Coutts Trotter, J.
1. The plaintiffs in this case are suing for what they allege to be their share of the moneys due under a mortgage of the 3rd October 1903. That mortgage was made in favour of one Parakkala Arippayil Ammad Kutti and he subsequently made a Will on the 20th September 1906 whereby, among other properties of his, he disposed of his interest as mortgagee to certain persons. The material words are: 'I bequeath to Pakkremmar who is my nephew and to Mammad who is my nephew these properties, so that they may enjoy them after my death'; and I am now giving what we are told is the correct interpretation of the Vernacular. 'On the death of either Pakkremmar or Mammad, his right should be enjoyed then by the remaining members born of his mother.' In fact Mammad died during the lifetime of the testator and the plaintiffs are his mother's children. The plaintiffs' contention is that on its true construction this Will was a gift absolutely to the two persons first named, the 2nd defendant and Mammad, and that there is a further substantive gift to the children of Mammad's mother in the event of the gift to him and Mammad vesting in him by reason of his death before the death of the testator. The learned Subordinate Judge took the view that, on the proper construction of the Will, an absolute estate was conferred on Mammad, that the operative words of the Will ended there, and that the words on which the plaintiffs are relying, viz., 'on the death of either...his right should be enjoyed then by the remaining members born of his mother,' were not operative words of testamentary disposition at all, but were merely declaratory of what the testator imagined would be the material and legal consequence following on the death, when it took place, of either of the donees. We think that he is wrong in treating those words as being totally inoperative and we think they ought to be given effect to as actually operative words expressing the intentions of the testator, and if that be so, there is ample authority, both English and Indian, for the view that in the event of the first donee dying in the lifetime of the testator, the estate will vest in the second donee as from the testator's death. The leading Indian authority cited for that proposition is Bhagabati Barmanya v. Kali Charan Singh 10 Ind. Cas. 641 That disposes of the first question in the appeal as to whether the plaintiffs had any interest at all in the mortgage.
2. The next question is whether the admitted payment by the mortgagor of the whole money due on the mortgage to the 2nd defendant was not merely a good discharge to him, but a discharge as would enable the 2nd defendant to keep the money in his pocket to the exclusion of those persons who, we have decided on the proper construction of the Will, are entitled to it equally with him. The plaintiffs have impleaded both the 2nd defendant and the mortgagor who paid over the money to the 2nd defendant. Speaking for myself it is inconceivable to me that anybody could seriously contend that a Court of Justice on some fantastic considerations of the rights of a karnavan or other considerations of that kind should follow the startling course, with all the parties before it, of allowing one of two or more persons jointly entitled to pocket the whole of the money, telling the others 'you have no remedy in this suit, bring another'. The result will be that the appeal is allowed, the decree of the Subordinate Judge is set aside and that of the. Munsif is restored. The appellants will have their costs here and in the lower Appellate Court.
Seshagiri Aiyar, J.
3. I entirely agree. I regard the gift in favour of the mother's children of Mammad as an alternative gift in case Mammad died during the lifetime of the testator. It is not a joint gift as contended for by Mr. Madhavan Nair: this case is stronger than the case before the Privy Council Bhagabati Barmanya v. Kali Charan Singh 10 Ind. Cas. 641. I am, therefore, of opinion that on the death of Mammad, the property vested in his mother's children, the plaintiffs in this case.
4. On the second point I am equally clear that the 2nd defendant who has received the whole money is bound to account to the plaintiffs for their share of the mortgage-money. No question of karnavanship arises in this case, because the gift is to separate individuals and they take as tenants-in-common, and not as members of a tavazhi. In this view the question as to whether Barber Maran v. Ramana Goundan 7 M.L.J. 269 and the later Full Bench decision in Mannava Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12 : (1913) M.W.N. 328 are correct does not arise.
5. I agree in the order proposed by my learned brother.