1. The plaintiff is the appellant in the above second appeal. The question involved in the appeal is one of construction of the will, Ex. P-1, in the case. It was executed by one Vithilingam Pillai on 5th May, 1915. The donee under the will was his daughter, Kathayi, and the plaintiff is the grandson of the said Kathayi. The will, after setting out the properties he had and the debts, proceeds to state as follows:
After my lifetime my daughter Kathayi shall take all my immoveable and moveable properties with absolute rights If the said mortgage debt is not discharged during my lifetime the said debt shall be discharged by Kathayi. My obsequies shall be performed by Ratnaswami, grandson of my daughter, Kathayi and son of Maria Pillai of East Tanjore. These arrangements shall take effect after my lifetime. My daughter Kathayi shall get these properties after my lifetime with absolute rights. After her lifetime, her grandson Ratnaswami shall get the properties.
It may be mentioned here that the testator signed the will on the first page which ends with the portion relating to description of properties, and after the signature of the testator, the following recital:
If there be any debt after my lifetime Kathayi shall sell the land only for the discharge of that debt and she should not alienate the same for any other purpose
was added. Similarly, the recital already mentioned, viz.:
my daughter Kathayi shall get these properties after my lifetime with absolute rights. After her lifetime her grandsoh Ratnaswami shall get the properties,
was added on the next page after the will was signed and attested. The question now is what was the estate that was conferred on Kathayi, whether it was only a life estate or an absolute one. Both the Courts below have held that it was an absolute estate that was conferred on Kathayi and dismissed the plaintiff's suit.
2. In appeal it was contended by Mr. M.S. Venkatarama Aiyar for the appellant that the recital which was subsequently added on the first page prohibiting the donee from selling the land except for the discharge of the debt clearly indicates that the testator intended to give only a life estate. He further contends that the gift over to the grandson, Ratnaswami Pillai, the plaintiff herein, is another indication that the testator wanted that the properties should pass on to him and that he should perform the obsequies. His contention is that if there be two conflicting clauses, viz., granting of an absolute estate earlier and restriction as to alienation later, the latter clause must prevail and therefore the estate that was conferred in this case was only a life estate. The contention of learned Counsel for the respondent is that the dispositive words used by the testator are clearly indicating an absolute estate and any other clause must be construed to be repugnant and therefore the clause restricting alienation is invalid. In any event, it should not be taken more than as a mere direction to the donee. The question now is which of the two constructions is correct.
3. It is a well settled principle that in the matter of construction of a will, the will of one testator cannot be construed by reference to that of another. As observed by Joyce, J., in Sanford v. Sanford (1901) 1 Ch. 939, 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; nor to begin by considering how far the will in question resembles other wills upon which decision has been given.
4. As pointed out by Venkataramana Rao, J., in Ananthasayanam Naidu v. Kondappa Naidu : AIR1940Mad479 .
It is better to remember the rule so often laid down that each will must be construed by itself and all the light that can be got from the decisions serves only to show in what manner the principle of reasonable construction have by Judges of high authority been applied to cases more or less similar--vide the observations of Lord Charcellor Selborne in Waite v. Littlewood (1872) 8 Ch. Ap. 70. Therefore without reference to cases it is the duty of the Court to ascertain what is the expressed intention of the testator and whether there is anything in law to preclude effect being given to the said intention. The intention has to be collected from the words used in the will having regard to the (acts and circumstances respecting persons to which the will relates.
It has also been held by the Privy Council in Raghunath Prasad Singh v. The Deputy Commissioner, Partabgark (1929) 58 M.L.J. 1 : L.R. 56 IndAp 372 I.L.R. 4 Luck. 483:
Attempts on the part of the testator in India to restrict devolution of properties which he bequeaths to a legatee absolutely and to prevent alienations of such properties are quite common, and wills containing such provisions have often come up for decision before the Board. The question for determination has always been whether there are dispositive words creating an estate of inheritance, in the first instance; and if so, whether the subsequent restrictive clauses are sufficient to displace the effect of such dispositive words or whether such subsequent clauses are merely repugnant to the absolute estate.
Their Lordships quote the following observations of the Board in Mussammat Sasiman Chowdhurain v. Shibnarain Chowdry (1922) 42 M.L.J. 492 : L.R. 49 IndAp 25 : I.L.R. 1 Pat. 305:
It is always dangerous to construe words of one will by the construction of more or less similar words in a different will which was adopted by a Court in another case.
The cardinal principle therefore which governs the true construction of a will is to find out from the words used what exactly was the intention of the testator, whether there are clear and unambiguous dispositive words and if they are attempted to be controlled or qualified by any general expression of intention. It is also necessary to see whether any technical words or words of known legal import have been used and if so we must give legal effect to it. In this case it is quite clear from the words used in more than one place, that Kathayi should take the properties with absolute rights These are clear dispositive words conferring an absolute right on the legatee. This is mentioned not only in the first instance but later on also in. the recital that was added, we get the same words that she shall get these properties after his lifetime with absolute rights. There can be no doubt therefore that the intention of the testator was to give it to her absolutely and the legal effect of the words is that the donee takes it absolutely. The question therefore is how far the words restricting Kathayi from selling the lands for any purpose other than for discharging the debt cuts down the absolute interest already conferred on her. Following the principle laid down in Lalit Mohan Singh Roy v. Chukkum Lal Roy which is followed in Pethaperumal Pillai v. Thangathammal : (1949)1MLJ389 , I hold that the subsequent restrictive clause is repugnant and is therefore invalid.
5. As regards the recital that after her lifetime, her grandson should get the properties, it is at best a provision for devolution of the property after her death and is not intended to limit the character of the estate given by the earlier bequest in favour of his daughter. On a reading of the will as a whole I hold that the intention of the testator was to give an absolute estate to his daughter and the recital regarding the restriction on alienation is invalid and it does not cut the absolute estate given to her earlier.
6. From the facts set out in the judgments of the Courts below it is clear that the appellant participated in transactions with regard to the property involved in the suit and an issue was raised whether the plaintiff was estopped from claiming this property. The first Court held against the defendant that there was no estoppel and the respondent argued the point before me. But in the view I have taken, I consider it unnecessary to deal with that question.
7. I agree with the conclusions arrived at by the Courts below and dismiss the second appeal with costs.