Report No. 110
17.4. Recommendation in the Law Commission Report on the Transfer of Property Act.-
The Law Commission in its Report on the Transfer of Property Act, 18821 recommended that section 13 of that Act should be deleted, or, in the alternative, some changes (set out in the Report) should be made in the section. This recommendation2 was made after a consideration of the difficulty created by the Privy Council judgment in Sopher's case3 and after taking note of the legislation passed in the erstwhile State of Bombay on the subject, modifying the effect of Sopher's case.
17.5. The Law Commission noted that the language of section 113 of the Indian Succession Act, 1925 had been very restrictively construed by the Privy Council in Sopher v. Administrator-General of Bengal, 1944 LR 71 IA 98: AIR 1944 PC 67. In that case, a testator bequeathed the income of his residuary estate to unborn grand-children who should be born during his widow's lifetime, if they should survive their fathers, and also bequeathed to them the corpus of the residuary estate if they Should attain the age of 18.
The Privy Council held that both the gifts failed under section 113. The gift of income was void because since it was dependent upon the legatees surviving ,their father it did not comprise the whole of the testator's remainder in trust, and the gift of the corpus failed for the same reason, and for the additional condition that the legatees must attain their majority. This decision was regarded as a surprising one by the Indian legal profession.4
Viscount Maugham, in delivering the judgement of the Judicial Committee, made the following observations5:-
"that if, under a bequest in the circumstances mentioned in section
113, there is a possibility of the interest given to a beneficiary being defeated either by a contingency or by a clause of defeasance, the beneficiary under the later bequest does not receive the interest bequeathed in the same unfettered form as that in which the testator held it and that the bequest to him does not therefore comprise the whole of the remaining interest of the testator in the thing bequeathed."
It was, therefore, held that the bequest, being not of the whole of the interest of the testator, was void.
1. Law Commission of India, 70th Report (Transfer of Property Act), paras. 21.8 to 21.13.
2. See Para. 17.6, infra.
3. Sopher v. Administrator-General of Bengal, 1944 LR 71 IA 98 PC: AIR 1944 PC 67.
4. Frmnroze v. Tehmina, AIR 1948 Bom 188.
5. Sopher v. Administrator-General of Bengal, AIR 1944 PC 67 (70).