9911796707
TMI Blog1979 (4) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... e-table, owned considerable properties. On December 12, 1927, he executed a Will whereby he bequeathed certain properties to each of his three sons. He appointed his sons, Ramaswami Pillai and Vadivelu Pillai, as Executors of his Will. In regard to his third son, Nataraja Pillai, the testator in Clause 5 of the Will stated: My third son, Nataraja Pillai, shall take the income accruing from the properties, namely, my cart-stand, house and ground, situate in the Western Row of Mint Street, bearing Municipal Door No. 278, Re-survey No. 600, Collector's Certificate No. 750 and the 5 Godowns, namely, 2 Godowns situate in Varadaraja Mudali St., bearing Municipal Door No. 90 and 91, and 3 Godowns situate in 3rd North Beach Road bearing Munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties; in the alternative, (c) for a declaration of her rights to the properties on a true construction of the Will of her father-in-law, Palaniandi Pillai, and for possession of the properties. 7. The sons of Ramaswamy Pillai, respondents 1 and 2 herein, were impleaded as defendants 1 and 2, and the daughters of Vadivelu Pillai, respondents 3 to 7, were defendants 3 to 7. The daughter-in-law of Vadivelu Pillai, respondent 8 herein, was added as 8th defendant. 8. The findings of the learned trial Judge, material for our purpose, were as follows: (i) Nataraja Pillai got only a life estate in the properties set out in Schedule I of the Plaint; (ii) the contingent interest in favour of the heirs of Palaniandi Pillai became vested on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;my heirs", i.e. the testator's heirs as an "artificial" class of ultimate residuary legatees. (2) This class of legatees or "my heirs" did not acquire a vested interest in the residuary bequest on the death of the testator. (3) The ultimate bequest in their favour would become vested only in the event of Nataraja dying sonless. (4) The mandate implicit in the words "if there are no male issues as aforesaid" occurring in Clause 5 of the Will (Ex. p. 2) is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when Nataraja died sonless, and at no other. (5) This class of "my heirs" of the testator would be ascertained with refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hinges around the scope and construction of Clause 5 of the Will (Ex. P-2). In that connection, the first question that arises for consideration is : Did the testator by this Clause create or carve out an "artificial" class of his heirs, and make a residuary bequest in their favour? 15. In our opinion, on a proper construction of the Will, the answer to this question must be in the negative. 16. It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator. The word "heirs", as pointed out by this Court in Angurbala Mullick v. Debabrata Mullick [1951] 2 SCR 1125 cannot normally be limited to "is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last two sentences of Clause 5 of the Will (Ex. P 2), the same can be legitimately expanded, parenthesized and elucidated so as to read like this: After Nataraja's life-time, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienation.... If Nataraja dies without leaving any male issue then my heirs, then ascertained according to law of inheritance, shall take the aforesaid properties. 20. Thus amplified and elucidated, Clause 5 of the Will brings out, expressly or by inevitable implication, the intention and instructions of the testator in regard to the following: (a) In the event of the termination of the life-estate of Nataraja on his death, without male issue, the property will devolve o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testator, and no question of giving retrospective operation to the statute is involved. 22. The learned Judges of the High Court have said that at the time of making the Will, the testator could not predicate that at the time of Nataraja's death without leaving any son, the Hindu Law of Succession would be different from the one prevailing at the time of making the Will or the testator's death. Nevertheless, the testator was definitely contemplating the contingency of Nataraja dying without any male issue, and the necessity of ascertaining the testator's heirs at that point of time for further devolution of the property. It cannot, therefore, be said that ascertainment of the testator's heirs according to the law in force ..... X X X X Extracts X X X X X X X X Extracts X X X X
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