Report No. 110
IX. Rules of Construction
16.38. Section 99-Construction of terms.-
Section 99 contains nine rules of construction of wills. These are as follows:-
"99. (a) The word "children" applies only to lineal descendants in the first degree of the person whose "children" are spoken of; (Thus, remoter descendants are excluded)
(b) the word "grand-children" applies only to lineal descendants in the second degree of the person whose "grand-children" are spoken of;
(c) the words "nephews" and "nieces" apply only to children of brother or sister;
(d) the words "cousins" or "first cousins" or "cousins-german" apply only to children of brothers or of sisters of the father or mother of the person whose "cousins" or "first cousins" or "cousins-german" are spoken of;
(e) the words "first cousins once removed" apply only to children of cousin-german, or to cousin-german of a parent of (he person whose "first cousins once removed" are spoken of;
(f) the words "second cousins" apply only to grand-children of brothers or of sisters of the grandfather or grandmother of the persons whose "second cousins" are spoken of;
(g) the words "issue" and "descendants" apply to all lineal descendants whatever of the person whose "issue" or "descendants" are spoken of; (Thus remote descendants are included-contrast clause (a);
(h) words expressive of collateral relationship apply alike to relative of full and half-blood; and
(i) all words expressive of relationship apply to a child in the womb who is afterwards born alive."
16.39. Need for excluding contrary intention.-
The various rules in section 99 are stated in categorical terms, but not much argument is needed to show that they should be applied only where there is no different intention disclosed by a will. We are of the view that this aspect should be brought out by explicit words to he introduced in the section. For this reason, it appears to be desirable to insert, at an appropriate place in the section, some such words as "in the absence of any intention to the contrary".1
1. See para. 16.46, infra.
16.40. Section 99(a)-meaning of "child".-
That the section is subject to a different intention could be illustrated from clause (a). While the words1 'child' or 'children' dealt with in clause (a) primarily mean only "issue in the first generation", to the exclusion of grand-children or remote descendants,2 yet the context may show that these words have been used for 'descendants' (or for something else) and so they would sometimes receive another construction than the ordinary one.3-4
1. See cases cited in Stroud Judicial Dictionary, (1971) Vol. 1, pp. 454.
2. Bowen v. Lowis, 54 LJQB CB: 9 Appeal Cases 890 (Lord Blackburn).
3. Norgan v. Thomas, 51 LJQB 556 (Also see para. 16.42, infra).
4. Hardy v. Mitford, 21 Ren 280.
16.41. Meaning of "Children" in general.-
The legal construction of the word 'children' is nothing more than what it is popularly understood to mean, namely, as designating the immediate offspring of a marriage-unless the context otherwise requires or the law otherwise provides. Generally speaking, the word does not extent to grand-children,1 and the primary meaning to be given to the word is the first generation.2
1. Radcliffe v. Buckley, 10 Ves 195; Henderson Testamentary Succession and Administration of Estates in India, (1925), p. 209.
2. Gibson v. Gibson, (1901) 1 Ch. 49.
16.42. Extended construction.-
But the word can, in the context, be extended to "grand-children". This point is well illustrated in an English case,1 in which there was a gift to the 'children of a sister named in the will. At the date of the will, it was known that the sister in question had no children, but had certain grand-children. The expression 'children' was accordingly construed as meaning 'grand-children'.
1. Smith Lord v. Hayward, 35 Ch D 658; Henderson Testamentary Succession and Administration of Estates in India, (1928), p. 209.
16.43. Later decisions.-
In a later English case,1 it is stated that there is no rule of construction on this question, and each will must be construed on its particular wards (see various cases referred to in this case). It has also held in various other cases that the word 'children' under certain circumstances may be extended, and the word has, in fact, been .held to mean, 'descendants'. The word has also been interpreted as meaning 'heirs of the body'.2
1. Hovd v. Hovd (in re:), 21 LJ Ch 505.
2. (a) Bvng v. Bvng, 10 HL Cas 171.
(b) Clifford v. Koe, 5 App Cas 447.
16.44. Principle that a will may furnish dictionary.-
The principle that a document may furnish a dictionary from which an extended meaning of 'child' or 'children' may be gathered has been judicially recognised1 in England. In fact, in England, the Fatal Accidents Act, 1846, sections 2 and 5 (as amended in 1934) expressly provide that 'child' shall include son and daughter and grand-son and grand-daughter and step-son and step-daughter.2
Where an appointment under a power contained in a will to "any widow of W born in testator's lifetime" was in issue, a widow of W who was in the womb at the time of the death of testator was held to be entitled.3
This principle is also incorporated in section 99(i).
1. Hill v. Crook, 42, Law Journal Chancery, 702 (Per Lord Cairns).
2. Sections 2 and 5, Fatal Accidents Act, 1846 (as amended in 1934).
3. Halsbury's, 3rd Edn., Vol 39, pp. 1075-1076, para. 1603.
16.45. Section 99(i)-Child in womb-English law.-
Some comment is needed on clause (i) of section 99, dealing with children in the womb. In England, it has been held that a person who is in the womb on a particular date is included in the description of children born or living at a particular date, if it is to the child's own benefit to be so included.1
1. Starn's Will Trusts (in re:), 1962 Chancery 732: (1961) 3 All ER 1129.
16.46. Recommendation as to section 99, main paragraph.-
Having taken into consideration various aspects relevant to the meaning of the expression "child", we have come to the conclusion that cases where a different intention appears from the will should, for reasons already stated,1 be expressly excluded from section 99.
1. Paras. 16.39 to 16.44, supra.
16.47. Section 99(i)-Child in womb-Recommendation to insert a presumption.-
Section 99, clause (i) is so far as it goes is sound. Though the section is confined to the construction of wills, a similar principle would also apply to intestacy. But often it may be difficult to prove that a child was in womb at a particular time. Cases where the child is born within say six months or so of the death of the father, present no difficulty.
But border line cases involving a longer period of gestation may create problems taking up a suggestion made by a learned writer1 with reference to the corresponding provision in the Hindu Succession Act,2 we would state that it would be useful if an Explanation is inserted to section 99, creating a presumption applicable to cases where the birth takes place within a particular period. As to the to the precise period, we suggest 315 days.3
1. Dr. Derret A Critique of Hindu Law, (1970), p. 249.
2. Section 20, Hindu Succession Act, 1956.
3. For the draft, see para. 16.53, infra.
16.48. Effect of section 112, Evidence Act.-
Here it may be noted, that though the Evidence Act1 contains a presumption as to legitimacy, that does not directly deal with the fact urn of the child being in the womb at a particular time. It merely provides that, subject to certain conditions, a child born of a women within 280 days of the death of the husband shall be presumed to be the child of the husband of the woman.
It is a presumption as to paternity and as to the date of conception. It does not even directly provide that the child shall be presumed to a have been in the womb at a particular time. There was need to deal with the matter. In the Succession Act, on the other hand, time is crucial, and there is therefore, need to introduce a presumption on the subject in the Act.
We suggest a period of 315 days in this context, as already stated.
1. Section 112, Indian Evidence Act, 1872.
16.49. Period under section 112.-
The fact that section 112 of the Evidence Act provides a practically conclusive presumption where the birth takes place within 280 days does not mean that a child born after that period should be regarded necessarily as illegitimate. It means merely that there is no presumption in such cases and that the burden of proof may lie on the person who claims legitimacy. In some cases that burden may not be so placed, because one cannot overlook the presumption permitted under section 114 of the Evidence Act.
This is particularly so for the reason that the question of legitimacy is of grave importance, as it is a matter of social status and affects the whole status of the child. The onus which is governed by the rules briefly stated above in such a case is founded on the interest of the child and the interest of the State in matters of legitimacy.1
If, having to the common course of natural events and human conduct (section 114), the child is born within a reasonably possible period, the court can raise a presumption of legitimacy2 and the burden of proof would then shift. In such a case, the burden of proving illegitimacy would be on him who so alleges it.
1. Uttamrao v. Sita Ram, AIR 1963 Born 165 (167), para. 6.
2. Cf. Uttamrao v. Sita Rain, AIR 1963 Born 165 (167), Para. 6 (308 days).
16.50. Case law on period of gestation.-
In this position it would, in our view, be permissible to specify a period longer than that mentioned in section 112. The period of 315 days has been suggested by us,1 having regard to the realities as disclosed in judicial decisions and medical evidence referred to therein.2
It may be noted that in a Madhya Pradesh3 case, a period of 305 days was held to be permissible.
There are other cases where courts have refused to declare against the legitimacy of the child, where the period that elapsed between the last coitus and the birth of the child was more than the normal period. In the case of P. v. P., (1911) 12 IC 946 (330 or 333 days). the period was 330 or 333 days. Evidence was led to show what can be the maximum period in such cases of prolonged gestation.
1. Paras. 16.47 and 16.48, supra.
2. Uttamrao v. Sitaram, (1962) 64 Born LR 752 (757, 761): AIR 1963 Born 165.
3. Dhedu Sheoram v. Malhanbai, AIR 1966 MP 252 (305 days).
16.51. English cases.-
In certain English cases, the period was 346 days1 or 340 days, or 331 days.3 Of course, in these cases, the wife had given evidence that the child was legitimate and there had been no adultery.
It is obvious that there is a power in the court to take judicial notice of the fact that there is a normal gestation period.4 At the same time, judicial notice must also be taken of the fact that in an actual case the period may be longer or shorter than the normal period which is generally given as 270 to 280 days.
1. Wood v. Wood, (1947) 2 All ER 95 (96).
2. Hadlum v. Hadluin, 1949 Probate 197: (1948) 2 All ER 412.
3. Gaskill v. Gaskill, 1921 Probate 425: 1921 All ER 365: 126 Law Times 115.
4. Preston Jones v. Preston Jones, (1951) 1 All ER 124 (127, 135, 136, 139).
16.51A. Rule of canon law considered.-
With reference to the proposal (as put forth in the working paper) regarding the child in the womb born within 315 days, the working paper, forwarded with the letter of the1 Catholic Bishop's Conference of India, states that canon law presumes children to be legitimate if born within 300 days. The comment raises the apprehension that the "proposed amendment might give rise to fraudulent claims". We do not share this apprehension. The presumption will be rebuttable one, and will be in conformity with the general trend of the case law, referred to above.
1. Letter of the Catholic Bishops Conference of India, dated 3rd October, 1984,
16.52. Reason for taking a liberal view.-
It was because of the serious disabilities of the illegitimate child that courts have taken a liberal view of the period. In countries where the rights of illegitimate children have been widened1 there may be justification for not taking the same liberal view of the presumption of legitimacy. Since we have not yet reached that stage,2 it would be desirable to make the change recommended above.
1. Compare section 26, Family Law Reform Act, 1969 (Eng.)
2. Section 100.
16.53. Recommendation as to section 99.-
In view of what is stated above,1 we recommend that the following explanation should be inserted in section 90 on the subject of a child in the womb:
"Explanation: For the purposes of this section, a child is presumed to have been in the worth at the time of the death of a person if the child was born within three hundred and fifteen days of such death".
1. Paras. 16.45 to 16.47, supra.
16.54. Section 100 and the question of legitimacy.-
This takes us to section 100.1 It provides that in the absence of any intimation to the contrary in a will, the word "child", the word "son", the word "daughter" or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or where there is no such legitimate relative, a person 'who has acquired, at the date of the will, the reputation of being such relative.
An analysis of the section shows that it consists of two parts. The restrictive provision in the first part confines the expressions in question to legitimate ultimate relationship. This, however, is modified by the latter half: where the modifying provision-though of a very limited character-covers a person who has, at the time of the will, acquired the reputation of being "such relative". The first part is illustrated by illustrations (i) and (vii).
The second part relating to reputation is Illustrated by illustration (iii), (iv), (v) and (vi).
The opening words relating to a contrary intention are illustrated by illustrations (iii) and (viii).
1. It is applicable only where there is no legitimate relative.
16.55. Illustration to section 100.-
The illustrations to section 100 are mostly based on English cases as will be clear from the following chart1.
Illustration (i) Cartwright v. Vawdry, 5 Ves 590.
Illustration (ii) Walker v. Lutyens, (1987) 2 Ch 233.
Illustration (iii) River's case, 1 Atk 400; Bentley v. Blizard, 4 Jur NS 652.
Illustration (iv) Lord Woodhousette v. Dalrymale, 2 Mer 417; Gill v. Shelvey, 2 R&M 336.
Illustration (v) Mortiner v. West, 3 Res 370.
Illustration (vi) may also be compared with an English Case.2-3
Illustrate on (vii) and (viii) will be considered later.4
1. See M.N. Basu Succession Act, (1957), commentary on section 100, p. 310.
2. See infra.
3. Cf. Hill v. Crook, (1873) IR 6 HL 265.
4. Paras. 16.62 to 16.65 and 16.66 et seq, infra.