1. The defendants in O. S. No. 278 of 1964 on the file of the Sub-Court. Coimbatore, are the appellants. The respondent-plaintiff filed the suit for a declaration that his mother Poovathal had acquired a vested interest in the suit properties under the terms of the will dated 12-12-1929 executed by his maternal grandfather, one Ramana Gounder, that he has inherited the said vested right on the death of his mother and that the will dated 4-8-1964 executed by the first defendant in favour of the second defendant as though she had an absolute right over the property was not valid and binding on him.
2. The defendants resisted the suit contending that the will date 12-12-1929, executed by Ramana Gounder gave an absolute right to the first defendant in the suit properties. that the first defendant could dispose of the same by her will dated 4-8-1964, and that the plaintiff had not acquired any vested interest in the suit properties under the will of Ramana Gounder.
3. The trial court held that the plaintiff did not acquire any vested interest under the will of Ramana Gounder dated 12-12-1929. The lower appellate court however, disagreed with the trial court and passed a decree in favour of the plaintiff upholding his case that he acquired a vested interest in the suit properties under the said will.
4. In this second appeal the defendants contend that the view taken by the lower appellate court is erroneous and that the view taken by the trial court is the correct one.
5. The suit properties originally belonged to the family of Ramana Gounder. He had an only son. Chinnappa Gounder. The first defendant the wife of the said Chinnappa gounder. Chinnappa gounder had two daughters. the second defendant Pappammal and the plaintiff's mother Poovathal. The third defendant is the husband of the second defendant is the husband of the second defendant. After the death of Chinnappa Gounder. Ramana Gounder executed a will dated 12-12-1929. According to the plaintiff under the will the first defendant was given a right to enjoy the suit properties, with a vested remainder in favour of the plaintiff's mother and the second defendant, each being entitled to a half. According to the defendants the will had given an absolute right in favour of the first defendant with no vested interest in favour of the daughters. The properties conversed by the will dated 12-12-1929 are about 15 acres of garden lands with electric meter and pump set etc. In addition to houses and sheds. The same properties have been bequeathed by the first defendant under her will Ex. B-1 dated 4-8-1964 in favour of her daughter, the second defendant, purporting to deal with the property as an absolute owner. Thus the main question relates to the construction of the will Ex. A-1 dated 12-12-1929.
6. A perusal of the will shown that the testator has addressed the will to his widowed daughter-in-law. Kaliakkal, the first defendant. It recites that after the death of the testator. Kaliakkal should enter into possession and enjoy the properties that she should discharge the debts of the testator. If any, that she should continue to maintain a thanneer pandal dharmam in the local Pilliar koil at a cost of not less than Rs. 100 per year from the income of the properties after her lifetime and whoever may be in possession of the properties by virtue of any alienation, are bound to continue the dharmam as aforesaid. The will further directs that after the lifetime of Kalikkal her daughters. Pappammal and Poovathal, should get the properties absolutely. The devise in favour of the first defendant is as follows.
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Regarding the devise in favour of the two Regarding the devise in favour of the two granddaughters the terms are as follows
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Thus it is seen that the testator used a different phraseology in respect of the two devises which he had made in favour of the daughter-in-law and the other in favour of the granddaughters. While referring of the daughter-in-law the testator says that she is to enter into possession of the properties and enjoy the same. But while referring to the rights which the granddaughters are to get he expresses the intention that they should enjoy all the properties with powers of alienation. As pointed out by Ramamurti, J. in Jabalamalai Mariammal v. Madalamuthu Trevor : (1966)2MLJ7 , while interpreting a will it is the duty of the Court to find out the intention of the testator from the language used by the testator from the language used by him and all the parts of the will are to be considered with reference to each other so as if possible, to from one consistent whole. In that case the learned Judge compared the phraseology used in two different wills made by the testator and construed the wills in the light of the difference in phraseology. It is therefore. significant that when the testator directed that his grandchildren should take the property with powers of alienation without giving any such power to their mother, the first defendant, it should be inferred that be intended to confer on the first defendant only a life interest.
7. In Lallu v. Jagmohan, ILR(1898) Bom 409, the material portion of the will that came up for consideration was as follows:--
'My property consists of dwelling houses and moveables such as each, levels and furniture, the silk etc. appertaining to my business, and outstanding debts, whatever that may be. As to this, when 1 die. my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's kaja raja (death), my daughter Mahalaxmi is owner of the said property after that (death). I have, therefore, made this my will in respect thereof.'
And the Court held that the testator's wife Suraj took only a life estate under the will with remainder over to Mahalaxmi after death and that the bequest to Mahalaxmi was not contingent on her surviving Suraj and that she took a vested remainder which upon her death passed to here heirs. In that case even though the testator has given absolute powers to his wife, the bequest in her favour was treated as life estate in view of the subsequent bequest made in favour of his daughter.
The operative portion of the will which came up for consideration to Lakshmana Nadar v. Ramier : 4SCR848 was as follows:
'After my lifetime, you the aforesaid R. my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime. L, our daughter and wife of M and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and as on the generations...............'
Their Lordships of the Supreme Court held that the estate conferred on the testator's window was more like the limited estate in the English sense of the term than like a full Hindu window's estate, that though the daughter was not estimated to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time, that she got an interest in it on the testator's death and that she has been given a present right of future enjoyment in the property. The will in this case is somewhat analogous to the will considered by the Supreme Court in the above case. In that case it was held that the subsequent absolute because in favour of the daughter should be taken to limit the nature of the bequest given to the window. The reasoning of the Court is contained in the following observations:
'It is significant that the testator did not say in the will that he daughter will enjoy only the properties left undisposed by the widow. The extent of the grant go far as the properties mentioned in the schedule are concerned, to the daughter and the window is the same, Just as the window was directed to enjoy the entire properties mentioned in the schedule during her lifetime. in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu window's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the window'
In Ramchandra v. Hilda Brite : 2SCR722 the Suprema Court construed a will whose operative portion was as follows:
'All these properties shall after me be enjoyed by my eldest daughter Saverina Sabina and after her lifetime by her male children too as permanent and absolute hukdars'.
According to the Supreme Court the said bequest to Severina Sabina was only to `enjoy' as the testatrix proceeded to add that after the lifetime of Saveriana that after the lifetime of Saverina Sabina her male issues were to have permanent and absolute rights in the same, and the very contrast in the phraseology should lead one irresistibly to the conclusion that the nature of quantum of Saveriana's interest was different from that of those who took after her lifetime. and the dominant intention of the testatrix was to confer a permanent and absolute remainder on the male issue of her daughter after the lifetime of the first done, and the words used are apt and capable of supporting such a construction. In the case on hand also there is a difference in phraseology used by the testator. The first defendant is merely given the right to enjoy the property, while the grandchildren have be given the right to enjoy the properties absolutely.
Ramakrishnan J. in Lakshmi Ammal v. Allauddin Sahib : AIR1962Mad247 had construed a will containing the following two clauses among others:
'After my lifetime, my wife L should perform my death ceremonies, the aforesaid L should possess and enjoy the undermentioned properties with full powers of alienation, gift, sale and with powers of alienation, gift, sale and with absolute right and after my wife's death my daughters both the aforesaid-should perform her death ceremonies, my first daughter should take the first item and the second daughter should take the second item with absolute rights and enjoy the same'
The learned Judge expressed the view that where two kinds of dispositions are found the first creating an absolute estate found, the first creating an absolute estate and the second a gift over after lifetime of the donee of the estate, the language of the will has to be considered to find out the predominant intention of the testator, that the clauses in the will clearly showed that the testator was having in his mind the interest of his daughters as prominently as the interest of his wife, all three of them being his heirs. that after giving an absolute estate to his wife over the two items, he provided that these properties after the wife's lifetime should devolve on the daughters who would have absolute rights, and that the wife's estate was only to be a limited or life estate, and not an absolute one. The above decisions clearly support the view taken by the lower appellate Court that the devise in favour of the first defendant was not an absolute one.
8. The learned counsel for the appellant, however, refers to that portion of the will which states that whoever gets the properties after the lifetime of the donee or whoever may be in possession of the properties by virtue of any alienation's are bound to continue the dharmam mentioned therein, as showing that the testator contemplated sale of the properties by the first defendant and that the devise in favour of the first defendant was absolute. It is not possible to construe that portion of the will as granting an absolute interest in favour of the first defendant. The alienee referred to can be from the granddaughters who had been granted absolute interest under the will. Whatever it be, even if the devise in favour of the first defendant is construed to be absolute, in view of the latter absolute devise in favour of the grandchildren, the interest which the first defendant took under the will should be taken to be a limited interest.
9. The learned counsel then contends that the interest which the daughters will get under the will Ex. A-1 will only be contingent and not a vested interest. It is stated that the daughters will get the property only if they survive the mother, the first defendant. As pointed out by the decision in ILR(1898)Bom 409, the death of the first defendant is a certain event and its reference does not import any contingency as it is only a euphuism to denote the time of the first defendant's death. In my view, the interest cannot be said to be contingent. Hence this contention of the appellants has also to fail. The result is the plaintiff has been rightly granted the declaration sought for by him. The second appeal is therefore dismissed. No costs. No leave.
10. Appeal dismissed.