1. This is an appeal against the decree and judgment of the Subordinate Judge of Bezwada dismissing the suit O.S. No. 48 of 1944, filed by the appellants for a declaration of title and for possession of the suit properties. The relationship of the parties can be seen from the following pedigree:
China Veerabadra Rao ____________________________
| | |
________________________ Pedda Veerabadra Rangarama
| | Rao (Testator) |
Rajeswara Somasundara D. 1918=Syamalamba ___________________
Rao Rao D. 17-1-1944 | |
(1st (and Basaveswara Mrutyunjaya
Plaintiff) Plaintiff) Rao (D. 1927-218)
D. 1919= = Lakshmi-
2. Pedda Veerabadra Rao died on 9th March, 1918. Before his death, on 5th December, 1917, he executed a will, Ex. P-1, disposing of his properties in the manner mentioned in the document. After his death Syamalamba was in possession and enjoyment of the plaint schedule properties till her death on 17th January, 1944. Basaveswara and Mrutyunjaya who were the sister's sons of the testator and in whose favour certain bequests were made, predeceased the widow Syamalamba. The plaintiffs, who are the testator's paternal uncle's grandsons, filed the suit for recovery of the plaint schedule properties claiming to be the next reversioners to the estate of Veerabadra Rao First defendant is the wife of Basaveswara, one of the nephews of the testator. Second defendant is the widow of Mrutyunjaya, another nephew of the testator. Third defendant is the daughter of the second defendant. The other defendants are alienees. Defendants 1 to 3 contested the suit on the ground that under the will of Veerabadra Rao, Basaveswara and Mrutyunjaya got a vested right in the suit properties and though they predeceased the widow, they are entitled to the suit properties as heirs of the testator's nephews. The learned Subordinate Judge accepted the case of the defendants and dismissed the suit. The plaintiffs have preferred the above appeal against the judgment and decree of the Subordinate Judge.
3. The only question that arises in this appeal is therefore one of the construction of the will. If, under the will, Basaveswara and Mrutyunjaya got a vested interest, the suit would be liable to be dismissed. If, on the other hand, what Basaveswara and Mrutyunjaya got under the will was only a contingent interest in the suit properties, as they predeceased the widow, the plaintiffs would be entitled to succeed. As the decision in the appeal turns upon the construction of the will, it is as well that we extract the relevant portions of the will. The testator after giving the reasons for his executing the will, and also after dedicating certain properties to the temple, proceeded to dispose of his other properties in the following manner:
5. The jewels which my wife Thurlapati Syamalamba has been wearing and six acres of land out of the land which fell to my share in Mounje Adivavulapati Vasathi agraharam shall permanently pass to my wife with powers of disposition thereto by way of gift, exchange and sale.
6. Excluding the property which has been set apart to be conveyed to the aforesaid Sri Swami-varu and to my wife, in respect of all the remaining moveable and immoveable properties belonging, to me and in respect of the liabilities and assets, my wife alone shall be the kartha (owner) without having powers of gift, exchange and sale. After her lifetime, my nephews, namely, Kamarajugadda. Basaveswara Sarma and Mrutyunjaya Sarma shall become the karthas of the said moveable and immoveable property and of the liabilities and assets and they have been hereby empowered to enjoy my property with such rights and interest as I have been enjoying, i.e., with powers of disposition; thereto by way of gift, sale, etc., and from son to grandson and so on in succession.
7. Should any misunderstandings arise between my wife and my nephews, my wife alone shall retain the said property in her possession during her lifetime, without having the powers of gift, exchange and sale, shall collect the income realised therefrom and shall give two shares to the nephews and enjoy one share for herself. After her lifetime, the entire moveable and immoveable property shall pass to my nephews.
8. After my lifetime, my wife, and after the lifetime of my wife, my nephews and their sons grandsons and so on in succession shall be the dharmakarthas of Sri Raja Rajeswara Swami Varu and these individuals alone shall give the income realised therein for the nitya neivedya dheeparathanas and to the archakas.
9. My nephews shall perform my obsequies and the obsequies of my wife. As they are my father's daughter's sons and my sister's sons, I have no other persons in the world than these to whom: I can show affection. I have, therefore, wholeheartedly executed this will in my own hand.and without going against my conscience, providing that the moveable and immoveable properties belonging to me should, as mentioned above, pass to my sister's sons.
4. Before we consider the various clauses of the will, it will be convenient at this stage to state the legal principles governing the construction of wills. The fundamental rule of construction is that the intention of the testator should be gathered, from a reading of the will as a whole. Decided cases lay down various rules which afford valuable guides to find out the intention of the testator.
(1) In Duffield v. Duffield (1829) 4 E.R. 1334 at page 1358, an important rule is stated which has been followed and adopted in later decisions. The following passage may usefully be cited:
It has long been established rule... in construing devises, that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so clearly expressed that the Courts cannot treat them as vested without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstances-occasioning that doubt; and what seems to make a condition is holden to have only the effect of postponing the right of possession. (2) Another rule of law is stated by Pandrang Row, J. in Viswanadham v. Anjaneyalu : AIR1935Mad865 . The learned Judge says:
The general rule of law is very clear, namely, that the mere fact that the possession of the estate-bequeathed is to be given at a future time is not by itself a reason for coming to the conclusion that the estate was not to be vested at the time of the testator's death. (3) 'An estate or interest is vested, as distinguished from contingent either when enjoyment of it is presently conferred or when its enjoyment is postponed the time of enjoyment will certainly come to pass; in other words, an estate or interest is vested when there is an immediate right of present enjoyment or a present right of future enjoyment. An estate of interest is contingent if the right of enjoyment is made to depend upon some event or condition which, may or may not happen or be performed, or if in the case of a gift to take effect in future, it cannot be ascertained in the meantime whether there will be anyone to take the gift; in other words, an estate or interest is contingent when the right of enjoyment is to accrue, on an event which is dubious or uncertain. And as-regards certainty, the law does not regard as uncertain the event of a person attaining a given age or of the death of somebody beyond which his enjoyment is postponed, because if he lives long enough, the event is sure to happen'- Sashi Kantha v. Promode Chandra : AIR1932Cal600 .
(4) The presence of a gift over, which is not a mere gift by way of defeasance, is generally held to be an indication that the prior gift was only a limited interest-Pavani Subbamma v. Anumala Rama Naidu : (1937)1MLJ268 .
(5) It is possible to create a woman's estate by a will or by a grant. There is conflict of decisions on the question whether it is open to a stranger to create what would strictly be a Hindu widow's estate in a property by a gift or devises-Maharaja of Kolhapur v. Sundaram Aiyar I.L.R.(1924) Mad. 1 . The question whether a vested remainder can subsist side by side with a limited interest analogous to a Hindu woman's estate is also not free from doubt-Pavani Subbamma v. Anumala Rama: Naidu : (1937)1MLJ268 and Ratna Chetti v. Narayanasmami Chettiar : (1914)26MLJ616 .
5. Having regard to the aforesaid principles, we shall now proceed to consider the relevant provisions of the will to ascertain the intention of the testator. Reading, the will as a whole, we have no hesitation in holding that under the will the testator intended to confer a vested interest on his nephews. The testator had no children and he was very much attached to his nephews. By previous clauses he had dedicated some property to the temple and also conferred an absolute interest on his wife on some other properties. He intended that his wife and nephews-should get on amicably during her lifetime and thereafter the entire properties should go to the nephews absolutely. He was also anxious that they should perform the obsequies of himself and his wife. To effectuate this intention, he gave a life estate to his wife in the suit properties and stated that after her death, the properties should go to his nephews. He also made a provision that, in case there were disputes during the lifetime of the widow, she should make over two-thirds of the income to the nephews. These objects could not be carried out if she was-given an absolute right or even a widow's interest in the properties and therefore he did not give her any right of alienation.
6. Mr. Rajagopala Aiyangar, the learned Counsel for the appellants, raised two points before us. The first is that under the will, the testator conferred a woman's estate on his wife and therefore the will could only confer a contingent interest on his nephews. He relied upon the word ' kartha' and the words. ' asthikinni dhanarunamulakunnu ' which according to him, point to only one conclusion that the testator intended only a woman's estate to be conferred on his widow. In our view, the use of the words ' asthikinni dhanarunamulakunnu ' is only a compendious mode of describing the entire properties of the testator. We cannot also say that the use of the word 'kartha ' in the context of this will can only mean an absolute estate or a woman's estate. Having regard to the other clauses of the will, and the context in which it was used, it only meant to describe a life estate. The words prohibiting alienation which really qualify the word 'kartha' bring out the intention of the testator that his' widow should take a life estate without any powers of alienation. The 7th clause of the will also lends support to the aforesaid construction. It was intended to provide for contingency, namely, disputes between the widow and his nephews in which case, his wife should be in possession of the properties during the lifetime but should pay 2/3rds of the income to his nephews. It is impossible to hold that this clause confers a widow's estate on the wife. If so it would lead to anomalous results if the 6th clause is construed to confer a widow's estate and the 7th a life estate. If so construed, the result would be that she could alienate away the property for necessity if there were no quarrels, but she would have no power to alienate the properties if there were quarrels inter se. The construction suggested by the learned Counsel would also throw the nephews on the mercy of the widow which was never the intention of the testator, and, if accepted, would be in conflict with the paramount intention of the testator to benefit his nephews ultimately. We therefore hold that under the will, the testator did not confer a woman's estate on his wife. In this view, it is not necessary to consider the other question whether a vested interest can subsist side by side with a woman's estate.
7. The learned Counsel for the appellants next argued that, even so, the interest that the nephews got under the will was only a contingent interest, contingent on their surviving the widow. Emphasis was laid on three words, ' after the testator's wife,' ' kartha' and ' authorised.' The argument was that the nephews, the karthas, were authorised to enjoy the property only after her death. The learned Counsel also relied upon the fact that the testator directed his nephews to perform the funeral ceremonies of his wife which also, according to him, indicated that, the testator expected the nephews to survive the widow. The argument advanced is rather attractive, but we are unable to accept the same having regard to the terms of the entire will and the principles extracted above. The learned Counsel relied upon the decision in Peria Nayaki Ammal v. Rathnavelu Mudaliar : AIR1925Mad61 . Ramesam, J., in that case relied upon the words 'after these' as indicating that the testator intended a contingent interest, not a vested interest. The document in that case is not similar in terms and, in our view, that decision cannot afford any help in deciding the present case. If the user of the word ' after ' is conclusive, of the intention of the testator, the decision of Pandrang Row, J., in Viswa-nadhan v. Anjaneyulu : AIR1935Mad865 . that of Madhavan Nair, J., in Narayana Aiyar v. Subbaraya Aiyar : AIR1929Mad32 and Horwill, J., in Subramania Chettiar v. Lakshmanan Chettiar : (1940)1MLJ817 must all be wrong, as in all those cases, the subsequent interest was preceded by the word ' after '. In our view, the adverb ' after ' and similar words do not impose any condition, but merely express the time when the interest shall take effect in possession. Again, Clause 7 which comes into play on the happening of a contingency, namely, difference between the widow on the one side and the nephews on the other, clearly indicates that the intention of the testator was only to give a vested interest to his nephews. We cannot construe Clause 6 in a different manner. We therefore hold that under the will, the wife got a life estate in the suit properties and the nephews got a vested interest in the same, though their right to possession was postponed till after her death. If so construed, the plaintiffs' suit was liable to be dismissed and rightly dismissed by the lower Court.
8. The appeal fails and is dismissed with costs of the contesting respondents. Vakil's fee one set.