V. Balakrishna Eradi, J.
1. The 6th defendant in O. S. No. 14 of 1958 on the file of the Munsiff's Court, Chowghat is the appellant.
2. The 1st respondent herein filed the aforesaid suit for partition and separate possession of a half share in plaint schedule items 1 to 5 inclusive of the house situated in item No. 1 and for recovery of (sic) session of plaint items 14 to 16 as belonging to him exclusively. The 6th defendant resisted the suit in so far as it relates to plaint item No. 1 and the building situated therein on the ground that the property had been validly assigned to him under a sale deed, Ext. B-2 executed in his favour by the plaintiff's mother Annamma acting for herself and as guardian of the plaintiff who was then a minor, and by the plaintiff's brother the 2nd defendant who was a major. The Courts below negatived the contentions of the 6th defendant and granted the plaintiff a decree as prayed for. Hence this appeal by the 6th defendant.
3. The plaintiff and defendants 1 to 5 are the children of one Kunhu Vareed by his wife Annamma. The plaint schedule properties admittedly belonged to Kunhu Vareed. He died on 19-3-1943 leaving a registered will evidenced by Ext. B-l dated 9-4-1942. The main controversy between the parties is in regard to the interpretation of the provisions contained in this will. It is provided under the will that should Annamma survive the testator she should keep possession of all the properties and enjoy them with full rights and that after her death the properties should go to the testator's children in absolute rights in accordance with the allotment of properties made in the will whereby specific items have been separately earmarked for each of the children. The will contains three schedules of which the A schedule consists of 19 items of immovable properties owned by the testator, the B schedule of 3 items of outstandings which the testator had to realise from others and the C schedule mentions one item of debt due by the testator which stood charged on item No. 10 in the A schedule. It is not necessary for the purpose of this second appeal to go into the details of the allotment of immovable properties made under the will as amongst the testator's children.
4. After the death of Kunhu Vareed his widow Annamma and the three sons, viz., the plaintiff and defendants 1 and 2, entered into a partition with respect to items 1 to 16 in the A schedule mentioned in the will. This was apparently done on the basis that Annamma having survived the testator, she obtained absolute rights in all the properties under the will and that the provisions of the will regarding the division of the properties amongst the children would be operative only in the event of Annamma predeceasing the testator. The plaintiff was a minor at the time of this partition and the document was executed on his behalf by Annamma acting as his guardian. It is subsequent to the aforesaid partition and on the strength of the allotment made thereunder that plaint item No. 1 was assigned to the 6th defendant by the 2nd defendant and Annamma, the latter acting as guardian of the plaintiff. The plaintiff's contention is that under the will Annamma got only a life-estate and there was a gift over of all the properties in favour of the children, specific items being set apart separately to each of them. The partition as well as the assignment Ext. B-2 entered into during the plaintiff's minority were, therefore, contended to be invalid as against the plaintiff. The 6th defendant, on the other hand, contended that an absolute estate was created in favour of Annamma in respect of all the properties in the event of her surviving her husband and that no vested interest was created in favour of the children under the will excepting on the happening of the contingency of Annamma predeceasing her husband. The Courts below have upheld the plaintiff's contention and rejected the defendant's plea that Annamma got an absolute estate.
5. The learned counsel for the appellant contends that the Courts below have gone wrong in holding that under the provisions of the will (Ext. B-l) only a life-estate was created in favour of Annamma. It is argued that the testator has. in dear and unambiguous terms, bequeathed the properties absolutely in favour of his wife in the event of her being alive at the time of his death. The appellant's contention is that the bequest In favour of the testator's children was intended to take effect and be operative only in the event of Annamma predeceasing her husband and that such a contingency not having happened, no rights became vested in the children on the death of the testator. According to the appellant's counsel, if the provisions contained in the latter part of the will are to be interpreted as creating any vested rights in the testator's children, they are clearly repugnant to the earlier provision whereby an absolute estate had been granted in favour of the wife in very unambiguous terms and to the extent of such inconsistency the later provision has to be ignored. On the other hand, the respondents' counsel urged that on a proper interpretation of the will it has to be held that there is a gift over of all the properties in favour of the children to take effect on the death of the widow and that in view of this the interest created in favour of Annamma has necessarily to be regarded as only a life-estate.
6. I shall now proceed to discuss the relevant recitals contained in the will. In support of his contention that the widow was granted an absolute estate over all the properties, the appellant's counsel relied mainly on the following recital contained in para 1 of Ext. B-l:--
(Original in Malayalam omitted.--Ed.) Particular emphasis was placed by counsel on the words that I have underlined (here omitted). The remaining portion of the same sentence is, however, in these terms:--
(Original in Malayalam omitted.--Ed.) In the next succeeding paragraph (para 2) of the will the testator has made elaborate provisions effecting an allotment of the various items separately amongst the children, viz., the plaintiff and defendants 1 to 5. In paragraph 3 he then proceeds to state that in case his wife is alive at the tune of his death it would be open to her, if she is so inclined, to hand over possession of the properties even during her lifetime, to the respective persons to whom they are allotted under paragraph 2 excepting certain items which have been set apart for meeting the expenses of the funeral ceremonies of the testator and his wife and for some specified charities. It is further provided that if the properties are so handed over by her to the children the latter would have no powers of alienation in respect of them during the mother's lifetime. The next paragraph in the will provides that the properties allotted to such of the children who are minors, should be prudently managed on their behalf by either the 2nd defendant or the 3rd defendant in case occasion should arise for the management of the properties before their attaining majority. Then follow the three schedules A to C giving particulars of the properties, outstandings and the mortgage liability. After mentioning the three schedules there is a further clause (para 5) to the effect that in respect of the properties set apart for funeral expenses etc., if any of the concerned parties who have been directed to expend the amounts commits a default in the matter of meeting such expenditure, such defaulting person or persons shall not have any rights to those properties and those items shall vest only in those who meet the expenses.
7. In interpreting a will the primary task before the Court is to find out the intention of the testator. For this purpose, the overriding duty of a Court of construction is to construe the language which the testator has employed in the various clauses of the instrument, reading the instrument as a whole, giving due weight to all the words and rejecting nothing to which a meaning can reasonably be assigned. A construction which renders some of the clauses in the will totally ineffective and gives effect only to some others, should as far as possible be avoided and attempt should be made to interpret the provisions in such a manner so that effect could be given to every testamentary intention contained in the will.
8. It is clear from the provisions of Ext. B-l, read as whole, that the intention of the testator was to confer on his children an absolute interest in respect of the items separately allotted to each of them with an intermediate estate carved out in favour of his wife. The provision contained in paragraph 3 of the will that even during the lifetime of Annamma it is open to her to hand over to the children possession of the items respectively allotted to them and that in such event the children shall not have powers of alienation during the lifetime of the widow, clearly indicates that the intention of the testator was that Annamma was to have only a 'life-estate. If it was the testator's intention to create an absolute estate in favour of his widow, Clause 3 would be rendered meaningless. Further, from the dispositive words employed by the testator in the concluding portion of paragraph 1 whereby it is provided that the properties respectively allotted to the various children are to be taken by them with absolute rights after the lifetime of Annamma, it is clear that his intention was to make a gift over of the properties in favour of the children. The testator has taken care to indicate that the properties without any diminution should go to each of his children after his wife's lifetime. It is, no doubt, true that the words of disposition in favour of the wife are also apparently in terms absolute. But they are immediately followed by the subsequent provision which in clear and unambiguous language creates a gift over of the entirety of the properties in favour of the testator's children. If the bequest in favour of the widow is to be held to be an absolute estate, the bequest of the gift over in favour of the children will have to fail. As observed by Varada-chariar, J. in Pavani Subbamma v. Anumala Ramanaidu, AIR 1937 Mad 476 at p. 477, to avoid such a possibility the proper rule of construction is to take the will as a whole and 'the presence of a gift over, which is not a mere gift by way of defeasance, has generally been held to be an indication that the prior gift was only of a limited interest'.
9. It is unnecessary for me to refer to the various decisions cited at the bar because the matter is placed beyond all doubt by the pronouncement of the Supreme Court in Ramachandra Shenoy v. Mrs. Hilda Brite. AIR 1964 SC 1323, where the legal. position has been stated thus at pages 1328 and 1329:--
'It is one of the cardinal principles of construction of wills that to the extent that it is legally possible, effect should be given to every disposition contained in the will unless the law prevents effect being given to It. Of course, if there are two repugnant provisions conferring successive interests, If the first interest created is valid the subsequent Interest cannot take effect but a Court of construction will proceed to farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same, to B absolutely 'on' or 'after' or 'at' A's death. A is prima facie held to take a life-interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the Interest created In favour of B'.
In the present case. It does not admit of doubt that the testator did intend to confer an absolute interest on his children and the question is whether or not effect can be gtven to it if the Interest of Annamma were held to be absolute, there Is no doubt that effect cannot be given to the aforsaid Intention of the testator. But, if there are words in the will which on a reasonable construction would denote that the interest of Annamma was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words
(Original in Malavalam omitted.--Ed.) occurring in the last portion of paragraph I assume crucial importance. These words indicate that the persons designated in the last portion of para 1 and to whom separate allotments are made in the succeeding paragraph were to take an interest after Annamma, that is in succession and not jointly with her. Again, the provision contained in paragraph 3 of the will for accelaration of the handing over the estate to the children by voluntary surrender on the part of Annamma, is also clearly indicative of the limited character of Annamma's estate. In these circumstances the only reasonable construction to be placed on the will would be to hold that the interest created in favour of Annamma was merely a life-interest and that the remainder in absolute was conferred on the testator's children. This is the interpretation which the Courts below have adopted and I have no hesitation to hold that the view taken by them is correct.
10. It would then follow that the partition effected by Annamma on the basis that the property belonged to her absolutely cannot bind the plaintiff and the findings of the Courts below to that effect have also to be sustained.
11. It only remains to consider whether in respect of the building situated on plaint item No. 1 the 6th defendant cannot claim to have obtained the interests of the 2nd defendant The ground on which this claim of the 6th defendant has been negatived by the lower Courts is that the 2nd defendant had forfeited all his rights In respect of the building in item No. 1 because of the fact that he had not expended any amounts for the funeral ceremonies and the other charities mentioned In Clause 2 of the wilt Reliance is placed on the provisions contained in Clause 5 of the will which states that if any of the persons who have been enjoined to meet the expenses of the funeral ceremonies of the testator and his wife and to disburse the amounts specified for charities In Clause 2, commits default in the matter of meeting such expenditure, then such person shall not have any right to the properties earmarked for such expenses and only the persons who actually expended the amounts shall be entitled to these items. The building In Item No. 1 Is one of the items earmarked for such expenses.
12. Apart from a vague averment contained in the plaint that the amounts for the funeral expenses etc. were spent only by the plaintiff and the 1st defendant, no details are furnished as to when and what amounts were spent and by whom. The evidence adduced on the point is also absolutely meagre and unsatisfactory. The plaintiff has no personal knowledge whatever about the matter, because the amounts are stated to have been spent during his minority. There is nothing to show that any demand was made on the 2nd defendant who was living in a far off place or that even an opportunity was Riven to him to contribute towards such expenses. Reliance is placed by the Courts below on an averment contained in the written statement of the 1st defendant to the effect that himself and the plainiff alone spent the amounts and, strangely enough, this averment is referred to as an 'admission' and used as such against the 2nd defendant.
13. Counsel appearing for the respondents found it difficult to contend that the stipulation regarding the incurring of the expenditure mentioned in Clauses 2 and 5 of the will is a condition precedent for the vesting of the legacies. In the very nature of things it could not be, for the simple reason, that there was no knowing as to how long the widow might survive and when the expenses of her funeral were to be incurred and the vest-ing of the properties could not be indefinitely postponed till then. The condition imposed by Clause 5 of the will can, therefore, be regarded, if at all, as a condition subsequent. As observed in Jerman on Wills, 8th edition, page 1464;
'Conditions subsequent which are intended to defeat a vested estate or interest, are always construed strictly, and must, therefore, be so expressed as not to leave any doubt of the precise contingency intended to be provided for'.
It is only in a case where there is very strong and clear evidence of the breach of condition that a Court would proceed to hold that a vested interest had been thereby forfeited. In the present case such evidence is totally lacking. It has, therefore, to be held that the Courts below were not justified in holding that the 2nd defendant had forfeited all rights in respect of the building situated on item No. 1. The rights of the 2nd defendant having passed to the 6th defendant by virtue of the sale evidenced by Ext, B-2, the 6th defendant is entitled to a 1/3rd share in the building In plaint item No. 1 and the plaintiff and 1st defendant would be entitled only to a l/3rd share each.
14. The preliminary decree passed by the Courts below Is, therefore, modified by holding that the 6th defendant is entitled to a l/3rd share in the building in plaint item No. 1 and that the plaintiff and the 1st defendant are entitled only to a l/3rd share each and not to a 1/2 share as decreed by the Courts below, In other respects the decrees of the Courts below will stand confirmed.
15. The Second Appeal Is allowed to the extent indicated above and dismissedin other respects. The parties will beartheir respective costs in this Court.