Judgment R. S. SARKARIA, J.:- This appeal by certificate is directed against an Appellant Judgment and Decree, dated November 15, 1968, of the High Court of Madras. 2. The facts leading to this appeal are as follows : 3. The following pedigree table will be helpful in understanding the relationship of the parties: 4. Palaniandi Pillai, shown in the above pedigree-table owned considerable properties. On December 12, 1927, he executed a will whereby he bequeathed certain properties to each of his three sons. He appointed his sons, Ramaswami Pillai and Vadivelu Pillai, as Executors of his will. In regard to his third son, Nataraja Pillai, the testator in clause 5 of the Will stated:"My third son, Nataraja Pillai, shall take the income accruing from the properties, namely, my cart-stand, house and ground, situate in the Western Row of Mint Street, bearing Municipal Door No. 278, Re-survey No. 600, Collectors Certificate No. 750 and the 5 Godowns, namely 2 Godowns situate in Varadaraja Mudali St., bearing Municipal Door Nos. 90 and 91, and 3 Godowns situate in 3rd North Beach Road bearing Municipal Doors Nos. 5, 6 and 7 to 9, Re-Survey Nos. 3158 and 3187, Collectors Certificate No. 2550. After his lifetime, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienations such as gift, usufructuary mortgagee and sale. If there are no male issues 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, without leaving any issue. His widow Krishnammal, the appellant herein, filed the suit (C. S. No. 7 of 1959) out of which this appeal has arisen. She claimed- (a) partition and separate possession of one-third share in the (plaint-schedule) properties left by her husband Palaniandi (sic) Pillai, alleging that the properties were in the possession of the joint family consisting of his sons, or in the alternative. She claimed- (a) partition and separate possession of one-third share in the (plaint-schedule) properties left by her husband Palaniandi (sic) Pillai, alleging that the properties were in the possession of the joint family consisting of his sons, or in the alternative. (b) for a declaration of her title and for possession of the properties on the ground that her husband Nataraja Pillai got the same absolutely by way of partition under the deed, dated July 14, 1928, she, as his heir, inherited the properties; in the alternative, (c) for a declaration of her rights to the properties on a true construction of the Will of her father-in-law, Palaniandi Pillai, and for possession of the properties. 7. The sons of Ramaswamy Pillai, respondent 1 and 2 herein, were impleaded as defendants 1 and 2, and the daughters of Vadivelu Pillai, respondents 3 to 7, were defendants 3 to 7. The daughter-in-law of Vadivelu Pillai, respondent 8 herein, was added as 8th defendant. 8. The findings of the learned trial Judge, material for our purpose, were as follows : (i) Nataraja Pillai got only a life estate in the properties set out in Schedule I of the Plaint, (ii) the contingent interest in favour of the heirs of Palaniandi Pillai became vested only on the death of Nataraja Pillai; (iii) it is not open to the plaintiff, Krishnammal, to invoke Section 8 of the Hindu Succession Act, 1956; (iv) on the termination of the life interest given to Nataraja Pillai, the gift over in favour of the male issues could not take effect as he did not leave any male issue, with the consequence, that the properties, in effect, became revested in Palaniandi Pillai, but devolved on his heirs as if on intestacy; (v) Section 111 of the Indian Succession Act would be applicable. 9. In the result, the appellants suit was decreed and it was held that she was entitled to one-third share and separate possession of the same by partition of the Plaint-Schedule 1 properties, and defendants 3 to 8 were equally entitled to one-third share together with mesne profits relating to their shares in the said properties, while defendants 1 and 2 were entitled to the remaining one-third share. 10. 10. Aggrieved, defendants 1 and 2 preferred 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 testators heirs as an "artificial" class of ultimate residuary legatees. (2) This class of legatees or "my heirs" did no 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 son-less. (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 dies son-less, and at no other. (5) This class of my heirs of the testator would be ascertained with reference to the point of Natarajas death (without a son) on January 31, 1957, when succession opened out and the bequest became distributable, "on the hypothesis that Palaniandi Pillai had lived up to that time" i. e. January 31, 1957. (6) Although this class of the heirs of the testator was to be ascertained on January 31, 1957 on the hypothesis that the testator and Nataraja died simultaneously, such ascertainment could not be done either by resorting to the Hindu Womens Rights to Property Act, 1937 or to the Hindu Succession Act, 1956 because Palaniandi Pillai actually died in 1928, long before the coming into force of these two enactments and he did not did intestate. (7) Such class of heirs of the testator were to be determined according to the orthodox Hindu Law prevailing at the time of the testators death on May 19, 1928. (8) Section 111 of the Indian Succession Act was not applicable. 12. (7) Such class of heirs of the testator were to be determined according to the orthodox Hindu Law prevailing at the time of the testators death on May 19, 1928. (8) Section 111 of the Indian Succession Act was not applicable. 12. On the above reasoning, the Appellant Bench of the High Court reversing the decree of the learned trial Judge, held that Respondents 1 and 2 herein were the only persons entitled to the entitre Schedule 1 property on the death of Nataraja Pillai, to the exclusion of the latters widow, the plaintiff. Thus the appeal was allowed and the plaintiffs suit dismissed. 13. After obtaining a certificate under Article 133 of the Constitution from the High Court, the plaintiff, Krishnammal, has come in appeal before this court. 14. Controversy in this case hinges around the scope and construction of Clause 5 of the Will (Ex. P-2). In that connection, the first question that arises for consideration is. Did the testator by this Clause create or carve out an "artificial class of his heirs, and make a residuary bequest in their favour? 15. In our opinion, on a proper construction of the Will, the answer to this question must be in the negative. 16. It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator. The word "heirs" as pointed out by this Court in Angurbala Mullick v. Debabrata Mullick, (1951) 2 SCR 1125 at p. 1144 cannot normally be limited to issues only. It must mean all persons who are entitled to the property of another under the law of inheritance. 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. 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 indicated that in the event of Natarajas 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 testators heirs ascertained in accordance with the Hindu Law of interstate 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 son-less, were to be ascertained according to Hindu Law in force at the time of Natarajas death or according to Hindu Law, prevailing in 1928 when the testator died. This question also in one of reaching at the real intent of the testator. 19. The order to expatiate the true import of the last two sentences of Clause 5 of the Will (Ex. P-2), the same can be legitimately expanded, parenthesized and elucidated so as to read like this : "After Natarajas lifetime, if he leaves any may issue, they shall take the aforesaid properties, with powers of alienation...... If Nataraja dies without leaving any male issue, then, my heirs, then ascertained according to law of inheritance, shall take the aforesaid properties." 20. Thus amplified and elucidated, Clause 5 of the Will bring out, expressly or by inevitable implication, the intention and instructions of the testator in regard to the following : (a) In the event of the termination of the life estate of Nataraja on his death, without male issue, the property will devolve on "my heirs" i.e. the testators heirs. (b) Such heirs of the testator are to be ascertained according to the Hindu Law of intestate succession. (c) Such ascertainment of the heirs of the testator is to be done on the date of Natarajas death without male issue, when succession opens out in favour of those heirs, and not with reference to the date of the testators death. (b) Such heirs of the testator are to be ascertained according to the Hindu Law of intestate succession. (c) Such ascertainment of the heirs of the testator is to be done on the date of Natarajas death without male issue, when succession opens out in favour of those heirs, and not with reference to the date of the testators death. This necessarily implies that "my heirs" of the testator are required to be ascertained on the hypothesis that the testator lived up to and died a moment after Natarajas death. 21. If what is spelled out at (a), (b) and (c) be the true construction of Cl. 5 of the Will, it logically and inexorably follows therefrom, that the ascertainment of the heirs of the testator, on whom the property was intended to devolve in the event of Nataraja dying sonless, was to be made in accordance with Hindu Law of intestate succession as in force on the date of Natarajas death, on January 31, 1957 when succession opened out, and not in accordance with the orthodox Hindu Law prevailing in 1928, which on the relevant date. January 31, 1957, stood abrogated and superseded by the Hindu Succession Act, 1956. The conclusion is therefore inescapable that "my heirs" referred to by the testator in Clause 5 of his Will, have to be ascertained in accordance with the Hindu Succession Act, 1956, In so doing, we are only giving effect to the import and construction of the Will of the testator, and no question of giving retrospective operation of 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 Natarajas 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 testators death. Nevertheless, the testator was definitely contemplating the contingency of Nataraja dying without any male issue, and the necessity of ascertaining the testators heirs at that point of time for further devolution of the property. It cannot, therefore, be said that ascertainment of the testators 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. It cannot, therefore, be said that ascertainment of the testators 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, moment after Nataraja Pillais death, according to Sections 8 to 10 of the Hindu Succession. Act. 24. At that point of time, the plaintiff (who would be assumed to be the widow of a predeceased son) and the defendants would all be heirs of the testator, falling in Class I of the Schedule referred to in Section 8. According to Section 9, all the heirs in Class I of the Schedule shall take simultaneously, to the exclusion of all other heirs. The distribution of the property among the plaintiff and defendants will be governed by Rules 3 and 4 in Section 10, which are as under : "Rule 3. - The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share". "Rule 4. - The distribution of the share referred to in Rule 3 - (i) among the heirs in the branch of the predeceased son shall be so made that his widow (or widows) together) and the surviving sons and daughters get equal portions; and the branch of predeceased sons gets the same portion; (ii) among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions." 25. In accordance with the aforesaid provisions of the Hindu Succession act, the plaintiff would be entitled to get 1/3rd share in Schedule I property in which her husband had a life-interest, while the remaining 2/3rd share in the property shall be equally distributed among the two branches of the defendants, the branches of Ramaswami and Vadivelu getting 1/3rd share each. 26. For the foregoing reasons, we allow this appeal, set aside the judgment of the High Court and pass a preliminary decree for partition and separate possession in favour of the plaintiff with respect of her 1/3rd share in the suit property. 26. For the foregoing reasons, we allow this appeal, set aside the judgment of the High Court and pass a preliminary decree for partition and separate possession in favour of the plaintiff with respect of her 1/3rd share in the suit property. In the circumstances of the case, the parties are left to pay and bear their own costs. Appeal allowed. For Citation : AIR 1979 SC 1298