Decided on August 28,1944

Vasudevan By Guardian A.M. Kutti Sankaran Alias Chinna Kuttan Nair And Ors. Respondents


Leach, C.J. - (1.) THE appellant filed a suit in the Court of the Subordinate Judge of Ottapalam for partition and possession of the properties left jointly to her and her brother under the will of their grandfather, Ravunni Panikker, who died on 3rd December 1938. The Subordinate Judge dismissed the suit on the ground that her claim was premature. The appeal is against that decision. Ravunni Panikker had three sons and a daughter. His eldest son is defendant 2, who is the father of the plaintiff and defendant 1. The testator left certain properties to his sons and daughter, and other properties to the son and daughter of defendant 2. The will provided that the properties left to the plaintiff and defendant 1 should remain in the possession and management of their father during their minority and then they were to be handed over to them jointly. After the plaintiff became of age she filed this suit. Her brother was then and still is a minor. Three preliminary issues were framed, two of which were decided in favour of the plaintiff. Issue 3 was whether the suit was premature and that it was premature was streneously argued on behalf of the father. The Subordinate Judge held that it was premature. He was of the opinion that Section 117, Succession Act, which allows the accumulation of income provided that the period is not longer than 18 years had bearing. We fail to see what application this section has here. The plaintiff received an absolute interest in one half of the properties left by the testator to her and her brother, and on her attaining majority she was entitled to be put in possession of her share.
(2.) IN Husenbhoy v. Ahmedbhoy, (1902) 26 Bom. 319 the Bombay High Court held that where property is left to a person absolutely and the will directs that it should not be handed over to a legatee until he has attained a certain age beyond majority the direction must be ignored, unless the will confers an interest in the property upon some other person for the intervening period. If it does not, the legatee is entitled on attaining majority to be placed in possession of his legacy. This principle was laid down in Gosling v. Gosling, (1859) 123 R.H. 107. It was also applied by the Calcutta High Court in Lloyd v. Weble, (1997) 24 Cal. 4.4. We hold that that principle governs this case and that the Subordinate Judge was wrong in declaring the plaintiff's suit to be premature. Defendant 1 is represented by a guardian -ad -litem appointed by the Court. The guardian -ad -litem supports the appeal. The opposition only conies from the father and it follows from what we have said that we consider that his objection is unsustainable. The appeal is allowed and the suit remanded to the trial Court to hear and determine the other issues according to law. The appellant and respondent 1 are entitled to their costs (one set each) which will be paid by the father. The costs of the trial Court will abide the further hearing.;

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