting was complete on that date and secondly the term “legal heir” as used in the Will will refer only to Rajinder Nath Dewan and not to his sisters because the legal heirs on April 3, 1953 was Rajinder Nath and not the daughters. In the case before us, the real intent of the testator can be reached on a true construction of Clause I of the Will wherein he expressly fixed the period of ascertaining the objects. We may recall that the testator bequeathed the user, enjoyment and interest of House No. 5, Doctor’s Lane, New Delhi to his wife “the demise during her life after his (testator) death and declares that after her (demise) death the properly will go to the legal heirs of the testator” (Emphasis, italicized in print, supplied). The vesting does not occur in favor of Rajinder Nath. The vesting, if at all, is in a class of persons described as legal heirs of the testator to be ascertained not on the death of the testator but at a later date. The legal heirs of the testator are to be ascertained according to Hindu Law of intestate succession. The word “legal” has been used to express the intention that they have to be ascertained in accordance with Hindu Law of succession. The use of the expression after her death indicates the intention of the testator that the time of ascertainment of the legal heirs of the testator is soon after the death of Smt. Satyawati. There was no absolute vesting in the legal heirs of the testator as it was a gift to a class. To the extent of the application of Exception to Section 111 of the Succession Act, it was contingent. The legal heirs of the testator were not to be ascertained on the death of the testate.” but were to be ascertained according to Hindu Law in force at the time of the death of Smt. Satyawati when the estate became vested. The; finding of learned Single Judge in Krishnammal’s case (supra) was that the contingent, interest in favor of heirs of ‘P’ became vested only on the death of ‘N’ and Section 111 of the Succession Act would be applicable. The Appellate Bench of the High Court reversed this conclusion and held Section 111 was not applicable. Their Lordship of th ²e Supreme Court reversed the decision of the Appellate Bench. The bequest by the testator was construed as created not for any ‘artificial’ class of his heirs, but to the heirs on the assumption that he died intestate, moment after ‘N’s death according to Sections 8 to 10 of the Hindu Succession Act. The possession of the estate was with the life estate holder ‘N’ and thus impliedly Section 111 was held applicable.
(30) Thus the serious question to be decided in this case and which indeed is a high vexed and controversial one is as to what is the meaning “of a particular degree of kindred”. The main Section 111 deals with described class of persons while the Exception deals with the class of persons described as standing in a particular degree of kindred to a specified individual. Mr. M.C. Bhandare’s submission is that the son and four daughters of Ram Nath are his legal heirs forming a class of persons within the meaning of Exception as admittedly they are described as standing in a particular degree of kindred i.e. ‘blood relations’ to a specified individual, namely, legal heirs of Ram Nath. They are all first degree heirs according to Hindu Law of succession. According to Mr. Arun Mohan, the Exception applies only where there is a bequest to a (1) class of persons, (2) described, (3) as standing in a particular degree kindred and (4) to a specified individual, then and then alone the Exception will apply. We have already held that the bequest under the Will is to a class of persons. The second requirement of described is also met in the Will. It is described in the words of the testator in the Will that “The property will go to the legal heirs of the testator”. The fourth condition of a specified individual is also fulfillled by specification of the word “testator”. The moot question is only a particular degree of “kindred”. According to Mr. Arun Mohan, the word “kindred” means male blood relations and it is not synonymous with heirs. By the term “kindred” it may mean blood relations, say, children, sisters, brothers etc. and when it said “degree,…..to a specified individual”, the class is narrowed down. It is only to such a narrowed class specification that the Exception applies. Reliance is .placed on Section 24 of the Succession Act which defines kindred or consanguinity as the connection or relation of persons descended from the same stock or common ancestor. Reference is also made to Section 25 defining the lineal consanguinity Section 26 defining the collateral consanguinity, Sections 27, 28 and Schedule I to the Succession Act. Hypothetical pedigree tables are given to support the arguments. Reliance is also placed on Section 93 and on Section 112 which carries to it a similar Exception as of Section 111 and the illustration. It is urged that before the Exception can apply, firstly the class must be one of kindred as specified in schedule 1 and secondly, it must be standing in a particular degree. The submission is that all the four requirements or grounds contained in Exception to Section 111 are necessary to enable the plaintiff to obtain a share in the distribution of the ‘estate and none of which is satisfied in the present case. We are unable to accept these.
(31) Part Iv dealing with consanguinity in the succession Act is not applicable to Hindus. Section 23 says that nothing in this part (from Sections 23 to 28), shall apply to any Will made or intestacy occurring before the 1st day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Mohammedan, Buddhist, Sikh or Jaina or Parsi. The provisions of Section 93, by virtue of Section 57 read with schedule 111 do not apply to the Wills made by Hindus. Elaborate arguments have been built by the counsel on a foundation which in law does not exist. The premises that Chapter Iv applies is legally fallacious. It is a grave error to urge that kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor and is to be applied in construction of Section 111. The definition contained in Section 24 is based upon the principles of English statute of Distributions. The next of kin are those that are next to blood i.e. the nearest blood relations of the propositus in an ascending and descending line. The definition is borrowed from the principle of English Law. It is applicable to Europeans who are domiciled in India, Native Christians etc. but not to Hindus. We, therefore feel no necessity to meet the arguments based on the definition of ‘kindred’ as contained in Section 24. The Legislature has deliberately omitted to incorporate the definition of the term “kindred” as applicable to Hindus and we must exclude all such notions attached to it.
(32) The Hindu Law of succession was basically the traditional Hindu Law found in the smrIT is or the Dharmasastras and ancient texts. In Hindu Law the joint family system comes first in the historical order. The Law of inheritance was of later growth. The law of heirship had close connections with the doctrine, “he who inherits the property, also offers the Pindas”. It was based on the principle of consanguinity. The theory of spiritual benefit was a later development. The tables of succession to the estate are given in the Smrities. They referred to heirs as connected by pinda or gotra or in other words sapindas, Sapindas were originally confined to three degrees of agnatic kindred in ascent and in descent for the purposes of succession. The rules of inheritance were, however, meagre because of the existence of joint family or co-parcenary properties. From the smrities two separate systems of inheritance were established by the Mitakshara and the Dayabagha. In Mitakshara, it is propinquity while in Dayabagha it is religious efficacy. Mr. Arun Mohan is not wrong that the Mitakshara Law of Inheritance preferred male issues. The order of inheritance, according to Mitakshara Law, is given by Mulla on Hindu Law, 8th Edn. in Chapter IV. The property of a deceased who is separate at the time of death from his co-parceners passes to his heirs by succession according to the order given in Article 43. They are son, grandson (son’s son) and great grandson (son’s son’s son) prior to April 14,1937.
(33) The traditional Hindu Law was modified to some extent by Statutes enacted from time to time. The Caste Disabilities Removal Act, 1850, applied to all communities including Hindus and laid down that conversion ceased to be a disqualification. The Hindu Widow’s Remarriage Act, 1856 removed disability in the case of a widow by remarriage. The Hindus were permitted to dispose of their property by Will for the first time by the Hindu Wills Act, 1870. The Hindu Inheritance (Removal of Disabilities) Act, 1928 removed the disqualification of congenital lunacy and idiocy. The Hindu Law of Inheritance (Amendment) Act, 1929 altered the order of intestate succession and placed certain heirs in a higher rank on the basis of close relationship with the deceased. It laid down that a son’s daughter, daughter’s daughter, sister and sister’s son in that order be entitled to rank in the succession next after the paternal grandfather and before the paternal uncle. The Hindu Women’s Right to Property Act, 1937 was a big step forward in conferring larger rights of succession to women. After April 14, 1937, widow, predeceased-son’s widow and predeceased-son’s predeceased son’s widow were included in the order of succession among sapindas. Thinking had already set in for an equitable distribution between male and female heirs in view of changed social and economic conditions. The provisions of Section 111 of the Succession Act, 1925 and the intention of the testator to benefit his legal heirs in his Will of 1942 is to be construed in that light.
(34) In common parlance ‘kindred’ is understood as related by blood or one’s relations In Webster’s Third New International Dictionary, it is defined as: “Kindred…………… a group of related individual : Family Clan has an organic quality : what happens to the individual member is felt by the whole group -A.D. Rees (2) Relatives if his-still remain to him-Alexis de Tocqueville c : a genealogical group : Lineage study the incidence of cancer among members of a 2 archaic a : relationship by blood or marriage : Kinship a secret match……… raised him to with the throne-J.R. Green B : possession of similar qualities : Affinity thy with the great of Lord-Alfred Tennyson.” Their Lordship of the Supreme Court in A. Narayanan & Anr. (supra) equated the word ‘kindred’ with relationship while construing the provisions of Section 111 of the Succession Act. It is a relationship either by blood or marriage or adoption.
(35) The term “kindred” is ordinarily employed to indicate relationship by blood or descend, say children, sisters, brothers etc. and thus the. daughters are related by blood or descent. There is no warrant to import .only the male issues in the word “kindred”. The conception of the marriage relationship as understood by Hindu jurists hold that the wife may be deemed as standing in the relation of a kindred to her husband, but we need not go into that question here. We are fortified by the decision in Dinesh Chandra Roy v. Biraj Kamin (1912) 39 Calcutta 87, under Section 99 of the Indian Succession Act, 1865 corresponding to Section 112 but the wording of the Exception in Sections 111 and 112 are parlance materla. There, a bequest was made by a father to his son’s wife and the son married only after the testator’s death. It was deemed a bequest to a person, described as standing in a particular degree of kindred to his son within the meaning of Exception to Section 99 of the said Act. It was held that the word “kindred” in Exception to Section 99 of the Succession Act of 1865 when imported in a Hindu Will should not be limited to blood relations and therefore, a wife stands, equally well in relation of a kindred to her husband. This was followed in Nafar Chandra v. Ratnamala, 15 Calcutta W, 66. The above case was quoted with approval in Mt. Ramdulari v. Bisheshwar Dayal, Air 1923 Nag 105. ‘Kindred’ which is equivalent to male the issues even according to Mr. Arun Mohan, in Hindu Will does not mean natural born descendents. It would include descendent by adoption as well as descendent by blood. There is no warrant for limiting the expression of the kindred. Thinking had already set in by the year 1942 to establish equality between male and’ female issues with regard to property rights and to give the widows absolute estate. Rao’s Committee examined the subject of intestate succession of Hradus and prepared a Bill in 1948. the Select Committee made substantial changes. The Bill was presented in the year 1954. The testator must be fully aware in 1953 of the proposed codification of the law, yet he did not think of revoking or modifying his Will of 1942 in which he bequeathed the remainder to his legal heirs. He was looking to the body of legal heirs as a whole rather than the members constituting the body as the individuals. Vital changes have since been made by the Hindu Succession Act, 1956 establishing absolute equality ‘between sons and daughters with regard to the rights in property. Unless the testator had expressly declared his intention of excluding the daughters from the class of his heirs which he expressly chose to benefit, we would be doing violence to his intentions by excluding then existing female heirs.
(36) To sum up, a Hindu widow’s estate was not given to Smt. Satyawati under the Will. Ex. P-5 and what was given was only a life estate. The conferment of the power to appropriate the profits and absolute prohibition to ‘transfer the property in any manner whatsoever under the Will are inconsistent with the notions of widow’s estate under Hindu Law. Smt. Satyawati had absolutely no right to surrender any right, title and interest in any manner whatsoever. Infact she was prohibited from transferring the property. There is no complete effacement of Smt. Satyawati of her widow’s estate, assuming that we are wrong in our view that she was given a life estate under the Will. A life estate is bequeathed to Smt. Satyawati with an absolute gift of the remainder to the legal heirs of the testator and this is a bequest of the remainder in favor of class of persons. The testator was looking to the body of the legal heirs as a whole rather than the members constituting the body as individuals As. there is postponement of the possession of the property bequeathed beyond the testator’s death, the period of distribution for the purpose of ascertainment of the class is not the date of the death of the testator but the date on which possession is to vest on the termination of the life estate of Smt. Satyawati who died on July 2, 1972. It is to be according to law then in force. Admittedly, the daughters are also legal heirs along with the son by virtue of Sections 8 to 10 of the Hindu Succession Act, 1956 with effect from June 17, 1956. We, therefore, set aside the findings of the learned Single Judge on issues 8 and 9 and hold that as the succession opened on July 2, 1972, the property bearing No. 5, Doctors’s Lane, New Delhi Was inherited by all the legal heirs of late Ram Nath in equal shares. They are plaintiff, defendant No. 1 and defendants 6 to 8 in the suit. The plaint was allowed to be amended by the learned Single Judge by his order dated December 3, 1983 regarding evaluation of property in suit and the requisite court-fee Was paid. The suit for partition and possession has ‘already been held to ‘be maintainable
(37) On issue No. 7 and the additional issue relating to the challenge to the sale-deed dated March 4, 1971 alleged to have been executed by Shri G.C. Sharma, defendant No. 2 purporting to have acted as an ‘attorney of defendant No. 1, no arguments have been addressed by the counsel for the appellant. The only contention raised is that if Shri Rajinder Nath Dewan holds no title in 5, Doctor’s Lane, New Delhi, then none could be conveyed by his attorney in favor of defendants 3 to 5. In view of our findings on issues 8 and 9 the sale-deed could not affect the right, title and interest of the plaintiff and defendants 6 to 8. The legal representatives of defendant No. I do not question the sale deed dated March 4, 1971 and, therefore, it will have effect to the extent of the interest of defendant No. 1. Issues 10 and 11
(38) In the result, we modify the preliminary decree granted by the learned Single Judge with respect to property No. 5, Doctor’s Lane, New Delhi. We hold that the plaintiff, each of the defendants 6 to 8 and defendants 3 to 5 jointly by virtue of the sale of interest of Rajinder Nath in their favor are entitled to l/5th share each of the aforesaid property and are also entitled to claim partition of the suit property. The legal heirs of defendant No. 1 do not claim any right, title and interest in respect of the said property. The plaintiff is also entitled to the relief in respect of rendition of accounts and rents with regard to 5, Doctor’s Lane, New Delhi with effect from July 2, 1972. Defendants 3 to 5 would be the accounting party. Accordingly, the appeal is allowed and the preliminary decree is modified in respect of property No. 5, Doctor’s Lane, New Delhi in the above terms. The Commissioner already appointed would also submit his report with respect to the aforesaid property, in view of the uncertain state of the law, the parties shall bear their own costs of this appeal.