1. This is an unfortunate case but we see no way of upholding the principal contentions of the appellant before us. She sued for possession of her husbands properties on the footing that her husband had died intestate. The defendants pleaded that the plaintiff's husband had executed a will Ex. II on 27th August, 1910, whereby the properties referred to in the will had been given to one Subadramma the then living wife of the deceased for her lifetime and after her death to the contesting defendants.
2. The plaintiff questioned the genuineness of the will but the lower Court has rightly held that the evidence in its favour is such as to place its genuineness beyond doubt. This finding has not been seriously attacked before us.
3. It was next suggested that as the testator lived for nearly 20 years after the date of Ex. II, lost his first wife in the meanwhile, married another wife, viz., the plaintiff and acquired properties subsequent to the date of the will, the Court must draw the inference that the will of 1910 must have been revoked. It is true that no particular formality is necessary under the law in the mofussal for showing an intention to revoke a will, but when an inference in favour of revocation is asked to be drawn from the conduct of the testator the conduct must be such as to show that his mind was directed to the question whether the will was to remain in force or not and his conduct proceeded on the footing that the will was no longer to be in force. We find no basis for any such inference in this case. Even as a matter of surmise, the utmost that can be suggested is that the testator never afterwards thought about Ex. II, or perhaps forgot about it. The defendants have attempted to lead positive evidence to the effect that the deceased wanted that the will should remain in force, but, putting that evidence aside there is nothing to support the inference of an intention that the will should cease to have operation.
4. It was next argued that, as a matter of construction of the language of Ex. II, the bequest in favour of the testator's wife was not limited to Subadramma the then wife of the testator and that the language was sufficient to cover any wife including the plaintiff. Reference was made in this connection to the discussion of some of the relevant authorities in Neelamma v. Mareppa (1935) 70 M.L.J. 128 to which one of us was a party. But in that case the gift was not to the wife by name.' No expression of opinion in that case can therefore help the plaintiff in the present case. Our attention has also been drawn to the evidence of D.W. 1, a vakil, who drafted the will under the instructions of the deceased. He has said that the testator instructed him to draw up a will with a bequest for life in his wife's favour and with a remainder in favour of his brothers, and nephews. On this statement of the witness, it was argued that the testator meant a bequest in favour of his wife generally and that the reference to Subadramma which was put in by the witness himself without instructions from the testator must be disregarded. We do not think this is a proper way of interpreting a written document. The testator has undoubtedly signed the document presumably with knowledge of its contents. We very much doubt whether in the particular answer elicited from D.W. 1 it was at all brought home to his mind when the question was put to him to which that answer was given that counsel was going to draw a distinction between reference to wife generally and reference to the then existing wife. But even independently of this consideration when a document which is signed by the testator makes a reference to Subadramma there is no reason to ignore that reference as though it did not form part of the will, merely because in speaking about instructions given to the vakil for drafting the will that reference is not repeated. We are therefore unable to read the gift as one enuring to the benefit of the present plaintiff.
5. It was next argued that as the gift over to the brothers and nephews of the deceased is to take effect after the life estate in favour of Subadramma and as that life estate lapsed by reason of her death during the lifetime of the testator, the gift over in favour of the brothers and nephews must also be taken to have failed. We are unable to accept this contention. In a case where there is a gift of a life estate and of a remainder, the mere failure of the life estate by reason of the death of the legatee during the testator's lifetime cannot affect the operation of the clause relating to the remainder. The decision of Madhavan Nair, J., in Subramania Padayachi v. Pakkiri Padayachi : AIR1935Mad119 , proceeded not on any general principle of the kind put forward on behalf of the appellant but upon the express language of the document before the learned Judge. The document there provided that should the first legatee die after the testator's death, the property should go over to somebody else. This clause was construed by the learned Judge as indicating a clear intention within the meaning of Section 130 of the Succession Act that it is only in that particular contingency that the property should go to the second taker.
6. The last contention urged on behalf of the appellant relates to the operation of the will on the after-acquired properties. It is not disputed that the properties specified in the B and C schedules are after-acquired properties. As regards the property in the C schedule, there is a dispute between the parties, whether the whole of it must be treated as the property of Viswanathan or only a fourth share therein. On the question of construction we agree with the contention on behalf of the appellant that there are no general words of devise in Ex. II sufficient to pass the after-acquired properties. So far as the immovable properties are concerned, the bequest is limited to the properties which the testator got under partition and thus remained in his possession. In this view the plaintiff will be entitled to the B schedule properties and so much of the C schedule house as belonged to her husband.
7. On this last question, as to the ownership of the C schedule house, we have been taken through the evidence. It is true that the learned Subordinate Judge has not given a definite finding upon the title to this house, whether it belongs solely to the deceased or belonged in common to the four brothers. But his judgment leaves no doubt as to the inclination of his opinion being in favour of the defendant's case. Apart from the evidence of D.W. 8 the evidence of D.Ws. 7 and 9 and the promissory notes which they produced undoubtedly lend support to the defendant's story. In his oral evidence, D. W. 7 no doubt adds what is not specifically stated in his promissory note, viz., the purpose for which the loan was borrowed from him by the first defendant. We are not satisfied that there is sufficient reason for discrediting his evidence. There is the admitted fact that by a later mortgage executed by all the brothers the promissory notes in favour of D.Ws. 7 and 9 were discharged. It has not been suggested what other occasion there was for a loan being incurred by the first defendant for a common purpose at or about this time unless it be the building of this house. The probabilities also seem to be in favour of the conclusion that this house must have been built for 'the a common benefit of the four brothers. There is no doubt the fact that the sale-deed for the site stands in the name of, the deceased husband of the plaintiff and some point has also been made by the learned Judge of the fact that the first defendant has not produced the accounts relating to the construction of the house. But it is very doubtful from the indications afforded by the evidence if there was anything like a regular account or whether it would have been preserved for this length of time. As regards the sale-deed, it must be remembered that it was taken only in 1924 when in fact this site had been taken possession of and even the house built upon it very many years before. We have not got very satisfactory explanation as to why the sale-deed was taken in the name of the deceased but we do not think that that circumstance alone outweighs the probabilities in favour of the theory of common ownership. In this view the plaintiff will be entitled only to a fourth share in the C schedule house.
8. The decree of the lower Court will be varied only to the extent of awarding to the plaintiff possession of the whole of the B schedule properties and a fourth share in the C schedule property. The lower Court will take the necessary steps and pass a final decree for partition, possession and mesne profits in respect of the plaintiff's share above decreed.
9. In the circumstances there will be no order as to the costs of this appeal. The plaintiff-appellant must however pay the court-fee payable to Government on the memorandum of appeal which will be a charge on the properties decreed to her.
10. I entirely agree.