Pandrang Row, J.
1. The main point argued in this appeal is that the finding of the Court below on a question of construction of a will is wrong. The will is one about which there is no dispute so far as its execution and validity are concerned. The testator was a retired Deputy Collector, Minakshisundaram Pillai, who was lying very ill in hospital at the time he made the will and died the very next day. The will is very short, being in fact, a model of brevify and it runs, as follows:
I am now an in-patient in the hospital at Madura, having undergone an operation for carbuncle. As I have suspicions about my surviving, I have bequeathed to my son Pichai Pillai the right to all my properties, and moneys, etc., and he shall alone enjoy them. If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchehdur.
2. This was executed on the 20th May, 1919. The next day a codicil was added to the effect that with the money due to the testator his elder brothers should purchase immovable properties such as lands, etc., in the name of his son. The testator died on the same day soon after the codicil was executed. The question is whether there is an executory devise in favour of Subramaniaswami under the will. If it can be regarded as containing an executory devise in favour of the deity, it is obvious from Soorjeemony's case (1862) 9 M.I.A. 123 and the subsequent cases which are all referred to in a recent judgment of their Lordships of the Judicial Committee in Gadadher Mullick v. Official Trustee of Bengal (1940) 1 M.L.J. 834 : L.R. 67 IndAp 129 : I.L.R. (1940) 1 Cal. 415 , that there is nothing in the Hindu Law which makes such a devise void or invalid. The real point therefore for our determination is whether on a proper construction of the will it can be regarded as containing only a. conditional bequest in favour of the son or, in other words, whether there is an executory devise in favour of the deity. The words used in the will are very simple and there is no dispute about the correctness of the translation of the will which is in Tamil. The two sentences are not connected with each other except that one follows the other. In other words there is no connecting conjunction and there is nothing to show that the last sentence was intended to operate as a condition affecting the character of the bequest made in the previous sentence in favour of the son. The bequest to the son in the earlier sentence is unconditional and appears to convey an absolute estate to him. There is nothing improper or unreasonable in this construction,-because the bequest is one made by the testator on his death-bed to his only son, a minor, the testator's wife having predeceased him and there being no other child. There is thus no reason to suppose that it was intended to give only a limited estate to the son who, it must be remembered, would have taken an absolute estate of inheritance if there had been no will at all. The question therefore; would arise whether, in spite of these considerations, the last sentence in the will' must be read as if it imposed a condition affecting the character of the bequest in favour of the son. After careful consideration we see no reason to take this view which has been pressed before us on behalf of the appellant. It seems to us as if the testator merely as an after-thought wanted to determine the devolution of the property in case his son died without issue and not in any way to limit either the character of the estate that was given by the earlier bequest in favour of the son or to make it conditional and liable to be divested at his death without issue. In this view of the case which, though supported by other reasons, is, the view which has commended itself to the Court below, it is not necessary to consider whether, if the bequest in favour of the son is to be regarded as conditional or if it should be assumed that there is an executory devise in favour of the deity, the conditions which the law imposes on such devises have been satisfied in the present case. We may, however, add that we are not satisfied that any such condition has been violated in this case. In view of the construction which we find it impossible to avoid, it follows that the principal i ground of appeal must fail.
3. It is, however, sought to be argued that, even though the appeal has to fail on this ground, nevertheless the lower Court ought to have given a decree for actual partition in respect of these shares of the plaint property which are covered by the' compromises between some of the defendants and the plaintiff-appellant. There might have been a good deal to be said in support of this contention if these defendants who had compromised and whose shares are now sought to be partitioned and handed over to the plaintiff-appellant had been made parties to this appeal. The plaintiff-appellant, however, deliberately refrained from making them parties because the case had been compromised so far as they were concerned. Such being the case, it is not now open to the plaintiff-appellant to ask that any decree should be made for the purpose of actual partition when these defendants are not parties to the appeal. And we may as well add that a belated oral application made after this; defect was pointed out is certainly not deserving of serious attention. The result is the appeal fails and it is dismissed with costs.