K.S. Ramamurti, J.
1. Defendants 2 and 3 who have failed in both the Courts are the appellants in this Second Appeal, which raises the question of the true interpretation and construction of a will, Exhibit A-3, left behind by one Mariammal, who died in November, 1954. She left behind her, her husband, Anthonimuthu, a son Madalamuthu Thevar, the plaintiff in the suit, a daughter, Annammal the first defendant and Jabamalai Mariammal, the second defendant, being the widow of a predeceased son. She first created a will, Exhibit A-2, dated 30th November,, 1950, under which she bequeathed a house and vacant site of an extent of ten cents T.S. 230 in Coimbatore Municipal Town to her husband, Anthonimuthu, to be taken by him with all powers of alienation and Under this will it was also provided that after the death of her husband, Anthonimuthu, the southern half in the ten cents of vacant land and the house aforesaid was to be taken by the plaintiff, Madalaimuthu with absolute powers of alienation, while the northern half, was to be taken by her daughter, Annammal the first defendant, and her daughter-in-law, Jabamalai Mariammal, second defendant, in equal halves similarly with absolute powers of alienation. Mariammal revoked and cancelled Exhibit A-2 and executed a second will, Exhibit A-3 with which we are now concerned on 25th April, 1951. Under this will, she bequeathed properties to her husband Anthonimuthu to be taken by him with all powers of alienation and In striking contrast to the provision in the earlier will, Exhibit A-2, this will provided that on the death of Anthonimuthu the entire property as one block, the ten cents of land and the house, was to be taken by the son of the testatrix, Madalaimuthu with all powers of alienation and At the same time, it provided that Madalaimuthu, the plaintiff should pay a sum of Rs. 300, to the daughter, Annammal, the first defendant and also pay another sumof Rs. 300, to the daughter-in-law Jabamalai Mariammal, and that if Madalaimuthu, defaulted to make such payment, the aforesaid two ladies would be entitled to recover the sum from him by resort to Court proceedings. There is the further provision that the two ladies aforesaid have no right whatsoever over the properties and that even if they made any claim, it would be invalid.
2. The testatrix died on 14th November, 1954, and her husband, Anthonimuthu became entitled to the properties under the terms of the will. Anthonimuthu. executed a settlement deed Exhibit A-4 dated 19th May, 1955, under which he gave the southern half of this property to the plaintiff and the northern half in two equal shares to the first and the second defendants. Anthonimuthu died on 1st May,. 1956. Under Exhibit B-1 dated 11th December, 1957, the second defendant sold to the third defendant her half-share in the northern half which was followed up by a partition Exhibit B-3 dated 11th June, 1958, between the first and the third defendants with regard to the northern half. The plaintiff filed the suit to recover possession of northern half of T.S. 230, the site and the house, on the ground that under the later will Exhibit A-3, what was bequeathed to Anthonimuthu was only a life estate, and that on his death, the plaintiff became entitled to the entire property including the northern half, the subject-matter in dispute and in the possession of defendants 1 and 3. The Courts below have decreed the suit accepting the plaintiff's construction of the will. Hence the present Second Appeal.
3. At this stage it may be mentioned that after the death of the testatrix Mariammal, the parties proceeded on the footing that Anthonimuthu was entitled to an absolute estate under the will, Exhibit A-3. The deed of settlement, Exhibit A-4, under which the southern half was settled upon the plaintiff proceeds on that footing. The sale deed Exhibit B-l and the partition Exhibit B-3 also preceded on that footing. The payment of property tax, etc., by all the parties concerned shows that the plaintiff himself has accepted the position that an absolute estate was conferred upon Anthonimuthu.
4. The main point in controversy centres round the question whether the will Exhibit A-3 should be construed as creating an absolute estate in favour of Anthonimuthu followed by repugnant clause which should be held to be void or whether on a construction of all the clauses together it should be held that there is no intention to confer an absolute estate but only a life estate in favour of Anthonimuthu, and the later bequest in favour of the plaintiff, Madalaimuthu, is not a repugnant provision but is an independent bequest to take effect on the death of Anthonimuthu,
5. The relevant clauses in Exhibit A-2 the earlier will may now be extracted:
3. After my death my husband Anthonimuthu Thevar...shall become the absolute owner of the property (sarva swathanthira bathyangaludan) mentioned below, take possession of the same shall enjoy it with full right of alienation by gift or otherwise.
4. After my lifetime and after the death of my husband Anthonimuthu Thevar, my son Madalaimuthu Thevar...shall become the absolute owner of the five cents southern portion of the ten cents land purchased by me with half share of the southern side of the tiled building built by me on the ten cents land, take possession of the same and shall enjoy it with full rights of alienation by gift etc.
5. After me and after the death of my husband Anthonimuthu Thevar of the schedule described property, while the southern half of the ten cents, site and of the southern half of the buildings-are taken by my son Madalaimuthu as stated in para. 4 above, the balance of the five cents lands and half of the buildings forming northern portion shall be equally divided between Jebamalai Ammal widowed wife of my another son deceased Sevalai Thevar...They shall get is in equal shares, and shall enjoy their shares absolutely subject to rights of alienation by gift etc....
6. The relevant clauses of Exhibit A-3 of the will in dispute may also be extracted:
2. After my death my husband Anthonimuthu Thevar...shall become absolute owner (sarva swathanthira bathyangaludan) of it take possession of same and shall enjoy it with full right of alienation by gift or otherwise.
3. After my lifetime and after the death of my husband Anthopimuthu Thevar my son Madalaimuthu Thevar shall become the absolute owner of the property mentioned in the scheduled below, that is, ten cents of land and the tiled house thereon, shall take possession of it and enjoy it with full powers of alienation, gift, etc. He shall pay the municipal taxes due.
4. After me and after the lifetime of my husband my son Madalaimuthu Thevar shall pay Jebamalai Mariammal wife of my late son Sevalai Thevar, and my daughter, Annammal, wife of Gabriel Thevar...Rs. 300, in cash each and get registered receipts. If he fails to pay the same Jebamalai Mariammal and Annammal shall have the right to collect Rs. 300 each from Madalaimuthu through Court. But Jebamalai Mariammal arid Annammal shall have no right in the said property. If they make any claims of right to the property or file any suit and make any thagarar etc. in a Court, the same is not sustainable.
All the details mentioned in the will shall come into effect after my lifetime. I have full right to alter or cancel this will and write another will during my lifetime.
I hereby revoke my earlier registered will dated 30th November, 1950, Document No. 120 of 1950 R.O. Book 3, Volume 31, pages 26-28 with my full heart.
7. Counsel on both sides cited a number of decisions but none of those cases dealt with a testamentary disposition couched in precisely the same terms as that we are now concerned with. In interpreting a will it is the duty of the Court to find out the intention of the testator. The true intention has to be gathered from the language used by the testator, as he has conveyed the expression of his wishes in the words employed by him in the instrument. All the parts of the will are to be construed with reference to each other, and so as, if possible, to form one consistent whole. On a question of the true interpretation of a will decisions on the construction of other wills may be useful only so far as they lay down the principles of law which have to be observed in the construction of wills. It is necessary to follow the following note of warning of Joyce, J., in Sanford v. Sanford L.R. (1901) 1 Ch. 939.
The rule is to construe a will ut res magis valeat quant pareat and to give effect, so far as possible, to all the words used by thetestator...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.
8. Let us now take up the question of the will Exhibit A-3. The bequest in favour of the husband Anthonimuthu is contained in Clause 2 and taking that clause alone, there can be the least doubt that an unqualified absolute estate has been conferred therein. The language used is of the Widest amplitude containing no restrictions, whatsoever. The words have been used besides expressly stating that Anthonimuthu should enjoy the property with all powers of alienation and with The bequest contains well recognised, technical words of known legal import and the clear, unambiguous and dispositive words are more than ample to confer an abosolute estate. It is unnecessary to refer to the several decisions in which the wide import and significance of the use of the words have been emphasised.
9. The question next arises whether there is anything in the set up of the will, its surrounding circumstances and the other clauses in the will, to prevent the Court from effectuating and giving effect to the clear express intention of the testatrix. I am free to confess that the question is not free from difficulty, but on a careful consideration of all the clauses in the will, I am of the opinion that the contention put forward by the appellants should be accepted.
10. Here again, it is unnecessary to refer to the numerous cases cited at the Bar, as every one of those cases turned upon the particular provisions in the will. As the judicial decisions reveal, difficulty has been frequently experienced by Courts in determining the effect of the latter and subsequent clauses of the will, engrafting an executory device or a ' gift over,' in favour of other persons on happening of a contingency, i.e., whether the latter clause should be ignored, as void, being repugnant to the former clause, being an attempt to lay down a rule of devolution, when the property has already been taken absolutely by some one else, or whether the latter clause should be construed as one by way of defeasance falling under the recognised clauses or whether the latter clause on a proper interpretation, must be held to cut down the absolute estate conferred under the former clause, with a view that the intentions of the testator clearly manifested in the will could be effectuated. The problem always has been to decide which side of the border line the latter clause should fall. It may be useful at the outset to refer to the following statement of the law in Raj Byrang Bahadur Singh v. Thakurain Bakthraj Kuer (1953) 1 M.L.J. 108 : 1952 S.C.J. 655 .
These words it cannot be disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred. In all such cases the true intention of the testator has to be gathered pot by attaching importance to isolated expressions but by reading the will as a whole with all its provisionsand ignoring pone of them as redundant or contradictory.
But it cap be said without hesitation that it was not the intention of the testator to confer any thing but a life estate upon Bhuj Singh in respect of the properties covered by the will. The clause in the will imposing total restraint on alienation is also a pointer in the same direction. In cases where the intention of the testator is to grant an absolute estate, ap attempt to reduce the powers of the owner by imposing restraint op alienation would certainly be repelled on the ground of repugnancy, but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word 'Malik'.
11. A distinction between a defeasance clause and the repugnant one is very often a nice one and the important test is to determine whether the predominent intention of the testator is to confer and maintain an absolute estate and then add limitations and restrictions in obvious derogation of the incidents of such an absolute ownership and estate conferred under the earlier clause. But if the intention expressed or necessarily implied on reading all the clauses of the will, is to modify the absolute estate the absolute estate is to be given effect to as a life estate with a power of appointment. In Tiruchendur Sri Subramaniaswami Temple v. Ramaswami Pillai (1950) 1 M.L.J. 300 and others, affirming the Bench decisions of the Madras High Court in Tiruchendur Subramaniaswami Temple v. Ramaswami Pillai : AIR1941Mad39 the testator has stated in the will as follows:
I have bequeathed to my son Picha Pillai, the right to all my properties and moneys, etc., and he shall solely enjoy them. If he or his son has no child, the said properties shall pass to Subramania swami at Tiruchendur.
12. The Privy Council held that the latter provision f or the devolution of the property in case the son should die without issue, was not in any way intended to limit the character of the absolute estate clearly indicated in the will and that the latter provision was void as being repugnant.
13. The gift over has been regarded by the decisions both in England and India as one circumstance indicative of the intention of the testator to cut down the absolute estate. But that by itself is not conclusive and decisive. It is only one of the factors to be taken into account in construing the will as a whole. At this stage reference may be made to the statement of the law in 39 Halsbury's Law of England, Lord Simonds Edition, 3rd Edition, page 1090, para. 1611:
An interest apparently in fee simple in real estate, or an interest in personal estate, may be made subject to defeasance, or may, on the context of the whole will, be cut down to a life interest or a life interest may be extended to an absolute interest, or may be reduced by the context to an estate until remarriage or other event....It is, however, a settled rule of construction that a clear gift is not cut down by anything subsequent in the will which does not with reasonable certainty indicate the intention of the testator to cut it down.
14. It is necessary that the subsequent clause should be as clear as the first, that is the meaning of the words which cut down a prior gift should be clear, as the words which conferred it. Dealing with the effect of a gift over preceded by a clear absolute gift, conferring absolute power of disposition, the law is stated in these terms in Halsbury's Laws of England, 3rd Edition, Lord Simonds Editions, Vol. 39 at page 1090, para. 1623:
Where there is a clear absolute gift followed by words purporting to confer a power of disposition, with a gift over if the power is not exercised, the absolute gift takes effect and the gift over is inconsistent with it and is void.
Thus, where personal estate is given, in terms which cover an absolute estate, to a named donee and then further interests are given merely after or on the termination of that donee's interest and not in defeasance of it, his absolute interest is not cut down and the further interests fail, and an absolute interest is not cut down by precatory words, unless these words create an imperative obligation.
Where there is an absolute gift of property followed by a gift over of the property after the death of the donee, or after his death, without issue or without leaving children, or of that part of the property of which he shall not have dispossed, the absolute gift prevails, and the ultimate gift is repugnant and void. It may, however, appear sufficiently clear on the construction of the will as a whole that a gift which is in terms absolute is in fact intended as a gift of a life interest Only; and the construction is not prevented merely by the fact that the gift over is of whatever remains' or in similar terms. When a will conferring an absolute interest is varied by codicil an intention may appear that the donee is to take a life interest or a life interest with a power of disposition. If, there is a doubt as to what interest the donee takes, other provisions inconsistent with an absolute gift, such as a restriction on alienation, or a gift over on the donee disposing, or failing to dispose of the property, may show that he is to take a life interest only.
15. An examination of some of the cases referred to in the above statements of the law shows that in several cases, Courts have adopted an intermediate construction of construing a prior absolute gift as an estate for life with a power of appointment by deed or will and the subsequent limitation or bequest taking effect in case the power of appointment had not been exercised. Even though for practical purposes, there is no distinction between an absolute estate and a life estate coupled with a power of appointment by will or deed, it is settled law that the two ideas are two distinct conceptions and that it is quite competent to a testator to confer a life estate with a power of appointment by a deed or will following it up by an independent or subsequent bequest, in case the first legatee dies without exercising the power of appointment. It is sufficient to refer the decision of Mr. Justice Venkataramana Rao in Misnor Ananthasayana Naidu v. Kandappa Naidu : AIR1940Mad479 Reference may also be made to the statement of the law in Williams on Wills--Volume 1, page 495 at page 496:
A gift over in default of disposition by an absolute owner is void. An absolute gift of property followed by a gift of so much of that property as the first donee shall not have disposed of is an absolute gift in the first instance and the gift over is void. The main difficulty in these cases is that what is apparently an absolute gift in the first instance may by reason of subsequent provisions in the will be held to be cut down to a life interest, and the following are examples of such cases. The gift is to cut down (i) where the gift at the death of the' first donee of what remains of the estate can be construed as a gift over of the residue after payment of debts; (ii) if such an expression appears in a codicil so that an intention is shown to vary the absolute interest given by the will, the first donee will take a life in terest, with a power of disposition either inter vivos, or by will, only, or generally, (iii) where there is a doubt as to what interest the first donee takes raised by inconsistent provisions in the will such as a restriction on alienation, or a gift over on the donee disposing or failing to dispose of the property.
16. It will be seen that in some of the cases, this construction of the clause as conferring an estate for life coupled with a power of appointment by a deed or will, would best effectuate the intentions of the testator in either case, when there is an alienation in pursuance of the exercise of the power of appointment or when the first legatee dies without alienating. In a case where the prior legatee alienates the property before his death, such an alienation has to be and is upheld in view of the fact that the absolute estate with powers of alienation has been conferred under the will, and in such a situation, there is nothing on which the latter clause could operate. On the other hand, if the first legatee dies without exercising the powers of alienation the intention of the testator again is effectuated by the legatees mentioned in the latter clause, taking the property as provided therein. On the other hand, if either of the extreme views is accepted viz.,
(a) the first clause being construed as creating an absolute estate and the latter clause being regarded as repugnant and therefore void; or
(b) the latter clause being construed as cutting down the prior absolute estate as a simple life estate with no powers of alienation, we will not be giving effect to both the clauses together, the intention of the testator would be defeated. In my opinion, to construe the latter clause as cutting down the prior absolute estate into a simple life estate with no powers of alienation would be doing clear violance to the express language of the will and attaching decisive and outweighing importance to the latter clause, ignoring altogether the express powers of alieanation conferred in the earlier clause. Under the guise of adopting a rule of harmonious construction of reconciling all the clause together, there is no justification for adopting a construction which in its effect destroys the operative force of the clear words contained in the first clause. In such cases, the proper view would be to construe the prior estate as a life estate with a power of appointment, by deed or the will. Thus it will be seen in the setting in which the dispute arises, the alienation by the first legatee, assumes great importance and will have an important bearing on the task of giving effect to the intentions of the testator. In other words, a vital distinction exists between a case in which the controversy arises between the alienee from the first legatee as against the second legatee, and his successors-in-interest, and a case in which the controversy arises between the intestate heirs of the first legatee and the second legatee or his successors-in-interests.
17. Learned Counsel for the respondent has not drawn my attention to any case in which Courts have construed the second clause as having the effect of cutting down the prior clause as conferring a life estate simplicitor and at the same time holding any alienation made under the first clause, as invalid. All the cases cited by the learned Counsel are cases in which the first legatee died without making any alienation and the question that arose for conideration was whether the latter clause should be ignored as repugnant and void or whether the property should be taken by the heirs of the first legatee, or whether on his death, the legatees specified in the second clause can take the property. The controversy in all the cases cited by learned Counsel was only in this form. If this rule of construction of construing the earlier bequest as a life estate coupled with a power of appointment is borne in mind, it will be seen that many of the cases strongly relied upon by the learned Counsel for the respondent are easily distinguishable. The decsion in Lakshmi Ammal v. Alaudin Sahib (1962) 2 M.L.J. 187 dealt with a case in which it was provided that after the death of the testator his wife was to enjoy the properties with full powers of alienation, gift, sale and with absolute rights, and that after the wife's death the two daughters should take properties with absolute rights. It was observed that taking both the dispositions together it should be held that the second clause containing the provisions for a gift over in favour of the daughters should be construed as cutting down the first absolute estate in favour of the wife into a limited one. An examination of the facts of that case shows that the testator died in 1931, one of the daughters died in 1941, and the widow in the year 1948. The main dispute turned upon the validity of the alienation made by the husband of the deceased daughter, acting as the guardian of their minor daughter. On a consideration of all the clauses this Court held that the predominant intention was to make a bequest in favour of the daughters and for the purpose of giving effect to that intention the absolute estate had to be cut down to a life estate. A reference to the decision shows that the will contained several features pointing to the conclusion. But the important point to notice is that the widow died without making any alienation and the question as to how the express provision in the will conferring an absolute estate on the widow could be given effect to in that specific form did not arise for decision.
18. The decision in Thayalai Achi v. Kannammal : (1935)68MLJ707 recognises this principle that a legatee under the first clause shall take an absolute estate but that if she did not dispose of the property during her lifetime the property would pass to the legatee specified in the latter clauses.
19. The Bench decision in Narqyandas v. Arumughammal (1362) 1 M.L.J. 401 is again distinguishable on the same principle. In that case it was held that the second clause which was one of defeasance should not be rejected as repugnant but should be construed as cutting down the earlier absolute estate. That again was a case of the first legatee dying without alienating in terms of the absolute powers of alienation conferred on her. The main dispute centered round the question whether the bequests in favour of the daughters could be held to be valid, and not void as repugnant. To reiterate, the question as to how far a power of alienation expressed in unambiguous terms should be construed as conferring a simple life estate did not come up for consideration. In other words, cases which have taken the view that an absolute estate could in a proper outweighing compelling context be constued as a life estate, are besides the point when the instant case concerns the validity of an alienation made by the first legatee.
20. Reference may next be made to the decision of the Supreme Court in Pearylal v. Rameswar Das : AIR1963SC1703 in which the Court had to construe two apparently conflicting provisions. In that case a testator executed a will, a portion of which provided that on his death his wife and his adopted son will became Malik of all the properties, that the wife should live in the house and the adopted son should get all the proprietary rights just like the testator, and that no other person will have any right or claim to his properties. The adopted son predeceased the testator, and the wife executed a will bequeathing the property in dispute to her brother's grandson. The question arose whether the legatee under the wife's will got any title. The argument that the wife got under the will a mere life estate without power of alienation was rejected by the Supreme Court. It is sufficient to refer to the following observations at page 1706:
If the argument of learned Counsel for the appellant be accepted, this Court would be rewriting the will for the testator and introducing words which were not there; it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting disposition can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of construction which does not create any such hiatus.
21. It must be noticed that this case turned more upon the question whether the bequest in favour of the adopted son was one of defeasance or a repugnant clause.
22. I shall next refer to the decision of the Supreme Court in Ramachandra v. Hilda Brite : 2SCR722 on which again strong reliance was placed by learned Counsel for the respondent. In that case the testatrix who was an Indian Christian executed a will and Clause 3(c) contained the bequest in dispute in favour of her eldest daughter and her male children. That clause was in these terms:
3(c) All kinds of movable properties that shall be in my possession and authority at the time: of my death, that is all kinds of movable properties inclusive of the amounts that shall be got from others and the cash--all these my eldest daughter Saverina Sabina Coelho shall after my death enjoy and after her lifetime her male children also shall enjoy permanently and with absolute right...(The rest of it is not very material and is omitted).
23. Other clauses in the will contained other bequests in favour of other legatees-but they contained restrictions on powers of alienation. In execution of a decree obtained against this eldest daughter, Saverina Sabina, the property bequeathed to her was purchased. After the death of Saverina in 1946 the dispute arose between the Court auction purchaser on the one side and the widow and the daughter of one Denizone, one of the sons of Saverina aforesaid (the eldest daughter of the testatrix).. The argument on behalf of the Court auction purchaser was that on a proper interpretation of the will, especially Clause 3(c), what was conferred upon Saverina. was an absolute estate in the property, as a result of which the entire interest passed to her, that under the Court auction the purchaser had become the owner and that no right could be claimed by the plaintiffs claiming title through one of the sons of Saverina. The High Court, reversing the view taken by the Courts below, held that on a proper interpretation of Clause 3, Saverina, the eldest daughter, took only a life interest and this view was affirmed by the Supreme Court. Learned Counsel for the respondents placed considerable reliance upon the following observations of the Supreme Court at pages 1328, 1329:
This is on the principle that where property is given to A absolutely, then whatever remains on A's death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest, created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Saverina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to D absolutely 'on' or ' after 'or ' at' A's death. A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the female children of Saverina the question is whether effect can or cannot be given to it. If the interest of Saverina were to be held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Saverina was not intended to be absolute but was limited to her life only it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in-that context that the words 'after her lifetime' occurring in Clause 3(c) assume crucial importance.
24. I am unable to consider this decision and regard these observations of the Supreme Court as an authority for the proposition in an unqualified form that in. every case in which an absolute estate is followed by a bequest on or after or at death of the prior legatee the latter bequest would have the effect of cutting down the former absolute estate into a life estate without powers of alienation. There is nothing in the decision which supports the view that where the first legatee is conferred in express unambiguous language, powers of alienation, the alienation could be declared to be invalid by reason of a latter clause either by way of defeasance or by way of a gift over. As observed earlier, cases of that kind stand in an entirely different footing governed by different principles altogether. The decision of the Supreme Court turned upon the particular language and features of the will in question It is significant to note that the Supreme Court took the view that the word in Clause 3 ' shall enjoy permanently and with absolute right' apply only to the interest taken by the male children of Saverina (grandchildren of the testatrix) and that the nature and the quantum of the interest conferred upon Saverina was significantly different. In other words, on a construction of the will the Supreme Court took the view that the language of the will did not warrant the construction that an absolute estate was conferred upon Saverina with the result that there was no occasion for construing two apparently inconsistent provisions conferring an absolute interest under both. In this connection it is necessary to refer to what the Supreme Court said with regard to the nature of the interest conferred upon Saverina at page 1327:
11. If the bequest by Saverina was 'to enjoy' and the testatrix proceeds to add that after the lifetime of Saverina, her male issue were 'to have permanent and absolute rights in the same' the very contrast in the phraseology should lead one irresistibly to the conclusion that the nature of quantum of Saverina's interest was different from that of those who took after 'her lifetime.' Learned Counsel however laid special stress on the use of the word 'too' or 'also' occurring towards the end of the clause as pointing to the 'enjoyment' of Saverina being also 'permanent' with abolute right. We are however unable to read the word as having such a significance and as referring to the nature of Saverina's enjoyment as well, and in this conclusion we are supported by the text and the literal translation of the words used. In our opinion the only relevant wordsin relation to the bequest to Saverina are that 'she shall after my death enjoy' and the rest of the clause deals with what is to happen after her lifetime. The dominant intention of the testatrix was to confer a permanent and absolute remainder on the male issue of her daughter after the lifetime of the first donee and the words used are apt and capable of supporting such a construction.
25. The Supreme Court had to deal with an integral composite provision in favour of both the daughter and her male issue and the controversy itself was whether by express language an absolute estate has been conferred upon the daughter in the first instance.
26. From the foregoing discussion it will be seen that the ratio of the decision of the Supreme Court rested upon the particular view of the will that no absolute interest was created in favour of the eldest daughter, and that the interest referred to under Clause (3) was merely a terminable life interest. I am therefore of opinion that this decision does not support the extreme contention put forward by learned Counsel for the respondent. Reading all the clauses of the will in Exhibit A-3. I am of the opinion that the intention of the testatrix is to maintain the absolute estate in favour of her husband. The words 'with all powers of alienation' and are words of widest amplitude. The subsequent bequest in favour of the son would take effect only if the husband died without alienating the property. But if he had alienated, there validity of the alienation must be upheld in view of the express terms of the will as otherwise the intention of the testatrix would be frustrated.
27. Lastly learned Counsel contended that under the earlier will the property had been given to the son, the daughter and daughter-in-law, but in the latter will the property had been exclusively given to the son with a mere provision for payment of Rs. 300 each to the daughter and daughter-in-law, thereby indicating that the predominant intention of the testatrix was that the property should be taken by the son, and that in construing the will this aspect must be borne in mind. Even so, the question still remains touching the validity of the alienation made by Anthonimuthu. I am inclined to take the view that this provision of the gift over in favour of the son has been made by the testatrix not with a view to cut down the absolute estate but merely as a contingent provision that in case the husband should die without alienating the property it should be taken by the son. The entire background of the case shows that the testatrix had supreme confidence in her husband and visualised the husband himself to make an equitable distribution of the property between the son, daughter and daughter-in-law. This point therefore, does not advance the case of the respondent any further.
28. In this view it is unnecessary to consider the argument based upon estoppe resting upon the conduct of the son, the plaintiff.
29. The result is that the Second Appeal is allowed; the judgments and decrees of the Courts below are reversed and the plaintiff's suit is dismissed. The parties shall bear their own costs in the Second Appeal and the appellants are entitled to their costs in the Courts below. No leave.