S. Maharajan, J.
1. The plaintiff has preferred this second appeal against the judgment of the Principal District Judge, Pondi-cherry, in A.S. No. 12 of 1972, confirming the judgment of the Additional Subordinate Judge, Pondicherry, in O.S. No. 277 of 1968 and dismissing the plaintiff's suit with costs.
2. The plaintiff, Ramaswamy Reddiar, sued Adilatchumy Ammal (first defendant) and Appasamy Nayagar (second defendant), husband of the first defendant, for annulment of the sale-deed dated 10th September, 1958, executed by one Kamalammal in favour of the first defendant in respect of the suit property and for recovery of possession of the property with costs.
3. The suit itself was filed under the following circumstances : The suit property originally belonged to one Rayalu Reddiar, who died on 26th October, 1946, after disposing of all his properties under a notarial testament (Exhibit A-1) dated 10th April, 1946. The testator begot no issue. At the time of the will and of his death, he had the following relatives : (1) Adilatchumy Ammal, his wife; (2) Sambasiva Reddiar, his wife's sister's son ; and (3) Kamalammal, the testator's sister, who was then a widow and presumably childless. Under the will which is in French, he bequeathed the suit property to Kamalammal to be enjoyed by her for the term of her life without any power to mortgage, gift or sell the same. As regards all his other properties, movable, immovable and out standings, he bequeathed the same to his wife, Adilatchumy Ammal to be enjoyed by her after his death without any liberty to alienate. The next clause in the will, which has been the subject of controversy between the parties, may be translated as follows:
After the death of Kamalammal and Adilatohumy Ammal, my aforesaid properties shall belong, in full ownership and', with all powers of alienation, to my nephew Sambasiva Reddiar. I also decide that after my death, my business concern shall be run by Sambasiva Reddiar and accounts in respect thereof renderad by him to my wife. The said Sambasiva. Reddiar will perform all my funeral cremonies and those of my wife, Adi latchumy Ammal.
After the death of the testator on 26th' April, 1946, Kamalammal took possession of the property in pursuance of the bequest made to her. It was admitted by both counsel before me that Sambasiva died sometime after the testator's death and Sambasiva's heir is the plaintiff, who Is his; brother. Subsequently, that is to say, on 10th September, 1958, Kamalammal sold the suit property under a notarial deed in favour of the first defendant, Kamalammal herself died on 17th May, 1967. On 6th September, 1967, the plaintiff instituted, the suit, out of which this second appeal arises.
4. The trial Court, upon an interpretation of the will, held that as Sambasiva. Reddiar predeceased both the testator and Kamalammal, the latter became the absolute owner of the property by operation of the doctrine of 'substitution fidei commissaire'. The trial Court also held that If the testator had stated In his will that Kamalammal would have the usufructuary right and after her death, the nue propriete should go to his nephew (Sambasiva Reddiar), there would be no substitution fidei-commissaire, and Sambasiva Reddiar would have become the owner of the property from the date of the demise of the testator, and the plaintiff would, on the death of Sambasiva Reddiar, become entitled to the property as his heir. It is admitted that the trial Court committed an error in assuming that Sambasiva predeceased the testator. However, upon the construction put by the trial Court on the will, it dismissed the suit with costs.
5. Against this judgment, the plaintiff preferred an appeal to the Principal District Judge, Pondicherry. Before the learned Judge, it was contended on behalf of the plaintiff that under the will, Samba-siva Reddiar had obtained a. vested interest under Section 19 of the Transfer of Property Act, though possession of the property was postponed till after the lifetime of Kamalammal. The learned Judge held that the Transfer of Property Act was extended to Pondicherry only on 9th January, 1969 and the construction of the will must, therefore, be governed by the French substantive law. According to the learned Judge, Articles 1040 and 1041 of the Code Civil ought to govern the interpretation of the will. The learned Judge quoted Article 1040, which says as follows:
All dispositions by will which are made conditional on the happening of an uncertain event and which the testator does not intend to effectuate until such event happens or does not happen (as the case may be), lapse if the person nominated heir or the person in whose favour they are made dies before the condition has been fulfilled.
The learned Judge also cited Article 1041 of the Code Civil which is to the following effect:
A condition that is only intended by the testator to suspend the carrying out of a bequest does not prevent the person made heir or the beneficiary acquiring a vested interest, which is transmissible to his heirs.
Treating the contemplated death of. Kamalammal as an uncertain event (and this is wrong, because nothing is more certain than human mortality), the learned Judge proceeded to hold that inasmuch as the testator had specifically laid down a condition that Sambasiva Reddiar should take the property absolutely only after the death of Kamalammal, he did not get any right over the property, because he predeceased Kamalammal and consequently, the plaintiff could not get any right as heir of Sambasiva Reddiar. In this view, the lower appellate Court dismissed the plaintiff's appeal. It is against this dismissal that the present second appeal has been filed.
6. The main question that arises for consideration is the one which turns upon a true construction of the will Exhibit A-1, i.e., whether upon the death of the testator, leaving him surviving Kamalammal and Sambasiva Reddiar, the ownership in the suit property vested in Sambasiva Reddiar subject to the right of Kamalammal to enjoy the property for the term of her life without any power of alienation or whether the ownership of the property (qualified by certain restrictions on alienation) vested in Kamalammal subject to the condition that absolute ownership of the property would pass to Sambasiva Reddiar if he survived Kamalammal, and in case Sambasiva Reddiar predeceased Kamalammal, the latter would become entitled to the property absolutely free from the restrictions imposed by the testator on her powers of alienation.
7. The argument of Mr. Cojandavelu, learned Counsel for the respondents, runs as follows: The terms of the will are such that what is called substitution fideic ommissaire in French Law has been created under the will. It is true that Article 896 of the Code Civil prohibits substitution fidei commissaire: but so far as the Hindus, Muslims and Christians in the erstwhile French India were concerned, they were governed by their personal law, and not by the Code Civil, and the Code Civil provisions would apply only if the personal law made no provision and to the extent it was not inconsistent with the spirit of the personal law. So far as the testator in this case is concerned, he was a Hindu governed by the French, Hindu Law, and as there was nothing in the Hindu Law, which prohibited substitution fidei commissaire, the will would be valid despite the prohibition contained in Article 896 of the Code Civil. If the will has created substitution fidei commissaire, it must be held under French Law that Kamalammal became the absolute owner of the suit property on the death of the testator subject to the resolutory condition that in case she died and Sambasiva, survived her, the latter would get the property absolutely. If Sambasiva (appele; predeceased Kamalammal (grave) Kamalammal would become the absolute owner of the property notwithstanding that the testator had provided that she should enjoy the property only for her lifetime without any power to mortgage, gift or sell the property. According to Mr. Cojandavelu, under the doctrine of substitution fidei commissaire, Sambasiva would get no interest in the property, unless he fulfilled the condition of surviving Kamalammal. Mr. Cojandavelu, who formulated this argument, has been an ayacut-conseil at Pondicherry, for a number of years under the French system. I think it, therefore, necessary to examine his arguments at some length and with the deference that is due to his experience.
8. The doctrine of 'substitution fidei commissaire' was borrowed by French Roman Law. It was subject to great abuse during the pre-revolutionary days and was violative of the rule against prepetuity. That is why when the Code Civil was enacted in the early years of the 19th century, the framers of the Code positively prohibited substitution fidei commissaire (vide Article 896) though they recognised two exceptions : (i) it is lawful for any one to give or bequeath property to any one or more of the grantor's children, subject to the obligation to transmit the same to all the children born or to be bom of the ; grantee or grantees equally; and (ii) it is lawful for a person, who; dies childless to give or bequeath property to any one or more of his brothers; or sisters, subject to the obligation to transmit the same to all the children, born or to be born of the grantee or grantees equally (vide page 132 of Ames and Walton's 'Introduction to French Law' - Second Edition). These exceptions are not relevant for the purposes of this case. Though the French Law prohibited substitution fidei commissaire making these two exceptions, the Supreme Court of France Cour de cassation) and the Courd' appeal in Pondicherry have held that the Hindus in French India are not within the mischief of this prohibition of Code Civil, because they are governed by their personal law and there is nothing in their personal law which prohibits substitution fidei commissaire (Vide De Langlard - Lecons of Hindu Law - page 350 - quoted at page 22 in Gnaneu Ambreises booklet on substitution fidei commissaire)'. As there is some confusion involved in this area of French Indian Law and as there is a tendency for life interest holders under a will in the situation of Kamalammal to claim absolute rights by invoking the doctrine of substitution fidei commissaire, it is necessary to clear the ground by defining the ingredients, which go to constitute substitution fidei commissaire. As observed by Dalloz in his 'Repertoire Pratique' (Volume 11) page 518, Note 3.
The substitution prohibited by the Code Civil can be denned; all dispositions by which the first beneficiary is juridically obliged to conserve the property for the duration of his life, and after his death, to render to another beneficiary the object of the bequest on condition that he survives the first beneficiary.
Note 4 sums up French jurisprudence in this behalf:
Three elements are essential for constituting a prohibited substitution: (1) a double liberality consisting of two donations or two bequests, one in favour of the greve and the other in favour of the appele : (2) the establishment of an order of succession by which after the greve has been the owner of the property for the term of his life, the object of the bequest shall become after his death, the property of his substitute, (viz., the appele); and (3) the juridical obligation to conserve the property and to hand over the object of the bequest to the substitute should be imposed upon the greve.
In other words, if a property is bequested to 'A' to be enjoyed by him for life and to go to 'B' after his life, and 'A' is obliged under the testament to conserve the property and hand it over intact to 'B' after 'A's' death, the devise would be called substitution fidei commissaire. This is the kind of substitution which the French Law prohibits, but which, according to the French jurists, the Hindu Law does not prohibit, and can, therefore, be resorted to by Hindus. If such & substitution is resorted to by a Hindu, continues the argument and 'B' predeceases 'A', the fiduciary responsibility of 'A' to hand over the property on his death to 'B' terminates and 'A' becomes the absolute owner of the property (Vide 'Repertoire Pratique' - Dalloz Volume 11, page 551 Notes 614 and 615.
9. Now let me examine whether Exhibit A-1 really constitutes substitution fidei commissaire, so that Kamalammal may be enabled to claim absolute right to the suit property on Sambasiva predeceasing her. I have already abstracted the relevant passages from the will, the essential terms of which are:
(1) I bequeath the property to my sister Kamalammal for her to enjoy for the duration of her life without having any power to mortgage, gift or sale.
(2) After the death of the said Kamalammal (and Adilatchumi Ammal), my properties abovesaid shall belong in full ownership and with all powers of alienation to my nephew Sambasiva Reddiar.
I have searched Exhibit A-1 in vain for any term which could be construed as imposing an obligation upon Kamalammal to preserve the property for the benefit of Sambasiva Reddiar. What the first clause does is only to give Kamalammal a mere right to enjoy the property without any of those powers which an absolute owner would be entitled to enjoy. Learned Counsel for the respondents contends that the embarge placed upon Kamalammals power to mortgage, gift or sell the property carries with it, by necessary implication, an obligation preserve the property for the benefit of Sambasiva. I do not think it fair or reasonable to draw such an inference. It is the duty of the Court to sit in the armchair of the testator and distil his intention from the words employed by him in the testament, and while doing so, the Court has to take into account the sentiments and inhibitions of an average Hindu which must have influenced the intentions of the testator, who was... undoubtedly a Hindu. He had no children, male or female. He was executing the testament in 1946, in which year he must have shared the prevalent prejudice of Hindu society against conferring absolute estate on women and in favour of giving an absolute estate only to males, especially to those who are competent to perform funeral oblations. At the time of the testament, neither Adilatchumi Ammal, who was the wife of the testator, nor Kamalammal, who was the widowed sister of the testator, could, in the eyes of a Hindu, be the object of more than a limited bounty. Neither of them being a male, who could perform funeral obsequies, and neither of them having any male issue, the testator appears to have pitched upon Sambasiva Reddiar, the son of his wife's sister, as the person entitled and competent to receive on absolute estate in the property. I think it, therefore, artificial to affix to Exhibit A-1 the label of substitution fidei commissaire and then proceed to hold that what the testator intended to bequeath in favour of Kamalammal was only absolute ownership with resolutory conditions.
10. Learned Counsel lays great emphasis upon the words 'sores le deces' (after the death) for the purpose of making out that no present interest in favour of Sambasiva Reddiar was sought to be bequeathed and that the condition precedent to Sambasiva Reddiar getting absolute ownership of the property was that at the time of the death of Kamalammal, he should be alive. Construction of a will is the result of a process of apprehending the intention of the testator with the aid of the words used by him in the testament. The ascertainment of the testamentary intention depends on the language of the will, and not upon the system of law governing the testator. It must be the same whether the paper has been executed in France or in India, though, no doubt, the legal effect of what the instrument says may vary from one system of law to another. The expression ' after the death of Kamalammal must be taken to indicate merely the time when the gift over becomes reduced to possession, and not the time when the right to such possession vests - vide Adame v. Mrs. Gray : AIR1925Mad599 .
11. In Lakshmana Nadar and Ors. v. R. Ramier : 4SCR848 , one Lakshminarayana Iyer, a Hindu, gave the following directions in his will:
After my lifetime, you the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime, enjoy the aforesaid entire properties....
After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as grift, exchange and sale from son to grandson and so on for generations.
12. While construing this clause, their Lordships the Supreme Court observed as follows:
Consisting the will in the light of these principles, it seems to us that Lakshminarayana Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation by way of gift exchange, sale, but in sharp contract to this, on his widow he conferred to such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc., and these shall thereafter pass to her daughter. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate because by conferring a full Hindu widow's estate on her the daughter will only have a mere spes succession is under the Hindu Law which may or may not nature and under the will her interest would only be a contingent one in what was left undisposed of by the widow.
13. In this case, the testator has made it clear that Kamalammal should enjoy the property only for the duration of her life and that too, without any power to sell, to gift or even to mortgage, whereas while describing the nature of the estate bequeathed to Sambasiva Reddiar, he makes it clear that the property shall belong to him 'in full ownership and with all powers of alienation.' These words establish that Sambasiva was the person whom the testator earmarked with certainty as the ultimate recipient of his bounty. The mere use of the future tense, 'shall belong to Sambasiva', cannot any manner camouflage or detract from his undoubted intention to give Sambasiva absolute ownership of the property on the date of death of the testator, although it is indicative of his intention to postpone his possession of the property till after the lifetime of Kamaiammal. While coming to this conclusion, I wish to make it clear that it has been arrived at upon a plain interpretation of the will uncoloured by the Indo-Anglian legal concept of vested remainder or the Roman concept of substitution fidei commissaire, as applied by the French Jurists to wills or gifts executed in the erstwhile French India. I, therefore, hold that the mechanism of the bequest under Exhibit A-1 is radically different from that resorted to in what is called 'substitution fidei commissaire'. I may also note that Exhibit A-1 was drawn by a 'Notaire Public', an officer of law, well acquainted with French concepts It Is indeed significant that the Notaire did not use the term 'substitution fidei commissaire' anywhere in Exhibit A-1. It is, therefore, wrong to wishfully imagine that Exhibit. A-1 is in the nature of substitution fidei commissaire and to supply out of an obliging imagination those ingredients without which Exhibit A-1 cannot be regarded as substitution fidei commissaire. On the other hand, the will is clearly in conformity with certain express provisions of the Code Civil, which enable the testator validity 'to bequeath the usufruct of the property in favour of one person and the nue propriete (naked ownership, i.e., ownership without possession) in favour of another.
14. Article 899 of the Code Civil expressly says that any gift or testamentary disposition where by the 'usufruit' is, given to one and the naked proprietorship is given to another, shall be valid. I shall next examine what is it that the French Law means by 'usufruit' (usufruct). Article 578 of the Code Civil defines usufruit to mean the right of a person to enjoy a thing belonging to another as if he were the owner himself, but subject to the duty of keeping intact the corpus of the thing. Article 579 of the Code Civil says that this right of usufruct can be established either by law or by volition of man. Article 580 says that the usufruit can be created either simpliciter without limitation or upto a certain day or subject to conditions. Article 617 says that the usufruct is extinguished:
by the natural death or the civil death of the usufructuary:
by the expiration of the time for which it was granted;
by the consolidation or re-union in the same person of the capacity of the usufructuary and that of the proprietor ;
by non-usage of the right for thirty years;
by total loss of the thing upon which the usufruit has been established.
Article 621 of the Code Civil says that the sale of the property by the owner subject to the usufruct shall not alter in any manner the right of the usufructuary who will continue to enjoy the same. The provisions which I have cited above give us some idea of the French notion of the usufruct. If we consider the rights which have been given under the will to Kamalammal in respect of the suit property in the light of the aforesaid provisions of the Code Civil, it would be found that what Kamalammal has been given is nothing but a usufruit. The will says that Kamalammal should enjoy the suit property, but shall have no power to mortgage or gift or sell the same. This shows that she had a duty as usufructuary to conserve the corpus of the property - vide Article 578 of the Code Civil. The will also makes it clear that Kamalammal should enjoy the property for the term of her life. The usufruit that has been granted by the testator in favour of Kamalammal is subject to the condition that it shall be extinguished with the natural death of Kamalammal - Vide Article 617 of the Code Civil. It would, therefore, follow that what the testator intended to grant in favour of Kamalammal was only the usufruit within the meaning of the Code Civil. The holder of the usufruit has under Article 578, the right to enjoy the property as if he were the proprietor; but he is certainly not the proprietor of the property, because he is under a responsibility to keep intact the corpus of the property. The 'nue propriete' is one in whom the title to the property vests without a present right to enjoyment thereof. Upon a proper construction of the will in this case, Sambasiva Reddiar got the naked ownership of the property the moment the testator died though his right to get physical possession of the property was postponed till after the death of the usufruitier viz., Kamalammal. The mere circumstance that the nue proprietaire predeceased the usufruitier does not under the French Law either extinguish the rights of the heirs of the nue proprietaire to the naked ownership or enlarge the rights of the usufruitier into those of an absolute owner of the property. In fact Article 1041 of the Code Civil makes it clear that a condition, which, according to the intention of the testator, would only suspend the coming into force of a bequest, does not prevent the legatee from acquiring a. present right and transmitting it to his own heirs. In this case, the intention of the testator was to give the entire ownership of the property to Sambasiva Reddiar, but to suspend his right of possession thereof till after the lifetime of Kamalammal. Therefore the testamentary condition suspending the carrying out of the bequest in favour of Sambasiva Reddiar did not prevent Sambasiva Reddiar from acquiring a present interest in the property as sue proprietaire and transmitting the same on his death to his heirs. A fair and proper reading of the will shows that upon the testator's death, Sambasiva Reddiar was intended to get and did in fact get a vested interest in the property, which upon his demise devolved upon the plaintiff, his heir. The Courts below have entirely misconstrued the provisions of the will. Substitution fidei commissaire is not a magical incantation the undisputed heir of Sambasiva Reddiar and upon whom the 'naked' ownership of the property had devolved on the death of Sambasiva Reddiar, became entitled,, upon the death of Kamalammal, to immediate possession of the suit property. Consequently I hold that the sale deed obtained, by the first defendant from: Kamalammal on 10th September, 1958,. did not confer upon the first defendant anything more than the right to be in enjoyment of the suit property, so long as; Kamalammal was alive, and the said sale deed must be annulled in so far as it purported to convey any right in excess of the sufructuary right of Kamalammal. The plaintiff will, therefore, be granted a decree embodying a declaration to that effect and directing the defendants to deliver possession of the suit property to the plaintiff. The judgment and decree of the Courts below are reversed and the appeal allowed with costs throughout-Leave granted. by invoking which a person who is merely a usujruitier under the will, can, upon the naked proprietor predeceasing her claim an enlargement of her limited right of enjoyment into an absolute right of ownership.
15. It is necessary to distinguish between an arrangement of substitution fidei commissaire, on the one hand and a devise whereby a usufruct is conveyed to one person and the nue propriete to another. It is true that these two kinds of devises are on a superficial view deceptively similar. But the one thing, which distinguishes substitution fidei commissaire from a bequest of usufruct in favour of one person and that of the nue propriete in favour of another is that in the former case, a fiduciary obligation is imposed upon the 'greve' ('the first legatee) to preserve the property for the benefit of the 'appele', but in the case where there is merely a bequest of usufruct in favour of one and the bequest of nue propriete in favour of the other, no such fiduciary relationship subsists between the usujruitier and the nue proprietaire. If the usujruitier is obliged under Article 578 of the Code Civil to conserve the corpus of the property, it is not because he has any fiduciary obligation to preserve the property for the benefit of the nue proprietaire but because his right is confined to the enjoyment of the produce of the property without any detriment to the corpus of the property. This obligation of the usujruiter to enjoy the produce of the property without detriment to the corpus thereof ought not to be confused with any fiduciary obligation. The intention of the testator was merely to let her enjoy the usufruct of the property so long as she was alive and to give the ownership of the property in preaesenti to Sambasiva Reddiar subject to the usujruitier's right of enjoyment for the term of her life.
16. The sale effected by Kamalammal, the usujruitier, in favour of the first defendant on 10th September, 1958, in respect of the suit property could enure in favour of the alienee only so long as Kamalammal was alive, and the moment Kamalammal died on 17th May, 1967, the usufructuary right got extinguished with her death, and the first defendant, her vendee, ceased to have any right to enjoy the suit property. On the other hand, the plaintiff, who is the undisputed heir of Sambasiva Reddiar and upon whom the 'naked' ownership-of the property had devolved on the death of Sambasiva Reddiar, became entitled,, upon the death of Kamalammal, to immediate possession of the suit property. Consequently I hold that the sale deed obtained, by the first defendant from: Kamalammal on 10th September, 1958,. did not confer upon the first defendant anything more than the right to be in enjoyment of the suit property, so long as; Kamalammal was alive, and the said sale deed must be annulled in so far as it purported to convey any right in excess of the sufructuary right of Kamalammal.... The plaintiff will, therefore, be granted a decree embodying a declaration to that effect and directing the defendants to deliver possession of the suit property to the plaintiff. The judgment and decree of the Courts below are reversed and the appeal allowed with costs throughout. Leave granted.