RAMAN NADAR VISWANATHAN NADAR & ORS. versus SNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4 OTHERS

Citation: [1970] 2 S.C.R. 471 · Decided: 17-09-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

471 
A 
RAMAN NADAR VISWANATHAN NADAR & ORS. 
B 
c 
D 
E 
F 
v. 
SNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4 
OTHERS 
September 17, 1969 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J 
Hindu Law-Will-Bequest to unborn person. 
K, a Hindu had no issue, but had a brother R who had 3 daughters. 
K, and R jointly executed a will bequeting the assets of K to son or sons 
born in future to R, to the exclusion of the daughters, after the death o'i 
K and R. 
K died in 1947. The appellants claiming to be the sons of R 
bv his subsequent marriage, filed a suit for a decfaration that R had only 
Iii'e interest in K's properties with _the remainder Vested in them under the 
will. 
The trial court decreed the suit holding that the second marriage of 
R was le.gal and the appellants were entitled to the properties subject to R's 
life estate and that R's daughter had no right in the properties. R's 
d•ughters filed an appeal to the High Court. Soon after K's death, an· 
other suit was filed by R's daughters 'for administration of K's estate in 
which the appellants mother 
was a party. This suit was dismissed on 
the ground"that the plaintiffs had lost th:ir ri~t on .the birth of appe]la~ts. 
An appeal to ·the High Court was pendmg 
10 this suit also. The High 
Court by a common judgment held that tlle ,appellants, sons of R, were born 
after K'.s death, so the devise in their favour was voicl, and that after the 
hf.- €state of R, his daughters became entitled to the pJOperties for their 
. life time. 
<!" 
.,,.,,,., ... , 
HELD : Although there is no authority in Hindu Law to justi'fy the 
doc:i-ine that a Hindu cannot make a gift or bequest for the benefit of an 
unborn person yet that doctrine has. been engrafted in Hindu Law by the 
decision 
of the Judicial Committee in Tagore v. Tagore, 
I.A. (1872) 
Supp. 47. 
This doctrine was laid down for the first time in the case of 
Tagore. ·This decision of the Judicial Committee has stood a great length 
of time and on the basis df that decision rights have 
been regulated, 
arrangements as to property have passed. 
Therefore this was a proper 
ca.:;e in which maxim comn1unis error facit jus be, applied. The principle 
underlying the maxim is that "the law so favours the public good, that it 
\\"ill in some cases permit a common error to pass for right". The bequests 
in favour of R'~ sons were void and of no legal conse.quence. [477 A; 
4J8 F-GJ 
. 
. 
H is, the!<.fore,· m>!, possible. to accept the argument that the will was 
•• 0mt<!nded"lt'operate ot·to come mto effect after the death of both the testa· 
G · to'tS. In ·regard to K's properties the life estate devised in favour of R 
mu1t necessarily take effect and remain in force during the life of R and 
not after that; it is true that at '.he end of the will there is a clause that 
both the testators have the right to revoke the will during their lives and 
that the wiir take effect only subsequent to their. death. 
But the true in· 
tentio.n of the tesfator has to be gathered ·nof by attaching impartanoe to 
i1olated expressions but by reading the will as a whole with all its provi· 
sions and ignoring none _Of-them as redlindant or contradictory. 
It must, 
therefore, be held. that as the express devise to R for his life is a disposi-
tion intended to take effect after the death of K and before the death of R 
H 
the last clause in the will could not he literally correct. The daughters also 
could not take under the will as the bequest in their favour was subject to 
the defeasance clause. [480 E·H] 
472 
SUPREME COURT REPORTS 
[ 1970] 2 S.C.R. 
Tagore's case, I.A. (1872) 
Supp. 47 and Charles Dalton v. Henry 
A 
A.n,gus & Co., (1881) 6 A.C. 740, 812, referred to. 
CIVJ,L APPE.LLATE JURISDICTION: Civil Appeal No. 2467 
of 1966. 
Appeal from the judgment and decree dated March 27, 1963 
-Of the Kerala High Court in Appeal Suit No. 848 of 1960. 
B 
Sarjoo Prasad, P. K. Pillai and M. R. K. Pillai, for the appel-
lants. 
V. K. Krishna Menon, R. Thiagarajan and K. Jayaram, for 
resp-0ndents Nos. 1 to 3. 
The Judgment of the Court was delivered by 
Ramaswami, J. This appeal is brought by certificate from the 
judgment of the High Court of Kerala in A.S. No. 848 of 1962 
dated March 27, 1963 reversing the decree of the principal Sub-
-Ordinate Judge, Trivandrum in O.S. No. 182 '<if 19'51 dated May 
23, 1960, 
The father of the plaintiffs who are appellants herein was a· 
Hindu Nadar namely Raman Nadar. He had an elder brother 
na

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