Raman Nayar, J.
T.S. Krishnamoorthy Iyer, J.
1. The appeal filed by the first defendant arises out of a suit for partition. The parties are governed by the Madras Marumakkathayam Act, 1932. The plaint properties belonged to Ravunni Nair father of the plaintiff and defendants 1, 2, 11 and 20. Defendants 3 to 10 are members of the tavazhi of the 2nd defendant Lakshmikutty Amma. Defendants 12 to 19 are members of the branch-of the 11th defendant Devaki Amma. Defendants 21 to 28 are members of the branch of the 20th defendant Karthayanikutty Amma. The plaintiff and the first defendant are the sons of Ravunni Nair.
2. Ravunni Nair executed Ext, B-8 will, dated 10-10-1945, in respect of the plaint properties. According to the plaintiff and defendants 2 to 10 who support him Ravunni Nair bequeathed the plaint Items to all his children subject to a life Interest over the plaint items in favour of his wife Sreedevi Amma. It is contended by the 1st defendant that under Ext B-8 Sreedevi Amma got absolute rights over the plaint properties. Sreedevi Amma executed Ext. B-4 will dated 15-1-1959 bequeathing the plaint items to the 1st defendant. The Courts below took the view that Ext, B-8 creates a life interest in favour of Sreedevi Amma and there was a gift of the remainder to the members of the tavazhi of Sreedevi Amma. The plaintiff was, therefore, granted a decree for recovery of 1/29. share in the plaint schedule items.
3. The question raised in the second appeal relates to the Interpretation of Ext. B-8. The substance of Ext, B-8 in so far as it relates to the plaint properties is stated by the learned Subordinate Judge in paragraph 12 of his judgment and this is accepted as correct by both, sides.
4. Paragraph 5 of Ext, B-8 reads thus:-- (Original in Mallyalam omitted). The contention of the first defendant that an absolute estate is created in favour of Sreedevi Amma is based on the above provision. The duty of the Court in interpreting a will is to find out the intention of the testator from the language used therein by making an attempt to reconcile all the provisions of the will. In Sanford v. Sanford. (1901) 1 Ch 939 Joyce, J., observed:
'It has been said by the Court of Appeal that the true way to construe a will is to form an opinion apart from the decided cases, and then to see whether these decisions require any modification of that opinion; not to begin by considering how far the will in question resembles other wills upon which decisions have been given.' And also pointed out the following rule in the matter of construction of wills 'the rule is to construe a will ut res magis valeat quam pereat and to give effect so far as possible to all the words used by the testator.' The words (Original in Mallyalam omitted) in Clause 5 of Ext B-8 no doubt indicates the conveyance of an ab-solute estate In her favour by the testator. The question is whether the other clauses indicate a contrary intention to cut down, the life estate by the creation of a vested remainder in favour of the children of the testator or in favour of the members of Sreedevi Amma's tavazhi. A gift over is regarded as a circumstance indicative of the intention of the testator to cut down the absolute estate created in favour of a beneficiary. In Williams on Wills, Volume I, page 495 at 496-497, the learned author sums up the statement of law in these words:
'A gift over in default of disposition by an absolute owner is void. An absolute gift of property followed by a gift of so much of that property as the first donee shall not have disposed of is an absolute gift in the first instance and the gift over is void. The main difficulty in these cases is that what is apparently an absolute gift in the first instance may by reason of subsequent provisions in the will be held to be cut down to a life interest, and the following are examples of such cases. The gift is so cut down (i) where the gift at the death of the first donee of what remains of the estate can be construed as a gift over of the residue after payment of debts; (ii) if such an expression appears in a codicil so that an intention is shown to vary the absolute interest given by the will, the first done will take a life interest, with a power of disposition either inter vivos, or by will only, or generally; (iii) where there is a doubt as to what interest the first donee takes raised by inconsistent provisions in the will such as a restriction on alienation, or a gift over on the donee disposing, or failing to dispose, of the property.'
Mahajan J., pointed out in Lakshmana v. R. Ramier, AIR 1953 SC 304:
'At one time it was moot point whether a Hindu widow's estate could be created by will, it being an estate created by law but it is now settled that a Hindu can confer by means of a will on his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The Court's primary duty in such cases is to ascertain from the language employed by the testator 'what were his intentions' keeping in view the surrounding circumstance, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say in his armchair.'
5. In my view, there is no dispute regarding the general principles to be applied in the interpretation of wills but the difficulty is only in the application of those principles to find out the intention of the testator. When an estate absolute is created by a particular clause In a will and there are later clauses which are inconsistent with the creation of an absolute estate difficulty has been experienced to find out whether the latter provisions have to be ignored as void being repugnant to the earlier clause as making an attempt to cut down a devolution or whether the latter clauses have to be interpreted as by way of defeasance or whether in view of the latter clauses the intention of the testator was to cut down the absolute estate into a life estate. In Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, (1953) 1 Mad LJ 108 = (AIR 1953 SC 7) Mukherjea, J. observed:
'In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the power of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word 'malik'. 'In Halsbury's Laws of England, 3rd edition, Volume 39, page 1090, para 1623, the learned author said:
'Where there is a clear absolute gift followed by words purporting to confer a power of disposition with a gift over if the power is not exercised, the absolute gift takes effect; and the gift over is inconsistent with it and is void.
Thus, where personal estate is given, in terms which confer an absolute estate, to a named donee, and then further interests are given merely after or on the termination of that donee's interest, and not in defeasance of it, his absolute interest is not cut down and the further interests fail; and an absolute interest is not cut down by precatory words, unless those words create an imperative obligation.
Where there is an absolute Rift of property followed by a gift over of the property after the death of the donee or after his death without issue or without leaving children, or of that part of the property of which he shall not have disposed, the absolute gift prevails, and the ultimate gift is repugnant and void. It may, however, appear sufficiently clear on the construction of the will as a whole that a gift which is in terms absolute is in fact intended as a gift of a life interest only; and this construction is not prevented merely by the fact that the gift over is of 'whatever remains' or in similar terms. When a will conferring an absolute interest is varied by codicil, an intention may appear that the donee is to take a life interest or a life interest witha power of disposition. If there is a doubt as to what interest the donee takes other provisions inconsistent with an absolute gift, such as a restriction on alienation, or a gift over on the donee disposing, or failing to dispose, of the property, may show that he is to take a life interest only,'
In Narasimha v. Parthasarathy, (1913) ILR 37 Mad 199 at p, 221. Lord Moulton, observed:
'In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intentions, i.e., to construe the will. It is true that in so doing they are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure, The Court is entitled to put itself into the testator's armchair,' Among such surrounding circumstances which the Court is bound to consider none would be more important than race and religious opinions, and the Court is bound to regard as presumbly (and in many cases certainly) present to the mind of the testator influences and aims arising therefrom. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document, So soon as the construction is settled, the duty of the Court is to carry out the intention as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions. If they transgress any legal restrictions, they must be disregarded. If they leave any eventuality unprovided for, the estate must, in case that eventuality arises, be dealt with according to the law which provides for succession of property in the absence of testamentary directions applying thereto. But the Court never adds to a will anything which needs to be done by testamentary disposition. In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.'
In the will interpreted in Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703 there were two clauses, the earlier one bequeathing the property absolutely to the wife and the latter clause providing that after the death of the wife the testator's adopted son will take the property bequeathed to the wife absolutely, in construing that will Subba Rao, J. said:
'These two bequests, prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible; one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction the statement in the will relied upon by learned counsel for the appellant could also be reconciled with such a bequest. That statement recorded a wish on the part of the testator that his wife should reside in the house, for he wanted his minor son and wife to continue to live in his house. The second part of the statement also recorded a wish on his part that his wife should keep the property intact and hand over the same to his son, who would also be a full owner like himself. Be it as it may, the said statement could not detract from the clear words used earlier. If the argument of learned counsel for the appellant be accepted, this Court would be rewriting the will for the testator and introducing words which were not there; it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting disposition can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of 9 construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the construction suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will, though his son had predeceased his wife.'
6. The provision in clause 5 of Ext B-8 [Original in Mallyalam omitted] is a bequest in favour of Sreedevi Amma with complete power of disposal. In the clauses that follow in Ext. B-8 there is no devise of the estate in favour of anybody else. The provision is that in view of the fact that Sreedevi Amma is old the testator's son Sivaraman should collect the outstanding and after appropriating the expenses incurred by him in the matter of collection he should invest the balance in the name of Sreedevi Amma in such a way that the investment should earn 6 per cent per annum and after the death of Sreedevi Amma the balance of the income after incurring the expenses provided in the A schedule to Ext. B-8 will be divided among the children of Sreedevi Amma.
7. The contention on behalf of the plaintiff that Ext. B-8 confers only a life interest in favour of Sreedevi Amma is based on clauses 6 and 7 of Ext. B-8 reading as follows;
Clause 6. [Original in Mallyalam omitted]
Clause 7. [Original in Mallyalam omitted]
The Courts below took the view that if Ext. B-8 is interpreted as to confer an absolute estate in favour of Sreedevi Amma as per clause 5 therein, clauses 6 and 7 which are inconsistent with clause 5 cannot be reconciled, but on the other hand, all the clauses can be reconciled if the case set up by the plaintiff is accepted. It is nobody's case that the bequest under Ext. B-8 apart from Section 48 of the Madras Marumakkathayam Act is for Sreedevi Amma and the members of her tavazhi. The only dispute between the parties is whether Ext. B-8 creates an absolute estate in favour of Sreedevi Amma or a life estate in her favour and a vested remainder in favour of the members of the tavazhi. It was argued on behalf of the first defendant that the words in clause 7 [Original in Mallyalam omitted] only prescribe the course of succession and do not in any way limit the estate given to Sreedevi Amma. In Subramaniaswami Temple v. Ramaswamia, AIR 1941 Mad 39, the Madras High Court had to construe a will wherein the testator whose wife had predeceased him and who had only one son provided as follows: 'I have bequeathed to my son the right to all my properties and moneys etc., and he shall alone enjoy them. If he or his son has no child the said properties shall pass to certain deity.' Their Lordships observed:
'The bequest to the son in the earlier sentence is unconditional and appears to convey an absolute estate to him. There is nothing improper or unreasonable in this construction, because the bequest is one made by the testator on his deathbed to his only son, a minor, the testator's wife having predeceased him and there being no other child. There is no reason to suppose that it was intended to give only a limited estate to the son who, it must be remembered, would have taken an absolute estate of inheritance if there had been no will at all.'
The above decision was the subject-matter of appeal before the Privy Council and the decision of the Privy Council is reported in Subramaniaswami Temple v. Ramaswamia, AIR 1950 PC 32. Their Lordships observed:
'The words 'I have bequeathed to my son Picha Pillai the right to all my properties and moneys, etc, and he shall solely enjoy them' are free from ambiguity and if they stood alone could only be read as conferring on him act absolute estate. For the appellant it is argued that the words which follow 'If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur' are a qualification and it the will is read as a whole they have the effect of creating a devise in favour of the deity of the temple in the event of Picha Pillai dying childless. Their Lordships are of the opinion that the additional words do not have this effect
Section 95, Succession Act, says that where property is bequeathed to a person he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him. It follows from what has already been said that their Lordships consider that a restricted interest was not intended there. They agree with the opinion of the High Court that the testator, as an after-thought, wanted to determine the devolution of the property in case his son should the without issue, but not in any way to limit either the character of the estate that was given by the earlier bequest in favour of the son, or to make it conditional and liable to be divested at his death without issue.'
8. These decisions support the appellant. Apart from the clause referred to there is no other provision dealing with the corpus of the estate in clauses 6 and 7 of Ext, B-8, though they deal with the income of the properties dealt with in Clause 5 therein. In the nature of the unambiguous wording of clause 5, in my view Clauses 6 and 7 in Ext. B-8 do not have the effect of cutting down the absolute estate created in favour of Sreedevi Amma.
9. The learned counsel for the plaintiff contended that even if there is a gift in favour of Sreedevi Amma, it must be presumed under Section 48 of the Madras Marumakkathayam Act, 1932 to be a gift in favour of the tavazhi. In Clause 5 of Ext. B-8, there Is a contrary Intention to the effect that Sreedevi Amma has got full rights over the properties. The contention based on Section 48 has only to be overruled. Thedecisions of the Courts below are therefore set aside and the second appeal isallowed dismissing the plaintiff's suit.The parties will bear, their costs throughout.