N. Varadaraja Iyengar, J.
1. These six second appeals arise from six rent suits on the file of the District Munsiffs Court of Hosdrug and raise a common question of title depending upon the proper construction of a will. Following the procedure adopted by the courts below with regard to the suits and the first appeals, the appeals Herein were also heard together in this court. This single judgment is intended to dispose of them all.
2. The will in question is dated 17-12-1931) and was left by Vittappa the last of three Hindu brothers but who had been given away in adoption. He was about 75 at the date of the will. He had no male child but had six daughters, three by his caste wife and three by his concubine. His eldest brother Manjnnatha had a son Ganapathy, while his brother Upendra had died leaving a son Mukunda and three grand-sons by him, Ramadas, Narasimha and Achutha.
By the will Vittappa divided his estate under three lists and bequeathed List I properties toGanapathy, List 2 properties to Ramadas, Narasimha and Achutha alone with other sons to be born of Mukunda and finally List 3 properties to his three daughters by his concubine subject in respect of all to certain terms and conditions detailed. Ganapathy died on 3-8-1951 leaving no son or other issue but only his widow Sharada. The controversy arose soon after, between Sharada on the one side and Ramadas and his brothers on the other as to who should succeed to the List 1 properties. This took the form of the six rent suits herein concerning separate items covered by that list and instituted by Ramadas as common plaintiff against the respective tenants as 1st defendant and Sharada as the common 2nd defendant.
3. The will is in Canarese but we have the benefit of an agreed Malayalam translation. Dealing with the main provisions we notice that it first allots List 1 properties as well as properties either left out or to be acquired in future, to Ganapathy with right to take patta, pay Government tax and jenmi purappad and collect all rents and enjoy absolutely (Malayalam translation omitted --Ed). The provision is then made for payment by Ganapathy within three years of Rs. 100 each to the three daughters by the caste wife of the testator. Then comes the vital clause as follows. 'Ganapathy has now no male children. IE no* male children are begotten by him until his death, List 1 properties will after his death devolve on List 2 legatees absolutely' (Malayalam translation omitted-Ed.), Ganapathy is lastly directed to look after the due conduct of Ulsavoms and Viniyogas for which the testator had already made special endowments and the condition is again added that in the absence of male children left by Ganapathy the ceremonies should be conducted by List 2 legatees and their santhanams. In regard to List 2 properties the provision is made that the legatees and their santhanams should in order of age get patta and enjoy (Malayalam translation omitted-Ed.) and similarly List 3 properties were to be enjoyed by the three daughters of tbe concubine. The will closes by enjoining on all three allottees not to alienate except to the certain small extent allowed and the provision is added that they personally shall answer for their debts.
4. According to the plaintiff the will conferred on Ganapathy only a life estate over the List l properties with a remainder over in favour of the plaintiff and his brothers. Alternatively and assuming that an absolute estate was conferred in the first instance on Ganapathy that was subject to a defeasance in the event of bis failing to have a male issue at the time of his death and a gift over to them. In either case tbe 2nd defendant bad no title to collect the rents of List 1 properties after her husband's death without male issue.
The 2nd defendant contended on the other hand that her husband obtained absolute estate in List 1 properties under the will even in the first instance and all later conditions contained therein which derogated from the same were inoperative on the ground of repugnancy and her right as heir of her husband was accordingly unassailable. Evidence was also let in by her that Ganapathy besides paying off Rs. 300 to the daughters by overstepping the directions under the will and executing a mortgage of the particular item reserved for a larger extent, viz., Rs. 400 had together with the plaintiff and his brothers executed a sale deed for Rs. 3000 and also other mortgages.
Construing the will in the light of the conduct of the parties as above the learned Munsiff came to the conclusion that Ganapathy got an absolute estate in respect of List 1 properties. On this basis according to him the subsequent clause in the will that in case he died without male issue the properties should devolve on the holder of the second schedule properties had only to be regarded as repugnant and therefore void in law. The clause in question was not also sufficient in the opinion of the learned Munsiff to make the estate already granted any way conditional or liable to be divested after death without male issue. The learned Judge has now affirmed the decision of the learned Munsiff on practically the same grounds. Hence these second appeals by the common plaintiff.
5. Mr. Madhava Prabhu learned counsel for the appellant Ramadas, first contended for the position that the will read as a whole conferred only a life interest upon Ganapathy with remainder over to the plaintiff and his brothers. He relied in this connection on the terms of the will describing the estate given to Ganapathy in terms of enjoyment only though the words 'Sampooma avakasa' were tacked on to it. He referred to the fact that powers of alienation weie practically cut out and finally stressed the provision for the continued performance by the male members of the family of the religious ceremonies and charitable trusts which the testator had been carrying on.
It is well-settled however that the meaning of any particular clause in gifts or wills is to be collected from the entire instrument and all its parts are to be construed with reference to each other and similarly every attempt should be made to reconcile if possible two contradictory provisions to see whether the main object of the transferor was to make an absolute transfer or only transfer of lesser amplitude. Having regard to the terms of the earlier portion of the will which are to the effect that Ganapathy was to enjoy the properties absolutely or with all rights, it appears to me clear that what was conferred upon him was an absolute estate and not a life estate alone.
The words 'sampoorna avakasa' though associated only with 'anubhava', in my judgment ara quite enough to indicate the grant of absolute interest. Indeed the testator while describing the extent of his own interest does so with reference to 'anubhava' or enjoyment though there were the words 'sarvaswathanthria adhikari' (Malayalam translation omitted-Ed.). The restrictions on the powers of transfer which no doubt occur in the later part of the will, have then only to be ignored as repugnant to the interest already created by application of Section 138 of the Succession Act. As observed in Mayne's Hindu Law, llth Edn. .P. 904, paragraph 772 :
'If any estate were given to a man simply without express words of inheritance, it would, in the absence of a conflicting context, carry by Hindu Law an estate of inheritance. If there were added to such a gift an imperfect description of it 'as a gift of inheritance, not excluding the inheritance imposed by the law, an estate of inheritance would pass.'
See also Damodar Das Tapidas v. Dayabhai Tapidas, 25 Ind App 126 : ILR 22 Bom 833 (PC); Vullubhdas v. Gordhandas ILR 14 Bom 360; Rameshwar Prosad v. Lachmi Prosad, ILR 31 Cal 111.
6. Learned counsel for the appellant then said that this must bo taken to be a case of absolute estate subject to a defeasance in the event of a contemplated contingency provided for in Section 131; of the Succession Act corresponding to Section 28 of the Transfer of Property Act. Section 131 runs as follows :
'Section 131(1). A bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the filing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in Ss. 120, 121, 122, 123, 124, 125, 126, 127, 129 and 130.'
The ulterior bequest as it is called in Sub-section (2) is effected by a conditional limitation viz., one containing a condition which divests an estate that had already vested and vests it in another person. The various sections specified in Sub-section (2) deal with certain type of illegal or void conditions but we are not concerned with them. Now the difficulty in this subject is as pointed out by Sundaram; Chetty J. in Govindaraja v. Mangalam Pillai, AIR. 1933 Mad 80 :
'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.'
In that case the material portion of a settlement ran as follows :
'I have accordingly given to you the undermentioned properties valued at Rs. 1.000 and you shall yourself from this day hold and enjoy the same with all rights. Should any issue be born tous, that issue shall get the properties after our death. If there is no issue, after your death, your brothers (plaintiffs 1 and 2) should take the properties.'
The contention was raised in the first instance as here that the settlement created only a life estate with a remainder over. This contention was overruled. Then was raised the question as to defeasance under Section 28 of the Transfer of Property Act. Sundaram Chetty, J. referred exhaustively to the earlier cases and found that the absolute estate created in favour of the plaintiffs' sister was subject to a defeasance in the event that happened, viz., her dying without issue.
7. The above case was quoted with approval and followed in Rameshwar Kuer v. Shiolal Upadhaya, AIR 1935 Pat 401. In Golak Behari v. Suradhani Dassi, AIR 1939 Cal 226, the learned Judges referred with approval to the 'useful test' laid down by Sundaram Chetty, J. as above and went on to say:
'The exclusion by a subsequent clause of some of the heirs or only a class of heirs of the, donee or legatee, who has been given an absolute estate, an estate of inheritance, would not make the clause a defeasance clause but only a repugnant one, for a heritable estate must descend according to the law of the land or the personal law of the donee or legatee, as the case may be, and any provision made for excluding some of the heirs-at-law of the donee or legatee or a particular class of them' would He regarded as an attempt by the donor or testator to legislate which cannot be permitted.'
They then added :
'The intention to terminate a gift or a bequest may be an expressed one or may be Inferred bynecessary implication. Where it is an absolute one an estate of inheritance having been conferred on the donee or legatee and the contingency is one which is to happen, if it all, the moment the donee or legatee dies and not earlier, that intention would be necessarily implied if at that moment of time the donee's or legatee's absolute estate is cut down by the words used by the donor or testator to a life-estate, for with his death (ie,, of the death of the donee or legatee) all his interest determines,nature doing the final act. An absolute estate so conferred can only, where there are no express words of conversion into a life estate, be cut down to a life estate if the quality or heritability be destroyed and that can be done by the exclusion of allthe heirs of the donee or legatee then living'.
In that case the testator after conferring absolute estate on his sons, in a subsequent clause said that if any one died without leaving a son, his widowor daughters shall not inherit the property but shallonly get maintenance and certain other payments. It was held that the clause cannot operate as adefeasance clause for three reasons. Firstly, because it did not reduce the absolute estate to a lifeestate; secondly, because it set up a line of inheritance not known to Hindu law and thirdly because it was a clause which was void on the ground that it was repugnant to the grant of an absolute estate. In Mulla's Transfer of Property Act, 4th Edn. p. 147 the test as applicable to Section 28 of the Transfer of Property Act is laid down as follows :
'A conditional limitation is a condition of defeasance, which terminates the interest of one person and invests another person with it. But if an estate is given to a named donee in terms which confer an absolute estate, and then a further interest is given merely after or on termination of that donee's interest, and not in defeasance of it, thefurther interest will be void for repugnancy.'
The application of this principle in various cases on one side is then dealt with as follows:
'Thus when a testator gave an absolute estate to his wife with power of alienation, and then added a clause that 'if, at the time of the death ofmy widow, there be no adopted son or if no son or wife of the adopted son be alive, then, my heir according to the Hindu sastras who shall be alive atthe time shall get the properties which shall remain after disposal by my wife by way of gift or sale of the same' -- the gift over was invalid. Similarly in Anandrao Vinayak v. AdministratorGeneral of Bombay, ILR 20 Bomi 450 the testator made an absolute gift to his son G and then added 'and when the sons of my son G shall attain the age of twentyone years, the same shall be divided and duly received by G and his sons in equal shares. The gift to the grandsons was void for repugnancy and the absolute estate of G was notdivested.'
Then cases are on the other side grouped :
'In a Bombay case Gulbaji Ajisigi and Co. v. Rustomji Kharsedji, ILR 49 Bom 478 : (AIR 1925 Bom 282(2)), however, where the testator gave anabsolute estate to R and then added 'should R die and should he then leave a son, such his son shall afterwards be the owner' -- it was held that R took only a life-astate. In a Madras case, AIR 1933 Mad 80 (already referred to by me) there was agift to a wife in terms absolute with a clause that if there is no issue, after your death, your brothers should take the properties'. This was construedas a valid condition in defeasance of the gift'.
8. The question recently came up before this Court in Bhavani v. Govindan, 1956 Ker LT 620 : (AIR 1957. Trav-Co. 167) (Sankaran and Kumara Pillai JJ.). The settlement deed in the case made various allotments and provisions relating thereto One of the provisions related to particular allotment and said that if the allottee died while he was a minor or before he was married the properties allotted to him will be taken over by others. Discussing the applicability of Section 28 of the Transfer of Property Act in the light of decided cases, some of which are referred to above, the learned Judges said:
'Section 28 expressly allows the gift of any interest in favour ot the donee subject to the condition that on the happening of a specified uncertain event the interest shall pass to another person In such a case what is really conferred on the donee under the first clause is only a life estate even though the interest is described in that clause as an absolute estate, and the absolute estate passes to the donee or donees under the second clause on the happening of the specified uncertain event.'
Reference may also be made to Koyyotan Sooppi v. Kallyani, 1957 Ker LJ 862 (Koshi C.J. and Vaidialingam, J.). Applying the above test it appears perfectly clear that the absolute estate of Ganapathy over List 1 properties under the will was reduced to a mere life estate on the non-happening of the event of the birth of male child to him and the estate went over to the plaintiff and his brother, holders of List 2 properties.
9. The finding of the courts below that the property devolved upon the 2nd defendant widow of Ganapathy is therefore wrong and the decree based on such finding cannot be sustained. But ad the lower appellate court has not found on the other questions arising in the various suits, all of them will have to be remanded to that court for disposal of the rest of the issues in the light of the finding herein entered and I order accordingly.
10. The appeals are thus allowed but therewill be no order for costs of these appeals.