1. The short question in this second appeal is whether the estate conferred on a woman by name Che-cha under Ex. P-1 was an absolute estate with a repugnant clause added or was an absolute estate with a defeasance clause coming under Section 28 of the Transfer of Property Act added. Both the lower courts held that the document conferred an absolute estate on Checha with a defeasance clause super-added that, in case she died childless, the estate would revert to her sister, Maria, and her children (the plaintiffs).
2. The counsel of the appellants (the defendants) has contended that what was conferred on Checha by the earlier recital in Ex. P-l was an absolute estate, so that the subsequent recital, which provided that, on the death of Checha leaving no children, the estate should revert to her sister and her children, is a repugnant provision repugnant to the absolute nature of the estate conferred on Checha by the earlier provision. This argument proceeds on a slight misconception regarding the distinction between an absolute estate with a repugnant provision and an absolute estate with a defeasance clause. The distinction is very succinctly put by Sundaram Chetty, J., in Govindaraja Pillai v. Mangalam Pillai, AIR 1933 Mad 80 as follows :--
'The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that, where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative.'
3. One of us had occasion to consider this decision and similar provisions in other documents in two decisions, viz., Anthony Thommen v. Thommen Alexander, (1965) 2 Ker LR 283 and Gopalkrishna Pillai v. Kunji Amma, 1966 Ker LJ 459. In both those cases, the decision of Sundaram Chetty, J., has been referred to and followed. In the first of those decisions, it has been pointed out that the termination or the extinguishment of an estate is different from the imposing of restrictions on the mode of enjoyment of the estate and therein lies the nice distinction between a defeasance clause and a repugnant provision. If the intention of the testator or donor is to maintain an absolute estate and the restrictions are only to restrict the mode of enjoyment or the manner in which the absolute powers should be exercised, the provision is a repugnant one: if the intention, on the other hand, is to terminate or extinguish the absolute estate on the happening of a contingency, then the provision is a defeasance clause. It has further been pointed out in that decision that the termination or the extinguishment of the absolute estate already conferred may be by a gift over, or may be even by a defeasance simpliciter, on the happening of a contingency: and on the happening of the contingency, the earlier absolute estate will reduce itself to a life estate.
4. In the case before us, the estate conferred on Checha, at its inception, was an absolute estate; and the subsequent recital in the document did not restrict the enjoyment of that estate in any manner repugnant to its absolute nature. What the subsequent provision did was to make a gift over to the sister and children of Checha of the same estate on the happening of an uncertain event, namely, Checha dying without children. It is clear that the recital is not in the nature of a repugnancy, but is in the nature of a defeasance clause, which puts an end to the earlier absolute estate by a gift over to Maria and her children.
5. In the light of this line of reasoning, it is clear that the decision of the lower courts is correct. The said decision is confirmed; and the second appeal is dismissed with costs.