Sundaram Chetty, J.—This appeal arises out of a suit filed by the plaintiff (appellant) for the recovery of a certain sum of money alleged to be due on a mortgage bond executed by the 1st defendant for Rs. 1,000 on 15th November 1924. The 2nd defendant is a subsequent purchaser of the mortgaged property from the 1st defendant. Various contentions were raised by these defendants in respect of which issues were also framed, but the learned Judge in the Court below wanted to dispose of the suit on what he calls two preliminary points, one of which he decided definitely against the plaintiff. On the strength of that finding, the suit was dismissed. Hence this appeal.

The mortgaged property belonged to the 1st defendant's grandfather Srinivasa Chettiar. The 1st defendant's right to that property is derived from the will Ex. I executed by the said Srinivasa Chettiar in 1904. The contention of the 2nd defendant is that according to the terms of that will it should be taken that the mortgaged property had not vested in the 1st defendant on the date of the suit mortgage and consequently the mortgage sued on is invalid. The lower Court upheld this contention and dismissed the suit.

This question depends upon a proper construction of the terms of the will Ex. I. Under this will, the testator appointed three persons as executors for the purpose of carrying out the directions contained in the will. The present 1st defendant who was then a child of 4 or 5 months was to be under the protection of his mother and paternal grandmother who were both appointed under the will as the guardians of his person. The testator had a son named Ramaswami Chetti who was aged about 20 years but he was practically disinherited on account of his improper conduct. Paragraph 13 of the will is important for the purposes of the present case. It provides that for a period of three years subsequent to the death of the testator the executors should manage the properties as directed in the will and after the expiry of that period they should deliver to the 1st defendant's guardians all the moveable and immoveable properties which should be taken possession of and managed by those two guardians till the end of their lifetime without any power of alienation by sale or mortgage, but after their lifetime the testator's son's descendants should take those properties absolutely and enjoy them from generation to generation. The effect of the aforesaid terms of the will appears to be this. After the expiry of a term of three years from the date of the testator's death during which the executors should be in possession and management, the two ladies who were appointed as the 1st defendant's guardians were to enjoy the properties for their life without powers of alienation. In other words, a life estate was bequeathed to them with an absolute gift over of the remainder to the descendants of the testator's son. The absolute gift of the remainder is to a specified class of persons of whom the 1st defendant is certainly one. The question for consideration is, whether the gift of the remainder absolutely in favour of a specified class of persons on the termination of the life estate should be deemed to be a vested interest or only a contingent interest. The ordinary distinction between vested and contingent interests consists in the nature of the event or condition upon which the donee should take the property. If the interest created in favour of a person should take effect on the happening of an event which must happen, it is a vested interest, but if it is to take effect on the happening of a specified uncertain event which may or may not happen the interest is a contingent one. Applying this test there is no doubt about the nature of the interest created in favour of the class of persons of whom the 1st defendant is one, which should take effect on the termination of the lifetime of the two ladies (an event which must happen). It seems to me that the 1st defendant as a member of the class alive on the date of the testator's death had a vested remainder in the property in question, but possession alone is postponed to a future date. It is shown in this case that the survivor of the aforesaid two women, viz., the 1st defendant's mother, died on 17th February 1926, whereas, the suit mortgage bond was executed by the 1st defendant on 15th November 1924. The learned Judge observes that till her death in February 1926 the 1st defendant had no right to the estate and had no transferable interest therein, as he was merely an expectant heir. No authority has been cited by him in support of this conclusion. On the other hand, as I would presently show, the trend of the authorities is clearly against that view.

Taking S. 106 of the Indian Succession Act (Act X of 1865) which was in force when the will Ex. I came into existence, there can hardly be any doubt that the properties bequeathed to a specified class of persons of whom the 1st defendant is one, became vested in that class on the date of the testator's death and would even pass to the representatives of any of that class if he should die subsequent to the testator's death and before the time prescribed for taking possession. The mere fact that a legatee is not entitled to immediate possession of the thing bequeathed does not make it a contingent bequest. There is nothing in the terms of the will to indicate any contrary intention on the part of the testator, so as to make the interest of the legatees a contingent one. If the terms of Ex. I should be construed in the light of S. 106 aforementioned, the 1st defendant must be deemed to have had a vested interest in the mortgaged property even before the death of his mother.

Some stress was however laid by Mr. Srinivasa Ayyangar the learned Advocate for the respondents, on the wording of S. 98, of the said Act in order to show that the 1st defendant had no vested interest in the property on the date of the mortgage. On a careful comparison of S. 98, with S. 106, it is clear that the title to the property bequeathed to a class of persons as in the present case, certainly vests in such of the persons of that class who are actually alive at the testator's death. It is because of such legal vesting of the title, even the representatives of any of them who have died since the death of the testator get a share in the property when the time arrives for their taking possession and getting a distribution of the estate effected. S. 98 seems to contemplate cases of deferred possession and not deferred vesting. It is however argued on behalf of the respondents, that the words in the exception to S. 98, viz., “but their possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise, the property shall at that time go to such of them as shall be then alive, and to the representatives of any of them who have died since the death of the testator” should be taken to mean that the vesting of the property itself takes place only on the date to which possession is postponed. But we find in S. 106, that in the case of an exactly similar bequest, the legacy must be taken to have become vested in interest even from the testator's death despite the fact that possession is postponed. If the contention of Mr. Srinivasa Ayyangar should prevail, we would be driven to hold that what is declared in S. 106 as to the time of vesting is negatived in S. 98. Such an inconsistency cannot ordinarily be imputed to the legislature.

One of the decisions relied on by Mr. Ramaswami Ayyar for the appellant is reported in Mathura Nath Biswas v. Monmohini Dasya. It is the decision of a single Judge of the Calcutta High Court. In that case, the testator by his will provided that his widow would remain in possession of the property during her life and that on her death his sons would get the property in equal shares. On a construction of that will the learned Judge held that in view of S. 106 of the Succession Act the sons obtained a vested interest in the property on the testator's death and therefore in the event of one of the sons predeceasing the widow his interest would pass to his heirs. This is exactly on all fours with the present case. The contention of Mr. Srinivasa Ayyangar in respect of S. 98 is also opposed to the view taken by Pontifex J. in the decision in Maseyk v. Fergusson, wherein that learned Judge remarks that S. 98 applies only to vested interests. In a case dealt with by the Privy Council in Harris v. Brown, there were directions in the will to the effect that the residuary estate which was bequeathed in equal shares to a certain class of persons should remain in the hands of the executor who should make over the share of each on his attaining 21 years. Their Lordships held that these words merely pointed to the postponement of possession of shares which had already been vested. On pages 634 and 635, their Lordships go on to say:

“The learned Judges appear to find in the appointment of an executor and guardian to the minors with a direction to make over the property to them on their attaining majority something contrary to an intention that the gift should vest in the object at once. It is new to their Lordships to hear that these ordinary directions have any effect in suspending the ownership of the property and it seems to them that such a ruling is calculated to disturb settled principles.”

This, I consider, is an emphatic pronouncement against the correctness of the contention put forward on behalf of the respondents. The same view is taken by the Privy Council in a later case reported in Bhagabati Barmanya v. Kalicharan Singh.

For all the foregoing reasons, I must hold that the 1st defendant had a vested interest in the mortgaged property on the date of the suit mortgage and was not merely an expectant heir as observed by the lower Court. It cannot be said that he had no sort of title to the property on that date.

As the plaintiff's suit was dismissed on an erroneous finding on a preliminary point, the decree of the lower Court has to be set aside and the suit remanded to that Court for restoration to file and disposal according to law after determining the other issues arising in the case. The respondents should pay the appellant's costs of this appeal. The costs of the suit will abide the result. The Court-fee paid on the memorandum of appeal will be refunded to the appellant.

Pakenham Walsh, J.—I agree.

N.R.R Suit remanded.