TMI Blog1996 (7) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... ;) died on July 28, 1938 leaving behind his wife Smt. Nadiga Nanjamma and five sons, B.N. Subba Rao, B.N. Shankar Rao, B.N. Visweswaraiah, B.N. Rama Rao and B.N. Ganesh. The appellant is the wife of B.N. Subba Rao who died on February 21, 1954 without leaving any issue. Smt. Nadiga Nanjamma died on March 28, 1959. After the death of Smt. Nadiga Nanjamma, the appellant filed the suit giving rise to this appeal. 4. As indicated earlier, in the Will dated March 13, 1935 the immovable and moveable properties of the testator were specified in four groups specified in Schedules A , B , C and D attached with the Will. Schedule A consists of four items of Immovable properties, Item No. 1 is house No. 318, 3rd Road, Margosa Avenue, Malleswaram, Bangalore City and items Nos. 2, 3 and 4 are agricultural lands. Schedule B consists of shares and securities standing in the name of Smt. Nadiga Nanjamma. Schedule C consists of thrift deposit accounts in the Bank of Mysore Limited standing in the names of five sons of the testator. Schedule D consists of shares and securities and fixed deposits in banks. The relevant parts of the Will dated March 13, 1935 are set out as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the C Schedule, that is, thrift deposits at the Bank of Mysore, Bangalore City, they shall be the property of each of my children on whose respective names those deposits have been made, after they attain their age of majority. Where Upanayanams and marriages are to be performed for my children, if the income from other sources of my property are found insufficient to meet the expenses, my wife the above named Nadiga Nanjamma is entitled to withdraw from the respective deposits not more than rupees three hundred only (₹ 300) for each Upanayanam and not more than Rupees five hundred only (₹ 500) (for each marriage), during the minority of my children. With regard to the properties mentioned in B and D Schedules, the investments, that is, stock and shares, may have to be altered in some cases either by conversion or by encashment and for the payment of further calls on some of the shares; my wife the above named Nadiga Nanjamma is entitled only to transact the operations of conversion encashment or payment of further calls on shares, as the case may be, and she the above named Nadiga Nanjamma has also powers to reinvest the same in suitable securities, when ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the appellant is that the respective shares in the various properties of the testator vested in the five sons of the testator as per the Will, on the death of the testator and that after the death of her husband, B.N. Subba Rao, the appellant is entitled to the share in the properties that had vested in him prior to his death in accordance with the Will. The trial court, namely, the XVII Additional City Civil Judge, Bangalore City, by his judgment dated February 4, 1985, accepted the said plea of the appellant and held that the succession opened on the death of the testator by virtue of which all the sons of the testator became entitled to equal shares in the properties and the recital in the Will that the partition should take place amongst the surviving children after the death of Smt. Nadiga Nanjamma is really intended to refer to the children surviving the testator. The said view of the trial court has been reversed by the High Court in appeal by the impugned judgment. The High Court has held that right was given to the children surviving the testator to demand partition after the death of the testator subject to the conditions imposed in the Will and in the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 19. Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before he obtains possession. Explanation. - An intention that an interest shall not be vested is not to be inferred from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person. 9. Contingent interest is defined in Section 21 of the said Act in the following terms : Section 21. Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est until the happening of that event becomes impossible. (3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent. Exception. 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. 12. By virtue of Section 119, in a case where bequest is of a vested interest and by the terms of the bequest the legatee is not entitled to immediate possession of the thing bequeathed, the right to receive it at the proper time becomes vested in the legatee on testator's death and in the event of the death of the legatee without having received the legacy the said right to receive it passes to the legal representatives of the legatee. This is, however, subject to a contrary intention being expressed in the Will. But in the case of a contingent bequest, Section 120 prescribes that the legacy vests in the legatee only after the happening or not happening of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njamma was vested with the management of all the properties specified in Schedules A , B and D but she had no power to dispose of any of those properties by sale, gift, Will, mortgage or hypothecation. She was entitled to take the produce of the lands mentioned at items Nos. 2, 3 and 4 in Schedule A and use the same for the maintenance of herself and her children. She was also entitled to use the interest, dividends and income of the properties mentioned in Schedules B and D for the same purpose. With regard to properties mentioned in Schedule C , the testator has directed that where Upanayanams and marriages were to be performed for the children during their minority and income from other sources of his property was insufficient to meet the expenses, Smt. Nadiga Nanjamma could withdraw from the thrift deposit account of the said child not more than ₹ 300 for Upanayanam and not more than ₹ 500 for marriage of the child. As regards properties mentioned in Schedules B and D , it was provided that Smt. Nadiga Nanjamma was entitled only to transact the operations of conversion, encashment or payment of further calls on shares, as the case may be, and she had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major sons and that the said properties shall be liable to partition after the demise of Smt. Nadiga Nanjamma among her surviving children . 15. Thus according to the Will the right to separate of the share in respect of properties mentioned at items Nos. 2, 3, and 4 of Schedule A as well as properties mentioned in Schedules C and D . was available to each of the sons of the testator on his attaining the age of majority and that the right to separate enjoyment of the bequest relating to share in the property mentioned at item No. 1 of Schedule A and properties mentioned in Schedule B was available only after the death of Smt. Nadiga Nanjamma. But ever during the period the right to separate enjoyment was not available to the legatees the income from the properties was available for the maintenance of the legatees, their education, their Upanayanams and marriages as well for maintenance of Smt. Nadiga Nanjamma. 16. The Explanations in Section 19 of the Transfer of Property Act and Section 119 of the Indian Succession Act incorporate the rule that where enjoyment of the property is postponed but the present income thereof is to be applied for the donee the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion attached to the donee, the gift is prima facie contingent on his qualification being acquired. A gift to a person at , if, as soon as , when or provided he attains a certain age, without further context to govern the meaning of the words, is contingent and vests only on the attainment of the required age, this being a quality or description which the donee must in general possess in order to claim under the gift. But if the words of a gift express a distinction between the gift itself and the event denoting the time of payment, division or transfer, and this time is the attainment by the donee of the age of twenty-one years or other age or is any other event which, assuming the requisite duration of life, must necessarily happen at a determinable time, then prima facie the gift is not contingent in respect of that event. (See : Halsbury's Laws of England, 4th Edn., Vol. 50, paras 591, 592 and 604, at pp. 396, 397, 405. The same is the position in India and it has been succinctly brought out in illustration (ii) to Section 119 and illustration (ii) to Section 120 of the Indian Succession Act. The said illustrations are as under : Illustration (ii) to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life time of the widow. It was held that as the share of the sense were vested the widow of the pre-deceased son was entitled to succeed to her husband's share. Similarly, in Bhagabati v. Kalicharan (1911) 38 I.A. 54, the bequest was to the mother for life, then to the wife for her life and then to the nephews. The Privy Council rejected the contention that there was no vesting in the nephews until the death of the survivor of the mother and the widow and held that the nephews were intended to take a vested and transmissible interest on the death of the testator though their possession and enjoyment were postponed. The same position is reiterated in illustration (iii) to Section 119 which reads as under: Illustration (iii) to Section 119 (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. 20. The High Court has referred to following direction by the testator in the Will : After the life time of both myself and my wife, the said Nadiga Nanjamma, all the properties mentioned in A, B and D Schedules shall be divided equally among my surviving children. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse. The words surviving children normally mean children surviving the testator. The said expression in a particular context could also mean the children surviving Smt. Nadiga Nanjamma. The expression has to be given a meaning which is in consonance with the other parts of the Will. Reading the Will as a whole and keeping in view the direction enabling a son on attaining majority to seek partition of his share in properties at items Nos. 2, 3 and 4 in Schedule 'A' as well as the properties specified in Schedule 'D' it cannot be said that the expression surviving children in the context of division of properties mentioned in Schedules 'A', 'B' and 'D' was not used in the normal sense to mean the children surviving the testator. 23. We are unable to read the Will as indicating a contrary intention to make a departure from the rule regarding vesting of the legacy as contained in Section 119 of the Act. In our opinion, the Will cannot be construed as creating a contingent interest in the some of the testator so as to postpone the date of vesting of the legacy till after the death of Smt. Nadiga Nanjamma. On a proper construction the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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