1. The only thing we have to concern ourselves with in deciding this second appeal is to ascertain as far as possible what were the intentions of the testator, and that is not an easy matter because there are some expressions in the Will which are not easy to be reconciled with others. In the first part of the Will there is a provision that the testator's mother and sister are both to enjoy his properties with full proprietary rights after his death, and this is followed by an expression of intention to exclude all others. Then at the end it is provided that if the sister should die without, issue, the Dayathis of the testator are to get the property and that their consent should be obtained in the matter of discharging debts. There is no distinct provision that the two women are to have powers to alienate the property beyond the use of the words Sarva Swathantrathudan, which may be translated 'with full proprietary rights' and have been regarded by Sadasiva Aiyar, J., as the 'strongest expression that an alienor can employ to confer an absolute estate on the alienee' in Muthuvenkatanarayanan Chetti V. Athipandurenga Naidu 51 Ind. Cas. 217 : (1919) M.W.N. 103, and by Ayling, J., as not conferring a full title on the donee in Manika Mudali v. Muthachi Kavandan 30 Ind. Cas. 685 : 18 M.L.T. 346 : 2 L.W. 887. Again in Sambasiva Ayyar v. Viscam, Ayyar 30 M.K 356 : 17 M. L. J. 243 : 2 M.L.T. 316 Wallis, J. (now C.J.) observed that the words: 'You shall enjoy the suit lands with the rights of gift, sale, etc.,' where words of common form borrowed from Regulation No. XXV of 1802 denoting the Act of the donor in divesting himself of ownership rather than the nature of the interest taken by the donee. As pointed out by the learned District Judge, there is no provision in this Will as to what is to happen with the mother's interest. Probably the reason for this is that the testator did not contemplate his mother outliving her daughter. I am of opinion, after careful consideration, that the bequest in favour of the testator's Dayathis was contingent on the sister dying without issue (not without heirs, as has been translated, the word used being santhathi) and that they did not take a vested interest. The testator evidently wished to exclude his sister's husband, but not her children if any should be born. As a matter of fact, the sister Sundarammal died between the appeal to the District Court and the second appeal to this Court and left no issue. The estate vested in her heirs on the testator's death. The contingency upon the happening of which the Dayathis would have succeeded to the property, namely, the death of Sundarammal without issue during the testator's lifetime, never happened. That is the only construction to be put on the words ' if there be no issue to the above Sundarammal, my sister, the property should go to my Dayathis after her death' no time being specified for the occurrence of the event of her death--vide 2 Jarman (6th Edition) 2144. The event (Sundarammal's death) no doubt was certain to happen but it was uncertain whether she would die childe Sections If the testator had intended his mother and sister to take life-estates, he would have declared his wish that they should enjoy his property after his death and that after they died, the remainder, should go to the sister's issue, or failing such issue, to the testator's Dayathis. But there are no words to that effect. The provision that the debts should be paid off upon the consent of the testator's Dayathis may have been inserted as a measure of precaution and in any case no inference can be drawn from these words so as to override the words of the bequest in the preceding parts of the Will. These words of bequest are sufficient to authorise the alienations at the time that they were made. 1 agree that the appeals must be allowed and the District Munsif's decree restored with costs here and in the lower Appellate Court.
2. The main question that arises for decision in this case is whether the mother and the sister of the testator took an absolute estate or only a life-estate under his Will, Exhibit A. If they took an absolute estate, plaintiff's suit as reversioner to have it declared that an alienation by them is not binding beyond their lifetime fails. The question depends on the intention of the testator as expressed in his Will and to be gathered from its language taken as a whole.
3. Before considering the language of Exhibit A, it may be observed that the rule enunciated by the Privy Council in the case of Moulvi Mohamed Shamsool Hooda v. Shewukram 2 I.A. 7 : 14 B.L.R. 226 : 22 W.R. 409 : 3 Sar. P.C.J. 405 : 3 Suth. P.C.J. 43 and again referred to and followed in Radha Prasad Mullick v. Ranee Mani Dassee 35 C.K 896 : 12 C.W.N. 729 : 35 I.A. 118 : 4 M.L.T. 23 : 18 M.L.J. 287 : 5 A.L.J. 460 : 10 Bom. L.R. 604 : 8 C.L.J. 48 that when a Hindu gives property to a'' Hindu woman and more particularly to a: Hindu widow there is a presumption that : the estate meant to be given is only a life estate, has been held in recent cases not to : apply now in this Presidency. See Ramachandra Rao v. Ramachandra Rao 52 Ind. Cas. 94 : 42 M.K 283 : 36 M.L.J. 306 and the judgment of Sadasiva Aiyar, J. in Muthu venkatanarayanan Chetti v. Athipandurenga Naidu 51 Ind. Cas. 217 : (1919) M.W.N. 103. On the other hand, the general rule that a transfer of property should be taken to convey all the rights of the transferor unless a contrary intention appears dear, is applied. In construing the present Will we are not, therefore, trammelled inany way by the fact that the legatees are two Hindu women.
4. I shall now turn to the language of the Will. The words of bequest are 'my mother Periammal and my own sister Sundarammal shall both enjoy with all proprietary rights (Sarvaswathantharathudan in Tamil) after my death the immoveable properties belonging to my family, cattle and all the debts I have incurred by means of document.' The testator then directs them to pay Rs. 1,000 to his wife for her maintenance and Rs. 300 to a temple for a religious festival. He then reiterate? that it is only his mother and sister that shall be entitled to the whole of the 'matters' mentioned in the Will and none else shall be entitled to them. If the Will ended there, there can be no doubt, as the learned District Judge observes, that the testator intended to give the ladies all the rights he had in the properties or, in other words, an absolute estate. The import of the words ('Sarvaswathanthrathudan') we considered by Sadasiva Aiyar, J. in Muthuvenkatanarayanan Chetti v. Athipandurenga Naidu 51 Ind. Cas. 217 : (1919) M.W.N. 103 above referred to. On page 106 Page of (1919) M.W.N.--Ed the learned Judge lays down as his view that that expression is the strongest that an alienor can, employ to confer an absolute estate and that the addition of other expressions is superfluous. Without going so far, I consider that the expression is wide enough to convey an absolute estate with powers of alienation, and effect must be given to it unless we can gather from other words in the Will that the testator meant to use it in a restricted sense. That is the principle recognized in Section 70 of the Indian Succession Act. In Manika Mudali v. Muthachi Kavandan 30 Ind. Cas. 685 : 18 M.L.T. 346 : 2 L.W. 887. Ayling, J. took a some what narrower view of the import of the expression. His view was not fully adopted by Tyabji, J., who was sitting with him and has been dissented from by Sadasiva Aiyar, J., in Muthuvenkatanarayanan Chetti v. Athipandurenga Naidu 51 Ind. Cas. 217 : (1919) M.W.N. 103. It seems to me that Ayling, J., failed to give full effect to the words as he considered the presumption that an estate given to a Hindu female is a life-estate outweighed their effect. That presumption, as I have already observed is now hardly recognised in this Presidency and, therefore, the ruling in question loses its authority. It may also be observed, that here we have a further indication that the testator meant to give a full estate, as he says again that the ladies alone and none else shall be entitled to the properties. In this respect the present case is similar to the unreported case, Appeal No. 26 of 1896 referred to in Manika Mudali v. Muthachi Kavandan 30 Ind. Cas. 685 : 18 M.L.T. 346 : 2 L.W. 887 and is thus distinguishable from that case on the very point on which the unreported case was distinguished in it.
5. In this connection one argument for the respondent has to be considered, viz., that the use of the word 'enjoy' indicates that the properties were not to be alienated and thus restricts the scope of the words 'Swathanthrathudan,' for it is said that after alienation the alienees and not the legatees will 'enjoy' the properties. I think this argument puts too restricted a construction on that word. We often find it used in conjunction with words giving express powers of sale, gift, etc., in Tamil documents. If the meaning suggested for the respondent is accepted, there will be a contradiction in terms in such case?. It would thus appear that the word does not necessarily imply that the legatees should keep possession of the properties and should take only the income from them; it is used in a general way to mean 'to take the benefit of the ownership of the property,' The facts that the sum of Rs. 1,300, which the testator directed the ladies to pay, could not be raised without alienating soma of the immoveable properties and that he also directed them to pay his debts are dearly in favour of the view that he meant to give them powers of alienation.
6. So far the words of the Will are distinctly in favour of the contention that an absolute estate was given. We have now to consider the effect of two further provisions in the Will, for the testator goes on to say that 'if there be' no issue to the above Sundarammal, my sister, that property should go to my Dayathis after her death' and that 'the debts should be discharged with the consent of my Dayathis.' To take the 2nd Clause first, I do not think it has any bearing on the question as to the nature of the estate given, it is suggested that it was put in for the benefit of the Dayathis and that it indicates that their interest as reversioners was reserved and that only life-estates were given to the ladies. It seems to me that this is all very farfetched and untenable. It might equally well be suggested that the clause was put in because the testator considered that without the concurrence of the Dayathis the ladies might be misled into paying fictitious debts. I think that is the more natural suggestion. The d direction is not really binding on the ladies, as they will hive to pay the just debts of the testator whether the Dayathis consent or not.
7. I shall now consider the effect of the first Clause above quoted. In the first place, it will be noticed that it is confined to the sister's share and has no effect on the mother's share. It could not, therefore, be relied on to cut down the mother's estate in any way.
8. Now if we consider the clause carefully, it seems to me to strengthen the inference that an absolute estate was meant to be given to the sister rather than the contrary. It distinctly contemplates the sister's estate was to go to her issue if she were to get any. That indicates that she was to have an estate of inheritance and not merely a life-estate. It was suggested that we should construe the clause as giving a life-estate first to the sister and then a full estate to her children, if any, and then a contingent estate to the Dayathis. But there are no words in the Will to justify this. There are no words denoting the children as the direct objects of the distinct and independent bequest and in their absence, the bequest to the sister and her children must be taken as giving an estate of inheritance to the sister, as no contrary intention appears from any other part of the Will. That is a well-recognised rule and it is embodied in Section 84 of the Indian Succession Act and though the Act does not apply in the present case, the principle is one of general application.
9. The bequest in favour of the Dayathis is purely a contingent one dependent on the uncertain event of the sister having no issue till her death. The fact that after the decree in appeal in this case that event has actually happened, is immaterial in this connection. Being a purely contingent bequest, it is difficult to see how it can be used to show that the earlier bequest was of a life estate only. Such a contingent bequest may clearly be added to a Will giving an absolute estate without any inconsistency and, therefore, its addition is really of no importance in considering the nature of the estate first given. If, as in the case in Lallu v. Jagmohan 22 B.P 409 there was a bequest of a vested remainder, it would necessarily follow that the prior estate was a limited one whatever be the words used to describe the powers given to the prior legatee. But that is not the case here at all, The contingent bequest was entirely ineffective against the prior legacy to the sister and could take effect, if at all, only on her death without issue. It cannot, therefore, be relied on to out down the absolute estate given to her by the words of the bequest in her favour in the Will, It is not necessary, besides, for the purposes of this case whether the contingent bequest failed entirely on the death of the testator leaving his sister alive, or whether it became effective in favour of the Dayathis against the sister's heirs when she died without issue. I express no opinion on that point.
10. I have, for the above reasons, come to the conclusion that the mother and the sister of the testator took an absolute estate in the testator's properties under his Will. Plaintiff's suit, therefore, fails. The second appeal must be allowed and the decree of the District Judge reversed and that of the District Munsif restored with costs here and in the Court below.
11. The other Second Appeals Nos. 1797 and 1798 of 1918 follow.