Will – Succession – Clause offending rule against perpetuity is invalid – Indian Succession Act, 1925, section 114.

In 1900, Baikuntha Nath Dutta had founded a “thakurbari.” He installed this deity and started worship. By his will dated 30-07-1916 various properties of the testator were dedicated to the above deity. Shebaits were appointed. Clause 5 of the Will dealt with the devolution of Shebaitship.

Many years had passed since the making of this dedication. The main question that was posed before the court was whether the stipulation in the Will and in the Codicil that Shebaitship would vest only in sons of the Shebaits was valid or not.

The issue in this case was in regard to the rule against perpetuity. The rule applied equally to transfer of property inter vivos as it did to transmission of property by succession. In this case those rules regarding transmission of property by succession were relevant. The owner of a property, while bequeathing it, could not postpone the vesting of the absolute legal and beneficial ownership thereof indefinitely. He could not fetter the powers of alienation, indefinitely.
Hence, if A is disposing of his property by Will or by creation of a trust, he cannot hold up its absolute vesting in some other person, for an uncertain period. Neither can he tie this person’s hands regarding alienation for an uncertain time.

If there was any further postponing of absolute legal and beneficial ownership of the property, the bequest or settlement was void as it violated the rule against perpetuity. The law against perpetuity did not favour, as observed earlier, tying up of property without its vesting, for an indefinite period of time.

The Indian Succession Act, 1925, section 114 enacts as follows:

“114. Rule against perpetuity. – No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.”

Hence, the Clause in the will devolving Shebaitship only on grandson and on death of grand sons to their sons violates the rule against perpetuity.