1. The only point argued in this second appeal is whether the second defendant takes the bequest under his father's Will absolutely or whether ha takes it as a Hindu son as property inherited by him from his father. The facts are simple. The second defendant, the eldest son of the testator was divided from him on the date of the Will. His younger son lived with him, and he and his father formed members of a joint Hindu family. The property devised under the Will was the self-acquisition of the father. It is well settled that when a member of a joint Hindu family has self-acquisition that self-acquisition unless devised by Will, goes to the undivided member in preference to a divided member. If the testator had not made a Will, the whole of this self-acquisition would have become the property of the first defendant. By the Will, the testator directed his younger son, the first defendant, to pay Rs. 3,000 to the second defendant. The words of the bequest are 'Though it is so, on account of my affection to him, I have determined that my younger son Chockalingam Chetty should pay to him, Rs. 3,000. But the two lower Courts have held that the second defendant did not get an absolute right to this amount but that he and the plaintiff and his sons were entitled to the amount in equal shares as property inherited from a Hindu father. It is urged by Mr. Muthukrishna Iyer, who appears for the appellant, that the terms of the bequest indicate that the second defendant should get an absolute interest in the amount devised. His argument is that the second defendant would not have inherited any portion of his father's estate if the father had died intestate, ho having been divided from him, and that the bequest being one of cash it cannot be presumed that the testator intended that he should take it as property inherited from his father.
2. Another argument is that the Will makes mention of the fact that out of affection to the second defendant the bequest was made. It is also a significant fact that the first plaintiff who was a major at the time and the second plaintiff who was a minor were not referred to in the Will. Prom these circumstances Mr. Muthukrishna Iyer wants to draw an inference that the testator intended that the second defendant should take an absolute interest in the amount devised to him. In the case of property devised by a father in favour of his son, there is a presumption that the son takes it as property inherited from the father, so that the son's sons get by their birth equal right with the father. In Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad. 429 Shephard. J., observes at page 437 : 'As the father is at liberty to make any disposition he pleases or to leave his self-acquired property to descend as ancestral property, so when making any disposition in favour of his son he is at liberty to preserve for the property the quality of ancestral property. Whether in any given case the property was intended to pass to the son as ancestral property or as self-acquired property must be a question of intention turning on the construction of the instrument of gift. Following the principle laid down in Moulvie Mohamed Shamsool Hooda v. Shewakram (1874) 2 I.A. 7 I think that if there are no words indicating the contrary intention, the natural inference should be that the father intended his sons to take his property as their ancestral estate.' In that case the father bequeathed his property to his sons who were not divided from him but who lived with him as members of an undivided Hindu family. Even if the father had not devised the property by a Will, his sons would have inherited the property. But in this case the second defendant was not likely to have inherited any portion of his father's estate as he had been divided from him before his death. The question is whether the presumption of Hindu Law as laid in Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad. 429 should be drawn in favour of the plaintiffs in a case like this where the legatee is given a sum of money without any words qualifying the legatee's right. It has been urged on the side of the respondents that the intention must have been to benefit the family of the second defendant. But 'that contention is opposed to the terms of the Will according to which the bequest was made on account of affection to the son notwithstanding the fact that he had been divided from the testator. I do not think that in a case like this, the plain meaning of the words should be over-ridden by any presumption arising as in the ease like the one in Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad. 429. If the second defendant could have inherited a portion of his father's estate in any event, in case the testator died without leaving a Will, then the presumption may be safely drawn as in the case of Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad. 429. But where a sum of money is given on account of affection to a particular individual who would net inherit to the testator, it would be doing, in case of intestacy, violence to the language used, to draw any presumption against the plain meaning of the words in the Will. Taking this view of the terms of the Will, I hold that the second defendant got an absolute estate in the sum of money bequeathed to him by his father.
3. I allow the appeal and reverse the judgments of the lower Courts and dismiss the suit with costs of the second defendant throughout.