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1961 DIGILAW 270 (KER)

Annam v. Mathu

1961-08-14

M.S.MENON, P.GOVINDA MENON

body1961
JUDGMENT : M.S. Menon, J. The plaintiffs in O. S. No. 39 of 1958 of the court of the Subordinate Judge of Parur are the appellants before us. The suit which has been dismissed with costs was for partition of the items of property specified in the schedule to the plaint. Ext. P. 1 is a will executed by one Poulose Upadesi on 6-2-1113 (22-9-1937). The items of property included in the C schedule to that will are the items of property described in the schedule to the plaint. The testator died on 1-2-1118 (17-9-1942). 2. The 1st plaintiff is the widow of the testator and plaintiffs 2 to 6 are his daughters. The testator had a daughter, Annam, who pre-deceased him on 17-12-1117 (2-8-1942). The items of property described in the C schedule to Ext. P. 1 and the schedule to the plaint are the items set apart to her under that will. The 1st defendant was her husband and defendants 2 to 5 are their children. 3. The only question for determination is what exactly is the impact of the death of Annam prior to the death of the testator on the bequest in her favor. According to the plaintiffs the death of Annam prior to her father's death precludes the operation of the bequest and the items become partible as if Poulose Upadesi had died intestate as regards those items. 4. Section 109 of the Indian Succession Act, 1925, provides: Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will. That Act was not in force in the Travancore State, where Poulose Upadesi lived and died. It came into force in that area only long after his death, by the Part B States (Laws) Act, 1951, on 1-4-1951. 5. Section 109 is modelled on section 33 of the English Wills Act, 1837, and embodies what we consider a wholesome exception to the doctrine of lapse. It came into force in that area only long after his death, by the Part B States (Laws) Act, 1951, on 1-4-1951. 5. Section 109 is modelled on section 33 of the English Wills Act, 1837, and embodies what we consider a wholesome exception to the doctrine of lapse. The three conditions necessary to attract the section are: (1) that the bequest must be made to a child or other lineal descendant of the testator, (2) that the child or other lineal descendant should die in the lifetime of the testator leaving a lineal descendant who survives the testator and (3) that no contrary intention should appear from the will. It is not contended that these conditions are not satisfied and so the only question for determination is whether the principles embodied in section 109 of the Act should be invoked, as the lower court has done, on the grounds of justice, equity and good conscience. 6. The phrase justice, equity and good conscience goes back in the legal history of India at least to Sir Elijah Impey and the Regulation of 1781. Section LX of the Regulation laid down that "in all cases, within the jurisdiction of the Mofussil Diwani Adalats, for which no specific directions are hereby given the respective judges thereof do act according to justice, equity and good conscience", and section XCIII provided "that in all cases, for which no specific directions are hereby given, the Judge of the Sadar Diwani Adalat do act according to justice, equity and good conscience. 7. This rule of decision in accordance with justice, equity and good conscience in the absence of specific directions meant" according to Mr. Setalvad in his Hamlyn Lectures, the Common Law in India, "in substance and in the circumstances the rules of English law wherever applicable". He goes on to say: In the words of Sir Henry Maine, India was then 'regard being had to its moral and material needs, a country singularly empty of law.' The inevitable result was that the courts of justice had to legislate. The 'vast gaps and interspaces in the substantive law' were filled by the principles of English common and statute law. The wide door of 'justice, equity and good conscience' made it easy for these principles to become, through the decisions of the courts, the governing law of the country.(Page 23) 8. The 'vast gaps and interspaces in the substantive law' were filled by the principles of English common and statute law. The wide door of 'justice, equity and good conscience' made it easy for these principles to become, through the decisions of the courts, the governing law of the country.(Page 23) 8. Interesting cases in the development of the doctrine are (1863) 9 M.I.A. 303 and (1887) 14 Indian Appeals 89. In the former case the Privy Council said that although the English law was not obligatory upon the courts in the mofussil, they ought, in proceeding according to justice, equity and good conscience, to be governed by the principles of the English law, applicable to a similar state of circumstances, and in the latter that equity and good conscience had been generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. In (1868) 9 W. R. 230 Sir Barnes Peacock said: Now, having to administer equity, justice and good conscience, where are we to look for the principles which are to guide us? We must go to other countries where equity and justice are administered upon principles which have been the growth of ages, and see how the Courts act under similar circumstances; and, if we find that the rules which they have laid down are in accordance with the true principles of equity, we cannot do wrong in following them. 9. The parties before us profess the Christian faith. Section 109 and its predecessor, Section 96 of the Indian Succession Act, 1865, applied to Christians in British India. Section 109 also applies to the wills of Hindus, Budhists, Sikhs and Jainas. 10. As already stated, section 109 is modelled on section 33 of the English Wills Act, 1837. As pointed out by Wigram, V. C., in (1846) 5 Hare 306 the section was intended to prevent a portion given by a testator to a child going from the estate of such child, and his family from being left portionless, by reason only of the death of the child under certain circumstances-a consequence of law which the common feelings of mankind declared to be a disappointment of the intention of the father. 11. 11. In 1961 K. L. J. 34 the question arose as to whether section 97 of the Indian Succession Act, 1925, can be invoked in Travancore on grounds of justice, equity and good conscience. Velu Pillai J. said: The preponderance of authority is in favor of the view, that even in cases where section 97 does not in terms apply, the principle underlying it, may be relied on as an aid in interpretation and may be given effect to, in the absence of a contrary intention. 12. We take the view that section 109 can and should be invoked in this case. It is not contended that if such is our view, any further question arises for consideration. It follows that the appeal must fail. The appeal fails and is dismissed with costs.