1. The question in this second appeal is as to the construction of the will of a Hindu named Jagannatham. The material part of the will reads as follows:
After my death, my wife Andalamma shall have the power of gift and sale in all my moveable property, which should remain unsold and undisputed of by me in gift in my life-time. My wife Andalamma should have power to adopt any boy she would like, if she feels inclined to make an adoption, with power to give him such property as she should like, she has power to make such adoptions till my family is perpetuated. If she does not like to make an adoption my sister's sons, viz. (1901) 1 Ch. 939 : 70 L. J. Ch. 591 : 84 L. T. 456 Bondada Manumallaswami and (1887) 56 L.J. Ch. 113 : 56 L. T. 104 Jibu Raghavayyai's son Venkateswararow, should after her life-time, enjoy in equal moieties, with power of gift and sale, they, their sons, grand sons, etc., in succession, (i.e., from generation to generation) such of the property which my wife should not have disposed of by gift or sale in her life time.
2. The plaintiffs in the suit, who are the sons of Jagannatham's paternal uncle, contend that the widow took, under the with, an absolute estate and that they are entitled to succeed to her property. The 1st and 2nd defendants, who are Jagannatham's sister's sons and the residuary legatees named in the will, plead that she took only a life-estate and that the gift over in their favour is valid. The District Munsif found in favour of the latter and dismissed the suit. On appeal, the Subordinate Judge, holding that the will conferred an absolute estate on the widow and that the gift over was of no effect, gave the plaintiffs a decree. In arriving at the conclusion, he seems to have been influenced more by the many rulings cited before him than by the language of the will itself and by the idea that, in modern times, the courts have inclined to the view that a bequest to a Hindu widow should be construed as conferring an absolute rather than a life-estate. The result of the construction placed by him on the will was to make a great part of it of no effect and to set aside the clearly expressed intentions of the testator. In Sanfoxd v. Sanford (1901) 1 Ch. 939 : 70 L. J. Ch. 591 : 84 L. T. 456 Joyce, J., pointed out that 'The rule is to construe a will ut res magis valeat quam pereat, and to give effect, so far as possible, to all the words used by the testator,' quoting the dictum of Kay, J., in Williams v. Pounder (1887) 56 L.J. Ch. 113 : 56 L. T. 104 As for the citation of cases, it is well settled that (the will of one testator cannot be construed by reference to that of another. In the judgment above referred to Joyca, J., obeserved:
It has been said by the Court of Appeal that the true way to construe a will is to form an opinion apart from the decided cases and then to see whether these decisions require any modification of that opinion not to begin by considering how far the will in question resembles other wills upon which decisions have been given.
3. As is customary in cases of this kind, a large number of decisions--English and Indian--has been cited before us. None of them, of course, deals with a testamentary disposition couched in precisely the same terms as that we are now concerned with--so that they are of no great assistance to as, save to the extent that they lay down to me general rule of construction. The first thing we have to consider is the language of the document itself. It begins by ing the widow a power of gift and sale her all the testator's property. It goes to authorise her to adopt a son, to whom can give 'such' property as she should like.' Failing such adoption, the testator's sister's sons are, after her death,
to enjoy in equal moieties with power of gift and sale they, their sons, grandsons etc., in succession such of the property, which my wife should not have disposed of by gift or sales in her life-time.
There are, in our opinion, no words which connote an intention to confer an absolute estate on the widow. It is impossible not to contrast the language used in making the gift with that used in making the gift over. The gift to the wife confers on her a power of disposal limited explicitly to her life time. The gift over, on the other hand, was of a quite absolute estate, which was to pass from father to son, from generation to generation. The gift did not include a power of disposition by will, but [a power of disposition inter vivos. As observed by James, L. J., in Herring v. Barrow (1881) 14 Ch. D. 263: 49 L. J. Ch. 622 : 43 L. T. 35 : 28 W. B. 802
If there is one thing clearer than another in the case, it is that the testator intended his own will, and act that of his wife, to be that by which the destination of his property was to be determined.
The same is the ease here. The widow could dispose of the property in her lifetime, but had no power to dispose of it by will and, if any property remained at her death, the will of the testator was to settle its destination.
4. The rule in such cases is that, if the intention of the testator as represented by his words, was to confer an absolute estate, that estate cannot be cut down by anything that follows. If, however, the intention is doubtful, the addition of a gift over may be evidence that his intention was to confer no more than a limited interest Here, the worst that can be said ii that his intention as conveyed by the language of the gift, was not clear and the gift over showed that his intention was to confer no more than a limited estate. If the will is construed in this way--that the intention was to give the wife a limited estate, with a power of disposal inter various and to give over what she did not dispose of, every word of the will becomes effective. That is in accordance with the first rule of construction of testamentary dispositions and it hap, as Joyce, J., observed in the case already cited, ' the not unimportant merit of effecting the obvious and expressed desire of the testator.' in this view, we think that the trial Judge construed the will correctly. We restore his decision and dismiss the suit with costs throughout.
5. It is urged that we should give the respondents a decree for Rs. 1,000 against the 4th and 5th defendants. The latter have not been made parties to the second appeal and there is nothing said about this sum of money in the decree of the lower Appellate Court. It is cot for us to put the matter right, even if the intention of the lower Appellate Court was to award this sum to the respondents. The request of the respondents raises an entirely fresh point of law, which was not argued before us and is not mentioned in the judgment appealed against. Both courts seem to have assumed that the destination of this money must follow the construction of the will, but the lower Appellate Court left it out of its decree altogether. We must decline to consider this question at this stage.