Wakilii

Sidhwa v Mehta and Others (C.A. 29-193.3.)

East African Court of Appeal · [1937] EACA 38 · 1937 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from judgment of Chief Justice of Kenya on originating summons concerning construction of will
Decision
Gifts to Rustomji's children and Mobed's children declared void; Rustomji entitled to residuary estate

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the gifts to Rustomji's children and Mobed's children were gifts of income only, following upon a prior bequest to classes of persons some of whom might be born after the testator's death. The gifts were therefore void in their entirety under sections 100 and 102 of the Indian Succession Act 1865. The gifts could not be construed as limited to those children living at the testator's death so as to prevent the operation of those sections. The appeal was allowed and the cross-appeal dismissed.

Outcome

Gifts to Rustomji's children and Mobed's children declared void; Rustomji entitled to residuary estate

Facts

The testator, a Parsee named Kersasji Khursedji Sidhwa, died in 1931. His will directed that a plot of land in Nairobi with a building be held in trust by his four executors. The rent or interest from the property was to be divided: one-half to his son Rustomji and one-half to his nephew Mobed. The will provided that after Mobed's death, his share should be paid to his children, and after Rustomji's death, his share should be paid in equal shares to Rustomji's children during their lifetime. At the testator's death, Rustomji had two children living and Mobed had five, all minors. Rustomji took out an originating summons seeking a declaration that the gifts to the children were void under section 100 of the Indian Succession Act 1865. The trial judge held that the gifts referred to children alive at the testator's death and were therefore valid.

Issues

  1. Whether the gifts to Rustomji's children and Mobed's children were gifts of income only or gifts of both capital and income.
  2. Whether the gifts to the children referred to all children or only those living at the testator's death.
  3. Whether the gifts to the children were void under sections 100 and 102 of the Indian Succession Act 1865 as offending the rule against remoteness.

Orders

  • Appeal allowed.
  • Cross-appeal dismissed.
  • Costs of the appeal and cross-appeal to be paid out of the portion of the estate forming the subject-matter of the appeal.

Rules and key headnotes

Succession & Estates — Wills — Bequest to a Class — Remoteness — Indian Succession Act 1865 ss.100 and 102
A bequest to a class of persons, some of whom may not be in existence at the testator's death, which is subject to a prior bequest and comprises only a life interest and not the whole remaining interest of the testator, is void in its entirety under sections 100 and 102 of the Indian Succession Act 1865.
Succession & Estates — Wills — Class Gifts — Construction — Whether Limited to Persons Living at Testator's Death
Where a will makes a gift to the children of a named person without express limitation, the gift embraces not only children living at the testator's death but all who subsequently come into existence before the period of distribution, unless the context or rules of construction require otherwise.
Statutory Interpretation — Indian Succession Act 1865 s.102 — Effect of Partial Invalidity on Class Gift
Section 102 of the Indian Succession Act 1865 provides that if a bequest to a class is inoperative as to some members by reason of sections 100 or 101, the bequest is wholly void. This provision cannot be circumvented by judicial construction limiting the class to those capable of taking.
Succession & Estates — Costs — Costs of Appeal Relating to Specific Property
Where an appeal relates to one piece of property only, that property should bear the costs of the appeal and the costs in the court below.

Legislation cited (7)

  • Indian Succession Act 1865 s.98
  • Indian Succession Act 1865 s.100
  • Indian Succession Act 1865 s.101
  • Indian Succession Act 1865 s.102
  • Indian Succession Act 1865 s.60
  • Indian Succession Act 1865 s.64
  • Indian Succession Act 1865 s.73

Cases cited (19)

  • Pearks v Moseley (1880) 5 AC 714
  • Andrews v Partington (1791) 29 ER 611
  • Leake v Robinson (1817) 35 ER 979
  • In re, Mervin (1891), 3 Sh. 302
  • Elliot v Elliot (1839) 59 ER 1137
  • Re Coppard's Estate (1887) 35 Ch D 350
  • In Re Wenmoth's Estate (1887) 37 Ch D 270
  • Coleman v Jarrow (1877) 46 LJ Ch 34
  • Ramlal Sett v. Kanailal Sett, 12 Cal. 663
  • Rai Bishen Chand v Mussumat Asmaida Koer (1884) LR 11 IA 164
  • Tribhwandas v.- Gang ara, 18 Bom. 7
  • Patching v Barnett (1882) 51 LJ Ch 74
  • In Re Middleton (1881) 19 Ch D 552
  • In Re Roper (1890) 45 Ch D 126
  • In Re Betts [1907] 2 Ch 149
  • Jenower v Jenower (1810) 32 ER 966
  • Farrow v Austin (1881) 18 Ch D 58
  • In re Buckton [1907] 2 Ch 406
  • In re Coleman and Jarrow (1877) 46 LJ Ch 33

Full judgment

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Sidhwa v Mehta and Others (C.A. 29-193.3.) [1937] EACA 38 (1 January 1937)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.