Kumaraswami Sastry, J.
1. This is a suit by the plaintiff for a declaration that she is entitled to the possession and enjoyment of house and ground No. 65, Kilava Chetti Street, Chintadripet, Madras, jointly with the 2nd defendant as daughter and heiress of her deceased father Shanmuga Mudaliar, for directing the 1st defendant to deliver possession of the said premises and to pay the plaintiff Rs. 378 for past mesne profits and future mesne profits at Rs. 10-8-0 a month, for a division of the house between the plaintiff and the 2nd defendant, for costs and other reliefs.
2. The case for the plaintiff is that Shanmuga Mudaliar, her father died in December, 1912, leaving a will, dated the 11th of November, 1911, whereby he bequeathed to his daughter Logambal Ammal, wife of the 1st defendant, the house specified in the plaint to be enjoyed by her during her life and to devolve on her children at her death, that the will does not contain any gift over in the case of Logambal Ammal dying without issue, that probate of the will was obtained by one of the executors, that after the death of Shunmuga Mudaliar, Logambal Ammal came into possession of the plaint house in which she had only a life estate and enjoyed the same till her death, that as Logambal Ammal died on the 13th of October, 1918, leaving no issue, the house and ground devolved in law on the plaintiff and the 2nd defendant who are the nearest heirs of Shanmuga Mudaliar, that the 1st defendant has been setting up a false claim and title to the property on his own behalf as heir to his deceased wife, and has been in unlawful and wrongful possession of the property and enjoying the rents and profits thereof and that the 2nd defendant has been residing in the house of the 1st defendant and has been colluding with him.
3. The 1st defendant filed a written statement admitting the will and stating that the executors distributed the estate according to the provisions of the will in the year 1913, that Logambal Ammal was in possession and enjoyment of the same till her death in the year 1918 and that he has been in enjoyment ever since. He denies the construction placed on the will by the plaintiff and states that Logambal Ammal had an absolute estate in the house under the bequest of her father, that she died on the 2nd of October, 1918, having given birth to a male child on the 30th of September 1918, that the child also died on the first of October, 1918, that he is therefore entitled to the property as heir, and that, even assuming that Logambal Ammal had only a life estate, the absolute interest vested in the child at its birth and on the death of the child and of Logambal Ammal he became entitled to ail the rights.
4. He denies that he is colluding with the 2nd defendant but states that the 2nd defendant is colluding with the plaintiff. He denies that the plaintiff is entitled to mesne profits and states that in any event the mesne profits claimed are excessive. He also states that he improved the property and paid taxes and executed repairs.
5. The second defendant filed a written statement denying collusion with the 1st defendant and stating that she is entitled along with the plaintiff to the possession and enjoyment of the plaint property and to a share therein. She prays that the house may be divided and her half share given to her.
6. The following issues were settled:
1. What interest did the deceased Logambal Ammal acquire in the suit house under the will of the late C. Shanmuga Mudaliar?
2. Did the deceased Logambal Ammal give birth to a male child on the 30th September, 1918, and if so, what interest did the child acquire in the suit house under the said will?
3. Is the plaintiff entitled to succeed to the suit house along with the 2nd defendant?
4. Is the 1st defendant liable to pay any mesne profits? and if so, to what amount?
5. Is the 1st defendant entitled to any improvements? and if so, to what amount?
6. To what relief is the plaintiff entitled?
7. When the case was taken up for trial, it was admitted that Logambal Ammal, the wife of the 1st defendant, gave birth to a child on the 30th of September, 1918, and that the child died on the 1st October. It is also admitted that Logambal Ammal herself died on the 13th October 1918. It is not disputed that the testator left a will on the 11th of November 1912 and died on the 29th of November 1912. No probate of the will was applied for till 1920 and probate was granted to Kuppuswami Mudali one of the executors mentioned in the will on the 6th of January, 1921. It is, however, admitted that Logambal Ammal was in possession and-enjoyment of the property till her death even though probate was not applied for. What happened was that everything went on without probate evidently with the intention of saving stamp-duty. By his will the-testator appointed five persons to be executors, and directed them to take care of his moveable and immoveable properties after his lifetime and till his first anniversary and then to divide and give his daughters the properties as per directions mentioned in the will and otherwise administer the properties. The material portion runs as follows: Out of the houses mentioned in the first para supra, the one tiled house building built on No. 25, Agraharam Street, valued Eupees two thousand shall be taken by my first daughter Sowbhagiavathi Perianayaki Ammal and the rental income derived therefrom enjoyed (by her). The one terraced (or storeyed house) building built on No. 63 in Kilava Chetty Street, valued Rupees two thousand shall be taken by my third daughter Showbhagiavathi Loganayaki Ammal and the rental income derived therefrom enjoyed (by her). These two persons shall without fail collect the rental income of the respective houses allotted to them out of the aforesaid two houses and grounds and themselves meet the tax, repairs, etc., of their respective houses and enjoy. In the course of doing so, my three daughters shall remain jointly and perform without fail year after year the three ceremonies, namely the annual ceremonies of my wife Lakshmi (1), the annual ceremonies of my deceased eldest daughter Balu Ammal (2), and my annual ceremonies occurring after my lifetime (3), by properly giving to not less than five Brahmins for each ceremony in the manner 1 have done. These have no power to make sale, gift, mortgage, etc., of these two houses and grounds, After this, their issues shall use and enjoy them from son to grandson and so on in succession as long as the sun and the moon may last, with the power of gift, mortgage, exchange and sale and they shall every year without default perform the aforesaid ceremonies.' Paragraph 13 runs as follows: 'After my lifetime one of my aforesaid executors, namely, V. Thangavelu Mudaliar, shall, in respect of the ceremonies to be performed until my first anniversary, take on my account, out of his pocket, Rupees two hundred and fifty and spend without stinting from the date of my death up to my first anniversary, collect the amount of rent derived from my two houses mentioned in the first para mentioned above up to my first anniversary, pay the taxes for both those houses and, according to that account, appropriate therefrom the sum of Rupees two hundred and fifty spent by him and the interest thereon and after my first anniversary is over shall pay the balance, if any, to my aforesaid two daughters, that is, deliver to them respectively the aforesaid houses and the amount of balance left after the expenses as directed above.'
8. The first question is what is the interest taken by Logambal Ammal under this will. The will is clear. It gives Logambal a life interest in the property.
9. She is to enjoy the rents of the house but is given no power to sell, mortgage or give it. The property is to go to her children with absolute power of disposition so that treating the will as it stands, it is an ordinary case of a gift to a daughter for life and to her children absolutely. If she had children left at the date of her death there would have been no difficulty at all in the matter. But the whole trouble has arisen owing to her only child having predeceased her. It is intended by Mr. Shenai for the 1st defendant that, although under the terms of the will Logambal is only empowered to enjoy the rents and profits of the house and had no rights to sell, mortgage or dispose of the properties, yet by reason of the failure of the disposition in favour of her children, she has acquired an absolute interest. It is argued by Mr. Shenai that on a proper construction of the will an absolute estate has been given to the daughter, the right of alienation being void as repugnant to the estate already conferred, that, in consequence of there having been no grand-child in existence at the time of the testator's death, the bequest in favour of the childern of Loganayaki is invalid, that the effect of the invalidity is to confer on the daughter an absolute estate and that there can be no intestacy as regards the property to any extent so as to give the other daughters of the testator a reversion on the death of Loganayaki. There can be no doubt that if the gift to Loganayaki was an absolute gift in the first instance, with trusts imposed on that absolute interest which fail, the absolute gift takes effect in so far as the trusts have failed to the exclusion of the heirs of the testator, See Watson v. Watson  1 Ch. 482. In In re Hancock: Watson v. Watson  A.C. 14, it was held that where there is an absolute gift followed by a settlement of the subject of the gift, but the trusts of that settlement for some reason wholly or partially fail, there is, so far as they fail, no intestacy, but an interest in the nature of a reversion, to the person who is the object of the previous absolute gift. This case was affirmed by the Court of Appeal in Hancock v. Watson  A.C. 14. In Soundarajan v. Natarajan (1921) 44 Mad. 446 Sir John Wallis, C.J., and Ramesam, J, dealt exhaustively with the authorities and came to the conclusion that under the terms of the will which they were considering there was a clear intention to confer an absolute estate on the daughters followed by a settlement in favour of their children and that in consequence of the failure of the bequest to the children the original absolute gift in favour of each of the daughters remained good, the share of each daughter passing to her heirs at her death. Sections 125 to 127 of the Succession Act deal with bequests with direction as to application or enjoyment and have been made applicable to Hindu wills. If, therefore, there was an absolute estate intended to be given to the daughters there could be no doubt that the failure of the bequest to the grand-children would not cut down the absolute estate granted. But I am of opinion that in the present case no absolute estate was intended to be given to the daughters at all. The terms of the will are clear and specific. The daughters are only given the right to enjoy the rents. There are express words in the will preventing them from selling, mortgaging or otherwise alienating the properties. The Tamil word used is only (sic) that is enjoy, the words (sic) being only applied to the grandchildren. Reference has been made to Ramachandra Rao v. Ramachandra Rao (1918) 42 Mad. 283 where it was held that unless the grant expressly gives only a limited estate or unless there is any uncertainty or ambiguity in the grant as to the extent or interest conveyed, a grant to a Hindu female conveys an absolute estate. This case went up on appeal to the Privy Council and in Ramachandra Rao v. Ramachandra Rao 1922 P.C. 80 their Lordships of the Privy Council correct some of the misapprehensions that appeared to exist as to the effect of certain decisions of the Board and notably one in Surajmani v. Rabinath Ojah (1907) 30 All. 84 to which reference was made by Sir John Wallis, C.J., and Seshagiri Ayyar, J., in Ramachandra Rao v. Ramachandra Rao (1918) 42 Mad. 283. Having regard to the observations of the Privy Council, the rather sweeping observations made in Ramachandra Rao v. Ramachandra Rao (1918) 42 Mad. 283 as to the effect of the decision of the Privy Council in Surajmani v. Rabinath Ojah (1907) 30 All. 84 have to be considerably modified. Their Lordships of the Privy Council observe as follows: 'In the case referred to, Surajmani v. Rabinath Ojah (1907) 30 All. 84 when originally heard before the High Court it had been stated that under the Hindu Law in the case of a gift of immoveable property to a Hindu widow, she had no power to alienate unless such power was expressly conferred. The decision of this Board did no more than establish that that proposition was not accurate, and that it was possible by the use of words of sufficient amplitude to convey in the terms of the gift itself the fullest rights of ownership, including, of course, the power to alienate, which the High Court had thought required to be added by express declaration. In that case it is true that there is some comparison drawn between the gift to a widow and a gift to a person not under disability, but that was not the foundation of the decision, which depended entirely upon the wide meaning attributed to the words in which the gift to the widow was clothed. More recent decisions of this Board in Mussammat Sasiman Chowdhurain v. Shib Narayan Chowdhury 1922 P.C. 63 and Bhaidas Shivdas v. Bai Gulab 1922 P.C. 193 do nothing but repeat this same proposition in other words.' The effect of this decision of the Privy Council is that we have to take the words in each will and see whether the intention was to confer an absolute estate or not. The English authorities as to the rules of construction applicable to particular oases do not afford much light. In Dinbai v. Nuserwanji Rustomji 1922 P.C. 311 their Lordships of the Privy Council held following Bhagabati Baramanya v. Kalicharan Singh (1911) 38 Cal. 468 and Norendra Nath Sircar v. Kamalbasini Dasi (1896) 23 Cal. 563 that wills in India should not be examined in the light of the rules of construction which have been laid down in English decisions. In Norendra Nath Sircar v. Kamalbasini Dasi (1896) 23 Cal. 563 it was pointed out that 'to search and sift the heaps of cases on wills which cumber our English Law Reports, in order to understand and interpret wills of people speaking a different tongue, trained in different habits of thought and brought up under different conditions of life, seems almost absurd.' It is, therefore, unnecessary to go into the various English decisions which have construed wills as either giving an absolute estate or a life estate. In my view the present case falls within the ruling in Srinivasa v. Dandayudayapani (1889) 12 Mad. 411 and that the will clearly did not intend to give the daughters an absolute estate and then proceed to cut it down by limitations. On the contrary, it gave the daughters only a life estate preventing them from alienating the properties and making clear dispositions of the absolute estate not to the daughters but to their children. As Sreenivasa v. Dandayudapani (1889) 12 Mad. 411 was decided before the passing of Act I of 1914 and Act VIII of 1921 the question arises as to the effect on the rights of the parties of the birth of a son to the daughter of the testator. Before the passing of the Madras Act I of 1914 and the Imperial Act VIII of 1921 it is clear that a gift to unborn children was invalid under Hindu Law, and there having been no grand-children in existence at the date of the testator's death the bequest in the will to the grand-children is void. In Soundararajan v. Natarajan (1921) 44 Mad. 446 it was held that the Madras Act I of 1914 was not applicable to oases within the Presidency Town of Madras as the local legislature had no power to pass an Act so as to affect the Hindu Law rights within that jurisdiction. The Imperial Act VIII of 1921, which reproduces Act I of 1914, however, has got over the difficulty and a gift to unborn grand-children would be valid if it does not offend against the provisions of that Act. In Kudapa Venkayamma v. Narasimma (1917) 40 Mad. 540 the testator who died in 1906 left a will which provided that his wife should enjoy all his properties for her life and that after her death the estate should be taken by his daughter's son then alive and the other sons of his daughter thereafter to be born. Subbanna the daughter's son who was alive at the time of the testator's death died in 1910. The suit was by Subbanna's widow for a declaration that her husband obtained a vested interest, that the testator's widow only took a life interest and that consequently the plaintiff was entitled to a declaration that she was solely entitled to the properties after the testator's widow. It was held by Abdur Rahim and Srinivasa Ayyangar, JJ., that under the terms of the will Subbanna the testator's daughter's son took a vested interest in the properties bequeathed, that the bequest in favour of the grandson born after the death of the testator was also valid by Section 2, Clause 2 of the Hindu Transfers and Bequests Act and that the plaintiffs as the widow of Subbanna, the deceased grandson, was after the death of the testator's widow, entitled to share property along with the sons who may be born to the testator's daughter after the testator's death but during the lifetime of the testator's widow. After referring to the terms of the will, the learned Judges were of opinion that the testator did not intend to benefit only the sons of the daughter who might be born at the time of his death but also the sons who might be born thereafter and that the intervention of the life estate prevented the general application of the rule that only the persons born at the time of the testator's death were intended to take. With reference to the question as to whether Clause 2 of the Madras Act I of 1914 operates upon the dispositions in the will they observed as follows: 'The language is general and has the effect of validating dispositions which are to come into operation at a future date in accordance with the intention of the testator. What is argued on behalf of the appellant is that the testator cannot be said to have intended that his disposition would be valid in favour of persons who were not in existence at his death. That is the very question we have already disposed of. Clause 2 of Section 2 of Madras Act I of 1914 means that if the testator intended that his disposition should take effect at a future date and that date happened to be subsequent to the passing of the Act, then by virtue of this Act, the disposition would be valid and effective. The gift, therefore, to the respondent is valid. The result will be that the plaintiff as the widow of Subbanna is entitled to the widow's interest in such shares as Subbanna would, if living, have taken along with persons who might be born to his mother at the time the distribution takes place.' In Muthusami Ayyar v. Kalyani Ammal (1917) 40 Mad. 818 the plaintiff's grandfather adopted the plaintiff and executed a deed of settlement giving certain properties to his daughter for life and after her death absolutely to her sons and daughters who may be alive. The donee gave birth to a daughter after the execution of the settlement deed and the question was whether as she was unborn at the date of the execution of the settlement deed the disposition in her favour was valid. Spancer and Phillips, JJ., held following Kudappa Venkayamma v. Narasimha (1917) 40 Mad. 540 that the provisions of Act I of 1914 applied retrospectively to dispositions under the will in favour of persons who were not in existence at the date of the disposition. It is argued by Mr. Radhakrishnayya for the plaintiff that the retrospective operation given by Act VIII of 1921 is not wide, that, but for the Act dispositions in favour of unborn children would be invalid as the Act simply says that in the case of transfers inter vivos or wills executed before the date of this Act, the provisions of this Act shall apply to such of the dispositions as are intended to come into operation at a time which is subsequent to the 14th February, 1914, that the disposition is intended to come into operation only at the death of the daughter that the object of the Act was to give property to children who are alive when the distribution takes place and that there is no necessity to give retrospective effect to the Act in oases where the object of the bounty died before the period of distribution as the intention of the testator was to give it to his grandchildren and their children and not to the heirs of the grand-children to the detriment of the surviving grand-children or his own heirs. Reference was made by Mr. Radhakrishnayya to Varadaraja Mudaliar v. Narayanaswami Mudaliar : AIR1915Mad603 where I bad to consider the effect of Madras Act I of 1914. In that case, the testator left a will on the 6th of August 1898 directing that the sons and daughters should have no interest in the estate and that the income should be accumulated to the benefit for the testator's grand-children who were to take the property. I was of opinion that the Madras Act has retrospective effect only to the extent that it applies to wills made before the passing of the Act where the dispositions are intended to come into operation at a time which is subsequent to the passing of the Act and it has no application when the testator died long before the passing of the Act and according to the law then in force property has vested in the heirs on the footing that the dispositions are invalid, as being in favour of unborn persons. In that case no life estate was given to anybody and I was of opinion that it could not be said on the construction of that will that the gift to the grand children was intended to come into operation after the passing of the Act. It was also argued by Mr. Radhakrisbnayya that under the terms of the Imperial Act VIII of 1921 the grandchild should be in existence at the date of the termination of the life estate; but I do not see any such limitation in the terms of the section and the decision in Venkayyamma v. Narasimma (1917) 40 Mad. 540 is clearly against that contention. The Imperial Act simply reproduces sections 2 to 5 of the Madras Act. Both the Acts provide that the provisions shall apply to such of the dispositions that are made by wills passed before the passing of the Acts 'as are intended to come into operation at a time which is subsequent to that date.' It is a matter for consideration whether the decisions in Venkayamma v. Narasimma (1917) 40 Mad. 540 and Muthusami Ayyar v. Kalayani Ammal (1917) 40 Mad. 818 do not give too wide an effect to the provisions of the Act, by making it retrospective. I find it difficult to see how a testator who died in December, 1912, intended the bequest to the grand-children to come into operation after the passing of Act VIII of 1921. Sitting as a single Judge, I am bound by the decisions whatever my own views may be. In the present case, Logambal Ammal had a life estate and under the terms of the will the property was to go to her children. The moment therefore a child was born, according to the view taken in Venkayyamma v. Narasimma (1917) 40 Mad. 540 the estate vested in the child and succession would have to be traced through the child and not through the heirs of the testator. The 1st defendant would be the heir under the Hindu law and not the maternal aunts. I am, therefore, of opinion that Logambal Ammal took a life estate under the will of Shanmuga Mudaliar, that her son acquired a vested interest in the property, the gift to him being valid by reason of the provisions of Act VIII of 1921 and that on the death of this child, his heirs and not the heirs of the testator would be entitled to the property. In the view I take, the plaintiff and the 2nd defendant have no right. It is, therefore, unnecessary to consider the fourth and fifth issues which relate to mesne profits and to the value of the improvements.
10. In the result, the suit fails and is dismissed but, under the circumstances, without costs.