Alfred Henry Lionel Leach, C.J.
1. The appellant is the Official Receiver of West Tanjore district. He represents the estate of one Ramappa Chettiar, an insolvent. The suit out of which this appeal arises was filed by Ramappa's son, Samudravijayan, for a declaration that his father has merely a life interest in certain immovable properties and for an injunction restraining the appellant from offering for sale more than the alleged life interest. He also sought a decree for partition of other properties. The properties in respect of which the plaintiff alleged his father has a life interest are described in Schedule A to the plaint and the properties in respect of which partition was sought in Schedules B and C. The suit succeeded so far as it concerned the properties described in Schedule A, but it was dismissed so far as it concerned the other properties. The appellant contends that the learned Subordinate Judge of Kumbakonam who tried the case was wrong in holding that Ramappa's interest in the A schedule properties was limited to a life estate. He maintains that Ramappa's interest was that of an absolute owner. The appeal is limited to this question.
2. The original owner of the properties was one K.S. Ramu Chettiar, who died in 1873, leaving a widow Marudevi Animal, and an adopted son Samudravijayan. The adopted son died in 1897 leaving two sons, Ramappa (the father of the plaintiff) and Surendranath. They were the 38th and 39th defendants in the suit and are the 38th and 39th respondents in the appeal. Ramu Chettiar left a will under which properties set out in Schedule A were bequeathed to the widow, and it is common ground that she acquired an absolute interest in them. By a deed dated the 15th March, 1912, she gave these properties to Ramappa and Surendranath, and the dispute is with regard to the effect of this deed, the material portion of which reads as follows:
On account of the affection I have towards my grandsons aforesaid - (1) Ramappa Chettiar and (2) Surendranath Chettiar - and in consideration of the service that is being rendered by them to me, and as only the said two persons are my proper heirs, I Have with all my heart and by means of this settlement deed given away this day the properties described in Schedule B hereof, to both of them aforesaid, with power to enjoy them with all rights. But from and out of the income from the said properties, I shall, during my life, pay the Government kist and enjoy the balance left. Afterwards both of them shall divide off the said properties into two moities as they please and enjoy the same. After the death of the said two persons, their (respective) heirs shall succeed thereto. Both of them, individuals numbers 1 and 2 shall enjoy the properties described in Schedule B aforesaid, without making any alienation thereof by way of gift, exchange, sale, etc.; the value of the nanja, punja, etc., and house described in Schedule B aforesaid is Rs. 16,000. To this effect I have with all my heart and bona fide executed this settlement deed. I have delivered two documents as title deeds hereto. This settlement deed shall remain with Surendranath Chettiar of you.
3. The appellant's case is that as the donor conveyed the suit properties 'with power to enjoy them with all rights' she created an absolute title in the donees and any words which follow and are repugnant to an absolute title must be ignored. He relies on Section 11 of the Transfer of Property Act which states that where on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. The respondent contends that the document must be looked at as a whole and says that when this is done it is apparent that the intention of the donor was to give to Ramappa and Surendranath merely a life interest in the properties. He points to Section 82 of the Succession Act and argues that if the meaning of any clause in a will is to be collected from the entire instrument the same principle must apply when the Court is interpreting a deed of gift.
4. While the Court must examine the entire instrument in t order to see what its effect is the examination must be carried out in the light of Section 11 of the Transfer of Property Act when the instrument is one transferring immovable property. If the examination discloses. that the transferor has used words creating an absolute interest these words must be given effect to, notwithstanding that later words are used which restrict the right of full ownership. In the present case the properties were conveyed to Ramappa and Surendranath on account of affection, in consideration of 'service' and, because they were the donor's only heirs, and the words 'with power to enjoy them with all rights' can only imply full ownership. It is conceded by the respondent that if the instrument stopped there it would operate to create an absolute estate in the donees. This being so, it is arguable that by reason of Section 11 of the Transfer of Property Act anything which comes after should be ignored. The words of gift are, however, followed immediately by these words 'But from and out of the income from the said properties I shall during my life pay the Government kist and enjoy the balance' and we consider that they must be read in conjunction with the words of gift. Reading the document in this way there is a conveyance to Ramappa and Surendranath absolutely, subject to the condition that the donor should enjoy j the income during her life. In other words she reserved to herself a life interest. This is emphasised by the words which come next:
Afterwards both of them shall divide off the said properties into two moieties as they please and enjoy the same.
5. 'Afterwards' means after the donor's death, and on this event the properties are to be divided equally between the two donees without any restriction. The respondent would have it that the provision against alienation which comes later means that the donees were only to have a life interest. It appears to us that, this provision was inserted in order to prevent the donees selling the property during the donor's life time as the sale would deprive her of the income. Be that as it may, the words prohibiting alienation must be disregarded because they limit the absolute estate which the donor conveyed to the donees with effect from her death. I should mention that the donor died in 1918, and as the result of partition agreements between Ramappa and Surendranath the properties covered by the deed were allotted to Ramappa.
6. In Bhaidas Shivdas v. Bai Gulab (1921) 42 M.L.J. 385 : 1921 L.R. 49 IndAp 1 : I.L.R. 46 Bom. 153 (P.C.), the Judicial Committee had to consider a will left by a Hindu, who appointed his wife his executrix, constituted her the owner of his property and provided that she should leave whatever might remain after her death to her two daughters 'as she liked'. By Clause 18 of the will he directed his widow to defray the expenses of a religious object out of the rents of the property left to her, and authorised her to apply the surplus income for the maintenance of herself and her daughters. She was given an express power to mortgage or sell and by another clause the daughters were to be the executrices upon her death with power to deal with and manage the entire property. Their Lordships held that the widow took an absolute estate. The limitations which followed were not sufficient to displace the effect of the clause which constituted her the absolute owner of the property. In Saraju Bala Debi v. Jyotirmoyee Debi which was also decided by the Privy Council a Hindu executed three documents, whereby he conveyed to his daughter, her sons, and their sons successively and her daughters immovable properties subject to a fixed rent with the right to transfer by sale or gift under certain conditions. The conditions were: - (1) the properties were not to pass to the heirs of the grantee's daughters; (2) they were not to be transferred by gift except to a limited extent for religious purposes; and (3) the grantor and his heirs were to have a right of pre-emption in certain circumstances. The Privy Council held that the grantee took an absolute estate. Their Lordships examined the conditions and held that they were to be disregarded as being repugnant restrictions. That is the position here. There is no doubt that it was the intention of the donor to convey the properties to Ramappa and Surendranath absolutely and the instrument was worded to give effect to this intention. Therefore the restriction on alienation must be ignored. For the reasons indicated we are of the opinion that the learned trial Judge was wrong in holding that Ramappa had merely a life interest, and we allow this appeal.
7. The learned Advocate for the appellant has also contended that the suit was bad as notice had not been given in accordance with Section 80 of the Code of Civil Procedure. In view of our decision on the main question in the appeal it is not necessary to decide whether the suit was properly instituted.
8. The plaintiff-respondent will pay the appellant's costs in this Court and in the Court below. The plaintiff-respondent will also pay to the appellant the court-fee which the appellant had to pay as the result of the suit having been filed in forma pauperis.