1. The originating summons is taken out for the purpose of construing the will of the late C. Manicka Mudaliar who died on 19th January, 1936, having made his last will and testament on 22nd January, 1935. He left two widows, by the senior widow one son, who is the second defendant, and by the junior widow two sons, the third defendant and the plaintiff. The Administrator-General of Madras is now administering the estate and is the first defendant.
2. The matter for decision is whether a gift in favour of the plaintiff of a sum of Rs. 12,000 was specific or demonstrative and if specific, whether it has been adeemed. To help to answer the problems to be considered one must ascertain, as far as one can, what the intention of the testator was, as expressed in his will.
3. In regard to the second and third defendants, he gave to each of them a large and a small house in Madras and lands in the mofussil. To the plaintiff he gave specifically a small house in Madras and lands in the mofussil. The will then provides as follows:
Further there is a sum of Rs. 14,000 in fixed deposit in my name in the Indian Bank, Madras, out of that amount I have given Rs. 12,000 to this son. With that sum of Rs. 12,000, my executors shall as early as possible purchase a house of the value of about Rs. 12,000 in Madras.
4. The fixed deposit matured between the date of the will and the death of the testator and it is common ground that after the date of its maturity the testator purchased a house in Madras for the sum of Rs. 10,000.
5. On behalf of the second and third defendants, it is contended that the gift of Rs. 12,000 in favour of the plaintiff was specific and that it was to be paid out of the fixed deposit with the Indian Bank; as there was no such fund at the date of the deceased's death, the legacy has been adeemed and must fail. On the other hand, on behalf of the plaintiff it is contended the legacy was demonstrative and whilst the legacy was primarily to be paid out of the fund with the Indian Bank, as that did not exist at the death of the testator, his other estate is responsible for the payment of the legacy.
6. Later in the will, the testator provides that moneys advanced by him on promissory notes and on mortgages as well as the money in the Bank should be collected, and the amount spent for the purchase of a. house for the plaintiff being deducted, the balance should be divided into three shares, each of his sons, the plaintiff and defendants 2 and 3 being entitled to a share. Later still, in this will, the testator says that he had appointed his three sons as residuary legatees of all his movable and immovable properties. It is clear that the testator intended that the money which he had directed should be spent upon the purchase of a house should not be divisible amongst the three sons as he expressly excludes this from the moneys to be divided between the plaintiff and second and third defendants. When considering the general residuary clause in the will, one must give a meaning to the earlier provision. There can be no doubt that the testator wished to make equal provision for all his sons. Having given to the second and third defendants a large and a small house in Madras, he gave only a small house to the plaintiff, and expressly provided for the purchase of a large house.
7. Emphasis has been placed by learned Counsel on behalf of the other two sons that the gift of Rs. 12,000 to the plaintiff was expressed to be out of a sum of Rs. 14,000 in fixed deposit and thus, there has not been a general gift of a legacy. It is conceded that if there had been first a gift and then a subsequent direction of the fund out of which it should be paid, it would have been demonstrative and would be payable out of the general estate, in the absence of the existence of the fixed deposit account in the Bank at the date of the death. I think it is laying too much emphasis on the position of words or sentences to make the wish of a testator to be dependent upon such position.
8. Section 142 of the Succession Act provides that where a testator bequeaths to any person a specified part of his property which is distinguished from all other parts of his property, the legacy is specific. Section 150 provides that where a testator bequeaths a certain sum of money and refers to a particular fund or stock so as to constitute the same, the primary fund or stock out of which payment is to be made, the legacy is to be deemed to be demonstrative. The latter part of the explanation provides that where the legacy is directed to be paid out of specified property, it is demonstrative. To these two sections, there are a large number of illustrations, I can find but little, if any, help in some of these illustrations, the wording of some of them in both sections being substantially identical. For instance, one of the illustrations to Section 142 provides that an annuity of Rs. 500 out of the rents of the zamindari of W is a specific legacy; whereas an illustration under Section 150 provides that Rs. 1,000 out of the sum of Rs. 2,000 due to the testator is a demonstrative legacy. I merely refer to these to show the conflicting nature of the illustrations which are given.
9. In considering its provisions, one must refer to the will as a whole in order to ascertain the intention of the testator. Seeing the provision made for two sons of gifts of a large and a small house to each, the gift of one small house to the plaintiff, and the provision for the purchase of a larger house indicates that the testator wished to provide for his three sons in the same way and to the same extent. The direction that out of the moneys at the time of the date of the will which were deposited with the Indian Bank, a sufficient sum is to be paid to purchase the other house together with the later provision in the will that the balance of the bank deposit was to be divided equally between the three sons after there had been deducted from the deposit the moneys to be spent upon the purchase of a house, to my mind, shows that the testator intended to make a gift of a sum of money in favour of the plaintiff, which sum was to be spent on the purchase of a house and that this gift is not a specific but a demonstrative gift and the direction that it was to be paid out of a specified fund does not make the gift a specific one.
10. There will therefore be a direction that the first defendant will provide out of the assets of the testator in his hands a sum of Rs. 12,000. Learned Counsel on behalf of the plaintiff, who is a minor, states that the house which was purchased for Rs. 10,000, can be given to the plaintiff, subject to the approval of the Court, in respect of the legacy of Rs. 12,000. The learned Administrator-General for the first defendant tells me, and I accept it, that this house, although Rs. 10,000 was paid for it, in fact is worth Rs. 12,000 and indeed even more than that. The first defendant will therefore take the necessary steps to place this house in the name of the plaintiff and the income thereof will be paid to him or to his guardian as the case may be. No other order is necessary save that the costs of all parties will be paid out of the assets. I fix the plaintiff's costs at Rs. 350 including all out fees and expenses, second defendant's at Rs. 175 and for the third defendant, I fix the guardian's fee at Rs. 125 and Rs. 75 to the Administrator-General.
11. Prayer 4 of the Originating summons seeks for a direction from the Court regarding the disposal of some jewellery. This jewellery is now the subject-matter of a suit in the City Civil Court, and it is unnecessary to dispose of this matter now. The abandonment by the plaintiff of the relief in respect of this jewellery is in no way to prejudice his rights, if any, in regard to it.