Sidhwa v Mehta and Others (C.A. 29/193.3.) [1937] EACA 38 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), LUCIE-SMITH, Ag. C. J. (Kenya), and Horne, J. (Kenya).

RUSTOMJI KERSASJI KHURSEDJI SIDHWA (Appellant) (Original Plaintiff)

## ข.

## DINSHAW RUTTONJI MEHTA AND OTHERS (Respondents) $\cdots$ (Original Defendants).

## (In re PARSI KERSASJI KHURSEDJI SIDHWA, Deceased.) C. A. $29/1933$ .

- Will—Bequest to a Class—Remoteness—Sections 98, 100 and 102 of Indian Succession Act, 1865, as to whether bequest can be construed as limited to those of the class living at testator's death and thereby rendered valid—Interpretation of the intention of the testator from the words used in the will and the determination of their meaning; and whether the meaning of the words used brings them within the operation of the Rule. - Held (10-1-34).—That the gifts "to Rustomji's children" and "to Mobed's children" were in either case gifts of income only, following upon a prior bequest, to classes of persons some of whom might be born after te - Held Further.—That the costs of this appeal are more appropriately payable out of that portion of the estate which forms the subjectmatter of this appeal.

Slade for Appellant.

Phadke for First Respondent, Executor of Deceased's Will.

Gautama for Second Respondent.

Schwartze for Fifth Respondents, Children of Mobed.

Daly for Sixth Respondents, Children of Rustomji.

Third and Fourth Respondents Absent; Not Represented.

Stade.—This is an appeal only from part of the judgment of the trial Judge. It relates to clause 5 of the judgment and to paragraph 4 of the originating summons, which asked for a declaration from the Court as to " whether the gift upon the second defendant's death to the fifth defendants was intended as a gift of a half-share in both capital and income of the said lands and buildings or proceeds of sale thereof, or is merely a gift of income for their respective lives; and, in the event of it being a gift of

income only, whether such bequest is void under section 100 of the Indian Succession Act. 1862, or otherwise as offending the rules against perpetuities."

Did the testator mean all children of Mobed and Rustomji living at his death? Or all children? If all children were meant, the gift would be void as being an infringement of section 100 of the Succession Act.

The trial Judge held that the gift was of a life interest only.

Section 101, Illustration $(a)$ , and section 102, Illustration (a); Jarman on Wills, 7th Ed. Vol. II, pp. 304-5; Pearks v. Moseley, 5 A. C. 714: Question as to what was in existence at testator's death. If the testator in his will meant children living at his death, the gift is good. Illustration $(d)$ to section 98 of the Succession Act as to rules of construction. Jarman, Vol. III, pp. 1642 and 1654; Andrews v. Partington, 29 E. R. 611; Leake v. Robinson, 35 E. R. 979; In re Mervin (1891), 3 Sh. 302; Elliot v. Elliot, 59 E. R. 1137; Re Coppard's Estate (1887), 35 Ch. Div. 350; Pearks v. Moseley (supra), per Lord Selborne, at p. 723; In Re Wenmoth's Estate, 37 Ch. Div. 270. The English cases bear out the construction which I submit is the proper one to be placed on this will.

Daly.—Discussed the rule in Pearks $v$ . Moseley as to ascertainment of intention of will. Coleman v. Jarrow, 46 L. J. Ch. 34. Appellant's submission is that the intention of the testator that his grandchildren should benefit under his should be defeated. If the primary intention of the will cannot be effected, the secondary intention should be given effect to. Ramlal Sett $v$ . Kanailal Sett, 12 Cal. 663. The primary intention was to benefit all the children of Rustomji, and the secondary intention to benefit those alive at the date of the testator's death. Ramlal Sett v. Kanilal Sett (supra), at 678. As long as someone is living at the testator's death, section 102 is defeated. Rai Bishen Chand v. Mussumat Amaida Koer, 11 Indian Appeals 164; Tribhwandas v. Gangara, 18 Bom. 7.

Schwartze.—The last thing the testator wanted was that none of his grandchildren should benefit. So far as Mobed's share is concerned, there is no qualification.

Slade.—These points arise: (1) Construction without remoteness or perpetuity-section 98 of the Succession Act as to express rule of construction; and $(2)$ The construction cannot be altered to save the gift-section 102 is similar to the English law.

Indian cases have no application. Obviously Mobed's children were to have a life interest only.

Sections 60, 64 and 73, Succession Act: Gift of capital would be void under section 100.

As to costs of this appeal, the appeal relates only to the Nairobi property. Patching v. Barnett, 51 L. J. Ch. 74; In Re Middleton, 19 Ch. Div. 552 at 556; In Re Roper, 45 Ch. Div. 126; In Re Betts (1907), 2 Ch. Div. 149 at 152; Jenower v. Jenower, 32 E. R. 966.

ABRAHAMS, C. J., Ag. P.—This is an appeal and a crossappeal from the judgment of the Chief Justice of Kenya deciding certain questions in an originating summons taken out to determine the construction of a will.

The testator was a Parsee named Kersasji Khursedji Sidhwa, and that portion of his will with which these proceedings in appeal are now concerned may be explained thus: It was a direction to prepare through an advocate a trust deed of a plot of land in Nairobi with a building upon it. The four executors of the will were to be trustees and were to sell the building only when it could realize 30,000 rupees or more. Out of the rent of the property, if it were not sold, or out of the interest of the proceeds if it were sold, certain taxes and insurance premiums were to be paid. One-half of the balance was to be paid to the testator's son. Rustomji, and the other half to the testator's nephew, Mobed. The latter was directed to pay out of his share for the observance of certain named pious ceremonies. The concluding part of the direction should be set out in its exact words, which are as follows: "After the decease of my said nephew, Mobed, his share shall be paid to his children and his children shall also continue to have the ceremonies performed. And after the decease of Rustomji, whatever share Rustomji may be entitled to shall be paid in equal shares to Rustomji's children during their lifetime."

Rustomji was made residuary legatee. The testator died in 1931, at which date Rustomji had two children living and Mobed had five. These are still living. They are all minors.

Rustomji took out an originating summons submitting, inter alia, that the gifts to his children and Mobed's were void as offending against section 100 of the Indian Succession Act, 1865, and that accordingly he was entitled absolutely to a half-share in the plot 509, or in the proceeds of its sale if it were sold.

The learned Chief Justice held that the gifts to Mobed's children and Rustomji's children referred to those children who were alive at the time of the testator's death, and were therefore good. He held also that the gift to Mobed's children, like that to Rustomiji's children, was the gift of a life interest only.

Rustomji is appealing against this decision, and there is a cross-appeal on behalf of Mobed's children.

It is argued by Mr. Slade, on behalf of Rustomji, that the learned Chief Justice did not take into account the provisions of section 102 of the Indian Succession Act. The relevant portion of his judgment reads as follows: "But if none of Mobed's children were in existence at the time of the testator's death then by reason of section 100 of the Succession Act the bequest to Mobed's children is void, because it comprises a life interest only and not the whole remaining interest of the testator. In my opinion, the gift over to the children refers to those children who were alive at the time of the testator's death. A similar construction applies to Rustomji's interests."

The appellant submits that the learned Chief Justice implied that section 100 of the Indian Succession Act would only take effect if none of Mobed's children were alive at the date of the testator's death. This in my opinion seems to be the true meaning of the passage recited above. The reasoning, however, of the learned Chief Justice is immaterial in view of the finding.

Section 100 is as follows: "When a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed."

Section 102 is as follows: "If a bequest is made to a class of persons, with regard to some of whom it is inoperative by reason of the rules contained in the two last preceding sections, or either of them, such bequest shall be wholly void."

It would seem from these two sections that if the expression "the children of Rustomji" embraces both those children who were living at the testator's death and those born subsequent thereto, the gift to the children of Rustomji, being a life interest, only, must totally fail. Similarly, with regard to the children of Mobed, unless the argument on the cross-appeal that the gift to them is a gift of capital succeeds.

Now, is the gift to the children of Rustomii (and the same consideration applies to the gift to the children of Mobed) a gift to a class? In Pearks v. Moseley (1880), 5 Appeal Cases, page 714, Lord Selborne said at page 723: "A gift is said to be to a 'class' of persons when it is to all those who shall come within a certain category or description defined by a general or collective formula, and who, if they take at all, are to take one divisible subject in certain proportionate shares." It being then ascertained that these gifts are class gifts, the next question is whether the "class" includes as well those born after the death of the testator as those living at that time. Here the exception appended to section 98 of the Succession Act is in point. This reads as follows: "If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise, the property shall at that time go to such of them

as shall be then alive. ... " This rule of construction is conformable to the English rule as expressed in Jarman on Wills. 7th Edition. Vol. III 1642: "Where a particular estate or interest is carved out with a gift over to the children of the person taking that interest or the children of any other person, such gift will embrace not only the objects living at the death of the testator. but all who subsequently come into existence before the period of distribution."

Now it is argued by Mr. Daly for the minor children of Rustomji, and Mr. Schwartze for the minor children of Mobed associates himself with the argument, that the decision of the Privy Council in Rai Bishen Chand v. Mussumat Asmaida Koer. L. R. 11 Indian Appeals 164, which has been followed in a number of Indian cases cited by counsel to us, laid down the principle that a gift to persons, some alive and others unborn at the death of the donor, should be held good at least as regards those alive at that date, because in that way the instrument would be construed so as to give effect to the intentions of the testator. These intentions are, says counsel, citing the words of Jessel, M. R., in In re Coleman and Jarrow, 46 L. J. Ch., page 33, a primary intention that all shall take, and a secondary intention that those who can take shall take. Unfortunately for the argument which this phrase is intended to epitomize, the words "can take", as employed in the above-mentioned case, appear to mean capable of taking in the physical and not in the legal sense. However, dealing with the principle which Rai Bishen Chand's case and the other Indian cases are said to lay down, if that principle—which is claimed not to interpret but to modify the otherwise antagonistic provisions of the Succession Act-can be extracted from any dictum in any of the cases cited, it would then appear that judicial dicta, not judicial interpretation, have virtually repealed section 102 of the Succession Act so far as it refers to section 100, for I really cannot conceive of any bequest such as is contained in this will being declared by a Court to be void under section 102 unless the testator specifically declared that it should be so void.

A perusal of Rai Bishen Chand's case and the dependent Indian cases shows, as might be expected, that the Courts have done nothing so unjudicial as the respondents' counsel argue they have done. Whatever was decided in any of these cases, and it is really not necessary to discuss this, none of them decided that though a bequest offended against section 100 of the Succession Act it escaped invalidation by section 102. In fact, the following passage from the judgment in Rai Bishen Chand's case shows the reverse. Sir Arthur Hobhouse said (p. 177): "It is said then that the gift is made to a class, and that, inasmuch as some of the class are unable to take, none can take, and certain sections of the Indian Succession Act of 1875 are invoked to give weight to this contention, the Legislature having though fit to apply

those sections to Hindu wills. Independently, however, of the distinction which may be taken between wills the operation of which is suspended during the testator's life, and deeds which operate immediately, especially such deeds as confer a present interest upon a present person, the sections cited have no bearing on such a gift as that under consideration. Section 102 lays down the rule that a bequest inoperative as to some of a class shall be wholly void, not in all cases, but only when the bequest offends against the rules contained in sections 100 and 101 and the gift under consideration does not fall within either of these two sections."

I am therefore of the opinion that the gift to Rustomji's children fails.

As to the gift to Mobed's children. Mr. Schwartze refers to the fact that it is made to them without the qualification attaching to the gift to Rustomji's children. Moreover, it comes first, and the words "his share shall be paid to his children" ought to be interpreted to confer a gift of capital and income. At first sight, this submission is attractive, but if one looks a little closer and inquires what share Mobed actually had, the answer appears to be a half-share of net income. Our attention has also been directed to section 73 of the Succession Act, which says that if the same words occur in different parts of the same will, they must be taken to have been used everywhere in the same sense. unless there appears to be an intention to the contrary. I have no doubt that the testator meant what the learned Chief Justice decided that he meant, and it would be extremely unlikely that he would favour his nephew's children beyond his son's children.

I am therefore of the opinion that the gift to Mobed's children also fails, and I would allow the appeal and dismiss the cross-appeal.

As to costs, 1 am of the opinion that, as this appeal related to one piece of property only, that property should bear the costs here and in the Court below. The cases of Farrow v. Austin, 18 Ch. Div. page 58, and In re Buckton (1907), 2 Ch. page 406, are sufficiently close to guide us. I would make a similar order in respect to the costs of the cross-appeal.

LUCIE-SMITH, Ag. C. J.-I agree with the judgment of the Judgment for appellant with costs. President.

HORNE, J.-I agree with the judgment read by the learned President.

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