Sejal Makkad | Amity Law School, Amity University Chhattisgarh | 1st June 2020
SOPHER V ADMINISTRATOR GENERAL OF BENGAL- (1943-44) 7I IA 93
Facts:
The testator of the property gave instructions to his trustees that his property must be divided into equal shares of number of his sons and grandsons. The income arising out of that property will be paid to his sons and to his grandsons in the following circumstances. The grandsons must attain the age of 18 years and must survive their fathers.
The grandsons will also be entitled to the property if they survive the mentioned conditions
Issue:
- Whether the bequest was void or not?
- Whether it will fall under exceptions of Section 120 of Succession Act?
Provisions:
- Section 113, Succession Act- Bequest to a person by the testator not in existence at the time of testator’s death subject to prior bequest
- Section 120, Succession Act (Exception)
Judgement-
The privy Council in the case held that the bequest to the grandsons was void as they have to survive double contingencies. One, they have to attain the age of 18 years, Second, they have to survive their fathers. The bequest must have been valid if either of the contingency existed.
The other issue about the exception of Section 120 in regard to which the Privy Council held that the present condition will not fall under the exceptions provided in section 120 of the Succession Act. The exception does not mention anything about the contingency of a grandson surviving his father.
Analysis:
The bequest to be held valid must follow the conditions provided in the provisions and the bequest must always be followed by a single contingency. In the present case, the bequest to grandsons must have only been followed by the condition that they attain the age of majority. It is not possible that the sons always survive the father and this will take away their rights from the property. Therefore, the bequest whenever made must be of such a condition which is nearest possible for a person.
Leave a Reply