1. Savithriammal, the plaintiff, has taken out this Originating Summons for the construction of the will dated 6-9-1948 of her late husband, M.G. Venugopal, who died in about 1949 leaving the will aforesaid bequeathing his properties to his wife with certain bequests for payments of money for his other relatives. She obtained a probate of this will in O. P. No. 140 of 1949. The relevant clause in the will which has to be construed by this Court runs as follows-
'I hereby bequeath all my immoveable properties wherever situate and moveable properties such as furnitures, utensils, cash, bank deposit etc., to my wife Mrs. M.V. Savitriammal, to be enjoyed by her during her lifetime and thereafter to my daughter Miss M.V. Kalyani to be enjoyed by her during her lifetime without power of alienation. After the lifetime of my daughter Miss M.V. Kalyani, the properties then remaining shall be absolutely enjoyed by the children of my daughter, to be taken in equal share. In the event of there being no children, male or female to my daughter Miss M.V. Kalyani, I give her the right to adopt a heir or heirs if she so desires, but in the event of her dying issueless or leaving no adoption all my properties shall be handed over to the Government of Madras for medical relief to suffering humanity especially children's diseases'.
The testaor died in 1949 and his daughter. Kalyani died in September 1955, when she was aged about 21 years. The contention of the plaintiff is that the ultimate provision in the will that all the properties of the testator shall be handed over to the Government of Madras for medical relief cannot take effect, that there has been a resultant intestacy and lapse with the result that she became entitled to the entire properties, and that under S. 14 of the Hindu Succession Act of 1956, she has become the sole and absolute owner of the properties in question. Her contention is that in the instant case the principle of the rule embodied in Section 130 of the Succession Act of 1925 (corresponding to Section 117 of the Act of 1865) should be applied. On the other hand, the contention of the Government is that the instant case is governed by the rule in Section 129 of the present Act (corresponding to Section 116 of the old Act) and that it did not matter in what manner and in what contingency the intermediate bequest hi favour of the testator's daughter and/or her children failed.
2. Mr. V.K. Thiruvenkatachari, for the plaintiff, and Mr. Ramaswami, the Additional Government Pleader, invited my attention to some of the decisions which have dealt with the relative scope of Sections 129 and 130 of the Indian Succession Act. Mr. Thiruvenkatachari also drew my attention to some of the relevant decisions in England in which also the same identical question had been considered.
3. In interpreting a will the Court has to ascertain the intentions of the testator as declared by him and apparent in the words of his will. The testator has conveyed the expression of his wishes in the words employed by him in the document and all the parts of the will should be construed and read together with reference to each other, while effectuating the intentions of the testator. As often said, on a question of true interpretation of a will, decisions on the construction of other wills are useful only for the limited purpose, in so far as they lay down the principles of law which have to be observed in the construction of wills. Courts should not form any pre-conceived notions about the intentions of the testator, based upon some decision apparently containing similar language and then enquire, how far the will in question resembles the will or wills referred to in; judicial decisions. It is necessary to remember the significant note of caution of Joyce. J., in Sanford v. Sanford, 1901 Ch 939
'The rule is to construe a will 'ut res magis valeat quam pareat' and to give effect, so far as possible, to all the words used by the testator. ......... It has beensaid by the Court of Appeal that the true way to construe a will is to form an opinion apart from the decided cases and then to see whether those decisions require any modification of that opinion, not to begin by considering how far the will in question resembles other wills upon which decisions have been given.'
The crucial question in the insant case is in what contingency did the testator Intend that the final bequest in favour of the charity should take effect. At the time when he executed the will, the daughter, Kalyani, was aged about 14. The testator desired to provide for his wife, for his daughter, and the daughter's children, male or female, failing that, to any heir which the daughter Kalyani, may adopt. In the then set up of the family of the testator, it is quite clear that his intention was that his wife should enjoy all the properties during her lifetime and the daughter should get the properties for her lifetime without powers of alienation, only after the death of his wife. In other words, during the wife's lifetime the testator was keen and anxious that all the properties should be enjoyed by his wife and further, the children born to the daughter are to take the properties only after the lifetime of the daughter. His intention is clear that the ultimate provision in favour of the Government of Madras should take effect only after the enjoyment of his properties by his wife, after the enjoyment of the properties by the daughter, and only If the daughter dies after marriage without leaving any issue. The testator is keen about exhausting the enjoyment of the properties by his wife, and daughter and grand-children, if any, and the Government to take the properties only in the contingency of the daughter surviving the mother, enjoying the properties and then dying issueless.
I am clear in my mind that it is impossible to import into this will the notion or idea that the testator intended that the properties should go to the Government, whether or not the daughter survived the mother. On the other hand, I am of the view that it was not and could not have been the intention of the testator that even if his wife survived the daughter (thereby ruling out any question of there being any children of hers) the Government should take the properties even in that contingency. In Interpreting the will the Court cannot ignore the natural background and the normal events which a father or husband would expect in his home consisting of himself, his wife and his unmarried daughter. In this case I find it impossible1 to hold that the testator visualised the idea that his young daughter would predecease his wife, even before her marriage, and even in that contingency of the wife, the only member of the family, living, the testator desiring that the property should go to the Government. Having considered all the aspects of the matter, I hold that the intention of the testator was that the gift in favour of the Government should take effect only If the wife died first, the daughter survived and her dying without issues thereafter. The failure of the bequest in favour of the children of the daughter should take place not in any other manner whatsoever but only in the specified manner (which is quite a natural and normal one) i.e., the daughter taking a life interest, the wife having died earlier, and there being no other member of the family.
4. I shall now refer to some of the decisions in which certain rules of construction have been laid down and indicated as to the relative scope of Sections 129 and 130 of the Succession Act and the applicability of the rule of interpretation in England laid down in the leading case, Jones v. Westcomb, (1711) 1 Eq Cas Abr 245. The principle enunciated in that case and the other cases in England has been incorporated as the keynote for the corresponding statutory provision. Sections 116 and 117 of the Act of 1865, corresponding to Sections 129 and 130 of the present Act.
5. In (1711) 1 Eq Cas Abr 245, the testator bequeathed a term of years to his wife for life, remainder to the child she was then enceinte with, and, if it died under 21, a third part of the term was to belong to his wife, and the remaining two-thirds to other persons. Although the wife was not enceinte when the will was made. Lord Harcourt determined that the devise to her was good. The only event in which the property was to be disposed of in that case was on the death of the child before 21, Though in fact the wife was not enceinte at all, it was held, nevertheless, that the latter bequest took effect. It is the principle underlying this case and the cases which have applied this rule that has been incorporated in Section 129 of the Indian Succession Act.
6. The exact scope of the rule laid down in (1711) 1 Eq Cas Abr 245 was construed in numerous subsequent decisions in England, and it is now well settled that the rule in (1711) 1 Eq Cas Abr 245 would apply only to those cases where the Court looking at all the relevant circumstances of the case, including the terms of the will, comes to the conclusion that the testator must a fortiori have intended 'the disposition over' to take effect in the contingency or the event that had actually happened, although it is not the event which the testator has specified in his will as the one on which the gift over is to take effect. Vide 39 Halsbury, page 1145, paragraph 1688 (Simond's Edition).
7. I shall now refer to the decision in Re Bailey Barrett y. Hyder, (1951) 1 All ER 391 which contains a discussion of the relevant decisions dealing with the exact scope of the rule in (1711) 1 Eq Cas Abr 245. That decision enunciates the rule that where there is a failure of a prior bequest the Court in order to uphold the disposition over must be satisfied (on a true construction of the will) that the testator clearly intended the gift over to take effect in the subsequent events which had actually happened, though not expressly provided for in the will. The judgment of Evershed M.R. contains a very useful and interesting discussion and in particular the scope of the rule in the two earlier decisions, Re Fox's Estate (1937) 4 All ER 664 and Re Sown (1948) 2 All ER 979. The following is the head-note which contains the relevant portions of the will and the decision of the Court-
'By her will dated in April 1929, a tesatrix gave her residuary estate to trustees on trust for conversion and investment and 'to pay the income arising therefrom to my (daughter E) during her life and after her death as to capital and income in trust for my sister-in-law (M) absolutely if she shall be living at the death of my said daughter but if she shall predecease nay said daughter then upon trust for my nephew (G) absolutely'. In July 1935 E died, and in March 1944 M died. In February 1949, the testatrix died, without having altered her will. G claimed to be absolutely entitled to the residuary estate;
Held: the gift to M lapsed for a reason independent of the conditions imposed by the will, namely, her death during the lifetime of the testatrix, the gift to G was limited to operate only if M predeceased the daughter, in the circumstances it did not appear that the testatrix must a fortiori have intended the disposition over to G to take effect in the event which had actually happened; the principle in (1711) 1 Eq Cas Abr 245, did not apply, and therefore, the gift to G did not take effect'.
It will be apparent from the headnote that the gift to the sister-in-law failed for reasons, de hors the conditions of the will, is the sister-in-law having predeceased the testator. I may first extract the following observations of Evershed M. R. as to the proper perspective of approach in such a context at page 392-
'It will be seen that an event, therefore, occurred for which in terms no provision was made by the will, viz, that both the daughter and Mrs. Bailey predeceased the testatrix herself. If the result is that the gift over in favour of George Hyder cannot now take effect, it follows that the testatrix has died intestate as to her residue. No doubt, that is a circumstance proper to be taken into account in considering the question presented for our determination, for it has been said that certainly where there is ambiguity the Court should tend to that view of the construction which would not produce an intestacy. On the other hand, the fact that on a certain view an intestacy would follow does not justify the Court either in giving an unnatural meaning to the words or altogether rewriting the will so as to produce a result which might appear to be more satisfactory.'
Dealing with the statement of the law in Theobald on Wills, (1711) 1 Eq Cas Abr 245, the law is stated thus at page 394-
'From those passages, if they are correct, it would appear to follow that the law stands thus, if there is a gift to take effect on a certain condition, plus a gift over on non-fulfilment of the condition, and the first gift lapses for reasons independent of the condition, the Court, generally speaking, cannot by inserting some new passage in the will get rid of the effect of the lapse and fill the gap which it has created. If as I think, that is the law, it must apply to this case. There was here a gift after the death of the life tenant (the daughter) to pay the capital and income to Mrs. Bailey absolutely if she should be living at the daughter's death. She was, of course, living at the daughter's death. But the gift lapsed because she was not living at the testatrix's death. The will provided for the alternative event--alternative, that is, to the condition attached to the first gift -- if Mrs. Bailey should predecease the daughter which she did not do Mrs. Bailey, having survived the daughter, would, if she had survived the testatrix, have taken the residue absolutely, but her not surviving the testatrix caused the gift to lapse. In other words, the gift did not fail as a result of the non-fulfilment of any condition or term imposed by the will, but because the law requires that a beneficiary under a will should survive the testatrix in order to take the benefit conferred'.
After approving the statement of the law by Eve, J., in Re Graham, (1929) 2 Ch 127 Evershed M. R. further observed that even if the Court of construction was of the view that if the particular subsequent contingency had occurred to the testator, the testator would have still desired, the gift over, to take effect, would not be decisive on the question, as the Court in that event would be rewriting a will and not construing it. Vide observations at the bottom of page 394. It has to be noted in this connection that in that case all the Judges were of the opinion that the testator, if posed with the problem of the peculiar turn of subsequent events, would have still desired that the gift over should take effect. But in the instant case even if one should speculate, even if such speculation is permissible, I am of the view that the testator would have only allowed his wife to take the property and not leave it to the Government. The idea of leaving to Government according to the testator is conditional upon his wife enjoying the property, then his daughter enjoying the property and dying leaving no issues. The case in (1937) 4 All ER 664 was then considered at page 397 and distinguished as turning upon the peculiar terms of that will. Jenkins, L. J., who concurred with the Master of the Rolls put the matter thus at page 401-
'In my view, it is impossible to hold that the testatrix contemplated or provided for this combination of events at all. It may very well be that had it been pointed out to her that the sequence of events which took place might happen and that in such case there would be an intestacy, she would have been anxious to supply the deficiency, and in all probability she would have said that in those circumstances also she wished her nephew George to take. But it is one thing to say that, if it had been pointed out to the testatrix that she had not provided for a certain eventuality, she should probably have provided for it in a certain way, and quite another to hold that the contingencies expressed in her will in clear terms must be added to or altered in order to give effect to what would probably have been the testatrix's intention if she had appreciated that the contingencies as expressed did not provide for that other possible state of affairs. That course, I think, clearly is not open to us on the authorities, or, indeed, on any principle of construction. In my view, this case falls within the principle stated in Tarbuck v. Tarbuck, (18351 4 LJ Ch 129 and in Brookman v. Smith, 1872 LR 7 Ex 271, 3s opposed to the line of cases in which the (1872) 1 Eq Cas Abr 245, principle has been adopted. This is a case in which, as in (1929) 2 Ch 127, the first taker of an absolute interest under a term of the will had satisfied the condition of the gift in the lifetime of the testatrix, and the testatrix cannot be supposed to have contemplated the failure of the gift by lapse. The condition on which the sister-in-law was to take had been fulfilled the testatrix's lifetime by her surviving the daughter, and the failure was due to lapse and lapse alone'.
This passage effectively answers the contention of the learned Additional Government Pleader that the testator's intention if one can speculate, was to ultimately leave the property to charity.
8. In view of the detailed and elaborate discussion of the two decisions, Re Fox's case, (1937) 4 All ER 664 and Re, Bowen, (1948) 2 All ER 979 in the latest decision of the Court of Appeal, Re Bailey (decd.), (1951) 1 All ER 391 particularly the judgment of Evershed M.R. It is unnecessary to burden this judgment with a detailed reference to these two cases. It is, however, important to note that in both the earlier cases the Court held that on a proper interpretation of the terms of the respective wills, the gift over, took effect even though the failure of the prior bequest was for a different reason. The observations of Green, M.R. In Re Fox's case, (1937) 4 All ER 664 , show that the learned Master of the Rolls rested his reasoning mainly upon the true interpretation of the words used in that will and held that on the language of that will the gift over was sufficient to cover other contingencies, though not specifically mentioned in the will. In the latter decision, Re Bown, (1948) 2 All ER 979 at page 982, Wynn Parry, J., appeared to have decided the case, in the manner he did, by applying the test that if the testator had been asked what should happen in a particular contingency, the testator would have unhesitatingly answered in the manner decided by the learned Judge.
This hypothetical test however did not receive full approval in Re Bailey (1951) 1 All ER 391. The following observations at page 399 of Evershed, M.R., carefully read show that the Master of the Rolls was of the view that the decision of Wynn Parry, J., should be confined to the facts of that case and should not be extended, and that Evershed, M.R., even entertained some doubt about the correctness of all the observations of Wynn Parry, J. at page 399 -
'Because the case is different from the present case, it is unnecessary for me to say anything more about it. I therefore express no view whether that case was rightly or wrongly decided. That is a matter beyond the interests of the decision of the present case. Suffice it to say that it did differ in a material respect, at any rate in the view of the learned Judge, and clearly differed in language from this case. I think it does not afford any guidance to the decision of this case, and I, therefore, say no more about it'.
I may also refer to the statement of the law (on the applicability of the rule in (1711) 1 Eq Cas Abr 245 in Williams on Wills, II Edn. page 56. The matter is also fully discussed in Jarman on Wills, 8th Edn. 1951, in Volume III Ch. 56 page 1055 onwards, where the learned author discusses the rule in (1711) 1 Eq Cas Abr 245, i.e., the effect of a failure of a prior gift, and a subsequent disposition over. After an examination of all the cases, including Re Bown, (1948) 2 All ER 979, (there is no reference to Re Bailey, (1951) 1 All ER 391 which evidently was decided later) the learned author has summed up the position that in every case the Court should find out, on the terms of the will, an intention on the part of the testator, that the gift over is to take effect in a manner different from that pointed out by the mere grammatical meaning of the words. That intention, the court must be in a position to discover 'a fortiori' and unless such an intention is clearly discernible, the disposition over, cannot take effect.
From this analysis of the later decisions in England and the statement of law by leading authors on Wills it emerges that the general rule is that in the case of a failure of a prior gift, the gift over does not take effect and it is only 'as an exception' and in clear cases that the rule in (1711) 1 Eq Cas Abr 245, should be applied and that the Court ought not to read words into the will which are not there, on some speculative theories. To put it in a nutshell, the general rule is, the particular contingency must occur as specified in the will; else the gift over will lapse. The exception is the rule laid down in (1711) 1 Eq Cas Abr 245. This is implicit in the following observations of Romer, L.J., in the case in Re Fox's Estate Dawes v. Druitt Phoenix Assurance Co. Ltd. v. Fox, (1937) 4 All ER 664
'The principle is applicable, therefore, 'only in these cases' where the Court looking at all the relevant circumstances of the case, including, of course, the will itself, comes to the conclusion that 'the testator must a fortiori have intended' the disposition over to take effect in the event which has actually happened, although it is not the event which he has specified in his will as the one in which the gift over is to take effect.'
I have underlined the words 'only in these cases' and the words 'The testator must a fortiori have intended' (here in ' ') to bring out the general rule and the exception. It is unnecessary to refer to other decisions in England.
9. I may now refer to two Bench decisions of this Court on which strong reliance was placed by learned Counsel for the plaintiff. The first is the decision in Official Assignee v, Vedavalli Thayarammal, AIR 1926 Mad 93651 MLJ 182.
In that case, the Court had to construe a will and a subsequent codicil of the year 1897. There the testator disinherited his son and bequeathed the whole of bis residuary estate to his grandson or grandsons born or to be born, to his son within ten years after the testator's death; the will further provided that if no such grandsons were born within the tune limit the whole of the estate was to be divided equally between his granddaughters after the death of the testator's wife. By the codicil the distribution of the residuary estate amongst the granddaughters was postponed till after the death of his wife, his son and daughter-in-law. The testator died in 1897 leaving his widow, son and three grand-daughters and a grand-son was born two years later in 1899. The gift in favour of the grandson, though born within ten years of the death of the testator was held invalid as a bequest in favour of an unborn son. It was held that the gift over to the granddaughters would not take effect as there were grand-sons born within ten years (the time limit fixed under the will). It was also held that the case was governed by Section 117 of the prior Act and that the prior bequest had not failed in the particular manner as set out in the will. Spencer, J., observed that Section 117 (corresponding to present Section 130) should be construed strictly, and that the condition under which the granddaughters were to take the estate should be strictly complied with,
10. The next decision to which reference may be made is the one in Subramania v. Pakkiri : AIR1935Mad119 . In that case, the testator bequeathed his properties to his minor son, appointed the testator's sister as the guardian to look after and protect the minor with a provision that in case, the minor son died, the testator's sister should take and enjoy all his properties. Madhavan Nair, J., held that the intention of the testator was that his sister should take the property only in the event of his sons surviving the testator, taking the properties and then dying and that it was not the intention of the testator that the sister should be entitled to the properties at the death of the son, whatever may be the point of tune. The learned Judge held that Section 129 did not apply; but Section 130 only applied.
11. Reference may next be made to the Bench decision of this Court in Nammalwar v. Appavu Udayar, : AIR1960Mad283 , where too, Section 130 of the Succession Act was applied. In that case, the prior bequest became void as offending the rule in Tagore case a contingency not provided for in the will. The decision of the Supreme Court in Mrs. Shirinbal Manekshaw v. Nargacebal Motishaw, : 1SCR591 was distinguished as turning upon the particular terms of the will. In : AIR1960Mad283 , the testator executed a will and a codicil by which he directed that his three wives should after his lifetime take the A and B schedule properties specified in the will for their lives without powers of alienation, that the wives should maintain the daughters, get them married, keep the sons-in-law in the family, and that if any of his daughters should beget male heir all the properties of the testator should belong to that male heir. The will further provided that in case no male heir was born to any of his daughters all the properties of the testator should go to the charity. The testator died in 1902 and a grandson through a daughter who was the second defendant in the action was born ten years later in 1912. The bequest in favour of the grand-son was invalid in law as being a gift in favour of an unborn child. The representatives of the charity brought a suit for a declaration that even though the prior bequest failed for a different reason, the disposition over, took effect under the rule in Section 129 of the Succession Act. The Bench did not accept this contention but held that Section 130 only applied. The Bench pointed out that the gifts in favour of the grand-son and in favour of the charity were not independent gifts, nor even could be considered as substitutional gifts, but that on the terms of the will, the bequest in favour of the charity was clearly a conditional gift.
12. If the principle of this decision is applied, I have no doubt that the disposition in favour of the Government cannot take effect. In my view, there can be no doubt that the condition which is quite apparent on the terms of the will in question, is that the daughter of the testator should survive the widow, enjoy the properties and the issueless. The important condition has not been satisfied. If the death of the daughter without issues alone is to prevail, and is sufficient for the gift over to take effect, it will be seen that under the terms of the will, the bequest in favour of the Government should take effect immediately on the death of the daughter, as the will does not provide for any time lag whatsoever, between that date and the disposition over in favour of the Government. Under the terms of the will, both the events must synchronise and the will does not provide for any person being entitled to any right over the properties after the death of the daughter except the Government. Here, the situation as provided in the will is totally different, the wife is undoubtedly entitled to enjoy the property till her lifetime. The acceptance of the contention of the Government would be to modify the will and reading into it, a different condition that the disposition over, will take effect not only at the death of the daughter without issues, but also on the death of the widow, the Government in the interim period between the death of the daughter and the widow having no right. It will be virtually rewriting the will and providing for two totally different contingencies.
It is in this connection that reference should be made to the following note of warning of Cockburn, C.J., in 1872 7 Ex. 271,
'Then a state of things arises which 1 presume was not contemplated. Are we to force the words of the will, or rather to interpolate new words into it, in order to make it meet this altered and as I think, in all probability, unforeseen state of things? I think we cannot do that. If there is anything ambiguous in the will, and from the context you can gather the intention of the testator, it is possible that in such a case you may make the language of the remainder of the will meet what you clearly conceive to be the meaning of the man making it. But I see nothing in that which is expressed, and nothing in the rest of the will which would lead me to suppose that it was intended to provide for this contingency, which it would have been so easy to provide for, which a few words would have made perfectly clear, and which, if it had been present to the mind of the testator, he would have provided for, I do not think that we are to make the words of the will embrace, that which they do not embrace, and which I do not think, by implication, they were intended to embrace'.
For all these reasons, I hold that the residuary estate lapsed in favour of the plaintiff, the widow of the testator and under Section 14 of the Hindu Succession Act, she became the full and absolute owner' of the properties.
13. No costs.