Decided on December 22,1955

THRESIA Appellant


- (1.) This petition has been referred to us by a Division Bench (Vithayathil, J., and Kumara Pillai, J.,) before whom it came on in the first instance, under the following order of reference: This is a petition under S.302 of the Indian Succession Act. The petitioner is the sister of late Dr. C.L. Joseph who was a Civil Surgeon in the Cochin Service. He died on 11.4.1953. Respondents Nos. 2 and 3 are also his sisters and respondent No. 1 is his brother. Dr. Josephs wife predeceased him and he has no issues. By his will dated 26.3.1953 he created a trust, known as Dr. C.L. Charities. He bequeathed most of his assets to that trust and appointed the fourth respondent executor of the will and sole trustee of the Charities. He also bequeathed Rs. 10,000/- to the fifth respondent - Convent on certain terms and Rs. 1,000/- to persons who were in his service. The net income from the assets was directed to be utilised for the following purposes: a) 5 per cent to be added to the corpus, b) a scholarship of Rs. 75 - per mensem to be given to a deserving lady student of the Trivandrum Medical College, c) 25 per cent of the balance income to be distributed among lepers, d) 25 per cent of the remaining income to be given as scholarships to deserving student for education up to the School Final Class and e) the balance income to be given to the destitute and the poor. There were also some specific legacies regarding the right of occupancy of a building and an investment of Rs. 30,000/- the deceased had made and the right to use a projector. The petitioners case is that the beqests in the will for charitable purposes infringe the provisions of S.118 of the Indian Succession Act and are, therefore, void. S.118 is to the following effect:- No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable use, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons. The fourth respondent applied for probate of the will to the Anjikaimal District Court on 16.6.1953 and probate was granted to him. The petitioner was not a party to the probate proceedings. The petitioner prays that the fourth respondent be directed not to give effect to the bequests for charitable purposes mentioned in the will and to distribute as much of the estate as remains after satisfying the valid bequests to the petitioner and to respondents Nos. 1 to 3 who are the heirs-at-law of the deceased. 2. Notice of the petition was given to the Advocate General also. Respondents Nos. 1 to 3 support the petition. The fourth respondent alone opposes it. His main objection is that the petition does not come within the scope of S.302 of the Indian Succession Act, that the petitioner was bound to raise the objection in the Probate proceedings and that her remedy, if any, is a fresh suit. On the merits of the petition, it was contended thus: The deceased had executed a will on 28.1.1952. He also executed two codicils, one on 26.2.1953 and the other on 28.2.1953. According to the fourth respondent the will dated 26.3.1953 is only a re-publication of the will dated 28.1.1952. It was, therefore, contended that the period of one year mentioned in S.118 of the Indian Succession Act should be calculated from the date of the first will, viz., 28.1.1952. 3. S.302 of the Indian Succession Act provides: Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof. According to the fourth respondent, a direction for not giving effect to the bequests in the will in favour of charities will in effect cancel the will itself and that a direction of that nature is not contemplated by the section. According to the petitioner, there is nothing in the section to restrict, the power of the High Court to give direction to the executor not to give effect to an invalid provision in the will. Reliance was placed by him on a decision of the Madras High Court reported AIR 1928 Mad. 356 (Akkayya v. Lakshamma). 4. The question is of considerable importance and there is no decision of this Court relating to the matter. We, therefore, think it desirable that this question and the other questions raised in the O.P. are considered by a Full Bench of this Court. We, therefore, refer this O.P. to a Full Bench.
(2.) The positions respectively taken by the petitioner as representing the next of kin who will succeed to the estate as on intestacy on failure of the bequest for charities on the one side and by the executor probate-holder who had been constituted the sole trustee of the Charities, on the other, are succinctly stated in the order of reference and we do not therefore re-state them. To appreciate the further elucidation of their stand before us and also the fresh position contended for by the learned Advocate General as representing the Charitable bequests impugned, the following further facts may conveniently be stated before we proceed further.
(3.) The first will executed by the deceased on 29.1.1952 had like the second will of 26.3.1953 been deposited with the District Registrar on 31.3.1952 in view of S.118 of the Succession Act. It had also not been withdrawn from the deposit when the second will was made and deposited and indeed continued in the custody of the Registrar, until production before us by him on our requisition. The two codicils of 26.2.1953 and 28.2.1953 however were at all material times after their execution, with the testator until on his death they came into the possession of the executor who produced them before us. We have marked these two codicils and the first will as Exts. I to III.;

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