Victor Murray Coutts Trotter, C.J.
1. In this case a man called, Shangu Pillai, who was an Indian Christian, left a will, dated the 7th November, 1903, which has been the subject of dispute as to its true construction. The material words are : 'I hereby give away to my second wife Annie Shangu Pillai all the moveable and immoveable properties I possess. After me she should enjoy the said properties and she should at her death divide and give (the same) to these three persons, namely, my first wife's deceased daughter Manoranjitamani Ammal's children, (1) Samuel Rajaratnam, (2) Albert Karunakaran, and (3) Penelope Padma, according to the wishes of the aforesaid Annie Shangu Pillai.' It has been argued strenuously before us and to a certain extent accepted by the learned Judge that this is not an absolute bequest to the widow but is a mere life-estate coupled with a power of appointment. I personally, whenever I can, avoid holding that the technicalities of English Chancery practice about powers and so forth are to be imputed to Hindu testators who know nothing whatever about them and, as far as possible, I adopt the construction which will steer clear of matters of this kind with which the parties are totally unfamiliar. It seems to me that a plain man interpreting the language of the will in the ordinary way would say this was a gift to his widow with an expression of opinion that it would be desirable for her to divide the property obviously in what shares she pleased. Nobody contends that definite shares were provided for in the will for these three people. The words ' according to the wishes of the aforesaid Annie Shangu Pillai ' appear to me obviously to leave in her a discretion so that, if Samuel Rajaratnam or either of the others turned out to be unsatisfactory, the widow undoubtedly on the true construction of this document would be justified in saying ' you will not get a penny. ' Then it is said that the language which she herself used implied that she thought she was acting under a power. I suppose the idea of the power was put into her head by Chelliah or John Stuart, a clergyman of the United Free Church Mission. I do not suppose they knew much more about powers than I do. I find that although, as I say, she purported to act under what is described as a power, the language she used is quite categorical : ' I hereby bequeath the properties (that is, all the properties devised by Shangu Pillai and) inherited by me from my late husband along with my own properties. ' Who reading that language, if what was in her mind was relevant and material, which I very much doubt, can come to any other conclusion than that this woman believed that she had an absolute power to dispose of this property though no doubt she would in all probability have endeavoured to respect the wishes of her late husband In my opinion this is the most satisfactory solution of the case and the one which keeps us most in the domain of realities and does not seek to apply technical rules of construction which are well enough in the case of instruments drawn by professional people who know exactly what language is apt to express the rules of construction laid down in the English cases to a Tamil document drawn by a person; who knows nothing of the rules or their application.
2. This appeal fails and must be dismissed with costs.
3. I agree with the learned Chief Justice that this appeal fails. I confess that I had some doubt in the beginning as to the interpretation to be put upon the will. But after hearing the Administrator-General for the defence, I am quite clear that it is not possible to hold on the construction of the will of Shangu Pillai that his wife got only a life-estate under it. The learned Judge says that the words 'should enjoy and should, at her death, divide and give ' coupled with the fact that there are no words of absolute disposition in the will suggest to his mind that the testator did not intend that his widow should do what she liked with the properties. In the first place it seems to me that there is a misapprehension here because the opening words of the will do amount to an absolute disposition in favour of the widow. It says : 'I hereby give away to my second wife all the moveable and immoveable properties I possess. ' The use of the word ' enjoy ' in the second sentence does not connote to my mind that the absolute estate given in the first sentence was cut down to a life-estate. Enjoyment of property is possible not only for a life-estate holder but also for an absolute estate holder. In fact, both enjoy the property equally and, so far as enjoyment goes, there is no difference between the two. The absolute estate holder will no doubt have powers of alienation which the life-estate holder will not have. Then there are the words 'she should at her death divide and give to these three persons. ' No doubt these words require some consideration ; but I think that these words cannot be used as cutting down the absolute estate, for it is left entirely to the wishes of the lady under the will, to give as she liked. That seems to show that the matter was left entirely to her discretion and that there was no binding disposition of the property in favour of the three persons named. It is a mere matter of recommendation to the lady to do whatever the testator would have liked to be done with his property at the time of her death.
4. A case very similar to this has been cited by the Administrator-General, In re, Hamilton (1895) 2 Ch 370 and Lord Justice Kay's observations there are quite apt and applicable to this case. There are no words here to show that the testator intended that the three persons named, should1 get an estate subject to the exercise of a power by the widow. In fact it is not a case at all of any power of appointment. It is merely a case of absolute bequest to the widow with a recommendation to her, so far as I can understand, to deal with the properties in the manner mentioned which is not binding on her. The use of the word ' power ' by the widow in her will is not important. The depositive words are ' I hereby bequeath the properties devised by and inherited from my late husband along with my own properties in the manner following. ' It is only under the second will by the bequest in favour of the plaintiff that he can get any right to the properties ; and, as there is no bequest in his favour of the property now in dispute, house No. 27, Venkatesa Maistry Street, he cannot possibly succeed.
5. The appeal should therefore be dismissed with costs.