(1) This is a Letters Patent appeal against the judgment of Subrahamnyam, J., in S. A. No. 73 of 1955, on the file of this court, confirming the judgment and decree in A. S. Nos. 88 and 90 of 1954 on the file of the District Court, Tirunelveli.
(2) The decision of the dispute between the parties to this appeal depends upon the true construction of the will, Ex. A. 1 in the case executed by one Velayutha Konar on 11-2-1924. The testator died in 1927 leaving him surviving his widow, Sellathammal and three daughters, Arumugathammal, Subbammal and Shanmughammal by his pre-deceased wife. Under the will he made bequests in favour of his three daughters, and it is the nature of these bequests that is in controversy. The third daughter Shanmugathammal died in 1929. She dies issueless. Sellathammal, Velayutha Konar's widow died on 9-1-1943. Shanmugathammal's husband instituted the suit, O. S. No. Of 1953 on the file of the District Munsiff's Court, Tirunelveli, for possession of the immoveable property which formed the bequest in favour of his wife under the will of her father Velayutha Konar. The first defendant in the suit is Arumugathammal, one of the three daughters, and the second defendant is the son of the other daughters, Subbammal, Subbammal herself having died sometime after the death of Sellathammal. The plaintiff claimed as the heir of his deceased wife, Shanmugathammal and his contention was that the bequest in favour of Shanmugathammal under the will conferred an absolute estate upon her. The contention of the defendants was that Shanmugathammal having died issueless, under the terms of the will she get only a life estate, and that there was a gift over in favour of the two daughters, Arumugathammal and Subbammal.
(3) The learned District Munsif of Tirunelveli who tried the suit construed the will as conferring an absolute estate in favour of Shanmugathammal and granted a decree as prayed for in favour of the plaintiff. On appeal by the defendants before the District Court of Tirunelveli (A. S. No. 88 and 90 of 1954) the judgment and decree of the trial court were set aside and the suit was dismissed on the finding of the lower appellate court that Shanmugathammal did not obtain an absolute heritable estate under the will. The plaintiff preferred a second appeal, S. A. No. 73 of 1955 in this court, and Subrahamanyam, J., confirmed the judgment and decree of the lower appellate court but granted leave to appeal under the Letters Patent. This Letters Patent Appeal has therefore been preferred by the plaintiff.
(4) The material portion of Ex. A-1 conferring the bequests in favour of the daughters is as follows:
In order that no dispute whatever may arise amongst my three daughters after my life time and the life time of Chellathayammal, my first wife I have made the following arrangements in respect of the abovesaid properties as per my intention to make a proper arrangement for the matters that shall come into force.............The following are the arrangements that I have made in respect of the said properties. My first daughter Arumugathammal the wife of Arumugadoss residing at Vellathangi Pilliarkoil Street.....and the issue born of her womb shall, after my lifetime hold and enjoy the house and nanja land mentioned in the first schedule and the debts mentioned therein with absolute rights. My second daughter Subbammal, the wife of Suddalaimuthu Konar residing at the said Vellamthangi Pilliarkoil Street and the issue born of her womb shall after my lifetime hold and enjoy the house and nanja land mentioned in the third schedule hereunder and the moveable properties in my possession absolutely with powers of alienation.'
There is a provision in the Will that the debt due to be paid by the testator towards a chit transaction should be discharged by the three daughters from their own funds. There is a further provision that if any of the daughters makes delay in respect of the payment of the proportionate liability of the chit amount, the person who pays the amount shall be entitled to collect the same from and out of the properties of the persons who failed to pay. Then follows this important clause:
'If any one of my said three daughters has no issue, she shall till her lifetime enjoy the same without subjecting the same to any encumbrance and without making any distribution whatever thereof and after her lifetime, the same shall pass on to my other daughters having heirs. If anyone without any issue as mentioned above affects any alienation that will not be valid. This will should come into force after my lifetime and the lifetime of my first wife Challathammal.'
It is significant to note that though there is no provision in the will creating a life estate, in all the items of properties bequeathed in favour of the daughters, in favour of his wife Sellathammal, it is implicit that Sellathammal was to be in possession and enjoyment of the entire properties during her lifetime and that the bequests in favour of the daughters should take effect only after the death of Sellathammala. Shanmugathammal predeceased Sellathammal. But if under the will she got a vested absolute estate after the lifetime of Sellathammal her husband, the plaintiff in the suit can as heir-at-law claim that right. It is common ground that Sellathammal took a life estate in all the properties and that is why though the suit, was instituted only on 5-12-1952 no plea of any bar of limitation has been raised.
(5) Mr. R. Ramamurthi Aiyar, learned counsel for the appellant, contended that the clear dispositive words of bequest conferring an absolute estate on Shanmughathammal occurring in the first part of the will cannot be in any way curtailed or rendered nugatory by a subsequent clause in the will, engrafting an executory devise or a gift over in favour of other persons on the happening of a contingency. The learned counsel contended that the latter clause is in terms and in effect one repugnant to the former clause, and that such a repugnant clause is totally void in law. This argument is met by learned counsel for the respondents who contended that the latter clause must be construed as one by way of defeasance cutting down the conferment of an absolute estate under the former clause, and that a defeasance clause of the nature contained in the will under construction has always been upheld as valid in law.
(6) In the matter of construction of a will no rule of law is more firmly established than that the court should ascertain the real intention of the testator appearing from the plain language of the entire instrument. One clause of the will is as important as the other and the dominant intention of the testator can only be gathered from the cumulative effect of all the clauses. Clear dispositive words of bequest conferring an absolute estate are often controlled and restricted by other clauses in the will cutting down the absolute character of the bequest. Such restrictive clauses cannot be construed to be a mere repugnancy and therefore treated as void.
On a plain construction of the language of Ex. A-1 we have no hesitation in holding that the paramount intention of the testator was to make a bequest of his properties in favour of his grant-children by his daughters. This intention of the testator has been made persistently clear in both the clauses whereby the made the bequests. The very clause which is relied upon as conferring an absolute estate in favour of Shanmugathammal recites that Shanmugathammal and the issue born of her womb shall hold and enjoy the bequest. In the context, the words 'the issue born of the womb of Shanmugathammal' are often intended to connote the quality of the estate taken by Shanmugathammal but to portent the real intention of the testator which he made manifest by inserting a latter clause providing that the estate taken by any of the daughters should not pass on to her heirs, if she were to die issueless but vas to pass on to the other daughters having issues.
(7) It is really unnecessary to refer to reported decisions in a matter of construction of a will, and it is well to remember the caution sounded by the Judicial Committee in Sasiman Chowdhurain v. Shib Narain Chowdhury, 49 Ind App 25: AIR 1922 PC 63.
'...........It is always dangerous to construe the words of one will by the construction of more or less similar words in a different will which was adopted by a court in another case.'
Subrahmanyam, J., relied upon a decision of this court in Govindaraja Pillai v. Mangalam Pillai, 63 Mad LJ 911: AIR 1933 Mad 80, and was of opinion that the terms of the will in Ex. A-1 are in pari materia with the terms of the instrument considered in that case. The language of the instrument considered in 63 MLJ 911: AIR 1933 Mad 80 was as follows:
'I have accordingly given you the under mentioned properties valued at Rs. 1,000 and you shall yourself from this day hold and enjoy the same with all rights. Should any issue be born to us, that issue shall get the properties after out death. If there is no issue, after your, death, your brothers should take the properties.'
Sundaram Chetti, J., held that there the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative. We agree that the principle of that decision is fully applicable to the present case.
(8) The decision in 63 Mad LJ 911: AIR 1933 Mad 80 was referred to by the Calcutta High Court in Golak Behari v. Suradhani Dass, : AIR1939Cal226 , where a Division Bench pointed out the distinction between a defeasance clause and repugnant clause in the following terms:
'The distinction between a defeasance clause and a repugnant one is sometimes a nice one. One useful test has been formulated by the Madras High Court in 63 MLJ 911: AIR 1933 Mad 80 where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership the clause is a repugnant one and is therefor void. If however the intention expressed or to be necessarily implied is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be the violation of any rule of law the clause is a defeasance clause and would operate according to its tenor.'
(9) We are unable to construe the clause in the will by which after the lifetime of a daughter dying issueless the estate is devised to the surviving daughters as being in any way repugnant to the prima facie bequest made in favour of the daughter in the first portion of the will. The courts should not be astute in discovering repugnant provisions in a will merely because of a slight inconsistency between portions of the testamentary instrument. As far as possible a harmonious construction of all the provisions in the will should be arrived at as otherwise, the brushing aside of a particular clause on the ground of its repugnancy to another, may result in creating a will which was never contemplated by the testator.
(10) Learned counsel for the appellant relied upon three decisions in support of his contention that the latter clause in the will was a mere repugnant provision and not a defeasance clause. The first case is that reported in Raghunath Prasad Singh v. Deputy Commissioner Partabgarh, 56 Ind App 372: AIR 1929 PC 283. In that case a Hindu taluqdar who died issueless provided by a will that his entire estate should on his death vest in P the third son of his nephew who was designated as 'his heir and successor'. After making this provision he created various restrictions, namely, that the successor of the estate should be bound to adhere to the Hindu religion, that they were not to have the power to alienate, that the succession was to be in accordance with the rule of primogeniture and that the estate should remain with the male heirs of his 'sombansi' family.
The point in dispute in that case was whether P took an absolute estate, or whether the will must be considered to have created successive life estates as the legatees were restrained from alienating the properties. The Judicial Committee held that the words in the will that the estate shall vest in Pratap and that he shall be the testator's heir and successor were clear dispositive words creating an absolute right of inheritance in Prathap and that the various clauses fettering the absolute estate must be regarded as an attempt to impose repugnant conditions and must be treated as void. It is manifest that there were no words of executory devise in that case by which after the termination of an estate in favour of one individual a further estate by way of gift over was created in favour of another. That was a simple case where the testator having made an absolute grant in favour of an individual sought to defeat that absolute right by imposing conditions by way of restraint on alienation.
(11) The next case that was relied upon is that reported in Saraju Bala Debi v. Jyotirmoyee Debi . There was a grant of property by a Hindu in favour of his daughter, her sons and their sons successively. The conditions of the grant were (1) that the properties were not to pass the heirs of the grantee's daughters; (2) that they were not to be transferred by gift except to a limited extent for religious purposes and (3) that the grantor and his heirs were to have right of pre-emption in certain events. There was also a defeasance clause whereby the properties were to revert upon the failure of the designated heirs of the grantee. It was held that words of gift conferred upon the grantee an absolute estate. Conditions 1 and 2 were held to be restrictions upon and absolute estate. The defeasance clause was also held to be void as it was not a valid executory gift the event referred to being in indefinite failure of a male issue. At p. 278 (of Ind App): (at p. 182 of AIR) Sir Dinshaw Mulla delivering the judgment of the Board observed,
'The conditions referred to above are followed by a defeasance clause which provides that if the persons designated as the heirs of Kripamayee, that is, her sons, their male descendants, and her daughters 'cease to exist', the taluks should revert to the Rajah and his heirs. A Hindu, no doubt, may give property by way of executory gift upon an event which is to happen, if at all, immediately on the close of a life in being and in favour of a person born at the date of the gift, and such a gift over might be a sufficient indication that only a life estate to the first taker was intended: Sreemutty Soorjeemony Dossee v. Denobundoo Mullick, 9 Moo Ind App 123, Jatindra Mohan Tagore v. Gajendra Mohan Tagore, Ind App Supp 69. That however is not the case here. The event which is referred to in the leases is an indefinite failure of the male issue of Kripamayee and the attempted gift over is therefore void.'
(12) This decision is authority for the proposition that the effect of an executory devise is not to create a repugnancy but to create a defeasance of an absolute estate, which is valid in law.
(13) The third case referred to by the learned counsel for the appellant is Sri Subramanaiaswami Temple v. Ramaswamia Pillai : AIR1941Mad39 . The words of the instrument were:
'I have bequeathed to my son the right to all my properties and moneys etc., and he shall alone enjoy them. If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur.'
A Division Bench of this court, Pandrang Row and Abdur Rahman, JJ., held that the will conveyed an absolute estate on the son and the subsequent clause did not impose any condition affecting the character of the bequest in favour of the son. At p. 511 (of Mad LJ): (at p. 39 of AIR) Pandrang Row J., observed thus:
'..........the bequest is one made by the testator on his death-bed to his only son, a minor, the testator's wife having predeceased him and there being no other child. There is thus no reason to suppose that it was intended to give only a limited estate to the son who it must be remembered, would have taken an absolute estate of inheritance if there had been no will at all. The question therefore would arise whether in spite of these considerations, the last sentence in the will must be read as if it imposed a condition affecting the character of the bequest in favour of the son. After careful consideration we see no reason to take this view which has been pressed before us on behalf of the appellant. It seems to us as if the testator merely as an afterthought wanted to determine the devolution of the property in case his son died without issue and not in any way to limit either the character of the estate that was given by the earlier bequest in favour of the son or to make it conditional and liable to be divested at his death without issue.'
This decision was affirmed by the Judicial Committee, the decision of which is reported in 1950-1 Mad LJ 300. The Tiruchendur case has hardly any resemblance to the facts of the present case. The paramount intention of the testator Pichai Pillai in that case was to confer an absolute estate on his son and that was given effect to. The device in favour of the temple on the death of Pichai Pillai's son issueless was construed to be a provision by way of devolution of the property in future. It is clearly pointed out by Pandrang Row J., that there was a reason in that case why the testator should have contemplated the son taking only a limited estate of a life estate holder. But in the present case there was every reason on the part of the testator Velayutha Konar to confer only a life estate to his daughters as he desired and was anxious that his properties should be enjoyed absolutely by his grant-children.
(14) We agree with Subrahmanyam, J., that Shanmugathammal the plaintiff's wife did not take an absolute estate under the will and that therefore the plaintiff must fail.
(15) In the result, the Letters Patent Appeal fails and is dismissed with costs.
(16) Appeal dismissed.