Kumaraswami Sastri, J.
1. The only question argued in this appeal is whether the gift to the daughter of the testator of the house mentioned in the plaint conferred on her a vested interest in the property or merely a contingent interest. The testator had three daughters and two sons. Here we are concerned only with the gift to the eldest daughter Kuppammal. The Will of the testator was probated and marked as Ex. A. The testator appoints certain executors under the Will; he specifies the property which he has got and makes certain bequests to his daughters. Paragraph 17 of the Will is the paragraph relating to the house in question. In that he states as follows:
Of my three daughters, at the time of the marriage of my eldest daughter, Sowbagiavathi Kuppammal, jewels for about Rs. 2,000 should be given and Rs. 1,000 spent for marriage, and after the debt has been cleared, besides giving ar streedhanam, House No. 3, Arunachellam Pillas Lane, Periamet, mentioned in para. 1, woman's cloths costing from Rs. 3-8-0 to Rs. 7 should be purchased and given to all our relatives, who are poor and who have come for the marriage.
2. At the date of the death of the testator there was a mortgage debt upon this house. Reference has been made by the learned trial. Judge to the bequest to the other two daughters and I shall refer to them at once. The bequest to the second daughter is contained in para. 18 and it is as follows:
At the time of the marriage of my second daughter, Radha Ammal, jewels for Rs. 2,000 should be given, a house worth Rs. 2,500 should be purchased and given as streedhanam and Rs. 1,000 spent for marriage and (she) should be given in marrige to my brother-in-law Jayavelu Mudaliar. The aforesaid house should only be purchased and given after my debt has been cleared.
3. Paragraph 19 refers to a gift in favour of the third daughter and it runs as follows:
To my third daughter Gajalakshmi Ammal also jewels (should be given) and marriage expenses (incurred) as mentioned above, and after the debt has been cleared a house also should be purchased and given as mentioned above.
4. Now it seems to me that in considering this Will para.17 is clear and we need not construe it with reference to any other paragraph of the Will. There was a debt upon the house and the testator says that the executors shall discharge the mortgage debt upon the house and give the house to his eldest daughter. If this clause stood alone, it seems to me that there will be little difficulty in construing the clause as a gift which would pass an absolute title to the daughter and which would vest the house immediately in her. The fact the testator wanted the executors to his-charge the encumbrance in the property would not by itself make it a contingent gift. I do not think in this case it is necessary that Clauses 18 and 19 should be called in question to construe Clause17 of the Will. Clauses 18 and 19 do not refer to any existing property which is bequeathed. In them a direction is given to the executors to purchase houses after the debts are discharged and then give one house to the second daughter and another to the third daughter. That purchase can only be made after the debts are discharged. Again in Clause17 the word is the debt which evidently refers to the mortgage debt while in Clauses 18 and 19 the testator refers to his general debts. It, therefore, seems to me that the circumstances as regards the bequest to the second and third daughters are different from the circumstances which existed with regard to the bequest to the first daughter. The house which was given to her specifically existed on the date of the testator's death'. He wants the executors to pay off the debt and give the property to her. The debt can only reasonably mean the debt which existed at the time of the gift upon the house; whereas in the other two eases the houses were to be purchased only after the discharge of the testator's debts, because they could not purchase houses and give them to the daughters before the debts were discharged. The circumstances as regards three cases being different, I am not prepared to construe Cl .17 which to me appears to be quite clear and cut down all the gift to the daughters because the other two daughters would get less or get nothing at all unless all the debts were discharged. As the house in Clause17 was under mortgage, the executors are bound to discharge that debt first before paying the simple debt and it is not suggested that there were no funds left by the testator to do so. They should discharge the mortgage debt and give the property to the daughter. This clause was a provision for her benefit and otherwise she would hare to take an encumbered house and if she could not redeem the mortgagee would sell away the house for the discharge of his mortgage debts and she would be left without any provision. I am also of the opinion that the mere direction by the testator that his legacies or gifts are to be given after the debts are dischargad would not make the gifts, which are otherwise vested, contingent, because it is the duty which the law casts upon the executors that they shall discharge the debts before giving effect to the legacies or gifts. A testator gives property to A or B but adds to that clause that this should be given only after the debts are discharged which clause is merely a repetition of what the law states in so many words in Section 285 of the Succession Act, and this would not by itself make the estate contingent, I am fortified in this opinion by referring to Illustration (e) of Section 106 of the Sucession Act which is made applicable to Hindu Wills, and which is as follows:
A bequeaths the whole of his property to B upon trust to pay certain debts out of the income and then to make over the fund to C At A's death the gift to C becomes vested interest in him.
5. It seems to me, therefore, to be clear that the direction that the debts should be discharged would not make the estate given, a contingent estate, if the intention of the testator was that the daughter should get the property. This, I think, is sufficient to dispose of this appeal.
6. I may also state that even assuming that the estate in favour of Kuppammal was contingent it would vest in her immediately the debt has been discharged. The finding of the learned Judge is that on the date of the death of Kuppammal all the debts of the testator have been discharged. Such being the case it is for those who want to maintain that it is contingent to say that although the debts were discharged the executors discharged those debts by borrowing from third persons and that their borrowing must be treated in law as the debts which existed at the date of the testator's death. As to this, the evidence is absolutely insufficient. There is no evidence worth the name to show that at the time of Kuppammal's death, the executors borrowed moneys for the discharge of the testator's debts and that these debts were outstanding. Exhibit G filed in this case does not show that the debts of the testator were discharged by borrowing from third persons.
7. I think the appeal fails as it is not shown that the estate was a contingent one; and it is dismissed with the taxed costs of the first respondent.
Venkatasubba Rao, J.
8. I. entirely agree and would add a few words. That portion of the clause in the Will which we are called upon to construe is as follows:
At the time of the marriage of my eldest daughter Sow. Kuppammal, jewels for about Rs. 2,000 shall be given and Rs. 1,000 spent for marriage and after the debt has been cleared, House No. 3 Arunachellam Pillai Lane, Periamet shall be given as streedhanam.
9. The appellant's vakil contends that the interest taken by the legatee is a contingent one. As an English lawyer would put it, do the words constitute a present gift independent of the direction to pay (in this case the direction to give)? The question is essentially, if not solely, one of intention, and on a reading of the whole clause the testator's intention must be found. Is there a present gift or not The Will is in Tamil, and it is not suggested and indeed it cannot be, that whoever wrote it was versed in the highly technical rules of English conveyancing. As I read the Tamil Will, there is a present bequest. In the clause the executors are not mentioned. All that it says is that the legatee shall be given the house. The words that she shall be-given the house, mean nothing more than that she shall take it. There is a gift independent of any direction to give.
10. Next, as regards the contingency alleged, I may observe that it is not suggested that the gift is contingent by reason of there being a reference to the marriage of the legatee. The payment of the debts is said to be the contingency upon the happening of which the gift is to take effect. Is the gift contingent because the legatee is to be given the house after the testator's debts are paid On a true construction the words import a present gift, the time of the giving alone being postponed.
11. I should not find the slightest difficulty in construing the clause, but for the fact that my view happens to be different from that of the trial Judge and from also that of Courts-Trotter, J. (as he then was) who, sitting on the original side construed the clause on a previous occasion. With the utmost deference to the learned Judges, I cannot agree that the vesting of the legacy is to be postponed till after the payment of the testator's debts. If this be so, wherever a testator adds by way of caution in making a bequest that his debts shall be paid off, the bequest must be held to be a contingent one. It is true no doubt that if the debts exhaust the estate, the legatee may get nothing ; but that cannot be the test in determining whether the interest is vested or contingent. It is alway implied in law that the debts shall be paid first. An express direction to that effect can and ought to make no difference.
12. I am clearly of the opinion that on a true construction of the clause there is a present gift and the house vested in the legatee on the testator's death. The