S.C.R.

SUPREME COURT REPORTS

RAVULA SUBBA RAO AND ANOTHER v.

THE COMMISSIONER OF INCOME-TAX,

MADRAS.

[S. R. DAS C.J., BHAGWATI and VENKATARAMA

AYYAR JJ.)

Indian Income Tax Act, 1922 (Act XI of 1922), ss. 26-A; 69, Rules 2 and 6 framed under s. 69-Word 'personally' in theRules- Whether excludes a duly authorised agent from signing an application on behalf of the partner. under s. 26A-Rules 2 and 6-Whether ultra. vires the rule-making authority-Indian Income Tax Act, 1922 -Whether exhaustive of the matters dealt with therein.

Rules 2 a.nd 6 of the Rules fro.med under s. 59 of the Indian Income Ta.x Act provide tha.t a.n a.pplica.tion for registration of a. firm under s. 26-A of the Act a.nd for renewal of registration certifi ca.be "shall be signed persona.Hy by a.ll the parties".

Held that the word 'personally' in the Income Ta.x Rules, as framed under s. 59 of the Income Tax Act would exclude a duly authorised agent of a partner of a firm signing an application on behalf of the partner under s. 26-A of the Income Tax Act.

(2) That Rules 2 and 6 a.re not ultra vires the rule-making authority.

To decide the question whether on its true interpretation the Indian Income Tax Act intended tha.t an application under s. 26-A should be signed by the partner personally, or whether it could be signed by his a.gent on his behalf t)le Court must have regard not - only to the language of s. 96 A but also to the character of the legislation, the scheme of the Act and the nature of j; he right con ferred by the section. The Indian Income Tax Act is a self-contained code exhaustive of the matters dealt with therein, and its provisions show an inten tion to depart from the common rule,' qui facit per alium facit per 88.

Its intention again is that a firm should be given benefit of s. 23(5)(a), only if it is registered under s. 26-A in accordance with the conditions laid down in that section and the rules framed thereunder. And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is in valid.

Commissioner of Agricultural Income-tax v. Kesha-b Chandra Mandal, ([1950] S.C.R 435), relied upon.

Commissioner of Income-tax v. Subba Rao, ([1947) I.L.R.

Mad. 167) approved.

Other case-law referred to.

May9

Ravula Subba Rao

and another

The Comtnissiontf'

of Income.tax,

- Madras

CIVIL APPELLATE JURISDICTION: Nos. 56 & 57 of1954.

Civil Appeals

Appeal from tho judgment and order dated the 25th day of March 1951 of the Madras High Court in Case Referred Nos. 32 of 1948 and 31 of 1950.

K. S. Krishnaswami Iyengar, (K. R. Ohoudhry, with him) for the appellants.

G, N. Joshi and P. -G. Gokhale, for the respondent.

1956. May 9.

The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant is a firm which was Qonstituted under a deed of partnership dated 10-2-1941, and consists of two partners, Subba Rao and Hariprasada Rao. On 21-3-1942 it was registered under section 26-A of the Indian Income- Tax Act No. XI of 1922, hereinafter referred to as the Act, for the assessment year 1942. Sometime thereafter, one of the partners, Subba Rao, is stated to have left on a long pilgrimage, and the affairs of the partnership were then managed by Hariprasada Rao as his agent under a general power-of-attorney dated 1-7-1940. Hariprasada Rao then applied under rules 2 and 6 of the rules framed under section 59 of the Act, for renewal of the registration certificate for the year 1942-43, and the application was signed by him for himself and again as the attorney of Subba Rao. Those rules provide that an application for registration of a firm under section 26-A and for renewal of registration certificate "shall be signed personally by all the partners". The Income-tax Officer rejected the application for renewal on the ground that it was not personally signed by one of the partners, Subba Rao, and that the signature of Hariprasada Rao as his agent was not valid.

The order was taken in appeal, and was ultimately the subject of a reference under section 66(1) of the Act to the High Court of Madras, which held that the word "personally" in rule 6 required that the partner

should himself sign the application, and that the 7956 principles of agency under the general law were Ra'Vula Subba Rao excluded. (Vide Commissioner of Income-tax v. Subba and another Rao(1)). v.

While these proceedings were pending, Hariprasada The Commissioner Rao filed the two applications, out of which the 0/ Income-tax, 1 • l f th • t t' Madras present appea s arise, 1or renewa o e reg1s ra 10n certificate for the assessment years 1943-44 and Venkatarama 1944-45. Both of them were signed by him for him- AyyarJ. self and as attorney for Subba Rao. At the hearing of these petitions the appellant, apart from maintaining that rules 2 and 6 did not, on their true construction, exclude signature by an agent on behalf of a partner, raised a further contention that the rules themselves were ultra vires the powers of the rulemaking authority. The Income-tax Officer overruled both these contentions, and rejected the applications, and his order11 were confirmed on appeal by the Appellate Assistant 0ommissioner and then by the Appellate Tribunal. Thereafter, on the application of the appellant, the Tribunal referred the following questions for the decision of the High Court:

"(1) Whether the word 'personally' in the Income-tax Rules, as framed under section 59 of the Income-tax Act would exclude a duly authorised agent of a partner from signing an application on behalf of the partner under section 26-A of the Income-tax Act?

(2) If the answer to the above question is in the affirmative, whether rules 2 and 6 a.re ultra vires the rule ma.king authority?"

The reference was heard by Sa.tyana.ra.yana Rao and Viswanatha Sastry, JJ. Following the decision in Commissioner of Income-tax v. Subba. Rao(1), they answered the first question in the affirmative. On the second question, however, they differed. Satyanarayana Rao, J. held that the rules were ultra vires, and that the applications were in order, and ought to have been granted. Viswanatha Sastry, J. was of

the contrary opinion, and held that the rules were intra vires, and that the applications were properly

(1) I.L R. [1947] Mad. 167: 1946 I.T.R. l!Sll.

1P56

Ravula Subba Rao and another v.

The Commissioner

cf lncometax,

Madt'as

Venkatarama

AyyarJ.

rejected as not being in accordance with them. The learned Judges, however, granted a certificate under section 66-A of the Act, and that is how the appeals come before us.

The first question whether the word "personally" would exclude signature by an authorised agent on behalf of the partner was answered in tlie affirmative by the Madras High Court in Commissioner of Incometax v. Subba Rao('). This was one of the decisions quoted with approval by this Court in Commissioner of Agricultural Income-tax

v. Keshab Chandra Mandril("), where the question was whether a rule framed under the Bengal Agricultural Income-tax Act that the declaration in the return should be signed by the individual himself required that he should sign it personally, and it was held that it did so require.

Sri K. S. Krishnaswami Ayyangar, learned counsel for the appellant, did not urge any grounds for differing from the above conclusion, and we must therefore hold, in agreement with the views expressed in the above decisions, that the signature which is prescribed by the rules is that of the partner himself, and that they are not complied with by the agent signing on his behalf.

Then we come to the second 'qUestion-and that is the substantial question that arises for our determination in this appeal-whether rules 2 and 6 are ultra vires the rule-making authority. The argument of the appellant in support of its contention that the rules are ultra vires may thus be stated: Under the common law of England, a person has the right to do through an agent whatever he can do himself, and that right has also been conferred on him in this country by section 2 of the Powers-of-Attorney Act VII of 1882, which runs as follows:

"The donee of a power-of-attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with bis own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance,

(1) I.L.R. 19i7 'M•d. 167: 19i6 I.T.R. 282.

(2) [19W] S.O.R. i85.

instrument and thing so executed and done, shall be 1956 as effectual in law as if it had been executed or done Ravida Subba Rao by the donee of the power in the name, and with the and at1other signature and seal, of the donor thereof. v. "This section applies to powers-of-attorney The Commissiot1er created by instruments executed either before or after of Income-tax, this Act comes into force".

Madras Section 26-A of the Act confers on a partner the Venkatarama right to apply for registration of the firm, and that AyyarJ. right could be exercised both under the common law and under section 2 of the Powers-of-Attorney Act through an authorised agent. The sovereign legislature might, if it so chooses, abrogate the rule of common law, and repeal section 2 of the Powers-of- Attorney Act, and enact that the application to be presented under section 26-A should be signed by the partner himself and not by any other person; but it has not done so eithr expressly or by necessary implication, and, therefore, the application which was signed by Hariprasada Rao is as good as if it had beeq signed by Subba Rao. The Rules no doubt require that the signature should be that of the partner and not that of his agent. But in prohibiting what would be lawful under the section, the Rules go beyond the ambit of the authority conferred by section 26-A on the rule-making authority, which is limited to framing Rules for giving effect to the principles laid down in the statute. They are therefore ultr:a vires. In the alternative, assuming that the mandate given to the rule-making authority under section 26-A is of sufficient amplitude to authorise the making of the Rules in question, even then, they must be held to be ultra vires, as they have the effect of abrogating the common law and of repealing section 2 of the Powers-of-Attorney Act, which confer on a person the right to act through an agent, and that being a legislative function cannot be delegated to a rule-making authority, and section 26-A, if it is to be construed as conferl'.ing such power on an outside authority, must be struck down as constituting an unconstitutional delegation by the legislature of its legislative function.

Rattula Subba Rao

It is the correctness of these contentions, that now falls to be considered.

and another According to the law of England-and that is also v. the law under the Indian Contract Act, 1872-"every The Commissioner person who is aui juris bas a• right to appoint an

01 Income-tax, agent for any purpose whatever, and that be can do Madras so when be is exercising a statutory right no lee~ Venkatarama than when be is exercising any other right". Per Ayyar J.

Stirling, J. in Jackson and Oo. v. Napper: In re Bckmidts' TradeM12rk('). This rule is subject to certain well-known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions, the Jaw is well settled that whatever a person can do himself, he can do through an agent. It bas accordingly been held that "at common law, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it". Per Blackburn, J. in The Queen v.Justices of

Kent('). The appellant is therefore right in bis •contention that unless the statute itself enacts otherwise, an application which a partner has to 1ign wouJd be in order and valid, if it is signed by his authorised agent. The question then is whether there .is any thing in the Act, which requires that an application under section 26-A should be signed by the party personally.

Section 26-A is as follows:

"(I) Application may. be made to the Incometax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this_ Act and of any other enactment for the time being in force relating to income-tax or super-tal):.

(2) The application shall be made by such per.son or persons, and .at such times and shall contain Buch particulars and shall bein such form, and be verified in such manner, as may be prescribed;· and it shall

(1) [1887] 85 Oh. D. 16!1, 172.

(2) [1812-78] L.B. 8 Q.B. 805, 807.

be dealt with by the Income-tax Officer in such manner 1956 as may be prescribed".

Ravula Subba Rao The section does not, it should be noted, provide that and another the application for registration should be signed by v. the partner personally, and it is this that forms the The Commissioner foundation of the contention of the appellant that 0/ Income-tax, the right which a person has under the general law Madras and under section 2 of the Powers-of-Attorney Act to Venkatarama act through an agent has not been taken away or Ayyar J. abridged by the section. He relies in support of his contention on the following rules of construction: (I) Statutes which encroach on the rights of a subject should be interpreted if possible so as to respect such rights. [Vide Maxwell on Interpretation of Statutes, 10th Edition, page 285; Craies on Statute Law, 5th Edition, pages Ill to ll4). The law is thus stated by Lord Justice Bowen in In re Ouno: Mans.field

v. Mans.field(1):

"In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the legislature".

(2) In the absence of clear and unambiguous language, an intention to alter the existing law should not be imputed to the legislature. (Vide Craies on Statute Law, 5th Edition, pages ll4 and ll5). ..

(3) The law does not favour repeal of a statute by implication, and therefore a later statute should. not be construed as repealing an earlier one without express words or by necessary implication. (Vide Maxwell on Interpretation of Statutes, 10th Edition, page 170; Craies on Statute Law, 5th Edition, page 337).

"If it is possible", observed Farwell, J., "It is my duty so to read the section as not to effect an implied repeal of the earlier Act": Re Okance(9).

"Unless two Acts are sp plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will.not be implied". Per A. L. Smith, J. in Kutner v. Pkillipa(8).

(1) [1890] 43 Oh. D. UI, 17. (!!)· [1986] 1 Oh. !166, 270. .

(S) [1891] SI Q.B. 1167, .2711.

Ravula Subba Rao

and another

The Commjssiomr

o/ Inconu-taz,

Madras

Venkatarama

A:; yarJ.

In the light of these principles, it is contended that the true scope of section 26-A is that it confers a right on a partner to register the firm, and leaves the modus of the exercise thereof to be regulated by the existing law,.and that, therefore, far from showing an intention either to alter the general law as to the right of a person to act through his agent or to repeal section 2 of the Powers-of-Attorney Act, the section depends on their continued operation for its implementation.

Now, the rules of construction on which the appellant relies are well-established.

But then, it should not be overlooked that they are only aids to ycertain the true intention of the legislature as expressed in the statute, and the question ultimately is, what in the context do .the words of the enactment mean?

The following passage from Crawford on "The Construction of Statutes'', 1940 Edition, page 454 cited by the appellant may be usefully referred to in this connection:

"Why should a statute be subjected to a strict or a liberal construction, as the case may be? The only .answer that can possibly be correct is because the type of construction utilized gives effect to the legislative intent. Sometimes a liberal construction must be used in order to make the legislative intent effective, and sometimes. such a construction will defeat the intent of the legislature. If this is the proper conception concerning the rule of cdnstruction to be adhered to, then a strict or a liberal construction is simply a means by which the scope of a statute is extended or restricted in order to convey the legislative meaning. If this is the proper position to be accorded strict and liberal constructions, it would make no difference whether the statute involved was penal, criminal, remedial or in derogation of common right, as a distinction based upon this classification would then mean nothing".

That being the correct position, the question is whether on its true interpretation, the statute intended that an application under section 26-A should be signed by the partnel' personally, or whether it could

be signed by bis agent on his behalf. To decide that, 1956 we must ha.ve regard not only to the language of sec- Ravula Subba Rao tion 26-A but also to the character of the legislation, and another the scheme of the Act and the nature of the right v. conferred by the section. The Act is, as stated in the The Commissioner preamble, one to consolidate and amend the law rea/Income-tax, - la ting to income-tax. The rule of construction to be Madras applied to such a statute is .thus stated by Lord Venkataran•a Herschell in Bank of England v. Vagliano(1): AyyarJ. "I think the proper !JOUrse is in the first instance to examine the language of the statute, and to ask what is its natural meaning, uninfluenced by any - considerations derived from the previous.state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably "intended to leave it unaltered ........................... .

" We must therefore construe the provisions of the Indian Income-tax Act as forming a code complete in itself and exhaustive of the matters dealt with therein, and ascertain what their true scope is.

Turning then to the provisions of the Act, considerable light is thrown on their true import by the decision of this Court in Commissioner of Agricultural

Income-tax v. Keshab Chandra Mandal(9).

There, the question was as to th~ meaning of Rule 11 framed under the Bengal Agricultural Income-tax Act, 1944 read with Form No. 5, which required that the declaration in the return should be signed "in the case of an individual, by the individual himself". It was held by this Court on a review of the provisions of the statute that the intention of the legislature as expressed therein was to exclude the common law rule, qui facit per alium facit per se, and the declaration to be valid must be signed by the assessee personally. It is argued for the app.ellant that Commissioner of Agricultural Income-tax v. Keskab Chandra Mandal(9) was a decision only on the interpretation of Rule No. 11 and not on its validity, and that the question whether the rule was ultra virea or not was not in issue. That is so, but the materiality of the

(1) [1891] A.O. 107, Hl.

(9) (19llO] S.O.B. '86, 76

Ravula Subba Rao

and another

The Ccnnmissioner

of Income.tax,

Madras

Venkatarama AyyarJ.

decision to the present controversy lies in this that the interpretation which was put on Rule 11 as requiring personal signature was based on the conclusion which this Court reached on a consideration of the relevant provisions of the Bengal Agricultural Income-tax Act that the intention of the legislature was to exclude the rule of the common law on the subject. Now, the provisions of the Bengal Act which were construed in Commissioner of Agricultural Income-tax v. Keshab Chandra Mandal(') as indicative of the above intention, are identical in terms with the corresponding provisions in the Indian Income-tax Act, and are, in fact, based on them, and it would therefore be logical to construe the latter as expressing an intention to discard the rule of common law on the subject.

The relevant provisions of the Bengal. Agricultural Income-tax Act may now be noticed. Section 25(1) of the Bengal Act provides that if the Income-tax Officer is not satisfied that the return made is correct and complete, he may require the assessee by notice eit.her to attend at the Income-tax office or to produce or cause to be produced any evidence on which he might rely. This corresponds to section 23(2) of the Indian Income-tax Act.

The point to be noted with reference to this section is that it contains an express provision for production of evidence by the assessee through his agent, a provision which would have been wholly unnecessary if the common law was intended to apply. Sections 35 and 36 of the Bengal Act contain provisions as to who can represent the assessee and in what proceedings, and they follow section 61 of the Indian Income-tax Act and form a code complete in themselves. Then again, both the Bengal f\ct and the Indian Income-tax Act provide that certain provisions of the Civil Procedure Code are applicable to the proceedings under the Act. The provisions of Order 3 of the Civil Procedure Code enacting that parties may appear and act through recognised agents are not among them. To cut the discussion short, the effect of the provisions of the

(1) [1900] S.C.B. ~35.

Bengal Act is thus summarised in Commissioner of 7956 Agricultural Income-tax v. Keshab Chandra Mandal(1): R ul subb Rao

"The omission of a definition of the word 'sign' ";,,; anoth:r as including a signature by an agent, the permission v. under section 25 for production of evidence by an The Commissioner agent and under sections 35 and 58 for attendance by 01 Income-tax, h Madras an agent 8, nd the omission Of any provision in t e Act applying the provisions of the Code of Civil Provenkatarama cedure relating to the signing and verification of AyyarJ. pleadings to the signing and verification of the return while expressly adopting the provisions of that Code relating to the attendance and examination of witnesses, production of documents and issuing of commission for examination and for service of notices und~ sections 41 and 60 respectively, cannot be regarded as wholly without significance".

This reasoning applies with equal force to the provisions of the Indian Income-tax Act, and goes far to support the contention of the respondent that the common law is not intended to apply to proceedings under the Act.

Another factor material for the determination of this question is the nature of the right conferred by section 26-A. Under the common law of England, a firm is not a juristic person, the firm name being only

a compendious expression to designate the various partners constituting it. But, as pointed out by this Court in Dulichand Laxminarayan v. Commissioner of Income-tax, Nagpur(9), inroads have been made by statutes into this conception, and firms have been regarded as distinct entities for the purpose of those statutes. One of those statutes is the Indian Income- Tax Act, which treats the firm as a unit for purposes of taxation. Thus, under section 3 of the Act the charge is imposed on the total income of a firm, the partners as such being out of the picture, and accordingly under section 23 of the Act, the assessment will be on the firm on its total profits. Section 23(5) enacts an exception to this in the case of firms registered under the Act, and provides that,

"(a) ·····'the sum payable bythefirmitselfshall

(1) [1950] S.C.R. 435.

(2) A.I.R. 1956 S.C. 854.

7956 not be determined but the total income of each part- - ner of the firm, including therein his share of its in-

Ra"';,~ 8ne1:.~"0 come, profits and gains of the previous year, shall be

• "v. assessed and the sum payable by him on the basis of The Commissioner such assessment shall be determined".

01 Incometax, Thus, if a firm is registered, it ceases to be a unit for Madras b purposes of taxation and the profits earned y it are venkatarama taken, in accordance with the general law of partner- Ayyar J. ship, to have been earned by the individual partners according to their shares, and they are taxed on their individual income including their share of profits.

The advantages of this provision are obvious. The rate of tax chargeable will not. be on the higher scale provided for incomes on the higher levels but on the lower one at which the income of the individuarpartner is chargeable. Thus, registration confers on the partners a benefit to which they would not have been entitled but for section 26-A, and such a right being a creature of the statute, can be claimed only in accordance with the .statute which confers it, and a person who seeks relief under section 26-A must bring himself strictly within its terms before he can claim the benefit of it. In other words, the right is regulated solely by the terms of the statute, and it would be repugnant to the character of such a right to add to those terms by reference to other laws. The statute must be construed as exhaustive in regard to the conditions under which it can be claimed.

Thus, considering the quiistion with reference to the character of the legislation, the scheme of the statute and the nature of the right conferred by section 26-A, the conclusion is irresistible that rules of common law were not intended to be saved, and that the right to apply for registration under that section is to be determined exclusively by reference to the prescriptions laid down therein. If that is the trWl construction, in authorising the rule-making authority to frame rules as to who can apply for registration under section 26-A, and when and how, the statute has merely directed that authority to fill in details in the field of legislation occupied by it, and it is not denied that Rules 2 and 6 are within the mandate conferred

. .-

by the section. In this view, section 59(5) of the_ Act which enacts that "Rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enaced in this Act" directly applies, and the vires of the Rules is beyond question. Vide the observations of Lord Herschell in Institute of Patent Agents v. Lockwood(1).

Then, there is the contention of the appellant that the Rules in question are repugnant to section 2 of the Powers-of-Attorney Act VII of 1882, and are therefore ultra vires. In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to operate in the field occupied by section 26-A, there is a further and a more compelling reason why this contention should not be accepted. It is that there is, in fact, no conflict between the two statutory provisions. To understand the scope of section 2 of the Powers-of-

Attorney Act, it is necessary to refer to the history of this legislation. Under the common law of England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound. If the agent signs the deed in his name albeit

as agent, he is the person who is regarded as party to the document and not the principal. It is the agent alone that can enforce the deed, and it is he that will be liable on it.

Vide In re International Contract Company(2); Schack v. Antony(3), Halsbury's Laws of England, 3rd Edition, Volume 1, page 217, and Bowstead on Agency, 10th Edition, page 93. To remove the hardships resulting from this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Viet, Chapter 41) enacted section 46, which is as follows: "(l) The donee of a power of attorney may, if be thinks fit, execute_ or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be

(1) [1894) A.O. 847, 861.

12) [1871] 6 Ch. App. 626.

(8) 1 M. & 8. 673; 106 E. R. 214.

Rawla Subba Rao

and another

The Commissioner

of Income-tax, Madras

Venkatarama

Ay:varJ,

1~56 as effectual in law, to all intents, as if it had been R 1 --;-;; b R executed or done by the donee of the power in the •:;,; a;:,, t:er ao name and with the signature and seal of the donor v. thereof.

The Commissioner

(2) This section applies to powers of attorney

01 Income.tax, created by instruments executed either before or after Madras the commencement of this Act".

venkatarama The Indian Legislature immediately followed suit, Ayyar J. and enacted the Powers-of-Attorney Act VII of 1882 incorporating in section 2 therein word for word, section 46 of the English Act. The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule of the common law and the enactment is more procedural than substantive. It does not confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name. But where the question is as to the existence or the validity of authority, the section has no operation. Thus, the fields occupied by the two enactments are wholly distinct. Section 26-A says that a partner cannot delegate the exercise of his rights under that section to an agent. Section 2 of the Powers-of-Attorney Act says that if there can be and, in fact there is, delegation, it can be exercised in the manner provided therein. There is accordingly no conflict between the two sections, and no question of repeal arises.

To sum up, the Indian Income-tax Act is a selfcontained code exhaustive of the matters dealt with th'erein, and its provisions show an intention t~ depart from the common rule, qui facit per alium facit per se. Its intention again is that a firm should be given benefit of section 23(5)(a), only if it is registered under section 26-A in accordance with the conditions laid down in that section and the rules framed thereunder. And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid.

In the view which we have taken, the further question raised by the appellant that the power to repeal

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

such a power to an outside authority is unconstituv. 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

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

May9

RAVULA SUBBA RAO AND ANOTHER

THE COMMISSIONER OF INCOME-TAX,

MADRAS

S. R. DAS C.J.

BHAGWATI

Indian Income Tax Act, 1922

ss. 26

s. 69

s. 26A

Indian Income Tax Act, 1922

s. 59

s. 26

s. 59

s. 26

s. 26

s. 96

s. 23(5)(a)

s. 26

Ravula Subba Rao

May9

Ravula Subba Rao

and another

The Comtnissiontf'

of Income.tax,
Madras

CIVIL APPELLATE JURISDICTION: Nos.

Madras High Court

K. S. Krishnaswami Iyengar

K. R. Ohoudhry

N. Joshi

P. -G. Gokhale

VENKATARAMA AYYAR

Subba Rao

Hariprasada Rao

section 26

section 59

section 26

section 66(1)

High Court of Madras

Ra'Vula Subba Rao

Hariprasada The Commissioner Rao

section 59

Income-tax Act

section 26

Income-tax Act

Sa.tyana.ra.yana Rao

Viswanatha Sastry

Satyanarayana Rao

Ravula Subba Rao

section 66

Income-tax Act

K. S. Krishnaswami Ayyangar

England

section 2

Attorney Act VII of 1882

Ravida Subba Rao

Madras

Section 26

section 2

Powers-of-Attorney Act

section 2

section 26

section 26

section 26

section 2

Powers-of-Attorney Act

section 26

Rattula Subba Rao

Indian Contract Act, 1872

Ayyar

Stirling

Blackburn

section 26

Section 26

Ravula Subba Rao

section 2

Powers-of-Attorney Act

Vide Maxwell

Bowen

Farwell

A. L. Smith

section 26

section 2

Powers-of-Attorney Act

Crawford

section 26

Venkataran•a Herschell

Ccnnmissioner

of Income.tax,

Madras

Venkatarama AyyarJ.

Income-tax Act

Income-tax Act

Agricultural Income-tax Act

Section 25(1)

section 23(2)

Income-tax Act

Sections 35 and 36

section 61

Income-tax Act

Income-tax Act

section 25

sections 35 and 58

sections 41 and 60

Income-tax Act

section 26

section 3

section 23

Section 23(5)

section 26

section 26

section 26

section 26

section 59(5)

Herschell

section 2

Attorney Act VII of 1882

section 26

section 2

Bowstead

section 46

Rawla Subba Rao

venkatarama

Attorney Act VII of 1882

section 2

section 46

Section 26

Section 2

Powers-of-Attorney Act

Income-tax Act

section 23(5)(a)

section 26

SHIRINBAI MANECKSHA

NARGACEBAI J. MOTISHAW

BHAGWA'l'I

S. K. DAS

Validity of- I ndian Succession Act

ss. 67, 129, 180

Shirinbai

Shirinbai Maneckshaw Bejonji Mistry

Shirinbai

Shirinba.i

s. 67

Indian Succession Act

s. 67

Indian Succession Act

Shiriu


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

such a power to an outside authority is unconstituv. 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

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

May9

Mt's, Shirinba$

ManeckshllW

and others

y, Nargacebai J, Moti1hau1

anti others

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 presumive heirs of Mrs. Shirinbai when the testator died, would take effect although it must fail so far as herexecutors 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, 9 to 13 and 15.

I. N. Shroff for respondent No. 16.

1956.

May 9.

The Judgment of the Court was delivered by

DAS C. J.-This is an appeal from the judgment and decree of the High Court of Judicature at Allahabad dated the 30th July 1951 reversing the judgment and decree of the Additional Civil Judge of

Allahabad dated tl, ie 8th March 1943 passed in Suit No. 27 of 1940. The relevant facts are as follows:

One Cawashaw Dadabhoy Motishaw, a Parsi, (hereinafter referred to as the testato~) died at Allahabad on the 10th November 1937 leaving him surviving a step-brother (Plaintiff No. 1) now represented by his widow and children, being Respondents Nos. 1 to 8, a step-sister's son (originally Defendant No. 4, subsequently transposed as Plaintiff No. 2) now represented by Respondents Nos. 9 to 12, a stepbro.ther's son (Defendant No. 2) now represented by Respondents Nos. 13 and 14, a step-sister (Defendant No. 3) now Respondent No. 15 and a step-sister's daughter (Defendant No. 5) now Respondent No. 16.

He is said to have left considerable properties which he acquired in or near Allahabad. Prior to his death the testator had on the 11th March 1922 executed a holograph "will in the following terms:--

"This is the last Will and testament of Mr.

Cawashaw Dadabhoy Motishaw, residing 20, Canning

Road, Allahabad.

I hereby give, devise and bequeath to my so called mother named Mrs. Shirinbai Maneckshaw Bejonji Mistri, wife of Maneckshaw Bejonji Mistri alias Photographer residing 20 Canning Road, Allahabad, 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 executrix of this my Will. Mrs. Shirinbai, the wife of Mr. Maneckshaw Bejonji Mistry, residing 20, Canning Road, Allahabad, is my adopted mother by my own willandaccord and for which no one in the worldhas the right to dispute about he, calling my own mother.

This will has been made and written by myself with all my full mind with good heart and disposition and in sound state of my body and mind. In witness thereof I have hereunto set my hand this 11th day of March one thousand nine hundred and twenty two (1922)".

Mrs. Shirilibai

Maneckshaw

and others v.

Nargacebai J. Motishaw and others

Das C.J.

Mrs. Shirinbai

Maneckshaw

ana others

Nat'gacebai J. Motishaw

and others

Das C.J.

There were two attesting witnesses to the will, namely, B. Hirji and M. B. Mistry who was the husband of Mrs. Shirinbai (Defendant No. 1). Shirinbai applied for and on the 18th August 1939 obtained probate of the said will from the High Court of Judicature at Allahabad and tookpossessionoftheestate.

On the 13th April 1940 the testator's step-brother (Plaintiff No. 1) filed a suit, being 0. S. No. 27 of 1940, in the Court of the Civil Judge of Allahabad against Shirinbai praying for a declaration that the bequest in favour of Shirinbai was void in law, and that tliere was an intestacy in respect of the whofo estate of the testator which became divisible amongst the heirs oJ the testator, for an enquiry as to who were the heirs of the testator aceording to the personal law applicable to Parsis, for administration of the estate by and under the direction of the Court and for necessary accounts and enquiries. The contention of the plaintiff was that the bequest to Shirinbai was void under section 67 of the Indian Succession Act. Certain other persons who also claimed to be the heirs of the testator were impleaded as pro forma defendants Nos. 2, 3 and 4.

Defendant No. 4

wa~ later on transposed to the category of plain tiffs as plaintiff No. 2.

Shirinbai, defendant No. 1, filed a written statement denying that the plaintiffs or the proforma defendants were the legal heirs of the testator and pleaded inter alia that the provisions of section 67 of the Indian Succession Act were not applicable to the facts and circumstances of the case and that in any case her heirs were under the will made the direct objects of a distinct and independent bequest and that consequently there was no intestacy and the plaintiffs had no locus standi to maintain the suit. Subsequently the two daughters of Shirinbai were, on their own application, ordered on the 23rd September 1940 to be added as defendants Nos. 5and 6.

A separate written statement was filed on behalf of those added defendants on the same lines as that of their mother. The proforma defendants naturally supported the plaintiffs and the suit was contested only by Shirinbai and her two daughters.

The following issues, amongst others, were raised and settled, namely,

"I) Is the bequest made in favour of Mrs. Mistry void in law?

II) Is the defendant No. 1 the universal legatee under the will or are the other defendants, viz. Mrs.

Patel and Mrs. Chinimini also legatees under the will?

III) Are the plaintiffs Nos. 1 and 2 or defendants L. J. D. l\Iotishaw, Mrs. A. K. Capoor, and Mrs.

H. S. N. Talati heirs of the deceased Mr. C. D. Motishaw and are they entitled to succeed to the property left by the deceased?

IV) Is theclaim barred by section 27 of the Indian Succession Act?" The Additional Civil Judge of Allahabad who tried the suit recorded the following findings:- . "I) That the bequest in favour of defendant No. 1 was without any limitation and conferred an absolute estate on her and there was no gift over to her heirs.

II) That the husband of defendant No. 1, namely Mr. M. B. Mistry having attested the will, the bequest made to her was void in view of the provisions of section 67 of the Indian Succession Act. III) That under the law of succession applicable to Parsis, namely section 56 of the Indian Succession Act read with Schedule II, Part 2, the plaintiffs were not the heirs of the deceased and were not entitled to maintain the suit".

As upon the aforesaid findings the plaintiffs failed to establish their title as heirs of the testator the suit was held to be not maintainable at their instance and was accordingly dismissed with costs.

The plaintiffs appealed from the judgment and decree of the Additional Civil Judge to the High Court of Judicature at Allahabad. By its judgment and decree dated the 30th July 1951 the High Court agreed with findings 1 and 2 of the trial court but held that the plaintiffs and the proforma defendants were the heirs of the testator under the law of succession applicable to Parsis as laid down in section 56 of

Mrs. Shirinbai

Maneckshaw

and others

Nargacebai J. Motisharv

and others

Das C.j.

Mrs. Shif'inbai

Maneckshaw

and others v.

Nargacebai J. Motishaw

and others

Das C.J.

the Indian Succession Act read with Part 2 of Schedule II thereto. The result was that the High Court allowed the appeal and decreed the suit but directed the costs of the parties in both Courts to be paid out of the estate of the testator. On the 13th February 1953 on the application of Shirinbai and her two daughters (Defendants Nos. 1, 5 and 6) the High Court granted a certificate under section 110, C. P. C. and article 133 of the Constitution. Hence the present appeal which has come up before us for hearing.

Shri S. K. Dar appearing in support of the appeal has not questioned the propriety of the High Court's decision that the bequest in favour of Shirinbai is void in law or that the plaintiffs and the proforma defendants supporting them are the heirs of the testator under the law of intestate succession applicable to Parsis but he has rested his whole argument on one point, namely, that even if the bequest to Shirinbai is void under section 67 of the Indian Succession Act, the entire will does not fail and no intestacy intervenes because on a true construction of the will there is a substitutional bequest in favour of the heirs, executors and administrators of Shirinbai. He draws our attention to the terms on which the bequest is made. He frankly concedes that if the first sentence of the bequest stopped with the words "her heirs, executors and administrators" and those words had not been followed by the words "for her and their own use and benefit, absolutely and forever" then it might have been said that the words "her heirs, executors and administrators" were words of limitation conferring an absolute estate on her; but those words are followed immediately by the words "for her and their own use and benefit, absolutely and forever" which completely alter the position.

Says learned counsel that the relevant words used in the will for making the bequest under consideration should be read distributively, viz. "I hereby give, devise and bequeath to my so called mother named Mrs. Shirinbai Maneckshaw Bejonji Mistri .................. .. for her own use and benefit absolutely and forever and to her heirs, executors and administrators for

their own use and benefit absolutely and forever".

So read it becomes immediately apparent that the words "her heirs, executors and administrators" can have no reference to the estate given to Shirinbai and cannot be regarded as words of limitation of Shirinbai's estate but are clearly words of purchase indicating that they are the direct objects of the testator's bounty and that an estate is given to them for their own use and benefit, absolutely and forever.

The testator having given the estate to Shirinbai for her own use and benefit absolutely and forever, it was not necessary for him to use the words "her heirs, executors and administrators" as words of limitation in order to confer an absolute estate on her.

The testat.or, it is said, knew that there was a possibility of Shirinbai dying before his own death and the bequest in her favour lapsing and evidently did not intend that his estate should pass as on intestacy to his step-brothers and step-sisters.

Indeed he made this will to prevent that possibility and to effectively secure that object he made a double bequest, one in favour of Shirinbai for her own use and benefit absolutely and forever and the other, to her heirs, fXecutors and administrators for their own use and benefit absolutely and forever.

The two bequests were evidently successive and the bequest to the heirs, executors and administrators was to take effect on the failure of the bequest to Shirinbai. The two bequests, it is said, were mutually exclusive and independent of each other and even if the bequest to Shirinbai failed under section 67 of the Indian Succession Act by reason of her husband M. B. Mistry having attested the will, the other bequest to 'her heirs, executors and administrators for their own use and benefit absolutely and forever' must take effect under section 129 of the Indian Succession Act.

Learned counsel for the respondents strenuously oppose this construction of the bequest and maintain that there was only one bequest to Shirinbai of an absolute estate and there was no alternative or substitutional bequest to her heirs, executors and administrators as independent objects of the testator's bounty.

In any event

Mrs. Shirinbai

Maneckshaw and others v.

Nargacebai J. Motishaw

and others

Das C.J.

Mrs. Shirinbai

!t-Ianeckshaw

and others v.

Nargacebai J. Motishatv and others

Das C.j.

they contend that the case should rath'er be governed by section 130 than by section 129 of the Indian Succession Act.

The applicability of either section 129 or section 130 of the Indian Succession Act will depend upon whether there is in the will a substitutional bequest which is to take effect on the failure of a prior bequest.

If there is no substitutional bequest then neither of the two sections can come into play. Our task is, therefore, to construe the will and ascertain whether there is a single bequest in favour of Shirinbai as contended by the respondents or there is also a substitutional bequest to take effect on the failure of the bequest to Shirinbai as contended by learned counsel for the appellants.

In construing the will we have to bear in mind the rules of construction embodied in the Indian Succession Act, namely that the will should be read as a whole and all its parts are to be construed with reference to each other (section 82), that if a clause is susceptible of two meanings according to one of which it has some effect and according to the other of which it can have none, the former is to be .preferred (section Sil) and finally that no part of the will is to be rejected as destitute of meaning if it is possible to put a reasonable construction upon it (section 85). In construing a will we are not fettered by the technical rules of English law founded on the difference between realty and personalty. Our duty is to ascertain the true intention of the testator from the language used y him, regard being had to all the surrounding circumstances.

The will is a holograph will written by the testator himself.

He was a person who had settled down in Allahabad where he was carrying on business and had acqnired his properties. There is no evidence that he maintained any connection with his step-brothers and step-sisters. As will appear from the will itself, the testator regarded Shirinbai as his mother. It also appears from the will that Shirinbai with her husband was residing at 20, Canning Road, Allahabad, where the testator himself was also residing. The bequest

to her was immediately followed by the words "her heirs, executors and administrators". According to Jarman, 8th edition, volume 2page1304, an intention to create a substitutional gift can be inferred when the gift is to a person "or" his issue, children, etc. or sometimes to a person "and" his issue, children, etc.

In this case neither of the two conjunctions appears in the will before the words "her heirs, executors and administrators". But this does not conclude the matter, for the words following, viz. "fo'r her and their own use and benefit" are clearly indicative of an intention to create a substitutional bequest. The primary intention of the testator was evidently to benefit Shirinbai but it is quite likely, in view of the language used by him, that he had in view the possibility of her predeceasing him and the bequest to her lapsing and the estate passing to his step relations as on intestacy. The language used by the testator unmistakably evinces an intention on his part to prevent that contingency and he accordingly made a provision for her heirs, executors and administrators as independent objects of a substitutional bequest. If it is to be assumed that the testator was familiar with the niceties of English law that in a bequest to a person the addition of the words "her heirs, executorsand administrators" would only be regarded as words of limitation conferring an absolute estate on that person, then it is not intelligible why he should a.gain use the words "absolutely and forever".

Further, if the intention of the testator was to use the words "her heirs, executors and administrators" as words of limitation, then it is not understandable why he should have used the words "for her and their own use and benefit". The provision for the "own use and benefit" of "her heirs, executors and administrators" is only compatible with an intention of making a bequest in favour of her heirs, executors and administrators. If there was to be no dfrect gift to her heirs, executors and administrators, then the question of "their own use and benefit" was wholly out of place. If the intention of the testator was only to give an absolute estate to Shirinbai and that

Mrs. Shirinbai

Maneckshaw and others

Nargacibai J. Motishaw and others

Das C.J.

l'vlrs. Shirinbai

Maneckshaw and others v.

Nargacebai J. Motishaw and others

Das C.J •.

her heirs, executors and administrators were only to claim through her and not independently of her, then the death of Shirinbai during the life-time of the testator would have defeated his object, namely, to benefit Shirinbai absolutely. If, therefore, we are to give effect to the words "for her and their own use and benefit", as we must according to the rule of construction embodied in the Succession Act to which reference has been made, there can be no getting away from the fact, apparent on the language of the will, that the testator intended to provide for the contingency of the bequest to Shirinbai failing by reason of her death in the life-time of the testator by making a substitutional bequest in favour of her heirs, executors and administrators. In In re Mcelligott(') a testator, who died in 1941,, directed by his will that his residuary estate which consisted only of personal estate be given to his wife "and her heirs for her and their use and benefit absolutely and forever". It was held by a single Judge that neither the rule in Shelley's case nor section 131 of the Law of Property Act, 1925, which abolished that rule, had any application to the bequest and that the widow was entitled to an absolute interest in the residuary estate of the testator. We are, of course, not concerned either with the rule in Shelley's case or with the provisions of the English Law of Property Act, 1925, but the decision may be said to be against the contention of learned counsel for the appellant, for at the end of his judgment Vaisey, J. said that the super-added words "for her and their use and .benefit absolutely and forever" did not in his view make any difference or throw any light on the matter. There is no reason given why no effect should be given to those words and no reference is made to any decided case and the observation of the learned Judge is no more than a bald statement of his view unsupported by any reason or judicial decision. It runs counter to the rule of construction embodied in section 85 of the Indian Succession Act. In our view .these words, on the facts of this case, cannot be ignored and they

(1) L.R. [1944] Chancery 216.

' >

clearly indicate the intention of the testator as mentioned above.

It is also argued that if the intention of the testator was to make a direct gift to the heirs, executors and administrators, then difficulties may arise. Supposti, it is said, that Shirinbai died leaving heirs and at the same time after having made a will of her own appointing somebody other than an heir as her executor. Who will be the recipient of the gift-the heirs or the executor? On the happening of the contingency thus contemplated, serious questions of construction may arise as to whether the heirs and the executor are to take successively or jointly. But that difficulty can have no bearing on the construction to be put upon the language used by the testator. On a fair and plain reading of the will as a whole and in view of the language used towards the end of the will about no one in the world having the right to dispute about his calling Shirinbai as his own mother, we are of opinion that the testator intended to make a bequest first to Shirinbai for her own use and benefit absolutely and forever and on failure of that bequest, to make a bequest to her heirs, executors and administrators for their own use and benefit absolutely and forever. ,

There being thus a substitutional bequestin favour of the heirs, executors and l!-dministrators the question arises whether section 129 or section 130 of the Indian Succession Act will apply. It may well be that the testator had in his contemplation the possibility of Shirinbai predeceasing him and he was, therefore, making a substitutional gift.

Nevertheless, the bequest ex facie and in terms does not show an intention that the second bequest was to take effect only in the event of the first bequest failing in a particular manner, namely, the <lea.th of Shirinbai before the death of the testator, as the will in the illustration to section 130 did and consequently section 130 cannot apply to this bequest. In the circumstances section 129 comes into play and although the bequest to Shirinbai became void under section 67 of the Indian Succession Act and did not

Mrs. Shirinbai

Maneckshaw

and others v.

Nargacebai J, Motishaw

and others

DasC.J,

Mrs. Shirinbai

Maneckshaw

and others

N argacebai.

J, Motishat<J

and others

Das C, J,

fail in the manner which was perhaps in the contemplation of the testator the substitutional bequest must take effect.

It is pointed out that Shirinbai being alive at the time of testator's death, there can be no person answering the description of her heirs, executors and administrators and therefore the substitutional gift cannot take effect. This argument is unanswerable in so far as the executors and administrators are concerned but in many cases the word "heirs" has been used in a lax way to comprise persons who may be said to be heirs presumptive at a particular point of time which in this case was the death of the testator.

In cases of a direct gift to the heir where the ancestor is living, since no one can be the heir of a living person, the technical meaning may be displaced and the person who is heir presumptive at the relevant time may be so designated (see Hals bury, Vol. 34, Art. 358, page 309). There is no dispute that at the death of the testator Shirinbai had two daughters. The fact that the bequest to the executors and administrators cannot take effect is no ground for holding that the bequest to the heirs of Shirinbai must also fall with it.

In our view there was a substitutional bequest and although the bequest to Shirinbai failed by reason of the provisions of section 67 of the Indian Succession Act, those who were her presumptive heirs at the date of the testator's death are entitled to take under this will and consequently there was no intestacy and the plaintiffs had no right whatever to maintain the suit. We accordingly allow this appeal, set aside the decrees of the lower Courts and dismiss the suit. In the peculiar circumstances of this case however we order that the costs of all the parties here as well as in the Courts below will come out of the estate,

' -

Madras

MRS. SHIRINBAI MANECKSHA W & OTHERS

NARGACEBAI J. MOTISHAW & OTHERS

S. R. DAS C.J.

Validity of- I ndian Succession Act

ss. 67, 129, 180

Shirinbai

Shirinbai Maneckshaw Bejonji Mistry

Shirinbai

Shirinba.i

s. 67

Indian Succession Act

s. 67

Indian Succession Act

Shiriu

s. 67

s. 130

Indian Succession Act

s. 129

K. Dar

P.

Lal

S. P. Sinha

R. Patnaik

I. N. Shroff

DAS C.

Cawashaw Dadabhoy Motishaw

Allahabad

11th March 1922

Shirinbai Maneckshaw Bejonji Mistri

Maneckshaw Bejonji Mistry

Shirilibai

Nargacebai J. Motishaw

Shirinbai

Maneckshaw

Nat'gacebai J. Motishaw

B. Hirji

M. B. Mistry

13th April 1940

Civil Judge of Allahabad

section 67

Indian Succession Act

Shirinbai

section 67

Indian Succession Act

23rd September 1940

Mistry

Patel

Chinimini

L. J. D. l\Iotishaw

A. K. Capoor

H. S. N. Talati

C. D. Motishaw

section 27

Indian Succession Act

Additional Civil Judge of Allahabad

M. B. Mistry

section 67

Indian Succession Act

section 56

Indian Succession Act

Schedule II

High Court of Judicature at Allahabad

30th July 1951

section 56

Shirinbai

Maneckshaw

Nargacebai J. Motisharv

Shif'inbai

Indian Succession Act

Schedule II

section 110

article 133

S. K. Dar

section 67

Indian Succession Act

section 67

Indian Succession Act

section 129

Indian Succession Act

Shirinbai

Maneckshaw

Nargacebai J. Motishatv

section 130

section 129

Indian Succession Act

section 129

section 130

Indian Succession Act

Indian Succession Act

section 82

section 85

Jarman

Nargacibai J. Motishaw

Das C.J

Mcelligott

section 131

Law of Property Act, 1925

Shelley

English Law of Property Act, 1925

Vaisey

section 85

Indian Succession Act

section 129

section 130

Indian Succession Act

section 130

section 130

section 129

section 67

Indian Succession Act

Nargacebai

Das C

Art. 358

section 67

Indian Succession Act