Alfred Henry Lionel Leach, C.J.
1. This appeal raises the question of the construction of a will. One Shanmugam Pillai, the maternal great-grandfather of the first, second and third respondents and the grandfather of the fourth respondent, died in November, 1917, and by his will directed that the balance of the income of his estate, after allowing for a charitable bequest, should be paid yearly by the trustees appointed by the will to his daughter Ponnammal during her lifetime. Then follow these provisions:
After her death all my properties should go in equal shares to such of my aforesaid daughter Ponnammal's sons or sons' children as are alive. The said trustees should put them in possession of the properties as aforesaid at the appointed time according to their respective shares. At the time of such delivery of possession, if those who take the property are 'minors they (trustees) should manage only their share of properties and deliver possession thereof as soon as the minor becomes a major.
2. Ponnammal died in or about the month of July, 1935. She was survived by her son the fourth respondent, who was married to one Sarathambal, the mother of the first, second and third respondents. Sarathambal and her children filed a suit in the Court of the Subordinate Judge, Coimbatore, to recover three-fourths of the estate of Shanmugam Pillai. Their contention was that on the death of Ponnammal the entire estate became divisible in equal shares between the fourth respondent and his children. They urged that the word 'or' in the passage 'after her death all my properties should go in equal shares to such of my aforesaid daughter Ponnammal's sons or sons' children ' should be read as 'and'. The Subordinate Judge accepted this construction of the will and decreed the suit. Hence this appeal.
3. The appellant is a mortgagee of a part of the estate, the mortgage having been created by the fourth, respondent during the pendency of the proceedings in the trial Court. The first respondent having challenged the right of the appellant to file this appeal it is necessary to deal with this point first. Section 146 of the Code of Civil Procedure says that save as otherwise provided by the Code or by any law for the time being in force where a proceeding may be taken or an application made by or against a person, then the proceeding may be taken or the application may be made by or against a person claiming under him. Order 22, Rule 10 makes provision for the continuance of a suit when there has been a death or marriage or insolvency during its pendency and when there has been an assignment or devolution of interest before the hearing has been completed. There is nothing in Order 22 which prevents the application of Section 146 in this case and a decision to this effect was given by this Court in Sitaramdswami v. Lakshmi Narasimha I.L.R. (1917) Mad. 510. For the respondents it has been suggested that the decision of the Privy Council in Maharaja Sir Manindra Chandra Nandi v. Ram Kumar Bhagat (1922) 43 M.L.J. 589 : L.R. 49 IndAp 220 : I.L.R. 1 Pat. 581 has in effect overruled Sitaramaswami v. Lakshmi Narasimha I.L.R.(1917)Mad. 510. A perusal of the judgment of the Privy Council shows that this is not the case and it was so held by this Court in Sreeramamurthi v. Jayaraja Lakshmi Ammal (1932) 64 M.L.J. 489 : I.L.R. 56 Mad. 469. We consider that the appellant had the right to file this appeal and the objection must be overruled.
4. The appellant's contention that the decision of the trial Judge is erroneous is well founded. The word 'or' in this will cannot be read as 'and'. What the will says is that after Ponnammal's death the estate shall go to her sons or if there are no sons living to the sons' children. That the will must be construed in this way is indicated by Section 96 of the Indian Succession Act. That section says:
Where property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
5. Illustration (iv) to the section runs as follows:
Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.
6. The legal position is stated in Jarman on Wills (7th Edition, page 452) in these words:
The question whether 'or' imports substitution arises most frequently in cases where the latter part of the gift is in favour of a class of persons related to the original devise or legatee, such as 'issue', 'children', 'heirs', as for example, where the gift is to A or his issue or to A or in case of his death to his issue. The tendency of the modern cases is to construe such a gift as intended to substitute the issue for the original devisee or legatee in the event of the latter dying in the testator's lifetime.
7. In Penley v. Penley (1850) 12 Beav. 50 E.R. 1170, there was a bequest to 'my son William or his children.' It was held that the son who survived was absolutely entitled and that the children could only take by substitution in the case of the death of their parent. In Sparks v. Restal (1857) 24 Beav. 218 : 53 E.R. 341, there was a bequest to A for life and after her death to B and C or their children. B and C survived. It was held that their children took nothing. It is unnecessary to pursue the investigation into the authorities further. Sufficient has been said to make it clear that the Subordinate Judge erred in construing the will in the way he did.
8. The appeal will be allowed and the suit dismissed with costs against the first, second and third respondents in this Court and in the Court below.