Usha Subbarao vs B.E. Vishveswariah & Ors [1996 SCC (5) 201, ! 1996 (6) 60"#
In order to determine whether the appellant can claim any right in the properties of the testator, it is, therefore, necessary to examine the nature of the bequest that was made by the testator in favour of his five sons including the deceased husband of the appellant. If it is found that the bequest is in the nature of vested interest , it would vest in the husband of the appellant on the death of the testator and after the death of her husband the
appellant
as
his
legal
representative,
would
be
entitled
to
claim
her
husband's interest in the properties. But in case the bequest is found to be in the nature of a contingent interest whic which h was was to vest in the legatees only after the death of Smt. Nadiga Nanamma, the appellant would not be entitled to claim any interest in the properties since her husband had pre!deceased Smt. Nadiga Nanamma. "s "s regards #ills vesting, the presumption is in favour the rule is that $where there is doubt as to the time of vesting
of the early vesting of the gift and, accordingly it vests at the testator's death or at the earliest moment after that date which, is possible in the contest.$ In !hi$$i Che%% . 'ovia a*ias +uiaa 'ouer (1978) (1978) 91 L.W. 570 a %ivision
Bench of this &ourt to which one of us was a party( had to consider the question in a case where a vestedinterest was created under an instrument, whether the follow!up recitals, which militated against such vesting of absolute title, would belittle the force and legality of such entitlement. No doubt, in that case, the deed provided that on and from the date of the instrument the settlee should enoy the property absolutely and that possession of one half of the property was also delivered over to the settlee since the settlee was already in possession of the other half. )his &ourt expressed the view that the terms used in a deed should be interpreted in their strict and primary acceptation and should not be viewed with reference to the secondary motives referred to by the settlor in an instrument of settlement. settlement.
-a$aswa$i aiu vs +.S. Ve*aa Ve*aa / Ors. [(19"9) 2 + #
In the instant case the first plaintiff was already in charge of the properties as trustee to perform the obligations created under it and continued them after the lifetime of *eena+shi "mmal. )here are also positive words whereby it was made clear that the properties should bevested in elappan and his heirs for them to enoy the same absolutely. )he words used are- )hese two dispositive &lauses create an interest in praesenti. )he question is whether the postponement of such proprietary rights already vested in elappan and his heirs, to the lifetime of *eena+shi "mmal, would ma+e any difference. )he xplanation to Section /0 of the )ransfer of 1roperty "ct, providing that a vested interest is not defeated by the death of the transferee before he obtains possession, ma+es the legislative intent clear that such a vested interest, merely for the reason that it becomes vested after the lifetime of the settlor, would not ma+e it a settlement not being in praesenti. #e are therefore unable to agree with the contention that the interest that elappan, the first plaintiff, obtained under the instrument is not a vested one and that it could be defeated because it is postponed till after the lifetime of *eena+shi "mmal. In Bhaaba%i Bar$ai v. 3a*i4hara Sih [(1911) I.L.R. 38 Cal. 468] , a 2indu testator, left a will, giving possession of the properties, movabe and immovables, to his wife and mother for their lives and on their death to the sons of his sisters who were in existence and also those who might be born there' after, who should hold the properties in equal shares. )he testator died the day following the execution of the will. It was held that the will gave to the sons of the sisters a vested interest in their respective shares at the testator's death, though it postponed their possession and enoyment until the deaths of the mother and widow. In i*aso v. +ui*a* [(1911) I.L.R. 33 ll. 558] , one Sewaram executed a will whereby he gave all his properties, after the death of himself and his wife, *st. *andu to his daughter Bilaso and his nephew %ulichand. %ulichand survived the testator, but predeceased *st. *andu. " suit was brought by the heirs of %ulichand to recover his share of the properties of Sewaram from *st. 2ilaso. )he sole question that was raised in the appellate &ourt was whether %ulichand did not get a vested interest in the properties
disposed of by the will, but merely a !"ntingent interest , and he having died before his aunt, *st. *andu, whether his sons were not entitled to succeed to the property. 3ollowing the decision in Bhagabati v. 4alicharan /0//( I.5.6. 78 &al. 9:8, it was held that the nephew %ulichand too+ a vested interest in the properties, which!was transmissible to his heirs. In hi**i 'raha$ 'reewoo v. hi**i 'raha$ 'reewoo ;/8/ I.&. 7< - ".I.6. /070 1.&. =8> a testator, by his will, appointed his wife and nephew as his trustees and executors and gave all his properties to the trustees, upon certain trusts under which the wife was to enoy the free use and income of his estate during his life. )he will further empowered the wife to dispose of, at the time of her death, /?7rd share in the whole estate in favour of any person, and as regards the @?7rds of the estate remaining undisposed of at the time of the wife's death, the will directed that the surviving trustees should divide the @?7rds share equally among all the brothers and sisters of the testator alive when the will was made and that should any of them predecease his wife, then the share which the deceased would have received if alive should be given to the child or children of the deceased. In that case, one of the sisters of the testator, who bad survived the testator, died unmarried and without issue during the lifetime of the testator's widow. An the death of the widow, the period for the distribution of the @?7rds of the residuary estate given to the testator's brother and sisters having arrived, the question arose whether the estate of the deceased sister was entitled to a share in the distribution. In was held that the deceased sister's share of the residue vested in her on the death of the testator subect to the divestiture only in the event of her predeceasing the testator's widow, leaving child or children, and such event not having occurred, her representative was entitled to her share. )hus, it is clear that the right to the @?7rd share of the residuary estate vested in the brother and sisters of the testator upon his death in spite of the fact that the distribution of the said share among them was to ta+e effect only after the death of the testator's widow. #ree$!$and #a%!ar v. &asi C$etti (38) L.W. 860 ' 147 I.C. 383 ' .I.R. 1933 ad. 885 where the testator bequeathed his property to two persons for life and the remainder
absolutely in favour of a specified class of persons on the termination of the life estate. It
was held by their 5ordships, that on the death of the testator the property became vested in that class and that the mere fact that they were not entitled to an immediate possession did not ma+e it a !"ntingent bequest. .3. +ohara$ vs B.. /a%ha4har & Ors "n 15 ar!$ *010(s!!) 2aving noticed the distinction between vested interest and !"ntingent interest , we shall
now consider whether xhibit was a Settlement %eed or a #ill. "lthough, no strait!ac+et formula has been evolved for construction of such instruments, the consistent view of this &ourt and various 2igh &ourts is that while interpreting an instrument to find out whether it is of a testamentary character, which will ta+e effect after the life time of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the &ourt has to very carefully examine the document as a whole, loo+ into the substance thereof, the treatment of the subect by the settlor?executant, the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. It has also been held that form or nomenclature of the instrument is not conclusive and the &ourt is required to loo+ into the substance thereof. -a$aswa$i Che%%iar a /r. v. Ve7a%a$$a* a Ors. 8..- .)he point regarding the nature of the interest ta+en by the legatee came up for consideration more directly in this case. )here was a partition in the said case between "lagarsami &hettiar, the father and Subbiah &hettiar, the son. It was provided that a certain portion of the properties should be enoyed by "lagarsami with a right to create mortgage and lease but with no power of sale or gift, that if "lagarsami were to marry again and get heirs by the second marriage, those heirs alone were to ta+e his share after his lifetime and that if "lagarsami were to marry but have no male heir by that marriage, Subbiah should after "lagarsami's lifetime perform his obsequies and ta+e over his share of the property. Subbiah died during the lifetime of "lagarsami, and "lagarsami did not marry again. 2e, however, made a bequest of his share to a third party. It was pointed out that though a valid disposition could be made in favour of an unborn person the issue of "lagarsami by the contemplated marriage(, it did not mean that in all cases where interest in property was
created in favour of an unborn person, there was a vested interest on him and that the alterative provision was only a !"ntingent one.
