1. The appellant sued for a declaration that he was entitled to the village of Kothangudi as the adopted son of Kothandarama Ayyar and claimed possession in consequence of the death on 3rd January, 1943, of Nagammal, the daughter of Kothandarama Ayyar, to whom the property was given for life under Kothandarama Ayyar's will dated 13th March, 1905. The testator Kothandarama Ayyar died on the 25th April, 1905, leaving a widow and two daughters, Gnanarnbal, who is the first defendant and whose husband was then alive and Nagammal, who was a widow with a daughter who is the second defend ant. The main question in this appeal relates to the interpretation of Clause 13 of the will which runs as follows:
The village of Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5.
The appellant contends that this merely indicates that Nagammal is to have a life interest. The respondents contend that this clause, by the reference to paragraph 5, imports the provisions in that paragraph relating to the devolution of the property after Nagammal's death.
2. The scheme of the will is to provide for three possible contingencies. It authorises the widow to adopt (1) any son who might be born to Gnanambal before January, 1908 or (2) any of the sons of the testator's nephews. Then follow clauses 4 to 8 which make detailed provisions for the devolution of the property in case a son of Gnanambal should be adopted. Clauses 9 and 10 are general provisions regarding the payments of debts and the maintenance of charities. Thereafter clauses 11 to 16 provide for the contingency of the widow making an adoption of one of the testator's nephews, in which case the dispositions of the property are to be different in many respects from those prescribed if there is an adoption of a son of Gnanambal. Finally, there are certain general provisions and there is the third contingency provided for, namely, the death of the widow of the testator without making an adoption.
3. The testator left very considerable properties. Clause 5 of the will with which we are mainly concerned, having regard to the reference to it in Clause 13, runs as follows:
The whole village of Kothangudi and the house at Injikudi both of Nannilam taluk, my daughter Nagammal shall enjoy with life interest and after her the said property shall pass to my daughter Gnanam and her children on payment by the latter of Rs. 5,000 to Alamelu, Nagammal's daughter.
4. This portion of the will never came into effect per se, for the plaintiff-appellant, son of one of the testator's nephews, was adopted by the testator's widow on the day after the testator's death, so that the operative portion of the will is that which provides for the contingency of the adoption of the son of one of the nephews. In this event, under Clause 11 the adopted son is to take the whole of the properties at Kokkur and the remainder of the properties at Nallathukudi after the death of the wife and adoptive mother who are given a life interest in paragraphs 15 and 16. In Clause 12 the whole village of Maruthanathanallur is given for life to Gnanam with remainder to her children. Then follows the disputed Clause 13 giving Kothangudi to Nagammal to be enjoyed as stated in paragraph 5. Clause 14 provides that the properties given to the two daughters shall be managed by the testator's wife during her lifetime and that the wife shall attend to the wants of the daughters and their children such as making jewels, etc. and the marriage of Alamelu.
5. Nagammal having died on 3rd January, 1943, the appellant contended that there was an intestacy with reference to the village of Kothangudi given to her for life by this will and that he was therefore entitled to possession. The lower Court repelled this contention and held that the words ' shall be enjoyed by Nagammal as stated in paragraph 5, ' read in the light of the rest of the will, must be understood as importing into paragraph 13 the whole provisions of paragraph 5 regarding the devolution of the property after Nagammal's death, including the provision for the payment of Rs. 5,000 to Alamelu, daughter of Nagammal. It is contended by Mr. Muthukrishna Aiyar for the appellant that this interpretation of the will is in fact the making of a new will, by the importation of this provision which the testator omitted from his will, on a mere conjecture as to what the testator is likely to have intended. It is argued that however regrettable it may be that there was no provision for the devolution of this property after the death of Nagam-mal and even though if the testator's attention had been drawn to the omission, he might have intended to make a provision for the benefit of his daughters and their children similar to that contained in paragraph 5, it is not permissible to introduce into the will this provision which the will does not contain, merely on a speculation as to the intentions of the testator, having regard to his affectionate attitude towards his daughters. Mr. Muthukrishna Ayyar also raises a doubt whether any such intention can in fact be gathered as a matter of reasonable speculation from the will. He points out that under Clause 12 of the will Gnanambal and her children get the biggest village of Maruthanathanallur, which under the scheme in the earlier part of the will, which would have come into force had Gnanambal's son been adopted, would have gone to the adopted son. The argument is that we cannot presume that the testator intended not only to give to Gnanambal and her children the village of Maruthanathanallur, but also to give her the remainder in the village of Kothangudi which she was to get under the first contingency.
6. On the other hand, it has been contended for the respondents that the will shows that the testator was chiefly interested in his daughter Gnanambal who might be expected to have a son in the future, that the will purports to be a comprehensive disposition of all the testator's properties and to cover every possible contingency and that it is not likely that the testator would have omitted to provide for the devolution of part of his estate in the event of the second contingency coming into force. Sir Alladi Krishnaswami Aiyar has drawn our attention to the other clauses in the second part of the will which contain references to paragraph 6 of the will and has pointed out that where there is any departure in those clauses from the provisions for the subsequent devolution of the property in paragraph 6, a specific indication is given regarding what is to happen after the death of the life tenants; and it is pointed out that in Clause 13, which refers back to Clause 5, there is no specific indication of any subsequent devolution of property in a manner different from that indicated in paragraph 5. Emphasis is also laid upon the fact that if the whole of paragraph 5 is read into paragraph 13, there will be an equitable provision for Nagammal's daughter Alamelu after her mother's death since she is to get Rs. 5,000. If, however, the later portion of paragraph 5 is not to be read into Clause 13, Nagammal's daughter will get nothing, unless some provision has been made for her marriage under Clause 14.
7. All these considerations are matters which may well be taken into account if the words of paragraph 13 of the will are reasonably capable of two meanings and the question is which of those two meanings should be adopted. If, however, the words of paragraph 13 are clear and unambiguous, there can be no question of research into the probable intentions of the testator in order to add to those words. For the respondents Sir Alladi Krishnaswami Aiyar has relied on certain cases, three of which seem to us to come somewhere near to the facts with which we have now to deal. Sir Alladi's general proposition is that where one clause of the document refers back to another clause and in general terms incorporates the provisions of that other clause into itself, the words which refer back to the earlier clause should be read in such a way as to carry out the manifest intentions of the testator and should not be so narrowed down as to defeat those intentions.
8. In the case of Sweeting v. Prideaux (1876) 2 Ch.D. 413, the testator directed his trustees to pay the income of 8,000 to his daughter A for life for her separate use and after her death to divide this sum of 8,000 amongst her children at 21 years of age. He then directed his trustees to pay the income of the remaining 8,000 to his other daughter S for life ' in the same manner in every respect and subject to the same control ' as he had directed as to his daughter A. The question was whether, there being no specific provision that the children of S should take the fund on the mother's death and she having died leaving four children who had attained majority, those children were entitled to the fund of 8,000. The judgment quotes the observations of Lord Justice Knight Bruce in Key v. Key (1853) 4 De G.M. G. 73 : 43 E.R. 435 with references to cases in which ' it is impossible for a reasonable being upon a careful perusal of an instrument not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed '; and it goes on to hold that in the case then under consideration the will shows a clear intention to treat the two daughters alike and that it was impossible upon a fair construction of the will, to exclude the children of S from having the benefit of the fund. It must be pointed out with reference to the rather general nature of the observations in the judgment that the particular will contained a general indication that the property which went to S should be treated in the same manner in every respect as the property which went to A.
9. Another case upon which Sir Alladi relied is the case of Ross v. Ross (1845) 2 Coll. 269 : 63 E.R. 730. That was a case in which the testator bequeathed two sums which were to be divided amongst his nieces ' under the same conditions and restrictions as are hereinafter mentioned respecting the several bequests hereinafter mentioned to them respectively given.' Then followed a provision that another sum should be held by the trustees upon trust to pay the dividends to the testator's three nieces for their lives and after their respective deaths, to transfer the capital to the children of the nieces and there were limitations over, in the nature of cross remainders, in the event of any of the nieces dying without children and an ultimate limitation, in the event of all the nieces dying without children, in favour of the residuary legatee. The question was whether in respect of the first bequest the children of the nieces of the testator could take the same interest as was specifically given to them in the subsequent bequests which were referred to under the earlier bequest. It was held that the words ' under the same conditions and restrictions as are hereinafter mentioned ' were sufficiently wide to give to the children of the nieces the interest in the fund which their mothers took, absolutely. Here again we have two provisions in favour of the same set of individuals, one to be subject to the same conditions as the other and it was held that on the wording of the first provision, there was a manifest intention that the fund should subsequently devolve in the same way as that dealt with in the later provision.
10. A further case of the same kind is Re Shirley's Trusts (1863) 32 B V. 392 : 55 E.R. 154. In that case there was a settlement under which the trustees were to raise -2,000 for A for life, with remainder to her children with powers for maintenance, advancement or otherwise and in default of children, the fund was given to C. A like sum was given to B for life, with remainder to her children, ' with the like provision for the maintenance and otherwise as before expressed,' in respect of 2,000 given to A and her children ' and otherwise in like manner to all intents and purposes, as if such trusts and provisions were there fully repeated.' It was held that this provision with reference to the sum given to B for life must be deemed to have included a gift over to C and that on the death of B without children, C was entitled to the second fund. This again is a case where on the wording of the will there was a clearly manifest intention that the second provision should import into itself the details of the first provision.
11. Can it be said on an examination of the present will that there is a clear intention that all the provisions of paragraph 5 should be imported into paragraph 13 of the will? In terms, paragraph 13 only purports to deal with the enjoyment of the village of Kothangudi by Nagammal, the manner of that enjoyment to be as stated in paragraph 5. It seems to us that there is one very obvious difficulty in holding that the terms of paragraph 13 attract the whole of the terms of paragraph 5. Paragraph 13 purports to deal only with the village of Kothangudi. Paragraph 5 deals not only with the village of Kothangudi but also with the house in Injikudi which is not referred to in paragraph 13. Moreover the later part of paragraph 5 provides not merely for the remainder in the village of Kothangudi, but also for the remainder in the house at Injikudi and it contains a provision whereby these two properties shall be taken by Gnanambal and her children subject to an obligation to pay a sum of Rs. 5,000 to Nagammal's daughter. Now clearly if this payment of Rs. 5,000 was to be made a condition precedent to taking the two properties, it would be difficult to attach such a condition to the taking of only one of those two properties; and clearly, seeing that paragraph 5 is a provision which creates a life estate in favour of Nagammal in two properties, paragraph 13, which does not mention the second property could not be said to have given a life estate in that second property to Nagammal without further words than those which we actually find. It has been suggested that the house at Injikudi is a small property which is merely regarded as an appurtenance to the village of Kothangudi. We have no evidence before us regarding the value of the Injikudi house; nor have we any evidence as to the distance between the village of Injikudi and the village of Kothangudi. All that we know is that they are situated in the same taluk. The plaint expressly reserves the right of the plaintiff ' to sue separately for the house in Injikudi village which is not in the possession of the defendants.' This reservation is met in the written statement of the second defendant with the averment that ' the reservation in respect of the house at Injikudi village is unsustainable.' These pleadings at any rate seem to suggest that the house at Injikudi is not in the contemplation of the parties a mere appurtenance to the village of Kothangudi. Having these considerations in mind, it seems to us that when paragraph 13 says that the village of Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5, it clearly does not purport to give the house at Injikudi to Nagammal. And if so much is established, it seems to follow that the last clause which provides for a payment to Alamelu of Rs. 5,000 as a condition precedent to Gnanambal and her children taking the two properties, cannot be read into paragraph 13. And if the condition on which under paragraph 5 Gnanambal and her children were to take the remainder in these properties cannot be attracted to paragraph 13, it seems to us to follow that paragraph 13 cannot draw into itself the provision for the devolution of either of these properties on the death of Nagammal.
12. In this view we do not think it necessary to refer to the other cases which have been cited before us, most of which are general cases regarding the well-established principles of the interpretation of documents. Nor do we think it necessary to go into a contention which does not appear to have been argued in the lower Court, that the will itself would be invalid because the adoption would date back to the death of the testator so that the whole estate will be taken by the adopted son by survivorship. As was pointed out when this contention was adumbrated, if the plaintiff cannot take under the will, his claim would be hopelessly barred by limitation.
13. In the result, therefore we allow the appeal with costs throughout and give the plaintiff a decree as prayed for. The question of mesne profits will be the subject of separate enquiry in the lower Court.