T. Venkatadri, J.
1. This Appeal is filed by the defendant in O.S. No. 447 of 1957. The Suit is filed for declaration of title and injunction or, in the alternative for recovery of possession. The suit property belonged to one Arokia Udayar who died in 1930. Arokia Udayar executed a will on 16th September, 1924 (Exhibit A-1). At the time of executing this will, he had his first wife Anna Mari Ammal and four daughters. As per the terms of the will he made a bequest of the entire properties to his wife Anna Mari Ammal, giving a life estate and after her death to the plaintiff and his wife. The reason for giving the absolute estate to this last daughter and her husband was stated in the will in the following words:
Since my youngest daughter Annammal and her husband Santhiyagu Odayar are living with me, and looking after my properties and are serving me and my wife Anna Mariyayee to our satisfaction and owing to, our affection towards them, I have provided under this will that they should take all my properties after the life time of myself and my wife Anna Mari Ammal. Hence my daughter Annammal and her husband Santhiyagu Odayar should take all my properties after the life time of myself and my wife, with absolute rights and enjoyed by them and their heirs from generation to generation.
2. The testator died in the year 1930 and, after his death, the daughter died in 1931. The plaintiff married again in 1932. The widow of the testator died in 1955. In the meantime the three daughters and the widow of the testator sold the property to defendant in 1950 under Exhibit B-1 in this case. The plaintiff therefore filed the present suit for recovery of the suit property on the foot of the will executed by his father-in-law and also for an injunction restraining them from interfering with his possession of the suit property. Both the learned District Munsif and the Subordinate Judge gave a finding that the will was true and genuine and the defendants vendors had no title and that consequently the defendant derived no title under Exhibit B-1. It is against this judgment that the defendant preferred this appeal.
3. In the appeal when it came originally for hearing the learned Counsel for the defendant took objection that the suit was not maintainable without the probate of the will. I adjourned the Second Appeal to enable the plaintiff to obtain the probate of the will. The plaintiff has now obtained probate of the will executed by his father-in-law.
4. The learned Counsel for the defendant raised two principal points namely that the property was given to the last daughter of the testator and her husband. When the daughter died the plaintiff cannot file a suit for the recovery of the suit property. The intention was to benefit the plaintiff's wife and not the plaintiff'. In support of this proposition he cited a case in Ramamma v. Venkatalakshmamma : AIR1941Mad375 , where it is has been held:
If the testator intended to have conveyed a benefit on a particular individual as a persona designate the bequest would take effect although the description of the person may be, or may turn out to be wrong. If, on the other hand, the testator's intention is found to be that the bequest is conditional on an adoption or on some other relationship on account of which he is making the gift, the gift as such must fail if the adoption or relationship is not found to exist or does not come into existence.
and another case in Lali v. Murlidhar L.R. 33 IndAp 97 : I.L.R. (1906) All. 488 where it is stated:
The intention was to give him the property as an adopted son capable of inheriting by virtue of the adoption and as his adoption was invalid by Hindu Law, and hot warranted by family custom, it gave him no right to inherit, and the gift did not take effect,
I am afraid these principles may not apply to the facts of this case. The intention is to benefit both the plaintiff and his wife, the last daughter of the deceased testator. It is a joint bequest and therefore I am of the opinion that the plaintiff is entitled to the suit property irrespective of the fact whether he has married a second wife or not. Having regard to the second point raised by the learned Counsel for the defendant, there seems to be some force. On the date of the death of the Anna Mari Ammal, she has left behind her three daughters who were disinherited by the deceased testator and who were entitled to this property. The learned Counsel for the defendant seriously contends that as the last daughter of the testator predeceased Anna Mari Ammal, her interest devolved on Anna Mari Ammal and after the death of Anna Mari Ammal, the property belonging to the share of the deceased daughter would devolve upon the mother and three daughters. I do not agree with this proposition. Anna Mari Ammal was given only a life-estate and after her death the only person entitled to get the property is the plaintiff as per the terms of the will. The Second Appeal is therefore dismissed. But this is a fit case where each party should bear its own costs throughout. No leave.