TaxTMI 
TaxTMI 
1979 (4) TMI 177
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....operties, 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 Municipal Door Nos. 5, 6 and 7 to 9, Re-survey No. 3158 and 3187, Collector's Certificate No. 2550. After his life-time, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienations such as gift, usufructuary mortgage and sale. If there are no male issue as aforesaid, my heirs shall take the aforesaid properties. 5. Although the Will had not been probated, yet, by mutual arrangements between the first two sons who were named Executors in the Will, and the third son, Nataraja Pillai, the properties were distributed in consonance with the terms of the Will and the Executors conveyed and transferred the same to the respective legatees, and mutual release deeds were, also, executed by the three sons. 6. Ramaswamy Pillai died in 1954 and Vadivelu Pillai in 1953, Nataraja Pillai died on January 31, 1957,....
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.... Letters Patent Appeal in. the High Court, contending that, according to the terms of the Will of Palaniandi Pillai, they were his only heirs and entitled to get the entire properties in which Nataraja Pillai held only a life interest; and that neither the plaintiff nor defendants 3 to 8 were entitled to any share. 11. The Appellate Bench of the High Court purporting to proceed mainly on the scope and construction of Clause 5 of the Will of Palaniandi Pillai, held: (1) By his Will (Ex. P. 2) the testator had made "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 clas....
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....ritance. 17. There is nothing in the language of Clause 5 of the Will which compels the construction that by use of the expression "my heirs" the testator meant something different from his 'heirs under the law. The expression "my heirs" has therefore to be construed as equivalent to "my legal heirs". Thus considered, the words used in the last two sentences of Clause 5 of the Will are not words of gift over to any 'artificial' class of heirs. They only indicate that in the event of Nataraja's death without any male issue, further devolution of the estate that had been given to him for life, would be regulated in favour of the testator's heirs ascertained in accordance with Hindu Law of intestate succession. That is to say, the testator did not specify or lay down any line of heirs, deviating from the Hindu Law of intestate succession. 18. The ground is now clear to consider the second question which is pivotal to the whole problem : Whether the heirs of the testator, on whom the estate was to devolve in the event of Nataraja dying sonless, were to be ascertained according to Hindu Law in force at the time of Nataraja's death or according to Hindu Law,....
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....on of the Will of the 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 at the time of happening of the contemplated contingency, was wholly beyond the ken of the testator. 23. In the view we take of the import and scope of Clause 5 of the Will (Ex. P. 2) ascertainment of the heirs of Palaniandi Pillai has to be done on the assumption that he died intestate, a moment after Nataraja Pillai's death, according to Sections 8 to 10 of the Hindu Succession Act. 24. At that point of time, th....