1. This appeal is against the judgment of our learned brother Phillips, J. and relates to the construction of a will. The clause of the will to be construed reads as follows:
The undermentioned houseand all the rights accruing thereunder, shall after me, devolve absolutely on my natural father Pichuvayyar and his male heirs. My aforesaid natural father and heirs shall maintain my adoptive mother Kamaksh: Ammal during her life and shall perform the obsequies to be done to her and to me; and the aforesaid Pichuvayyar and his heirs shall get the undermentioned house belonging to me, absolutely with right to alienate the same by gift, exchange, sale, etc.
2. It was held by Mr. Justice Phillips that the will created an estate unknown to Hindu Law and therefore the disposition was invalid.
3. The first contention of Mr. K.V. Krishnaswamy Aiyar for the appellant is, that there are two dispositions in the will and as they are inconsistent dispositions, they must be construed in such a way as not 'to give rise to an intestacy. The will does not contain two distinct dispositions but only one disposition in favour of the father and his male heirs in the first clause; and in the 2nd clause a condition is attached as to what should be done for the maintenance of the adoptive mother and for (he performance of the funerals. The 2nd clause is only explanatory of the first and does not contain a disposition different from that contained in the first. In this view it is unnecessary to consider whether the principle of Section 75 of the Indian Succession Act should be applied to the case of a Hindu will. Section 75 has not been enacted in the Hindu Wills Act and even if the principle of Section 75 is to be applied to Hindu Wills, it cannot be applied to a will executed in the mofussil to which the Hindu Wills Act does not apply. It is unnecessary to consider this question further.
4. The real question is whether the words 'My natural father Pichuvayyar and his male heirs' mean, Pichuvayyar and the male heirs in succession. The contention of Mr. K.V. Krishnaswamy Aiyar is, that the Tamil words' should not be translated as 'My father Pichuvayyar and his heirs male.' But the correct translation of is only 'male heirs' and when a person bequeaths property to some one and his male heirs, he means that the property should devolve upon the legatee and the male heirs in succession. The words therefore create an estate-in-tail in favour of male heirs and according to the principle laid down in the well known Tagore case, such an estate is unknown to Hindu Law, and such bequests cannot therefore be valid.
5. The next contention of Mr. K.V. Krishnaswamy Aiyar is that the first clause of the will should be interpreted in the light of the second clause. In the first clause the words are 'My natural father and his male heirs' and in the second, the words are 'My aforesaid natural father and heirs' and lower down 'aforesaid Pichuvayyar and his heirs.' Strong reliance is placed on the expression 'Pichuvayyar and his heirs' and it is said that the testator meant to depose the property to 'Pichuvayyar and his heirs.' This argument overlooks the use of the expression 'aforesaid.' When a person devises property to a certain person and certain heirs and when he lower down, instead of repeating the expression uses the ex-pression ' aforesaid person and his heirs' it cannot be said that he intended to change the course of the devolution of the property already provided for in the preceding clause of the will. The observation of Lord Mansfield in Doe v. Fyldes (1778) 2 Cowper 833 apply to this case. The learned Lord observes: 'If the word 'heirs' is so used in the first place it must be so used in the several other places that follow. Nothing is to be implied from the additional words 'for ever' because that expression is repeated by the testatrix in the devise of each of the estates tail. The nature of the provision affords a strong argument that she did not mean to change the sense of the word 'heirs' in this part of the will and to give a fee simple.' In that case the testatrix bequeathed her property to her eldest daughter Alice Scolefield and the heirs of her body lawfully to be begotten, for ever and in the latter portion of the will repeated the expression 'the heirs of Alice Scolefield' three times in the will. The question was 'whether the words 'the heirs of Alice Scolefield' thrice repeated relative to the redemption of the term vested in the executors shall be construed to refer to the special designation of the heirs, to whom the estate is devised in the beginning of the will; or to introduce a new and more general denomination of heirs, and to amount to a revocation of the expression 'estate-tail' given in the beginning of the will.' Lord Mansfield held that the expression ''heirs of Alice Scolefield' though thrice repeated, did not create a fresh bequest in favour of the heirs of Alice Scolefield but left the bequest in favour of 'Alice Scolefield and the heirs of her body to be! lawfully begotten' unaffetced. In this case the testator devises the property to his ''father and his male heirs' and in a later clause uses the expression 'father and his heirs'. It cannot be said that the later clause has in any way changed the nature of the disposition or the nature of the estate created in the previous clause. Mr. K.V. Krishnaswami Aiyar tried to get over the aforesaid decision of Lord Mansfield in Doe v. Fyldes (1778) 2 Cowper 833 by contending that none of the text-books except Jarman on Wills, gives any reference to this case. But we find that this case was referred to as an authority though on another point by Crompton, J. in Good v. Good (1857) 119 ER 1256
6. It is next contended by Mr. K.V. Krishnaswami Aiyar that if the bequest in favour of heirs even if held to be bad the bequest in favour of the father should be held to be good. This contention is against the principle of the decision in the Tagore case. When a testator devises property to his father and his male heirs, the Court is not justified in creating a new will for the testator by giving the property absolutely to the father and overlooking the intention of the testator to bequeath the property to 'father and his male heirs'. This is not a case where Pichuvayyar is given a life-estate and the remainder over to the male heirs. The bequest is to the father and the male heirs. The Court would not be justified in treating the bequest as one to the father alone. The judgment appealed against is right. We therefore dismiss the appeal with costs.