1. In this appeal the first question that arises is the construction of a will. The testator Shanmugha Mudaliar died in December, 1912, leaving a will dated the nth of November, 1911. Under this will he gave certain properties to his three daughters. We are now concerned with the disposition in favour of one of the daughters, Lokanayaki Ammal. She died on the 2nd of October, 1918. She had a son who was born on the 30th of September, 1918 and who pre-deceased her on the 1st of October, 1918 having lived only for a day.
2. The important clause in the will runs thus:
These (meaning the daughters) have no power to make sale, gift, mortgage, etc., of these two houses and grounds. After these, their issues shall use and enjoy them from son to grandson and so on in succession so long as the sun and the moon may last, with power of gift, mortgage, exchange and sale and they shall every year without default perform the aforesaid ceremonies, etc.
3. The first question that arises is whether under this clause a son of a daughter gets a vested estate immediately on his birth, or after the death of the mother, i.e., after the termination of the preceding life-estate. In construing a will made in somewhat similar circumstances it is true that I held in that case (Appeal No. 141 of 1921) that the daughter's son took a vested estate immediately after his birth, following the decision of the Privy Council in Bhagabati Barmanya v. Kalicharan Singh I.L.R. (1911) Cal. 468; but I find that the language of the will in this case is somewhat different from that of the will in that case. For example, the clause referring to the daughter's son in the other case ran thus : 'If a male is born to my daughter, it will inherit the real property given to my wife and daughter.' In this case it runs thus : 'After these, their issues shall use and enjoy them.' There are other differences. The will before us is more consistent with the view that the testator intended that the daughter's son should get an estate only if he survived the daughter; in other words, that the son should survive the mother is a condition precedent to any estate vesting in him. If that is so, the son having predeceased the mother, no estate vested in him and nothing descended to his father. On this construction of the will, the further question argued by Mr. Radhakrishnayya as to the retrospective operation of Act VIII of 1921 does not arise.
4. In the result, the appeal will be allowed and the plaintiff and the 2nd defendant will get a decree with mesne profits at Rs. 21 a month from the date of this decree and costs in both Courts from the estate of the first respondent.
Victor Murray Coutts Trotter, C.J.
5. I agree.