{"id":249483,"date":"1969-09-17T00:00:00","date_gmt":"1969-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raman-nadar-viswanathan-nadar-vs-snehappoo-rasalamma-alias-on-17-september-1969"},"modified":"2017-05-25T09:42:48","modified_gmt":"2017-05-25T04:12:48","slug":"raman-nadar-viswanathan-nadar-vs-snehappoo-rasalamma-alias-on-17-september-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raman-nadar-viswanathan-nadar-vs-snehappoo-rasalamma-alias-on-17-september-1969","title":{"rendered":"Raman Nadar Viswanathan Nadar & … vs Snehappoo Rasalamma Alias … on 17 September, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Raman Nadar Viswanathan Nadar & … vs Snehappoo Rasalamma Alias … on 17 September, 1969<\/div>\n
Equivalent citations: 1970 AIR 1759, 1970 SCR (2) 471<\/div>\n
Author: V Ramaswami<\/div>\n
Bench: Ramaswami, V.<\/div>\n
           PETITIONER:\nRAMAN NADAR VISWANATHAN NADAR & ORS.\n\n\tVs.\n\nRESPONDENT:\nSNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4OTHERS\n\nDATE OF JUDGMENT:\n17\/09\/1969\n\nBENCH:\nRAMASWAMI, V.\nBENCH:\nRAMASWAMI, V.\nSHAH, J.C.\nGROVER, A.N.\n\nCITATION:\n 1970 AIR 1759\t\t  1970 SCR  (2) 471\n 1969 SCC  (3)\t42\n\n\nACT:\nHindu Law--Will--Bequest to unborn person.\n\n\n\nHEADNOTE:\n   K,  a Hindu had no issue, but had a brother R who  had  3\ndaughters.  K, and R jointly executed a will  bequeting\t the\nassets\tof  K  to son or sons born in future to\t R,  to\t the\nexclusion  of the daughters, after the death of K and R.   K\ndied  in 1947.\tThe appellants claiming to be the sons of  R\nby  his subsequent marriage, filed a suit for a\t declaration\nthat  R\t had only life interest in K's properties  with\t the\nremainder  vested in them under the will.  The\ttrial  court\ndecreed\t the suit holding that the second marriage of R\t was\nlegal  and  the appellants were entitled to  the  properties\nsubject\t to R's life estate and that  R's daughter  had\t  no\nright  in the properties.  R's daughters filed an appeal  to\nthe  High  Court.  Soon after K's death,  another  suit\t was\nfiled by R's daughters\t'for administration of K's estate in\nwhich  the: appellants mother  was a party.  This  suit\t was\ndismissed  on the ground that the plaintiffs had lost  their\nright  on  the birth of appellants. An appeal  to  the\tHigh\nCourt was pending  in  this suit also.\tThe High Court by  a\ncommon\tjudgment held that the appellants, sons of  R,\twere\nborn  after  K's death, so the devise in  their\t favour\t was\nvoid,  and  that after the life estate of R,  his  daughters\nbecame entitled to the properties for their life time.\n    HELD:  Although  there is no authority in Hindu  Law  to\njustify\t the  doctrine that a Hindu cannot make\t a  gift  or\n'bequest  for  the  benefit of an  unborn  person  yet\tthat\ndoctrine has been engraved in Hindu Law by the decision\t  of\nthe  Judicial  Committee in Tagore v. Tagore.\tI.A.  (1872)\nSupp. 47.  This doctrine was laid down for the first time in\nthe  case   of\tTagore.\t  This\tdecision  of  the   Judicial\nCommittee has stood a great length of time and on the  basis\nof   that    decision\trights\t  have\t  been\t  regulated,\narrangements  as to property have passed.    Therefore\tthis\nwas a proper case in which maxim communis error facit jus be\napplied. The principle underlying the maxim is that \"the law\nso  favours  the  public good, that it will  in\t some  cases\npermit\ta common error to pass for right\". The\tbequests  in\nfavour\tof R's sons were void and of no\t legal\tconsequence.\n[477 A; 478 F-G]\n    It\tis, therefore, not possible to accept  the  argument\nthat the will was intended to operate or to come into effect\nafter  the death of both the testators.\t In 'regard  to\t K's\nproperties  the\t life  estate devised in favour\t of  R\tmust\nnecessarily take effect and remain in force during the\tlife\nof  R and not after that; it is true that at the end of\t the\nwill  there  is a clause that both the\ttestators  have\t the\nright  to  revoke the will during their lives and  that\t the\nwill  take effect only sub:sequent to their death.  But\t the\ntrue  intention\t of the testator has to be gathered  not  by\nattaching importance to isolated expressions but by  reading\nthe  will  as a whole with all its provisions  and  ignoring\nnone  of  them\tas redundant  or  contradictory.   It  must,\ntherefore,  be held that as the express devise to R for\t his\nlife  is  a disposition intended to take  effect  after\t the\ndeath of K and before the death of R the last clause in\t the\nwill  could  not be literally correct.\tThe  daughters\talso\ncould not take under the will as the bequest in their favour\nwas subject to the defeasance clause. [480 E-H]\n472\n    Tagore's  case,  I.A.  (1872)  Supp.   47  and   Charles\nDalton\tv.  Henry  Angus  & Co., [1881]\t 6  A.C.  740,\t812,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2467 of 1966.
\nAppeal from the judgment and decree dated March 27, 1963 the
\nKerala High Court in Appeal Suit No. 848 of 1960′.
\n    Sarjoo  Prasad, P.K. Pillai and M.R.K. Pillai, for\tthe:
\nappellants.\n<\/p>\n
    V.K. Krishna Menon, R. Thiagarajan and K. Jayaram,\t for
\nrespondents Nos. 1 to 3.\n<\/p>\n
The. Judgment of the Court was delivered by
\n    Ramaswami, J. This appeal is brought by certificate from
\nthe judgment of the High Court of Kerala in A.S. No. 848  of
\n1962  dated  March  27, 1963 reversing\tthe  decree  of\t the
\nprincipal Subordinate Judge, Trivandrum in O.S. No.. 182  of
\n1957 dated May 23, 1960.\n<\/p>\n
    The\t father of the plaintiffs who are appellants  herein
\nwas  a\tHindu  Nadar namely Raman Nadar.  He  had  an  eider
\nbrother\t named\tKrishanan Nadar.  On May 9,  1946  the\tsaid
\nKrishanan  Nadar and Raman Nadar jointly executed a deed  of
\nwill  Ex. P-2 in respect of the assets of  Krishanan  Nadar.
\nOn  the\t date  of  the will,  Raman  Nadar  had\t only  three
\ndaughters  and no sons. Krishnan Nadar died on\tDecember  5,
\n1947.\tAfter  the death of Krishnan Nadar  the\t appellant’s
\nmother’ was married to Raman Nadar, who is the father of the
\nappellants. It is specifically provided in the will Ex.\t p-2
\nthat in the event of Raman Nadar begetting a son or sons  in
\nfuture\tthose  male issues will\t succeed to  the  assets  of
\nKrishnan  Nadar\t to  the exclusion of  the  daughters.\t The
\nmaterial portion of the will, Ex. p-2, reads as follows:\n<\/p>\n
\t\t    “Deed of will executed by Krishnan\taged
\n\t      51,   Nadar,  son\t of   Kaliyambi,   merchant,
\n\t      Makkavazhi,     Kuzhiamvilakathu\t    Veettil,
\n\t      Melkaladi,   Airanimuttan,  Pakuthy,   Nellamn
\n\t      Adhikaram\t and  his brother Raman son  of\t the
\n\t      said Kaliyambi of do.,  aged 39,\tmerchant, on
\n\t      26th   Madam,   1111  M.E.  with\t their\t own
\n\t      consultation and to their entire satisfaction.
\n\t      Some   properties\t have been acquired  in\t the
\n\t      name  of the 1st named and in the name of\t the
\n\t      2nd  named out of love and  affection  towards
\n\t      him  and his children, with the  self-acquired
\n\t      money of the 1st named ‘and without the income
\n\t      of the Tarwad properties of the 1st named\t and
\n\t      without  the help of the other members of\t the
\n\t      Tarwad or the 2nd named.\tThey are held
\n\t      473<\/span>
\n\t      by the 1st named in his possession and enjoyed
\n\t      by him till this date. The 1st named has, till
\n\t      the   end\t of  his  life;\t absolute   freedom,
\n\t      authority\t  and\tright\tto   alienate\t(the
\n\t      properties) in whatever manner he likes and to
\n\t      execute  deeds.  The first named is  unmarried
\n\t      and  the\tsecond named  has  married  Parvathy
\n\t      alias   Snahappoo\t  daughter\tof    Sarah,
\n\t      Maraikkamuttath  Veettil,\t Vazhuthoor   Desom,
\n\t      Neyyattinkara Taluk, through whom he has three
\n\t      daughters Ammukutty aged 14, Chellamma aged 10
\n\t      and Rajammal aged 5 but no son.  As the  first
\n\t      named  felt himself desirous of making  during
\n\t      his  life provision for the  devolution  after
\n\t      his   life  of  the  movable   and   immovable
\n\t      properties  belonging  to\t him  in    absolute
\n\t      rights as aforesaid, the following  provisions
\n\t      regarding them are made: The first named\ttill
\n\t      the end of his life will have the right to pay
\n\t      the  land revenue to enjoy and dispose in\t any
\n\t      manner   whatsoever   all\t the   movable\t and
\n\t      immovable properties that belong or may belong
\n\t      to  himself.   After  the life  of  the  first
\n\t      named,  all the properties above said will  be
\n\t      taken   and  enjoyed  by\tthe   second   named
\n\t      maintaining his children named above and those
\n\t      born  to him later and without  alienating  or
\n\t      westing the properties. After the life of\t the
\n\t      second named, if he leaves behind no sons, the
\n\t      three daughters named above and the daughters,
\n\t      if  any,\tborn  hereafter may  enjoy  all\t the
\n\t      movable  and immovable properties that may  be
\n\t      found  to\t belong to the first named  and\t the
\n\t      second  named,  either in common or  in  equal
\n\t      shares, effecting mutation, taking pattahs and
\n\t      paying  the revenue in their own\t names,\t but
\n\t      without  making any  alienation  thereof.\t  If
\n\t      there  be sons born to the second named,\tthey
\n\t      will  take after the life of the second  named
\n\t      all  the movable and immovable  properties  of
\n\t      the  first  named and the 2nd named and  enjoy
\n\t      them  for\t ever,\teffecting  mutation,  taking
\n\t      pattahs  and  paying  revenue,  and  with\t all
\n\t      powers  of  disposal; and in that\t event,\t the
\n\t      daughters\t of the 2nd named will not have\t and
\n\t      should  not claim any right and they will\t not
\n\t      get any right.”<\/p><\/blockquote>\n
    Soon after the death of Krishnan Nadar defendants 3\t and
\n4  and the mother of the 5th defendant as  plaintiffs  filed
\nO.S.  No.  37  of 1124 M.E. for the  administration  of\t the
\nestate\tof  the\t deceased  Krishnan  Nadar.  The  mother  of
\nappellants  was made one of the defendants in that suit\t and
\nthe  allegation\t was  that Raman  Nadar\t had  contracted  an
\nillicit\t relationship  with her and that he had\t executed  a
\ngift  deed Ex. D-1 in her favour in respect of some  of\t the
\nplaint\titems.\tO.S. no. 37 of 1124 was\t dismissed  on\tthe’
\nground\tthat  the  plaintiffs of that suit  had\t lost  their
\nrights\tunder the will on the birth of a son to Raman  Nadar
\nthrough his second
\n474<\/span>
\nwife  on February 7, 1951 during the pendency of  the  suit.
\nThe  plaintiffs in O.S. No. 37 of 1124 filed A.S. No. 98  of
\n1955  against the aforesaid decree and that was disposed  of
\nby a Division Bench of the Kerala High Court on February  2,
\n1957.  The High Court observed as follows:\n<\/p>\n
\t\t    “We do not consider it proper to  decide
\n\t      this  question ‘of ‘the legitimacy of the\t son
\n\t      born  to\tthe  1st  defendant  in\t his  second
\n\t      marriage) in this suit.  This can be gone into
\n\t      in ‘a suit, if any, instituted by or on behalf
\n\t      of the son.  The 1st defendant had no right to
\n\t      revoke   the  will  after\t  Krishnan   Nadar’s
\n\t      death   ……   The  plaintiffs\tdo  not\t and
\n\t      cannot  get  the right to\t possession  of\t the
\n\t      properties  until\t after the  1st\t defendant’s
\n\t      death\t   but a right to  maintenance\tfrom
\n\t      the income of the properties has been provided
\n\t      for  the\tplaintiffs by Ex. A (the  will)\t and
\n\t      this  they  are  entitled\t to  get.  The\t 1st
\n\t      defendant is not entitled to do any act  which
\n\t      affects this right of the plaintiffs.”\n<\/p><\/blockquote>\n
 The High Court remanded the suit for fresh disposal to\t the
\nAdditional  Subordinate Judge, Trivandrum.  After  the\tsuit
\nwent  back  on\tremand\tthe  Additional\t Subordinate  Judge,
\nTrivandrum held that the plaintiffs were not entitled to any
\nrelief\tand dismissed the suit.\t The daughters of  defendant
\nno.1 preferred an appeal, A.S. No.. 340 of 1959 to. the High
\nCourt.\n<\/p>\n
    Meanwhile the appellants instituted O.S. No. 182 of 1957
\nfor  a declaration that the first defendant had only a\tlife
\nestate\tin  the\t properties  of\t Krishnan.  Nadar  with\t the
\nremainder  vested in them under the will referred to  above.
\nThe  suit  was decreed by the Principal\t Subordinate  Judge,
\nTrivandrum  who\t held that the second marriage\tof  the\t 1st
\ndefendant  was legal and the sons born out of that  marriage
\nwere entitled to  Krishnan  Nadar’s property subject to\t the
\nlife estate of the 1st defendant.  It was further held\tthat
\nthe daughters of the 1st defendant (plaintiffs in O.S. No 37
\nof 1124) were not entitled to any right over the properties.
\nThe  daughters of the 1st  defendant  preferred\t  an  appeal
\nagainst the. decree of the Principal Subordinate Judge being
\nA.S.  No. 848 of 1960.\tThe High Court decided this.  appeal
\nand  A.S. No. 340 of 1957 by a common judgment on March\t 27,
\n1963.  Appeal A.S. No. 848 of 1960 was allowed in whole\t and
\nsuit  O.S.  No.\t 182 of 1957 filed by  the   appellant\t was
\ndismissed.    A.S.  No.. 34 of 1959 was partly\tallowed\t and
\nappellants  1 and 2 (being the first two plaintiffs in\tO.S.
\nNo. 37 of 1124) were held entitled    to maintenance of Rs..
\n50\/-  per  head\t per menses from  February  18,\t 1957.\t The
\nalienations, Exs. C, D and E were held not binding upon\t the
\nplaintiffs  in\tthat suit nor to have any force\t beyond\t the
\nlife of the 1st defendant.  The other prayer sought  by\t the
\nplaintiffs in the appeal was disallowed.\n<\/p>\n
475<\/span><\/p>\n
    In\tdismissing O.S. No. 182 of 1957 the High Court\ttook
\nthe view that the legal validity of the bequests in Ex.\t P-2
\nhad  to\t be ascertained as on the date of  Krishnan  Nadar’s
\ndeath  which   was December 5, 1947.  The  marriage  of\t the
\nfirst  defendant  took place on 14-1-1124 (corresponding  to
\nAugust\t29, 1948) and the first child of that  marriage\t was
\nborn  on  February 7, 1951.  The sons of the  1st  defendant
\nborn of his second wife were, therefore, not in existence at
\nthe  time  of  the death of  the  testator  Krishnan  Nadar.
\nKrishnan  Nadar belonged to the State of Travancore and\t all
\nhis properties were located in that State where the doctrine
\nof  pure  Hindu\t Law  reigned  supreme\tunaffected  by\t any
\nlegislation.  The  High Court held that\t according  to\tpure
\nHindu  Law a gift cannot be made in favour of a\t person\t who
\nwas  not  in existence at the date of the  gift.   A  person
\ncapable\t of taking  under a  will must either in fact or  in
\ncontemplation  of  law be in existence at the death  of\t the
\ntestator.   The devise in favour of plaintiffs in O.S.\tNo..
\n182  of 1957 was void as they were not born at the  time  of
\ndeath  of Krishnan Nadar.  After the life estate of the\t 1st
\ndefendant, the daughter:rs became entitled to the properties
\nfor their life time.\n<\/p>\n
    The question involved in this appeal is whether the High
\nCourt  was  right  in  holding\tthat  plaintiffs  have\t not
\nestablished their title to the disputed properties.
\n    Although  there is no authority in Hindu Law to  justify
\nthe doctrine that a Hindu cannot make a gift or bequest\t for
\nthe  benefit of an unborn person yet that doctrine has\tbeen
\nengrafted  on  Hindu  Law by the decision  of  the  Judicial
\nCommittee.  This  doctrine was laid down for the first\ttime
\nin  Tagore’s case(1), in which it was held by  the  Judicial
\nCommittee  that\t a Hindu cannot make a gift in favour  of  a
\nperson\twho   is  not  in existence either  in\tfact  or  in
\ncontemplation  of  law\tat the time the\t gift  was  to\ttake
\neffect.\t The  Judicial\tCommittee  purported  to   base\t its
\ndecision   on  a passage in Dayabhaga, Ch. 1, verse  21\t as.
\nappears from the following passage in the judgment:\n<\/p>\n
\t\t    “This makes it necessary to consider the
\n\t      Hindu Law of Gifts during. life and wills, and
\n\t      the extent of the testator’s power, whether in
\n\t      respect  of the property he deals with of\t the
\n\t      person  upon whom he confers it.\tThe  Law  of
\n\t      Gifts   during   life  is\t of   the   simplest
\n\t      character.  As to ancestral estate it is\tsaid
\n\t      to  be improper that it should be\t aliened  by
\n\t      the  holder, without the concurrence of  those
\n\t      who  are interested in the succession, but  by
\n\t      the  law as prevailing in Bengal at least\t (1)
\n\t      the  impropriety\tof the alienation  does\t not
\n\t      affect the legal character of the act  (factum
\n\t      valet),  and it has long been  recognised\t as.
\n\t      law
\n\t      (1) I.A. (1872) Supp. 47.\n<\/p><\/blockquote>\n
\t      476<\/span><\/p>\n
\t      in Bengal that the legal power of transfer  is
\n\t      the   same   as  to  all\t property,   whether
\n\t      ancestral\t or   acquired.\t It applies  to\t all
\n\t      persons  in  existence and capable  of  taking
\n\t      from the donor at the time when the gift is to
\n\t      take effect so as to fall within the principle
\n\t      expressed\t in the Dayabhaga, cup. iv.  21,  by
\n\t      the  phrase ‘relinquishment in favour  of\t the
\n\t      donee who is a sentient person’  By a rule now
\n\t      generally\t adopted in jurisprudence this class
\n\t      would   include\tchildren  in   embryo,\t who
\n\t      afterwards come into separate existence.” (pp.
\n\t      66-67).\n<\/p><\/blockquote>\n
But  the  Judicial  Committee  was  apparently\tunder\tsome
\nmisconception  with respect to the meaning of the  words  of
\nDayabhaga.The whole sentence in the original is as  follows:
\nof which the following is the: correct translation:\n<\/p>\n
\t\t  “Since  in a gift the done’s ownership  in
\n\t      the  thing (given) arises from the very act of
\n\t      the donor, consisting of the relinquishment of
\n\t      his  ownership with the intention\t of  passing
\n\t      the same to a sentient being.”<\/p><\/blockquote>\n
    The\t sentence  neither expresses nor  implies  that\t the
\n“sentient being” must be in existence. or be present at\t the
\ntime  and place of the relinquishment.\tOn the contrary\t the
\nwhole argument contained in paragraphs 21 to 24 of Ch. 1  of
\nDayabhaga shows that a gift is completed by the donor’s\t act
\nalone,\tthe  acceptance of the donee  being  not  necessary.
\nIndeed,\t in  the very  next  passage,  Dayabhaga  speaks  of
\ngifts to God as showing that the validity of the gifts\tdoes
\nnot depend upon acceptance.\n<\/p>\n
    Mr.\t Sarjoo\t Prasad suggested that the  matter  required
\nreconsideration.   But it is manifest that the\tdecision  of
\nthe   Judicial\tCommittee in Tagore’s case(1)  has  stood  a
\ngreat  length  of  time and on the basis  of  that  decision
\nrights have been regulated, arrangements as to property have
\nbeen made and titles to property have passed.  We are  hence
\nof the opinion that this is a proper case in which the maxim
\ncommunis  error\t facit\tjus  may  be applied.\n<\/p>\n
    The\t principle underlying the maxim is that “the law  so
\nfavours the public good, that it will in some cases permit a
\ncommon error to pass for right”; as an example of which\t may
\nbe  mentioned the case of common recoveries in English\tlaw,
\nwhich  were fictitious proceedings introduced by a  kind  of
\npea  fraus to elude the statute de Donis, and which were  at
\nlength allowed by the Courts to be a bar to an estate  tail,
\nso  that these recoveries however clandestinely\t introduced,
\nbecame by long use and acquiescence a legal mode
\n(1) I.A. (1872) Supp. 41.\n<\/p>\n
477<\/span><\/p>\n
of conveyance whereby a tenant in tail might dispose of\t his
\nlands.\tThere is a reference made to this principle by\tLord
\nBlackburn in his speech in  Charles Dalton  v.\tHenry  Angus
\n& Co.(1)  as follows:\n<\/p>\n
\t\t  “I  quite agree with\twhat is said by\t the
\n\t      late  Chief Justice Cookburn (3 Q.B.D. at page\n<\/p><\/blockquote>\n
\t      105) that where the evidence proved an adverse
\n\t      enjoyment\t as  of right for twenty  years,  or
\n\t      little more, and nothing else, ‘no one had the
\n\t      faintest\tbelief\tthat  any  grant  had\tever
\n\t      existed, and the presumption was known to be a
\n\t      mere  fiction’.\tHe  thinks.  that  thus\t  to
\n\t      shorten  the period of   prescription  without
\n\t      the  authority of the Legislature was a  great
\n\t      judicial usurpation.  Perhaps it was  The same
\n\t      thing  may be said of a11 legal fictions,\t and
\n\t      was often said (with, 1 think more reason)  of
\n\t      recoveries.   But I take it  that when a\tlong
\n\t      series  of cases have settled  the   law,\t  it
\n\t      would produce intolerable confusion if it were
\n\t      to  be reversed because the: mode in which  it
\n\t      was introduced was not approved of even  where
\n\t      it    was\t   originally\t a   blunder,\t and
\n\t      inconvenient, communis error facit ]us.”<\/p><\/blockquote>\n
    The doctrine in Tagore’s case(:)  has  been\t altered  by
\nthree Acts, namely, the Hindu Transfers and Bequests Act,  1
\nof  1914, the Hindu Disposition of property Act of 1916\t and
\nthe Hindu Transfers and Bequests (City of Madras) Act, 1921.
\nThe legal position under these Acts is that no bequest shall
\nbe invalid by reason only that any person for whose  benefit
\nit  may\t have  been made was not born at  the  date  of\t the
\ntestator’s.  death.  This rule, however, is subject  to\t the
\nlimitations  and provisions contained in ss. 113<\/a>,  114<\/a>,\t 115<\/a>
\nand 116<\/a> of the Indian Succession Act, 1925.
\n    It is, however, not disputed in the present case that on
\nthe  relevant date none of the three Act was  operative\t and
\nthe  doctrine  or  pure\t Hindu Law  was\t applicable  to\t the
\nTravancore  State.  It follows that the principle laid\tdown
\nin  Tagore’s case(2) applied and the bequests in  favour  of
\nthe  sons  of  the 1st defendant are void and  of  no  legal
\nconsequence.\n<\/p>\n
    On\tbehalf of the appellants it was contended  that\t the
\nbequest\t in favour of the sons of the 1st defendant  was  in
\nthe  nature  of\t a family  provision  and,  therefore,\tfell
\noutside\t the  principle laid down in Tagore’s  case(2).\t  In
\nour  opinion,  there is no justification in  this  argument.
\nAssuming  without  deciding that a family  provision  is  an
\nexception  to  the  rule of pure Hindu Law  stated  above  a
\nprovision  in  a will whereby the testor  directs  that\t his
\nproperties after his death shall be taken by his nephews  or
\nin their absence
\n(2) 1. A. (1872) Supp. 47.\n<\/p>\n
(1) [1881] 6A.C. 740,812.\n<\/p>\n
478<\/span><\/p>\n
by his nieces cannot be characterised as a family provision.
\nThe object of such a disposition is obviously not to make  a
\nfamily provision but to chart a course for future devolution
\nof the testators properties.\n<\/p>\n
    The\t argument was stressed on behalf of  the  appellants
\nthat the will Ex. P-2 was a joint will executed by  Krishnan
\nNadar  and  Raman Nadar and it was designed to\ttake  effect
\nonly after the death of both the testators.  As the sons  of
\nthe 1st defendant must necessarily be born before that event
\nthe  principle\tin   Tagore’s  case(1)\twas  not  attracted.
\nReference  was made to the following passage from Jarman  on
\nwills 8th edn.\n<\/p>\n
\t\t    “Two  or more: persons may make a  joint
\n\t      will, which, if properly executed by each, is,
\n\t      so  far as his own property is  concerned,  as
\n\t      much  his\t will, and is as  well\tentitled  to
\n\t      probate  upon his death, as if he had  made  a
\n\t      separate\twill.  But a joint will made by\t two
\n\t      persons,\tto  take effect after the  death  of
\n\t      both, will not be admitted to probate   during
\n\t      the life of either.  Joint wills are revocable
\n\t      at any time by either of the testators  during
\n\t      their joint lives, or, after the death of\t one
\n\t      of them, by   the survivor.”\n<\/p><\/blockquote>\n
    In\tour opinion there is no warrant for  this  argument.\n<\/p><\/blockquote>\n
The ‘will Ex. P-2 contains separate provisions regarding the
\ndevolution  of the properties of each of the testators.\t  In
\nregard to the properties of Krishnan Nadar it devises a life
\nestate to let defendant and the remainder to his sons or  in
\ntheir\tabsence\t to  his  daughters.   In  regard   to\t the
\nproperties of  Raman Nadar the devise is to his sons and  in
\ntheir  absence\tto  his\t daughters.  It\t is  therefore,\t not
\npossible  to accept the argument that the will was  intended
\nto  operate or to come into effect after the death  of\tboth
\nthe testators.\tIn regard to the Krishnan Nadar’s properties
\nthe life estate devised in favour of the 1 st defendant must
\nnecessarily take effect ‘and remain in force during the life
\nof the 1st defendant and not after that.  It is true that at
\nthe  end  of  the  will there is  a  clause  that  both\t the
\ntestators have the right to revoke the will during the lives
\nand that the will will take effect only subsequent to  their
\ndeath.\t But the true intention o,f the testator has  to  be
\ngathered not by attaching importance to isolated expressions
\nbut  by reading the will as a whole with all its  provisions
\nand ignoring none of the has redundant or contradictory.  It
\nmust, therefore, be held that as the express devise to\tthe:
\n1st defendant for his life is a disposition intended to take
\neffect\tafter  the death of Krishnan Nadar  and\t before\t the
\ndeath  of 1st defendant, the last clause in the will  cannot
\nbe literally correct.\n<\/p>\n
    It\twas then contended on behalf of the appellants\tthat
\nin any event the High Court was in error in holding that the
\ntitle of the
\n(1) I. A. (1872) Supp. 47.\n<\/p>\n
      479<\/span><\/p>\n
plaint\tproperties  vested  in\tthe  daughters\tof  the\t 1st
\ndefendant under the terms of the will, Ex. P-2.\t It  appears
\nthat  during  the  pendency of the appeal  defendant  no.  1
\nRaman Nadar died on May 20 1969 and the question, therefore,
\narises whether the daughters are entitled to a life interest
\nin the plaint properties after the death of defendant no. 1.
\nIt  is\tmanifest  from\tthe will that  the  bequest  to\t the
\ndaughters  is  subject\tto  the\t prior\tcondition  that\t the
\ndefendant  no.\t1 leaves behind no sons at the date  of\t his
\ndeath.\tThe relevant portion of Ex. P-2 states:\n<\/p>\n
\t\t  “After the life of the second named, if he
\n\t      leaves  behind  no sons, the  three  daughters
\n\t      named  above and the daughters, if  any,\tborn
\n\t      hereafter\t may  enjoy  all  the  movable\t and
\n\t      immovable\t properties  that may  be  found  to
\n\t      belong  to  the. first named  and\t the  second
\n\t      named,   either\tin  common   or\t  in   equal
\n\t      sharps  ……..\t”\n<\/p><\/blockquote>\n
The  bequest to the daughters was, therefore, defensible  on
\nthe  sons  being born to defendant no. 1.   Hence  upon\t the
\ndeath of defendant not 1 on May 13, 1969 there was no  valid
\nbequest\t to   the daughters.  In other words  there  was  an
\nintestacy  and the provisions of the Hindu  Succession\tAct<\/a>,
\n1956 (Act no. 30 of 1956) would be applicable.\tThe sons  of
\ndefendant  no.\t1 cannot  take under the will  because\tthey
\nwere  unborn  on  the  date of the  death  of  the  testator
\nKrishnan  Nadar.  The daughters also cannot take  under\t the
\nwill  as  the  bequest in their favour was  subject  to\t the
\ndefeatisms clause.  It is evident that the appellants would,
\nbe  entitled  to, their lawful share of\t the  properties  of
\nKrishnan  Nadar under the provisions of the Hindu Succession
\nAct<\/a>,  1956  and they are entitled to a declaration  to\tthat
\neffect\tand  other  consequential reliefs.  But\t it  is\t not
\npossible  for us to finally dispose of this  appeal  because
\nthere  was an issue in the trial court as to   whether\t the
\nappellants were the legitimate sons of defendant no. 1.\t The
\ncase  of the defendants 3 to 5 was that there was no.  legal
\nmarriage  between  the 1st defendant and the mother  of\t the
\nplaintiffs.\t   But the assertion of the plaintiffs,\t was
\nthat  their mother married  the 1st defendant after  getting
\nherself\t converted into\t Hinduism    and such  marriage\t was
\nlegally valid and the plaintiffs are the legitimate children
\nof the 1st defendant.  The trial court decided the issue  in
\nfavour\tof  the plaintiffs but the High Court has  not\tgone
\ninto the question nor recorded a finding as to, whether\t the
\nplaintiffs are the legitimate sons of defendant no. 1.
\n    For\t these\treasons\t we hold that this  appeal  must  be
\nallowed,  the judgment of the Kerala High Court dated  March
\n27, 1963 in A.S. No. 848 of 1960 should be set aside and the
\nappeal should be remanded to the High Court for\t determining
\nthe issue whether
\n480<\/span>
\nthe  plaintiffs were the legitimate sons of defendant no.  1
\nand thereafter dispose of the appeal in accordance with law.
\nThe  parties  will bear their own costs\t upto  this   stage.
\nThe   application   made   by\tthe   plaintiffs   for\t the
\nappointment  of\t a Receiver will be dealt with by  the\tHigh
\nCourt.\n<\/p>\n
y.p.\t\t Appeal allowed.\n<\/p>\n
481<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Raman Nadar Viswanathan Nadar & … vs Snehappoo Rasalamma Alias … on 17 September, 1969 Equivalent citations: 1970 AIR 1759, 1970 SCR (2) 471 Author: V Ramaswami Bench: Ramaswami, V. PETITIONER: RAMAN NADAR VISWANATHAN NADAR & ORS. Vs. RESPONDENT: SNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4OTHERS DATE OF JUDGMENT: 17\/09\/1969 BENCH: RAMASWAMI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249483","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRaman Nadar Viswanathan Nadar & ... vs Snehappoo Rasalamma Alias ... on 17 September, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/raman-nadar-viswanathan-nadar-vs-snehappoo-rasalamma-alias-on-17-september-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raman Nadar Viswanathan Nadar & ... vs Snehappoo Rasalamma Alias ... on 17 September, 1969 - 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