(1) One Lakshmi Ammal, who was absolutely entitled to the property which is the subject matter of the appeal being childless, brought up her brother's daughter Sivakami Ammal. The respondent to this appeal, Sitalakshmi Ammal, is Sivakami's mother. On 15-4-1929, Lakshmi Ammal executed a deed of settlement in favour of Sivakami, the material portion of which is as follows.
"You shall enjoy the said property without the right of any alienation till your lifetime and after your lifetime the male children that may be born to you or in their absence the female sue horn to you shall fake she same and enjoy with absolute rights. In case you have no sue whatever, your mother Seethalakshmi Ammal, and her heirs shall take the undermentioned property with absolute rights and enjoy the same."
Subsequently, Sivakami was married to, the first appellant. There was no child horn of the union and on 24-2-1957, Sivakami died. The respondent the mother of Sivakami filed a suit to recover possession of the properly, claiming under the settlement deed aforesaid Several defences were raised to action by the appellant who was in possession of the property, but all of them were overruled by the learned Subordinate Judge, Cuddalore, who passed a decree in favour of the respondent.
(2) Mr. M. S. Venkatarama Aiyar, who appeared for the appellants in this appeal pressed, before us only two contentions, namely, (1) that under the settlement deed, Sivakami obtained an absolute estate in the property settled, and, that on her death, the first appellant, as her heir, would be entitled to it; and (2) that even if it were to, be held that Sivakami had only a life estate in the property, the disposition in favour of Sitalakshmi, her mother, was void, being intended to take effect on an indefinite failure of issue to Sivakami, and that therefore there was intestacy in regard to the remainder. It was further stated that the first appellant who was also the stridhanam heir of Lakshmi Ammal, would he entitled to the property, or, at any rate the respondent, being a remoter heir of Lakshmi Ammal would not he entitled to maintain the suit for eviction.
(3) The first point presents little difficulty. A reading of the will shows that only a limited life estate was intended to be created in favour of Sivakami. Her powers of alienation were restricted. There is a gift over of the remainder after her death. Mr. Venkatarama Aiyar contended that the restriction in regard to the power of alienation could only be regarded as a repugnant clause. It is a settled rule of construction that a will or deed of settlement will have to be read as a, whole before finding out the nature of the estate conferred on the legatee or settle. Taking the document as a whole, there can he no doubt that what was intended to be given to Sivakami was only an estate for life. This was the view taken by the learned Subordinate Judge, and we are of opinion that it is correct.
(4) The next contention relates to the validity of the gift in favour of Sivakami's mother. Although this point has not been taken before the learned Subordinate Judge, we allowed the appellant to raise the same as it is a pure question of law. The settlement deed is in Tamil. Dealing with the remainder after the lifetime of Sivakami, it states in effect "If You get male santhathi, such male santhathi would get the property absolutely after you. If there is no such male santhathi, your female santhathis would take the property absolutely. If there are no such santhathis at all, the undermentioned property would he taken by your mother absolutely." Mr. M. S. Venkatarama Aiyar contends that the word "santhathi" is one of wide import and that it would include all descendants of Sivakami, namely, sons, grandson great grandson., etc. indefinitely. He referred in this connection to the meaning of the corresponding English word "descendants" in Stroud's Judicial Dictionary, where it is stated thus:--
"Descendants mean children and their children and their children to any degree, and it is difficult to conceive any context by which the word 'descendants' could be limited to mean n children only. The prima facie meaning of descendants in ordinary parlance, is all descendants of any degree, and root only children, and I know of no authority for saying that in any legal document the word 'descendant' is, merely because it is in collocation with the word "parent" to have any other meaning than it has in ordinary parlance. 'Descendants, is therefore, not in all respects an exact equivalent for issue."
(5) On the basis of this interpretation which learned counsel contends would be the meaning of the term "Santhathi" it is argued, that the gift to Sivakami was intended to take effect only after the lifetime of the descendants of Sivakami, after the last of them dies without Issue, and that therefore, it should he regarded as one to take effect on an indefinite failure of issue to her; in other words after the entire line of Sivakami is extinct. Reliance is placed in this connection on Halsbury's Laws of England, (Hailsham Edn.) Vol. 34 paragraphs 466 and 467 which state,
"466. A devise over on death without having or leaving an heir or male heir or heirs of the body prima facie refers to a failure of such heirs at any time.
467. A devise over of real estate on a death without children, either after a prior gift in fee or generally without words of limitation, may be construed, in order not to disappoint more remote generations of issue as taking effect on death and failure of issue, either indefinitely or within a limited time, for example, before the death of the named ancestor according to the context."
It is contended that, on the rule stated above, the word "Santhathi" in the document, which is equivalent to "descendants" should be construed as successive generations of Sivakami's descendants and that, therefore, the gift in favour of Sitalakshmi would come in only after a failure of the last of them, that is, after an indefinite period of time.
(6) It will he seen that the rule stated above is only a rule of construction which has to be made in the light of the context. The latter of the two paragraphs extracted above specifically states that it is only where the gift over is not to take effect within a time limited in the document that the interpretation as to there being an indefinite gift should be adopted. if, for example, it is stated that the gift over is to take effect on the death of a particular person, it cannot be held that, the failure of issue on which the gift over is to take effect could be one at an indefinite period of time. In the present case, the vested remainder is to take effect, in possession, on the date of the death of Sivakami. It stands to reason therefore, that the point of time to ascertain whether Sivakami as santhathi or not should be on the date of her death.
(7) Reliance, however, is placed on the decision reported in Srijiukta Saraju Bala Devi v. Jyotiramayee Debi, 61 Mad LJ 501: (AIR 1931 PC 179). In that case, there was a gift of an absolute estate by a donor in favour of his daughter with a defeasance clause whereby the property was to revert to the heirs of the donor in case of failure of her descendants. The Privy Council held that, as the defeasance clause was void, the daughter was, entitled, to dispose of the property by will. That decision turned on the principle of law contained in S. 80 of the Transfer of property Act, which stated that, if the ulterior disposition were not valid, the prior disposition would not be affected by it. It was held in that case that the gift in favour of the daughter was of an absolute estate. The only question was whether the existence of the defeasance clause in the will limited her powers of disposition The relevant Portion of the document stated,
"you and your sons born of Your womb, and the sons born of their loin, in succession, and the daughters horn of your womb, shall continue to enjoy (the same)........... with right of transfer by sale......"
This was followed by a defeasance clause which stated that, if the persons designated as heirs of her daughter, that is her male descendants and her daughters, cease to exist, the property should revert to the donor and his heirs.
(8) It will he seen from the terms of the gift deed in that case that the reverter to the donor's heirs was to take place only on failure of all the descendants of the donee namely, sons, sons' sons, sons' sons' sons etc. That was undoubtedly of indefinite duration and it could be predicated with certainty that the reverter will take place at any particular time. The Privy Council held that the event referred to in the document which conferred the right on the donor's heirs, was on an indefinite failure of male issue and that the gift over In favour of, the heirs of the donor was therefore invalid. But chat rule cannot obviously apply where the gift over is to take effect within a specified time and not offending the rule against perpetuity. In Smt. Soorjeemoney Dassee v. Denobundoo Mullick, 9 Moo Ind App 123 a testator bequeathed by a will his property to his sons and stated there-in that, if any of them died without a son or grandson, the property should be taken by his surviving sons according to their shares. In construing the will, the Privy Council observed that the property was given to the surviving sons "upon an event which was to take place if at all, immediately on the close of a life in being at the time when the will was made" and that therefore the disposition was valid.
(9) in Umeschandra Sircar V. Zahur Fatima, ILR 18 Cal 164 (PC), a settlor settled the Property on his second wife for her lire, and on her son, if she should, have a son, but, if she were to have no son on the sons by the first wife. A question arose whether the first wife's sons had a vested interest in the property which could be attached in execution. The Privy council held that the interest given to the first wife's sons was not a mere expectancy, but a vested interest liable to be divested by the birth of a son to the second wife, observing.
"The deed confers upon the sons Farzand and Farhut a definite interest, like what we should call in English law a vested remainder, only that it was liable to he displaced by the event of there being a son of Sultan Ali by Amani "Begum".
From the principle above stated, It would follow that what was given to Sitalakshmi under the settlement was a vested remainder, the time of distribution being the date of the death ot Sivakami, which was liable to be, defeated if at that point of time there were descendants of Sivakami, whether such descendants be her own children or her children's children etc. Therefore, even though the word "Santhathi" might be understood as descendants, that is, not, merely the children of Sivakami, but children's children, children's children's children etc, the point of time at which they should, take is on the death of Sivakami. If, at that time, any one answering the description of "santhathi" of Sivakami exists, he or she would take the property absolutely.
Unlike the document in 61 Mad LJ 501: (AIR 1931 PC 179) which envisaged a series or gifts in favour of each one of the successors of the donee, the gift in the present case is in favour of a particular donee or donees who answer the description of "santhathi" of Sivakami and who would be in existence at that time. Therefore, the gift over under the document in favour of Sitalakshmi is on a mere failure of descendants of Sivakami at the time of her death, and not on an indefinite failure of issue. As stated in paragraph 467 of Vol. 34, Halsbury's Laws of England, referred to already it the gift over is to take, place within a limited time, for example, the death of a named person, no question of indefinite failure would at all arise.
In Govindaraia Pillai v. Mangalam, Pillai, 63 Mad LJ 911: (AIR 1933 Mad 80) there was an ante-nuptial settlement by a husband in favour of his wife, which stated that the wife was to hold and enjoy the properties with all rights. That disposition was followed by a defeasance clause which stated. "Should any issue he born to us, that issue shall get the properties after our death. If there is no issue, after your death, your brothers should take the properties." Sundaram Chetti J. construing the document held that the defeasance clause was valid, as it was not a case where the executory gift was made to depend upon an event. such as an indefinite failure of male issue of the donee, which would not necessarily happen on the close of the donee's life. The same principle would apply to the present case. Sivakami was granted ony a life estate. A vested remainder in regard to the absolute state was disposed of under the settlement in favour of the santhathi of Sivakami, and, if there was no santhathi of hers at the end of her lifetime, the property was to be Taken absolutely, by Sitalakshmi. At the time when the settlement deed was executed, Sivakami was aged about nine Years, and she was not even married. There was no knowing as to how long she would live or whether she would at all leave behind. her any descendants of her own. Having regard to the surrounding circumstances, the intention of the settlor be held to be that Sivakami should have a life interest, and Sitalakshmi a vested remainder in the property. The latter, that is, Sitalakshmi's interest was, however, liable to be defeated if there was any santhathi of Sivakami living at her death. That contingency did not happen, with the result that the defeasance clause in favour of Sivakami's santhathi never took place. Such a case would canine within the principle of the decision in ILR 18 Cal 164 (PC). We are, therefore, of opinion that the appellant has no title to the property, but that, on the other hand the respondent has obtained title to the same under the settlement deed executed by Lakshmi Ammal.
(10) The appeal fails and is dismissed with costs.
(11) Appeal dismissed.