1. The point involved in this appeal relates to the construction of a will executed by a Hindu. The document is marked as Exhibit A in the case. The construction of the document is by no means free from difficulty. But once the rules of construction applicable to such cases are borne in mind, we think that we have enough in this will from which we can gather the-intention of the testator in the events that have happened. He had two daughters, one called Seshamma and the other Andalammal the younger daughter. Seshamma had no child, but Andalammal had two sons. The question we have to consider is whether there was any gift to Andalammal's children or whether the gift was to Andalammal of an absolute estate or of a daughter's estate according to the Hindu Law.
2. The will starts with saying that the property should be divided into three shares, one share should be given to Seshamma and the other two to Andalammal, it having been already recited that the testator's two daughters were alive as his heirs and that, of these daughters, Andalammal had male offspring. The testator says ' Therefore, the remaining half should be divided from the said Varada Reddi and as out of my above said two daughters, Andalammal has been attending to all my comforts and as her male santhathi (translated as offspring) are entitled to perform Karmams to me, she should enjoy two-third--two of the three shares and Seshamma should enjoy the third share.' Then the testator provides that his daughters should divide and enjoy in three shares in the above said manner above 60 Ankanams of site. ' After her death (meaning the death of his sister-in-law, B. Seshamma in whose favour he was making the bequest,) 'my daughters should enjoy the said land in the proportion of the above three shares. ' Now we come to the more important clause in the will. 'In enjoying in the above manner as my elder daughter Seshamma has no male issue, she should be enjoying the third share that comes to her without contracting debts and after her death, the said third share should go to my second daughter Andalammal and to her Santhathi, offspring. But if she adopts a son, this property should not go to the adopted son. If a male issue is hereafter born to my daughter, that is, Seshamma, that grandson should like the Santhathi (offspring) of my younger daughter, enjoy her (elder daughter's) third share having power of gift and sale from son to grandson and so on from generation to generation.' There is only one other sentence to which reference need be made where the testator provides that the younger daughter alone shall have the right of collecting the said debts and of causing the said Karmams or obsequies to be performed.
3. The learned District Judge has held that though it was the intention of the testator to make a gift to the children of Andalammal, he omitted to do so and therefore the court cannot carry out what might have been the intention of the testator but which he failed to carry out in the will. If the District Judge is right in his reading of the will, no doubt the decree passed by him would be correct. It may at once be said that there is no gift to the children in express and clear terms. The learned pleader for the appellant Mr. A. Krishnaswamy Iyer however argues that taking the whole will into consideration, three things are clear :--(1) that it was the intention of the testator to make a gift to the children of Andalammal, (2) that that intention can be gathered as a matter of construction especially from the words ' should like the santhathi of my younger daughter, enjoy her third share having powers of gift and sale from son to grandson and so on from generation to generation ' and (3) at any rate that this is a case of an implied grant. Nothing can be clear from the reading of the will than that the testator was extremely anxious that his property should go to his daughters and their natural children. This is to be gathered especially from the fact that in the contingency of Seshamma not bearing a son, the property should not go to any adopted son of hers. It is not suggested that he had any other relatives or kinsmen besides those mentioned in the will on whom he would like the property to devolve. He starts by saying that he is making provisions in respect of all his property moveable and immoveable. The District Judge however thinks that what the testator intended was to make a gift to his two daughters of estates corresponding to a Hindu daughter's estate and that he assumed that Andalammal who was the younger daughter would survive Seshammal and himself. That being so, the contingency that actually happened, namely the death of Andalammal before the death of the testator was not within his contemplation and he failed to provide for it. All this depends upon what construction is to be placed upon the will. The learned District Judge does not take all the provisions together in order to arrive at the mind of the testator. He first of all takes into consideration the words in the earlier part of the will, that is to say, where the testator mentions the disposition into shares--1/3 in favour of Seshamma and 2/3 in favour of Andalammal, and infers that they are given estates such as a Hindu daughter would take by inheritance under the general Hindu Law. Proceeding upon that basis he construes the other clauses of the will and that is exactly the nature of the argument which has been addressed to us by the learned Vakil for the respondents. Now take the case of Seshamma. The testator in the earlier part of the will contents himself merely with saying that she is to take 1/3 of the properties, but he goes on afterwards to lay down what is to happen in case Seshamma should die without issue and in case she was to have an issue or she was to adopt a son. All these provisions clearly indicate that so far as Seshamma was concerned, she was intended to take only a life estate and if she left no issue, her share was to go over to Andalammal and to her children. If she were to have male issue, the son or sons were to take directly under the will on the death of Seshamma. If that was the testator's intention with regard to Seshamma's male issue, it seems to us to be quite clear that similar was his intention with respect to Andalamma's sons. He gives 2/3 to Andalammal as her sons are entitled to perform his karmams. The scheme of the will was not to give anything less to Andalammal and her children than what was given to Seshamma and her sons but to treat the former on the same footing as the latter. Then we have this clause:--'If a male issue is hereafter born to my elder daughter, the grandson should like the santhathi of my younger daughter enjoy her third share....' 'Should like the santhathi of my younger daughter ' can have no other meaning than that it was the intention of the testator that they should take the property given to Andalammal after her death. No doubt this is a case of inartistic careless drafting, but we do not see what other meaning can be given to these words than what we have stated. The learned pleader for the respondents suggests to us that by these words all that the testator meant to convey was that he expected that his younger daughter's children would, in the ordinary course of Hindu Law, enjoy the property which he was giving to that daughter. But that is not a possible construction having regard to the fact that the gift over after the life estate of Seshamma is to her male issue and so it can hardly be contended that in her case the testator did not dispose of the reversion. The reversion in both the cases was intended to be placed on the same footing, that is to say, in the case of each daughter; it is to go to her children. Numerous cases have been cited to us, but so far as the construction of this document is concerned, little help is to be derived from the provisions of other wills. But there are certain general rules of construction which are applicable to this case. They are clearly laid down in the well-known judgment of Lord Kinsgdown in Towns v. Wentworth (1858) 11 M 526 extracts from which have been quoted in more than one case as laying down the proper rules for the construction of wills like this which do not contain express words of gift but where the gift is to be implied no doubt from the language used, but having regard to the dominating intention of the testator to be ascertained from the entire scheme of the will. In Sweeting v. Prideaux (1876) L.R. 2 Ch. D. 413 Hall, V. C. upheld a gift which could only be implied from the general tenor of the entire will. He cites with approval the proposition laid down by Lord Justice Knight Bruce, in the case of Key v. Key (1853) 4 D.M. & G. 73 in these words:--'In common with all men I must acknowledge that there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter; cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorised and bound to construe the writing accordingly. Then he quotes the passage above alluded to from Lord Kingsdown's judgment ' ... and, on the other hand, if the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the court is to supply the defect by implication; and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will sufficiently declared.' These rules of construction relating to wills have not, so far as we are aware, ever been doubted either in England or here. It will not serve any useful purpose to go through the different cases to see how far the courts have gone to effectuate the intention of the testator, in particular cases provided that intention is to be gathered from the entire will although the gift is expressed in defective or elliptical form of language. But one of the strongest cases seems to us to be In re Redfern : Redfern v. Bryning (1877) 6 Ch D. 133. There Bacon, V.C. relied mainly on the scheme of the will as showing that the testator intended to make an equal division of all his estate among his children and though there was an omission with respect to one of the children, he felt himself justified in supplying that omission, being clear as to the intention of the testator. He says 'I think upon a reasonable construction of the words which the testator has used, the words which are suggested by the statement of claim ought to be read as if they were inserted in the will.' On behalf of the respondent we have been referred to the case of Scale v. Rawlins (1892) A.C. 342 But all that is laid down there is that the court is not at liberty to speculate upon the intention of the testator if there is no language in the will by which that intention is expressed. It does not in any way throw doubt upon the other rule to which we have referred.
4. Mr. K.V. Krishnaswami Aiyar has asked us to say that the general principles of construction such as we have mentioned are not applicable to Hindu wills. The argument is that under the Hindu Law or under the rules of construction of Hindu wills, a presumption against partial intestacy has no room and therefore the English law has gone much further than we should be justified in going towards carrying out the intention of the testator. But we do not find that this is borne out by authority. On the other hand there are a number of cases which have laid down that the rule in question applies to Hindu wills as well. (Ellokassee Dossee v. Durponarain Bysack I.L.R. (1879) C. 59 Cheda Lal v. Gobind Ram I.L.R. (1902) A 455 and Seshamnia v. Narasamma I.L.R. (1899) M. 357 The learned pleader for the respondents also enunciated a proposition that in cases of bequest to a Hindu daughter she takes an absolute estate. There again he is unsupported by any authority. On the other hand, the decided cases and certainly the later decisions lay down the contrary proposition. No doubt there are some recent decisions which say that there is no presumption that the gift to a Hindu daughter is only of a life estate or of an estate which the daughter takes under the Hindu Law of intestate succession. But there is no authority for saying that there is any positive presumption that such a gift is of an absolute estate. We may also mention that it was attempted to be argued that the mention of the 'offspring' of Andalammal was only by way of limitation indicative of a gift of inheritance. But that does not seem to us to be the proper construction having regard to the entire scheme of the will. By santhathi, the testator apparently meant her children or perhaps her sons because in the will sometimes the word santhathi is used by itself and sometimes the phrase the male santhathi is used. No such question was raised at the trial and there can be no doubt that what the testator meant was the children of Andalammal as the direct objects of bequest.
5. We allow the appeal and reverse the judgment of the District Judge. There will be a declaration that the plaintiffs are entitled to 2/3rd of the properties claimed in the plaint and Seshammal to 1/3rd for her life. There will be a preliminary decree for partition and there will be an enquiry into the mesne profits to which the plaintiffs are entitled as claimed in the plaint. The appellants are entitled to their costs from the respondents here and in the court below. Out of the costs payable by the respondents, the court fees payable by the appellants will be realised.