9911796707
TMI Blog1962 (2) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... yanan was born on 29th May, 1939, and Viswanathan was born on 17th September, 1941. Annamalai's wife was one Meenakshi Achi. Chockalingam died on 7th February, 1943. After the death of Chockalingam, two sons were born to Annamalai. They are Chockalingam born on nth August, 1946, and Ramaswami born on 23rd March, 1948. The income from the estate of Chockalingam came in for assessment under the Indian Income-tax Act for the year 1951-52. The assessment was made by the Income-tax Officer on the footing that Narayanan and Viswanathan, the two grandsons of Chockalingam, who alone were in existence on the date of his death were each entitled to a moiety of the estate. Annamalai was in possession of the estate as executor under the will of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts all assets and liabilities in respect of immoveable and moveable properties, items, banks, chettiveettu firms, etc., as per the accounts of the aforesaid S.N.A.S. firm at Penang.......... I hereby appoint my divided son, S.N.A.S.A. Annamalai Chettiar, Nattukottai, Vaisia Caste, Banker, residing at Karaikudi, Tirupattur firka, Ramanathapuram Dt., and his wife, Meenakshi Achi, aforesaid caste and calling, residing at the aforesaid village as executors. Therefore, they shall, after my lifetime, manage and augment all my immoveable and moveable properties and firms, which are mentioned above, in their capacity as guardians and executors of the aforesaid minors, and when the aforesaid minors attain majority, deliver the same to them . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. The bequest by Chockalingam is certainly in favour of a class of heirs, namely, his grandchildren born of his divided son, Annamalai. Where there is a bequest to a class under the will, the essential thing to be determined first is the point of time when the class has to be ascertained. The normal rule is that the date of death of the testator crystallises the class of legatees and those who come within the class and are capable of taking on that date obtain the benefit; the subsequent expansion of the class cannot diminish that benefit. But if on a proper construction of the will the ascertainment of the class is deferred to a later date, namely, a date subsequent to the date of the death, those who become members of the class with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they are clear enough and unambiguous, should be depended upon to indicate the point of time at which the class is to be ascertained. No rule of construction can overrule or displace the plain meaning of the terms employed in the testamentary instrument. Where the intention of the testator cannot be gathered from the language of the instrument and from the context and the circumstances of the case, the court which is entrusted with the task of reading the mind of the testator acts upon certain rules of construction. These rules are, no doubt, artificial rules and have been described as rules of convenience. The first rule of convenience, which alone need be adverted to, in the present case, is thus set out by William on Wills, volume I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is in possession by the agency of his who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate while that which is acquired or retained directly or personally may be distinguished as immediate or direct . (Salmond on Jurisprudence, 111th edition, page 332) . It is not possible to construe the words in the will providing for the management and administration of the testator's estate by the executors as operating to bring about deferred possession of the estate to the legatees comprised in the class of grandchildren of the testator till any one or all of them became majors. We have no doubt that the exception to section 111 has no application and that therefore the ascertainmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. Clearly the exception to section 111 of the Succession Act governed that will and if that were so, the decision of the learned judge, if we may say so with respect, is correct. There was no postponement of possession either by reason of a prior bequest or otherwise. As stated already, the possession of the joint executors and guardians in the present case was, in fact and in truth, the possession of the legatees themselves. We are clearly of opinion that though the testator made a bequest to his grandchildren by Annamalai and that such a bequest was to a class of heirs, there being no provision in the will, express or implied, indicating a period of distribution later than the death of the testator and there being no deferring of po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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