Testamentary construction of "my heirs" means heirs are determined when the contingency arises under the succession law then in force.

The expression "my heirs" in Clause 5 of the Will was construed in its ordinary legal sense and did not create an artificial class of residuary legatees; it referred to the testator's legal heirs under intestate succession. Where devolution depended on the life tenant dying without male issue, the heirs were to be ascertained when that contingency occurred, not at the testator's death. Succession then had to be worked out under the Hindu Succession Act, 1956, so the widow of the predeceased son and the branches of the other sons took as Class I heirs. The appellant was accordingly entitled to one-third share in the suit property.

---

---

Issues: (i) whether the expression "my heirs" in Clause 5 of the Will created an artificial class of residuary legatees; (ii) whether the heirs of the testator were to be ascertained as on the date of the testator's death or on the date when the contingency of the life tenant dying without male issue occurred.

Issue (i): whether the expression "my heirs" in Clause 5 of the Will created an artificial class of residuary legatees

Analysis: The expression "heirs" in a Will is ordinarily used in its legal sense unless a contrary intention is clearly shown. Nothing in Clause 5 compelled the conclusion that the testator intended to create a special or artificial class of heirs. The words "my heirs" merely indicated that, upon the failure of male issue of the life tenant, the property would devolve upon the testator's legal heirs according to the law of intestate succession.

Conclusion: The expression "my heirs" did not create an artificial class of residuary legatees and had to be understood as referring to the testator's legal heirs.

Issue (ii): whether the heirs of the testator were to be ascertained as on the date of the testator's death or on the date when the contingency of the life tenant dying without male issue occurred

Analysis: The Will showed that the testator contemplated devolution only on the happening of the contingency that the life tenant died without male issue. The ascertainment of the heirs was therefore to be made when succession opened on that contingency, as if the testator had lived up to that point. On that date, succession had to be worked out under the Hindu Succession Act, 1956, and not under the orthodox Hindu law prevailing in 1928. Applying Sections 8 to 10 of the Hindu Succession Act, the widow of the predeceased son and the branches of the other sons were Class I heirs entitled to take simultaneously in the prescribed manner.

Conclusion: The heirs had to be ascertained on the date of the life tenant's death and under the Hindu Succession Act, 1956, resulting in the appellant's entitlement to one-third share.

Final Conclusion: The High Court's view was set aside and the appellant was held entitled to partition and separate possession of her one-third share in the suit property.

Ratio Decidendi: Where a Will directs further devolution on the death of a life tenant without issue by reference to the testator's "heirs", the heirs are to be determined when the contingency occurs and in accordance with the law of intestate succession then in force, unless the Will clearly provides otherwise.

---