1. On the 26th October, 1900, one Subbayyar executed a registered will, Ex. A. He left the property for her life to his widow Gomati and made provision that after her death it should be enjoyed by his daughter's son Ramaswami. Ramaswami predeceased Gomati and she, after Ramaswami's death, mortgaged the property to the second respondent. Later, she sold the same property to Muthukaruppan, he undertaking to discharge this mortgage. As he failed to do so, the second respondent filed a suit on his mortgage, impleading Muthukaruppan and his sons and the widow of Ramaswami. He obtained a decree; and in execution of his decree brought the property to sale and purchased it himself. In attempting to obtain possession of the property, he was resisted by the present appellant, who was then in possession and claimed a right to remain in possession as a purchaser from Subbayyar's heirs. The claim petition of the appellant was allowed, and so the mortgagee-purchaser was constrained to bring the present suit for a declaration of his rights and for possession. The main question that arose in this suit was whether, on a proper construction of the will, the widow of Ramaswami had any right in the property or whether the property reverted to Subbayyar's heirs after Gomati's death. Both Courts have held on an interpretation of the will that there was a vested remainder inv Ramaswami and that the property after his death vested in his widow who, I have already said, was a party to the mortgage suit. They came to the conclusion that the appellant) had no rights in the property and decreed the suit.
2. From a reading of the will there can be no doubt that the property was given to Gomati for her life and that after her it was to be enjoyed by Ramaswami. That does not however mean that the vesting in favour of Ramaswami was to be postponed until after the widow's death. In law it is presumed that where there is a life estate given to a person, the remainder vests on the testator's death in the remainderman, unless-there are very clear words to show that the testator had a contrary intention. The language used in this will is what one would expect in a document written by a layman. The first clause therein is relied upon by 'the appellant as indicating that the vesting was to be postponed until after Gomati's death, and is to the effect that:
The expenses of my (testator's) obsequies, etc., shall be met by the said Gomati and the expenses of her obsequies, etc., by the said Ramaswami....
3. This only shows that the testator expected his grandson would survive his widow; and this direction to his grandson that he should meet, the funeral expenses of the step-grandmother should not be read as a qualification of the earlier paragraphs which conferred on Ramaswami a vested interest upon the testator's death. As was pointed out by Madhavan Nair, J., in Narayana v. Subbaraya : AIR1929Mad32 , the mere fact that the testator made no provision for the performing of the funeral obsequies of the widow in case the remainderman should fail to do it, is itself an indication that the testator did not intend that the remainderman's rights should be contingent on his surviving the widow. Periyanayaki Ammal v. Rathnavelu Mudaliar : AIR1925Mad61 has been quoted as a case on the other side of the line in which it was held that there was a contingent remainder and not a vested remainder; but the wording was there different. I have no doubt that the lower Courts were right in their interpretation of the will and that Ramaswami had a vested remainder which passed to his widow on his death.
4. The next argument of the learned advocate for the appellant is this: he points out that it was Gomati and not Ramaswami who mortgaged this property to the plaintiff and that unless the Court finds that this alienation was binding on Ramaswami and his heirs, the plaintiff would have acquired no right under the mortgage. The answer to that is that Ramaswami's widow was a party to the mortgage suit and it was against the mortgaged property that the plaintiff obtained a decree. Ramaswami's widow was therefore bound by the result of that suit and the mortgage must be held to be binding on her. It is argued that the Court may have held that any question of her paramount title to the property and of the binding nature of this mortgage was foreign to the mortgage suit and that all that was to be sold was the right, title, and interest of Gomati in the suit property. That, however, could not have been the case; for at the time of the mortgage suit, Gomati was dead and that was why Ramaswami's widow was impleaded. So I have no doubt, in the absence of cogent reasons to the contrary, that the mortgage decree and therefore the sale of the suit property was binding on, the person whom we now find to have been the owner of the property. The plaintiff is therefore entitled to succeed against the appellant, who has no title in the property at all. The appeal therefore fails and is dismissed with costs.