AIR 1970 SUPREME COURT 1759

Supreme Court Of India

(From : Kerala)*

Hon'ble Judge(s): J. C. Shah, V. Ramaswami, A. N. Grover , JJJ

(A) Hindu Law - Will - Bequest in favour of unborn person is void - Tagore's case, (1872) Ind App Supp 47 (PC) though held wrongly decided followed on ground that it had stood a great length of time - Such bequest cannot be treated as family arrangement. Under pure Hindu Law (which applied in Travancore at relevant time) a bequest to an unborn person or person not existing in contemplation in law is void.(Para 5) Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person yet that doctrine has been engrafted on Hindu Law by the decision of the Judicial Committee, in Tagore's case, (1872) Ind App Supp 47 (PC).(Para 7) The decision in Tagore's case was based on wrong reading of the relevant verse in Dayabhaga. But since the decision had stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed, this is a proper case in which the maxim 'communis error facit jus' may be applied. The principle underlying the maxim is that "the law so favours the public good, that it will in some cases permit a common error to pass for right.(Para 9 10) The doctrine in Tagor....