MRS. SHIRINBAI MANECKSHA W & OTHERS versus NARGACEBAI J. MOTISHAW & OTHERS.

Citation: [1956] 1 S.C.R. 591 · Decided: 09-05-1956 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Appeal(s) allowed
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Judgment (excerpt)

-
S.C.R. 
SUPREME COURT REPORTS 
591 
a law being a legislative function, can be exercised 
7956 
only by the legislature duly constituted and not by R 
u1 s bb R 
any outside authority, and that the delegation of a:n; a::Ot:er 
00 
such a power to an outside authority is unconstitu-
v. 
tional, does not arise for decision. 
The Commissioner 
In the result, we agree with Viswanatha Sastry, J. 
of Income-tax, 
Madras 
that rules 2 and 6 are intra vires the powers of the 
rule-making authority, and dismiss the appeals with 
Venkatarama 
costs. 
Ayyar J. 
MRS. SHIRINBAI MANECKSHA W & OTHERS 
v. 
NARGACEBAI J. MOTISHAW & OTHERS. 
[S. R. DAS C.J., BHAGWA'l'I and S. K. DAS JJ.] 
Will-Construction-Substitutional beq1Mst, 
Validity 
of-
I ndian Succession Act (XXXIX of 1925), ss. 67, 129, 180. · 
A Parsi testator by a holograph will provided, "I hereby 
give, devise and bequeath to my so, ca.lied mother Mrs. Shirinbai, 
............... her heirs, executors and administrators, for her and 
their own use and benefit, absolutely and for ever all my estate 
and effects, both real and personal, whatsoever and wheresoever' 
and of what nature and quality soever, and I hereby appoint her 
the said Mrs. Shirinbai Maneckshaw Bejonji Mistry, sole exe· 
cutrix of this my Will ............... " The will was attested by two 
witnesses one of whom was the husband of Mrs. Shirinbai. Mrs. 
Shirinbai a.s the sole executrix obtained probate of the said will 
from the High Court and took possession of the estate. A suit 
was brought by the heirs of the testator in the Court of the 
Civil Judge for a decl&ration that the bequest in favour of Mrs. 
Shirinba.i was void in law by operation of s. 67 of the Indian 
Succession Act and that. the estate of the testator had, therefore, 
become divisible amongst his heirs as on intestacy. The trial Judge 
held that the bequest in favour of Mrs. Shirinbai was void under 
s. 67 of the Indian Succession Act and there was no gift over but 
that the plaintiffs were not the heirs of the testator and, conse· 
quently, they could not maintain the suit. On appeal by the plain· 
tiffs, the High Court agreed with the first two findings of the trial 
Judge, but reversed his decision and decreed the suit holding that 
the plaintiffs were the heirs of the testator. It was contended on 
behalf of Mrs. Shirinbai and her two daughters in this appeal that 
on a. tma construction of the will there was a substitution'al bequest 
in favour of the heirs, executors and administrators of Mrs. Shiriu· 
1956 
May9 
1956 
Mt's, Shirinba$ 
ManeckshllW 
and others 
y, 
Nargacebai 
J, Moti1hau1 
anti others 
592 
SUPREME COURT REPORTS 
[1956) 
bai and tb&t even if the bequest to her failed by operation of s. 67 of 
the Act, the other bequest must take effect. 
Held, that on a proper construction of the will as a whole and 
the words "for her and their own use and benefit" used by the testa· 
tor and having regard to the facts and the circumstances in which be 
executed it, there could be no doubt that the intention of the testator 
was to create a substitutional bequest. Although bis primary inten· 
tion was ta benefit Mrs. Shirinbai, the language be used unmistak· 
ably showed that be intended to preyent his estate from passing 
on to his step relations as on intestacy, should the bequest in favour 
of Mre. Shirinbai fail by reason of .her predeceasing him. 
In re Mcelligott. (L.B. (1944) Chancery 216), dissented from. 
That as the will did not in terms state that the substitutional 
bequeet was to take effect only in the event of Mrs. Shirinbai pre· 
deceasing the testator, and so did not come under the illustration to 
s. 130 of the Indian Succession Act, that section had no application 
and s. 129 of the Act would apply. 
That the result was that the substitutional bsqnest in favour of 
the two daughters, who were presum~ive heirs of Mrs. Shirinbai 
when the testator died, would take effect although it must fail so far 
as her·executors and administrators wwe concerned. 
CIVIL APPELLATE JuRISDIOTION: Civil Appeal 
No. 213 of 1953. 
On appeal from the judgment and decree dated 
the 30th July 1951 of Allahabad High Court in First 
Appeal No. 258 of 1943 arising out of the judgment 
and the decree dated the 8th March 1943 of the Court 
of Additional Civil Judge at Allahabad in Original 
Suit No. 27 of 1940. 
8. K. Dar, B. 8. Shastri, R. 0. Ghatak and 0. P. 
Lal for the appellants. 
S. P. Sinha and R. Patnaik for respondents Nos. 
1,
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