S. Ramachandra Iyer, C.J.
(1) This is an appeal under Cl. 15 Letters Patent against the judgment of Veeraswami J. who set aside the judgment of the lower appellate court, which had reversed the decree for possession granted by the trial court in favour of the first respondent, Venkatammal. Her husband, Alagarsami Chettiar, and their son, Subbiah Chettiar, were members of a joint Hindu family which owned some properties. The husband and wife did not pull on well together. The latter had evidently the sympathy of her son. Early in the year 1947, Alagarsami Chettiar and his son Subbiah, at the instance of certain mediators, entered into a partition arrangement. Though old, Alagarsami Chettiar appears to have entertained an idea of taking a second wife, and, perhaps, he even had hopes of children being born to that wife. The partition agreement is dated 7-4-1947 and is evidenced by Ex. A. 1. Under that arrangement, Subbiah undertook the liability of maintaining his mother.
(2) Alagarsami Chettiar, however, did not marry again, either because no one was willing to marry him or because such a bigamous marriage was prohibited under the law. He took up his residence with his brother's sons who are the appellants in this appeal. On 4-11-1958 Subbiah died. Venkatammal succeeded to the properties obtained by him under the partition. About a month after Subbiah's death, Alagarsami Chettiar purported to make a settlement of his share of the properties in favour of the appellants. The settlement deed s dated 14-12-1958 and has been marked as Ex. B. 1 in evidence. Alagarsami Chettiar died on 10-5-1959. Venkatammal, his widow, then brought the suit, which has given rise to this appeal, claiming that her son, Subbiah had, under the terms of Ex. A 1, a vested remainder in the properties allotted to Alagarsami Chettiar and that inasmuch as she had inherited the properties left by the former, she would be entitled to those properties as well, and that the settlement deed in favour of the appellants would be invalid.
Her claim was resisted by the appellants on various grounds. The trial court upheld her case. On appeal, however, that view was not accepted, the lower appellate court holding that no vested interest in the remainder was created under the partition deed in favour of Subbiah, with reference to the properties allotted to his father. Veeraswami, J. did not accept that conclusion. In the learned Judge's view, Alagarsami Chettiar reserved for himself, at partition, only a life interest in the properties allotted to him, the remainder being vested in Subbiah subject to its being defeated in the event of the former marrying again and having make issue through that wife. The learned Judge, while restoring the decree of the trial court, granted leave for further appeal.
(3) Whether Subbiah had a vested interest in the properties allotted to his father, at partition, is a question that has to be decided on the true construction of the partition deed. The document is in Tamil and the clause, which provides for Alagarsami Chettiar's rights, can be freely translated thus:
'We have agreed that the properties set out in schedule A hereto, worth Rs. 3,500, should be enjoyed by No. 1 (Alagarsami Chettiar), with a right to create mortgages, this and warm leases but with no power of sale or gift; that if, beyond creating mortgages, this and warm leases, party No. 1. (Alagarsami Chettiar), were to execute sales or gifts, such sales or gifts will not be valid. If No. 1 were to marry again and by that marriage he gets other heirs, those heirs alone shall take the A schedule properties after his lifetime and after performing his obsequies; the heirs born of the second wife shall discharge the debts contracted by No. 1 of us and enjoy the properties absolutely. If No. 1 of us were to marry again but does not get a male heir, the second or us, that is, Subbiah, shall, after the lifetime of the first, perform his obsequies and he shall take the a schedule properties with absolute rights. If No. 1 were to borrow, the second of us shall discharge those debts.'
On the terms set out above it appears prima facie that what Alagarsami Chettiar took under the partition arrangement was a mere life estate with power to mortgage, lease etc. Such power did not extend so as to enable him either to sell or to make a gift of the properties.
(4) It is well recognised in law that there can exist a life estate with powers of disposition. we may in this connection refer to In re Thomsons's Estate, Herring v. Barrow, 1880 14 Ch D 263 where a testator gave all his property to his widow for the term of her natural life to be disposed of as she might think proper for her own use and benefit according to the nature and quality thereof, and 'in the event of her decease, should there be anything remaining of the said property or any part thereof' to certain other persons. It was held that the gift was only for life, with a power of alienation inter vivos and that it was not competent to the widow to make a will in respect of the property, the testator himself having provided for the destination of what remained at her death. In Mafatlal v. Kanialal, : AIR1915Bom246 the testator bequeathed to his daughter-in-law certain immovable and moveable properties, describing her as the owner thereof. the testament then stated 'The said Ganga shall during her life time spend and use and enjoy out of my property and as to whatever property may have remained over after her decease, her two daughters are the owners thereof'. This was construed as conferring only a life estate on the legatee with a power of disposition inter vivos.
(5) Mr. Gopalaswami Aiyangar appearing on behalf of the appellants has pleaded for a different construction of ex. A. 1, namely, that on its terms an absolute estate on Alagarsami Chettiar must be implied. This construction fails to take note of the restraint on alienation and the gift over. But it is said that principles of construction of wills made by third parties should not be applied to the case of a partition deed, where the sharer is the absolute owner of the property allotted to him; the effect of the partition would only be to cut off Subbiah, by giving him his share in the family properties. What remained with Alagarsami Chettiar must be regarded as his exclusive property and the restrictions placed upon it, being voluntary in their nature, should not be held to be binding upon him. Secondly, it is contended that those restrictions are merely to safeguard the rights of sons who may be born of the second marriage and there being no second marriage, the reason for the restriction had ceased and Alagarsami Chettiar continued to be the absolute owner of the property, and what he was entitled to dispose of in whatever way he pleased.
(6) We are, however, unable to agree that there will be a distinction in the matter of construction between a partition deed and other documents inter vivos of by way of a testamentary is position. In both the cases the extent of rights obtained by a party should be determined on a true construction of the document. It is true that in an ordinary partition deed there would be no occasion for providing for the destination of the property after the lifetime of the sharers. But, a partition deed, sometimes may take the form of a family arrangement, whereunder benefits might be conferred not merely on the immediate parties to the partition, but on other persons as well.
In the instant case, having regard to the surrounding circumstances and the express language employed in the document, the arrangement that was entered into between Alagarsami Chettiar and his son was of a two-fold character, namely, a partition and a settlement. Alagarsami Chettiar was old, and it was perhaps thought that it would be wiser, even at the time of the partition to provide for the devolution of the priorities in accordance with the arrangement thereby conferring benefit on any son that Alagarsami Chettiar might have through the contemplated second marriage. The gift over to the second wife's son and, failing him, to Subbiah, does indicate that Alagarsami Chettiar was to take only a life estate, The further provision denying him the power of sale or gift, confirms this interpretation. Except the fact that a power to raise a loan on mortgage or to grant leases, has been given, there is no other indication in the document to show that Alagarsami Chettiar was to have an absolute estate in the property.
At one stage of the arguments, learned counsel contended that the provision for the destination of the remainder, should be regarded as invalid, being repugnant to the absolute estate inhering Alagarsami Chettiar. it is an accepted rule of construction that a document should be read as a whole and an effort should be made to give effect of every part of it. Applying that principle, Ex. A. 1 can be read as conferring nothing more than a life estate with certain powers on Alagarsami Chettiar, the remainder being given to the male issue of the second wife, and failing them, to Subbiah.
(7) Though Ex. A. 1 cannot be construed in the light of the interpretation put upon it by a party thereto, it will be interesting to refer to Ex. B. 1, the settlement deed in favour of the appellants, wherein Alagarsami Chettiar has stated that under the partition arrangement he had taken only a life interest, giving the reminder to Subbiah, which was liable to be divested in the event of his (Alagarsami Chettiar) marrying a second wife, and begetting male children by her.
(8) It was then urged on behalf of the appellants that the interest taken under the partition deed by Subbiah must be held to be a contingent one, depending on the happening of two contingencies; (1) Alagarsami Chettiar not marrying a second wife, and be getting a make child by her, and (2) Subbiah surviving him and performing the obsequies of his father.
(9) A contingent interest is one in which the interest created in favour of a person is to take effect only on the happening of a specified uncertain event. On the other hand, where an interest is created in favour of a person on the happening of an event, which must happen, such interest would be vested, subject, of course, to the rule that, on a reading of the entire document, a contrary intention is discernible. In the present case, Subbiah was alive at the time of the partition. an interest was undoubtedly created in his favour, which would fall into his possession on Alagarsami Chettiar death. But the document provided that he would not get that interest if Alagarsami were to marry again and get a son out of that marriage. In other words, his interest was only to be defeated if there came into existence, another son to his father. Now, looking at the other aspect of the matter, the marrying of a second wife by Alagarsami Chettiar intended to contravene the law or intended to marry after obtaining a divorce of Venkatammal, or whether he hoped that Venkatammal would predecease him and then he could marry, cannot be easily answered.
(10) The substantial question for determination is, whether Subbiah took a vested interest in the property allotted to his father at the partition, which, on his death, devolved on his heir, or whether what was given to him was only contingent remainder depending on its fulfilment upon the happening of an uncertain event. It is argued for the appellants that the interest in the remainder created in favour of the son, who may be born through the second wife, would be a vested interest and even if that be not so, inasmuch as Subbiah would be entitled to get Alagarsami Chettiar's share only in the event of there being no son by the second wife, such interest should be regarded as purely a contingent one.
Secondly, it is stated that as Subbiah was directed to perform the obsequies of his father before taking possession of the property, the performance of obsequies should be regarded as a condition precedent to the vesting of the remainder; and as Subbiah predeceased his father, performance of such obsequies by him became impossible and that, therefore, the remainder could not vest in him. In support of the first contention, reliance was placed on the sequence of the disposition in the partition document, giving the remainder to the son by the wife to be married and that only in default of such a son, the property was to vest in Subbiah.
(11) We are of opinion that the nature of the estate granted to Subbiah has to be decided on a consideration of all the clauses in the partition document and not merely by the sequence of the dispositions. There can, perhaps, be little doubt that Alagarsami Chettiar did contemplate a second marriage and expected male issue to be born as a result thereof. Such thought must, therefore, have been uppermost in his mind at the time he executed the document and not unnaturally, therefore, he mentioned the disposition in favour of the second wife's son first. That circumstance cannot, by itself, mean that what Subbiah was to have, was merely a contingent interest in the remainder after the lifetime of his father. It must be remembered that Subbiah was then in existence On the other hand, the coming into existence of other sons was dependent upon a fruitful marriage, which might or might not come about. A valid disposition could no doubt be made in favour of an unborn person. But that does not mean that in all cases there interest in property is created in favour of an unborn person, there is a vested interest and any alternative provision a contingent one.
(12) In the present case we have therefore to ascertain whether the parties intended that the vesting of the remainder should be suspended till the time a son is born to such second wife or till such an event became impossible, or whether they intended a vesting forthwith of remainder in Subbiah which was liable to be defeated on the contemplated son coming into existence. In other words, was Subbiah to get the property only after it became certain that there could be no other son to his father, or was he to take the interest forthwith, which was liable to be defeated on the happening of an uncertain event? The construction of the partition deed can be made in one of the three following ways: (I) whether it intends a present gift of the remainder in the property allotted to Alagarsami, to Subbiah merely postponing the enjoyment till after his lifetime, or (ii) the present gift of that remainder is made to Subbiah, the right to enjoy which being postponed after the lifetime of his father and which gift is liable to e defeated on a son being born out of the contemplated second marriage: or (iii) whether there is no present gift of the remainder at all in favour of Subbiah, the gift of the remainder only taking place after it is found that there could be no son by the second marriage?
(13) It is a cardinal rule of interpretation of documents that effect should be given to the expressed intentions of the testator, which has to be gathered on a reading of the entire document. It can also be stated as a well-recognised principle that even where the bequest is dependent upon a contingency, it will not necessarily prevent vesting of the estate till that contingency happens.
(14) Law favours early vesting of property. In Halsbury's Laws of England, 3rd Edn. Vol. 39, at page 1120, it is stated:
'In cases where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift, and, accordingly, it vests at the testator's death or at the earliest moment after that date which is possible in the context, whether it is a real or personal estate; and it is presumed that the testator intended the gift to be vested, subject to being divested, rather than to remain in suspense. the presumption is especially applicable in cases where the interest created is a remainder, the reason being that keeping the remainder contingent might in many cases exclude the issue of a person intended to take in tail by the parent's dying before the reminder became vested'.
(15) In the present case, before us, what Alagarsami Chettiar obtained was only an interest for life and the remainder had to be disposed of, and was disposed of, under the terms of the document. The presumption referred to above must apply as otherwise the remainder would have to exist without an owner. The presumption in such cases is stated in Theobald on Wills, 12th Edn. page 480, para 1411 as:
'The court leans in favour of early vesting, at any rate in cases where there is some one in existence who can say, on the natural construction of the language of the will, that his share has absolutely vested in interest, although it cannot be said exactly what share as a matter of quantum has so vested'.
The position is summed up in B. B. Mitra's Commentaries on the Indian succession Act, 8th Edn. at page 185 thus:
'Whether the estate is vested, contingent or conditional has undoubtedly to be gathered from the whole will, but the general policy of law is to favour vesting and unless an opposite intention is expressed or implied from the other provisions of the will, the law will construe a grant which is to take effect in future as creating a vested interest in favour of the grantee from the very moment of transfer'.
In Taylor v. Graham, (1878) 8 AC 1287 Lord Blackburn observed:
'It is in general for the benefit of the objects of the testator's bounty that they should be able to deal with their expectant interests at once; which they can do if their interest is vested, though subject to be divested by the happening of a subsequent event; but which they cannot do if their interests are kept in suspense and contingency until that event has happened and therefore it is to be presumed that a testator intends the gift he gives to be vested subject to being divested, rather than to remain in suspense. As this is no more than a presumption of his intention, it must yield to anything in the testamentary deed which shows a contrary intention.
This view is supported by equally weighty authority. In Umes Chunder Sircar v. Zahur Fatima, ILR 18 Cal 164 a Mahommadan settled his property on his second wife, for life and on her son, if she should have a son, and if she were not to have a son, on the sons by his first wife, who were in existence at the date of the settlement. A question arose whether the first wife's sons had a vested interest in the property which could be attached in execution of a decree obtained against them. The Privy Council held that the interest given to the first wife's sons was not a mere expectancy, but a vested interest liable to be divested by the birth of a son to the second wife, observing,
'At the time of the attachment Sultan Ali was still living and at all events in contemplation or law there might be a child to take; but the deed confers upon the sons Farsand and Farhut a definite interest, like what we should call in English law a vested remainder, only that it was liable to be displaced in the event of there being a son of Sultan Ali by Amani Begum.' Mr. Gopalaswami Aiyangar, however, made an earnest attempt to distinguish that decision on the ground that what the Privy Council was concerned with was merely to find out whether the interests of the first wife's sons were attachable or not; he argued that the Privy Council in that case was not concerned with the further question whether such interest was vested or contingent. There is, however, no substance in this contention, as it had been emphatically stated by the Privy Council that the interest given to the first wife's sons would amount, in English law, to a vested remainder, although it was liable to be displaced in the event of a son being born to the second wife.
(16) recently, a bench of this court (to which one of us was a party) has considered a similar case in Nagaraja Iyer v. Seethalakshmi Ammal, : AIR1962Mad369 . In that case there was a gift to one S for life and then to the male santhathi of S absolutely; in the absence of such male santhathi to the female santhathi of S absolutely, and if there be no such santhathi at all, to the mother of S absolutely. It was held that the estate granted to the mother was a vested one liable to be defeated if there was any santhathi of S living at her death.
(17) In the instant case, Subbiah was, as we said more than once, in existence on the date of the partition document and it was possible for Alagarsami Chettiar to create a vested interest in him forthwith. the disposition in favour of his second wife's son could only be a contingent one, because his coming into existence was dependent upon two contingencies; first, of his marrying, and secondly, such marriage being fruitful. the rule of construction to which we have made reference just now, and the language of the document now in question fully strengthen the presumption that the intention of the parties to the document was to immediately vest the remainder in Subbiah.
(18) It is then contended that as Subbiah was to take the property only after performing the obsequies of his father, the intention underlying the document must be that he should survive the father before he can claim the estate. We have now to see whether the performance of obsequies is a condition precedent to the vesting of the remainder. The disposition in favour of the second wife's son also requires him to perform the obsequies. There is no clause of forfeiture of estate in the event of either the second wife's son or Subbiah not performing the obsequies. Indeed, when referring to the vesting of the property in Subbiah, the only qualification is 'if there be no son by the second wife'. That indicates that the performance of obsequies of the father was not a condition of the gift taking effect; if so the document would have said 'or when the second wife's son fails to perform the obsequies'.
(19) It is undoubted law that where the executant of a document has, by any means, attached conditions or obligations before the vesting of his gift, his intention will govern the dispositions. It can be conceded that it would be competent for a person to impose a condition, like the performance of obsequies etc, before the vesting of the property. the question in each case will be whether and obligation imposed by a document amounts to a condition or not. These are some well settled rules of construction in regard to that matter. In Halsbury's Laws of England, 3rd Edn. Vol. 39, page 1114, para 1642, it is said:
'Where, however, the will is not clear, it is a settled rule of construction, that words are not construed as importing a condition, particularly a condition of forfeiture, if they are fairly capable of another interpretation'.
Not unoften a provision I a document, though expressed as a condition, might amount to a trust or even a mere hope. In reframe Edwards v. Taylor, 1939 1 Ch 700 a testator bequeathed moneys to a legatee upon condition that she adopted his youngest daughter and made certain payments to others. It was held that the direction did not amount to a condition.
(20) The true method of approach is stated by Theobald on Wills 12th Edn. at page 537, thus:
'The court is never astute to construe a testator's words as a condition if a different meaning can fairly be given to them'.
Applying that principle, we are of opinion that it would not have been the intention of the parties to the partition deed to impose a condition for the vesting of the remainder, the non-performance of which should work a forfeiture of the property. It is a prevalent idea, in the community to which the parties belong, that the person who takes the property of a deceased will have the duty of performing his obsequies. The performance of the ceremonies must, therefore, have been regarded as incidental to the taking of the property and not as a condition precedent to it. there being, therefore, no condition for the vesting of the property in Subbiah, the interest obtained by him should be regarded as one which vested in him the moment the partition deed was executed, and such interest could be inherited by his mother Venkatammal on his death.
(21) The appeal, therefore, fails and is dismissed with costs.
(22) Appeal dismissed.