1. This second appeal is by the first defendant, who contends that under the will of his father, the second defendant was not entitled to any exclusive right in the family house under clause 12 of the will.
2. The two material clauses are clause 5 and clause 12. Clause 5 is as follows:
The entire moveable and immoveable properties belonging to me, excluding what I have given herein and what I am going to give in future, the remaining entire properties shall pass to my wife Pydah Sattiraju.
Clause 12 is as follows:
The house wherein I am residing shall, after the death of my wife, pass to my fourth son Pydah Satyanarayanamurthi (second defendant).
The argument of Mr. Raghava Rao for the first defendant is that clause 12 does not expressly give the wife a life interest; so that Clause 12 could not operate immediately on the death of the testator and so under clause 5 the wife obtained an absolute interest in the property, which ultimately devolved upon her sons. Pydah Sattiraju died before her husband. It is however conceded by the learned advocate for the appellant that the question for consideration is the same as if the wife had survived her husband.
3. It is conceded that in certain simple cases, such as where a person be queathes property to his heir-at-law B on the death of A, a Court would hold that by necessary implication there was a grant to A, with the remainder to B; because otherwise there would be something in the nature of an intestacy, there being nobody to take the property upon the testator's death. The learned advocate for the appellant has drawn our attention to the relevant articles in Halsbury, Volume 34, page 427 on the subject, and to Theobald on Wills, Chapter 52. One of the exceptions to the rule that a life estate may be presumed where there is a gift of the remainder to the heir-at-law, is where there is a residuary legatee. In the case of residuary legacy there would be no intestacy if a life estate was not presumed; because the residuary legatee would enter into immediate possession. Even to this exception there are however exceptions, e.g., where the general construction of the document would indicate that A should have a life estate. Such an example is given in Theobald where there is a gift to a residuary devisee after the death of A, A should then take a life estate by implication, the reason being that the very wording used indicates that the testator did not intend with regard to that particular gift that the residuary devisee should take the property immediately on the testator's death, but only after the life of A.
4. It seems to us that very much the same reasoning would apply to the case under consideration. Since the testator intended that the bulk of the property should go to his wife absolutely, the fact that in clause 12 he gave the property to the second defendant after her death was an indication that he intended clause 12 to be an exception to the general clause 5, whereby he gave the bulk of his property to his wife absolutely. That clause 12 is intended to be a definite exception to clause 5. is also shown by the wording of clause 5 in which the testator conveyed : ' The entire moveable and immoveable properties belonging to me excluding what I have given herein,' which means that he did not intend clause 5 to operate with regard to the items of property specifically mentioned in the will, one of which was the house which was the subject of clause 12; so that strictly construing clause 5, the widow would not be entitled to an absolute interest in this house on the death of' the testator, even if the legacy covered by clause 12 failed. Again, in construing clause 12 we must have regard to the circumstances existing when this will was drawn up. The testator's wife was of course living with him in the house to which clause 12 relates; and he naturally desired that his wife should continue to live in the house after his death. Clause 12 sets out his clear intention that his wife should continue to reside in the family house in which she had always been residing with, her husband and that it was only after her death that the property should pass to the second defendant. This is an illustration of the general principle laid down, in Halsbury, volume 34, Article 475, where the learned author said:
Thus, life estate has been held to be impliedly conferred on a person where the will contains a gift after the death of that person, and the Court has from the context of the will inferred an intention on the part of the testator that that person should enjoy the property in the meantime.
The learned advocate for the first defendant has referred us to certain cases which have dealt with some of the exceptions to the rule of implying a life estate from a gift after a person's death, in which it had been held that no life estate had been granted. We are not however directly concerned with the circumstance whether Pydah Sattiraju acquired a life interest in the house which is the subject of clause 12; because she is now dead, but with the right of the second defendant to possession and enjoyment of the property now that she is dead. In none of the authorities cited by Mr. Raghava Rao has it been held that since A has no life estate, B, who was to enjoy the property after A's life, could not enjoy the remainder. It seems to us that when property is devised to a person after the life of another, the remainderman has a vested interest upon the death of the testator under Section 119 of the Succession Act.
5. S.A. No. 2190 of 1945 is therefore dismissed with the costs of the second defendant. Advocate's fee Rs. 300.