A. Varadarajan, J.
1. The defendant, who failed in both the Courts below, is the appellant. One Veerappa Mudaliar had two daughters, Amirthammal and Ammaniammal and one son, Nagarathna Mudaliar. Shanmugam alias Arumugam, who is stated to have died in 1957, and Thillaikannu Ammal are the son and daughter of Amirthammal. The appellant is the son of the said Shanmugam alias Arumugam. Thillaikannu Ammal, the daughter of Amirthammal, had been married to her maternal uncle Nagarathna Mudaliar. Panduranga Mudaliar, the respondent herein, is the grandson of Ammaniammal by her son Krishnaswami Mudaliar. The suit properties, which are a house with a well, 74 cents of wet land and an oil engine, admittedly belonged originally to Nagarathna Mudaliar. Nagarathna Mudaliar had executed the settlement deed, Exhibit A-1, dated 9th April, 1963, in favour of his wife Thillaikannu who died after him on 2nd May, Ig55. The respondent claimed title to the suit properties as the heir of his paternal aunt Thillaikannu, on the basis that she had become absolutely entitled to Nagarathna Mudaliar s properties under the settlement deed, Exhibit A-1. Exhibit A-1 was registered compulsorily on 28th January, 1964, as Nagarathna Mudaliar appears to have denied its execution. The respondent filed the suit for declaration of his title to the suit properties and for an injunction restraining the appellant from interfering with his possession or alternatively for recovery of possession of the properties.
2. The appellant set up another settlement deed, Exhibit B-6, dated 11th April 1963, as having been executed in his favour by Nagarathna Mudaliar in respect of the suit properties and contended that he had become entitled to the suit properties by virtue of that settlement deed. In the alternative he contended that under the settlement deed, Exhibit A-1 itself, he had become entitled to the suit properties which had remained undisposed of by Thillaikannu Ammal prior to her death, on the ground that Nagarathna Mudaliar had conferred an absolute eitate on him under Exhibit A-1 on such of his properties as remained undisposed of by Thillaikannu Ammal, the settlee under Exhibit A-1.
3. The Courts below found that Exhibit B-6 was not genuine and they upheld Exhibit A-1 and decreed the suit for declaration and possession, holding that the respondent became entitled to the suit properties under the settlement deed, Exhibit A-1, as they had not been disposed of by Thillaikannu Ammal during her lifetime. Hence this second appeal.
4. The only question arising for consideration in this second appeal is whether Thillaikannu Ammal had an absolute estate in the properties mentioned in the settlement deed. Exhibit A-1, and the clause in Exhibit A-1 providing for the respondent becoming absolutely entitled to such of the properties mentioned in the settlement deed, Exhibit A-1, as remained undisposed of by Thillaikannu Ammal during her lifetime, is a repugnant clause which docs not affect the absolute estate of Thillaikannu Ammal. The answer to this question has to be found in the proper interpretation of this irrevocable settlement deed, Exhibit A-1, which reads thus:
5. The settlement deed provides that Thillaikannu Ammal should enjoy the properties with absolute rights over them as she was the wife and only heir of the settlor Nagarathna Mudaliar and they had no issues and he desired that she should lead a comfortable life after his death. There is a further clause in the settlement deed to the effect that the respondent should perform the ceremonies of Nagarathna Mudaliar and Thillaikannu Ammal and take such of the properties as remained in the possession of Thillaikannu Ammal at the time of her death, with absolute rights. The learned Counsel for the appellant submits that this clause providing for the respondent taking absolutely such of the properties covered by the settlement deed in Exhibit A-1 as were undisposed of at the time of Thillaikannu Ammal's death is repugnant to the earlier clause conferring an absolute estate on Thillaikannu Ammal in respect of the propertiei mentioned in the settlement deed, and has, therefore, to be ignored as void. On the other hand, the learned Counsel for the respondent submits that the settlement deed has to be read as a whole and that if it is done so, it will be clear that what had been intended by the settlor was that his wife Thillaikannu Ammal should no doubt enjoy the properties mentioned in the settlement deed with absolute rights and that the respondent, who is no other than Nagarathna Mudaliar's sister's grandson should perform the ceremonies of himself and his wife arid take absolutely such of the properties covered by the settlement deed as remained undisposed of by the settlee, Thillaikannu Ammal.
6. We find the following passage at page 1090 of Vol. 39 of the Third Edition of Halsbury's Laws of England:
Where there is a clear absolute gift followed by words purporting to confer a power of disposition with a giftover if the power is not exercised, the absolute gift takes effect; and the giftover is inconsistent with it and is void....
Where there is an absolute gift of property followed by a gift over of the property after the death of the donee or after his death without issue or without leaving children, or of that part of the property of which he shall not have disposed, the absolute gift prevails, and the ultimate gift is repugnant and void. It may, however, appear sufficiently clearly on the construction of the will as a whole that a gift which is in terms absolute is in fact intended as a gift of a life interest only; and this construction is not prevented merely by the fact that the gift over is of 'whatever remains' or in similar terms.
What should be done while interpreting documents of the kind has been mentioned in some of the decisions. The Supreme Court has observed in Sahebzeda Mohammad Kamgarh Singh v. Jagdish Chandra Deo Dhabal Deb and Ors. : 3SCR604 .
The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before the Courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be, cut down by a later clause. Where there is ambiguity it is the duty of the Court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor's document, it has to be interpreted strictly against him and in favour of the grantee.
This decision was relied upon by the learned Counsel for the appellant who submitted that the terms of Exhibit A-1 had to be interpreted strictly against Nagarathna Mudaliar and in favour of the grantee, Thillaikannu Ammal, and that if that is done, it would be clear that Thillaikannu Ammal got an absolute estate in the properties and that the subsequent clause providing for the respondent taking such of the properties as remained on her death undisposed of by her absolutely is a repugnant clause which is void. On the other hand, the learned Counsel for the respondent relied upon the decision of a Bench of this Court in Narayana Doss v. Arumughathammal : AIR1962Mad259 where the learned Judges have observed:
The Courts should not be astute in discovering repugnant provisions in a will merely because of a alight inconsistency between portions of the testamentary instrument. As far as possible a harmonious construction of all the provisions in the will should be arrived at, as otherwise, the brushing aside of a particular clause on the ground of its repugnancy to another, may result in creating a will which was never contemplated by the testator.
The learned Counsel for the respondent relied on the decision of the Supreme Court in Ramkishore Lal v. Kamal Narain : AIR1963SC890 where the learned Judges have observed:
Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutly to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e.g, where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.
I will consider the other decisions to which my attention was invited by the learned Counsel for the parties in the light of the general observations made in the aforesaid decisions about what care should be taken in the interpretation of such documents.
7. The learned Counsel for the appellant relied upon the decision of a Bench of this Court in Pugalumperumal Pillai v. Thangathammal : (1949)1MLJ389 and of the Privy Council in Tiruchendur Sri Subramaniaswami Temple v. P. Ramaswami Pillai : (1950)52BOMLR472 and submitted that the subsequent clause in Exhibit A-1 making a provision for the respondent is repugnant and void The relevant portions of the gift deed which came up for consideration in the Bench decision of this Court runs as follows:
As I have given away to you the property...as stridhanam gift, you shall hold and enjoy the aforesaid property hereditarily and from son to grandson and so on as long as the sun and moon last. After your lifetime, your issues if there are any, shall get the aforesaid property. If you have no male or female issues, the aforesaid property shall revert to me and to my male heirs. I shall, till my lifetime, reside jointly with you in the thatched house mentioned in the schedule.
The learned Judges have held, having regard to the use of the words of disposition so well-known and accepted as implying that absolute rights had been conferred on the donee and that the property did not revert to the donor. This decision does not help the appellant as there are no such well-known words of disposition indicating the conferment of absolute estate in the properties on the settlee Thillaikannu Ammal in Exhibit A-1.
8. In the will which came up for consideration before the Privy Council in the aforesaid decision, the testator bequeathed to his only son all his properties with the direction that he should solely enjoy them and he also added that if he or his son had no child, the property shall pass to Sri Subramaniaswami at Tiruchendur. For the appellant-temple it was argued before the Privy Council that the words 'if he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur' are a qualification, and if the will is read as a whole, they have the effect of creating a devise in favour of the deity of the temple in the event of Picha Pillai dying childless. Their Lordships have observed:
Their Lordships are of the opinion that the additional words do not have this effect. Section 95 of the Indian Succession Act says that where property is bequeathed to a person he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him. It follows from what has already been said that their Lordships consider that a restricted interest was not intended here. They agree with the opinion of the High Court that the testator, as an afterthought wanted to determine the devolution of the property in case his son should die without issue, but not in any way to limit either the character of the estate that was given by the earlier bequest in favour of the son, or to make it conditional and liable to be divested at his death without issue. The testator had only one son and it was natural that he should desire that his estate should devolve upon him unconditionally.
The learned Counsel for the appellant laid stress on the following words in Exhibit A-1 and submitted that they would indicate that the donor intended that the donee, his wife, should take the properties absolutely and not that she should have only a limited power of disposition over the properties during her lifetime.
These words may, no doubt, show that, the settlor had intended that his wife, who was the only heir and who had no issues, should take the properties absolutely as he desired and that she should lend a comfortable life after his death. But he also added in the settlement deed that the respondent, who is his other sister's grandson, should perform the ceremonies of himself and his wife and take such of the properties as remained undisposed of by his wife at the time of her death. It is necessary to see what is the effect of this subsequent clause in the settlement deed in the light of the other decisions to which my attention was drawn in the course of the arguments.
9. In an early decision of this Court in Manumalaswami v. Chinna Narayanaswami : (1932)63MLJ107 , a Bench of this Court has observed:
In Sanford v. Sanford (1901) 1 Ch. 939 Joyce, J., pointed out that: The rule is to construe a will ut res magis valeat quam pereat, and to give effect, so far as possible to all the words used by the testator, quoting the dictum of Kay, J., in Williams v. Pounder (1887) 56 L.J. Ch. 113. In the judgment above referred to Joyce, J., observed: It. has been said by the Court of appeal that the true way to construe a will is to form an opinion apart from the decided cases and then to see whether these decisions require any modification of that opinion, not to begin by considering how far the will iii question resembles other wills upon which decisions have been given.
In that case the gift to the wife conferred upon her a power of disposal limited explicitly to her lifetime. The gift over on the other hand, was of a quite absolute estate, which was to pass from father to son, from generation to generation. The gift did not include a power of disposition by will, but a power of disposition inter vivos. The learned Judges have observed in that decision:
The widow could dispose of the property in her lifetime, but had no power to dispose of it by will and, if any property remained at her death, the will of the testator was to settle its destination. The rule in such cases is that if the intention of the testator as represented by his words, was to confer an absolute estate, that estate cannot be cut down by anything that follows. If, however, the intention is doubtful, the addition of a gift over may be evidence that his intention was to confer no more than a limited interest. Here the worst that can be said is that his intention, as conveyed by the language of the gift was not clear and the gift over showed that his intention was to confer no more than a limited estate. If the will is construed in this way that the intention was to give the wife a limited estate, with a power of disposal inter vivos and to give over what she did not dispose of, every word of the will becomes effective. That is in accordance with the first rule of construction of testamentary dispositions and it has, as Joyce, J., observed in the case already cited 'the not unimportant merit of effectuating the obvious and expressed desire of the testator'. The will in that case has been held by the learned Judges to have conferred only a limited right on the widow.
10. The next decision is of another Bench of this Court in Thayalai Achi v. Kannammal (1935) 68 M.L.J. 727 : 156 I.C. 846 : 41 L.W. 604 : A.I.R. 1935 Mad. 704 alias Ponnammal Achi (1935) 68 M.L.J. 727 : 156 Ind.Cas. 846 : 41 L.W. 604 : A.I.R. 1935 Mad. 704. The will in that case provided that the testator's wife shall enjoy with all powers of alienation by gift, exchange or sale the movable and immovable properties of the testator and herself discharge the debts payable by him. It further provided that if after the alienations made by the wife any property, movable or immovable, was left at the time of her death, they shall be taken absolutely by one Nataraja. It has been held that the wife took as absolute estate under the will, but if she did not dispose of the property during her lifetime or by will the property passed to Nataraja and that the bequests were not void because of repugnancy or uncertainty. The learned Judges have observed:
This present case seems to be very near to S.M. Hara Kumari v. Mohim Chandra Sarkar (1908) 12 C.W.N. 412, where the bequest was to a wife in the following terms:
You shall become possessor of my properties. You shall have the right and power to alienate by gift or sale. My daughter shall be entitled to and be possessor of whatever properties shall remain after your death and the said daughter shall have the same rights as you have.
The only difference is that there is a distinction drawn between being entitled to and being possessor of. There were also other indications in the will of a desire on the part of the testator to benefit the daughter. It was indicated that if one looked at the bequest to the widow alone it looked like an absolute gift but that one could not, in construing the will, shut one's eyes to the words relating to the daughter. It was held that looking at the will as a whole the widow took an estate for life with a power of alienation and to the extent to which the power was not exercised the daughter similarly took the property.
11. The will in Anantnasayana v. Kondappe : AIR1940Mad479 , decided by Venkataramana Rao, J, stated that all the designated properties of the testator shall, after his lifetime be enjoyed by his wife with powers of alienation by gift mortgage, sale, etc., and after her lifetime, the properties then remaining shall, according to their wills executed by him be held and enjoyed by his daughter Kuppammal with powers of alienation by gift, mortgage, sale, etc. The learned Judge has observed:
Prima facie, where powers of absolute disposition are conferred on the donee, it is taken as an indication that the testator intended to create an absolute estate on the donee. The will in this case confers powers of alienation of the widest amplitude, such as gift, mortgage, sale, etc. In my opinion the language is wide enough to confer a power of disposition both testamentary and non-testamentary. Therefore, giving the plain grammatical meaning to the said language it would follow that the nature of the interest taken by the widow is an absolute estate. It is settled law that if an absolute estate is given to a donee, a gift over on the termination of the life of the donee of the property remaining undisposed of by the donee is invalid, the principle being that once a property is given absolutely to another, he cannot dispose of another man's property....
The use of the words 'according to the wills executed by him' would show that in the case of the daughter he means to have a heritable estate to be enjoyed by her from generation to generation. Therefore, if the will were to be construed by giving Ghinnammal a life estate with an absolute power of appointment the intention of the testator will be effectuated rather than frustrated. In this view, Ghinnammal would not take an absolute estate but a life estate with a power of appointment and the gift over will be valid only with reference to what was left undisposed of by Chinnammal. But Mr. Rajah Iyer contends that either the estate conferred must be an absolute estate or a life estate and to construe a disposition as life estate with absolute power, of appointment is tantamount to construing the disposition as an absolute estate. There is considerable force in the argument of Mr. Rajah Iyer but the law does make a distinction between an absolute estate and a life estate with a power of appointment. In the one case what is conferred is property that is the interest conferred is capable not only of disposition by the donee but capable of transmission to his heirs and in the case of the other, that is, a life estate with a power of appointment, what ii conferred is not property but power.
The same view has been expressed by Ramamurti, J., in Jabamalai Mariammal v. Madalaimuthu Thevar (1966) 79 L.W. 141 where the learned Judge has observed:
Even though for practical purposes there is no distinction between an absolute estate and a life estate coupled with a power of appointment by will or deed, it is settled law that the two ideas are two distinct conceptions and that it is quite competent to a testator to confer a life estate, with a power of appointment by a deed or will following it up by an independent or subsequent bequest, in case the first legatee dies without exercising the power of appointment.
12. The will involved in Lakshmi Ammal v. Allauddin Sahib : AIR1962Mad247 , contained the following two clauses, among others:
After my lifetime, my wife Lakshmi Ammal should perform my death ceremonies, the aforesaid Lakshmi Ammal should possess and enjoy the under mentioned properties with full powers of alienation, gift, sale and with absolute right; and
After my wife's death, my daughters both the aforesaid Amirthammal and Ammakutti alias Vadamalai Ammal should perform her death ceremonies, Amirthamal, my first daughter should take the first item and Ammakutti alias Vadamalai Ammal should take the second item with absolute rights and enjoy the same.
Ramakrishnan, J., who decided that case, has observed:
After giving an absolute estate to his wife over the two items of scheduled properties, he provided that these scheduled properties, after the wife's lifetime should devolve - item 1 on the first daughter and item 2 on the second daughter - who would have absolute rights. When the testator took care to indicate that the properties without any distinction even after his wife's lifetime should go to each of the daughters, it should be presumed that it was clearly in his mind that the wife's estate was only to be a limited estate or life estate, and not an absolute one.
13. No doubt, in the present case, there it nothing in the settlement deed, Exhibit A-1, to show that Thillaikannu Ammal, the donee, should enjoy the properties and leave them without any diminution to be taken absolutely by the respondent.
14. The will involved in Ramasreenivasa Iyengar v. Padmasani Ammal : (1973)1MLJ34 , provided that the two ladies should take the properties in equal shares with absolute rights, but the share of the lady without issues will, however, after her death, be taken by the lady with issues along with her children. Ganesan, J., has held in that case that the testator intended by the earlier clause that the two daughters should take only a life estate if they had no issue and that on the death of the lady without issues the property should be taken absolutely by the surviving daughter with issues. And the learned Judge has observed that the dominant intention was to preserve the estate is his family and that he intended that the estate should descend ultimately to his grand children, following the decision in Lakshmi Ammal v. Allauddin Sahib : AIR1962Mad247 and other decisions.
15. The appellant, who is older than the respondent, is the son of Nagarathna Mudaliar's wife's brother Shanmugam alias Arumugam while the respondent is the grandson of Nagarathna Mudaliar's other sister Ammani Ammal by her son Krishnawami Mudaliar. Nagarathna Mudaliar does not appear to have intended to confer any benefit on the appellant, though he is the son of his own wife's brother; whereas he appears to have intended to confer benefit on the respondent in respect of such of the properties as remained undisposed by his wife at the time of her death. The appellant would inherit the properties as the heir of Thillaikannu Ammal if the donor Nagarathna Mudaliar had not made the provision in favour of the respondent in the settlement deed, Exhibit A-1. Therefore, it would appear that Nagarathna Mudaliar intended to confer a benefit on the respondent in respect of such of the properties as remained undisposed of by Thillaikannu Ammal who, no doubt, had absolute powers of disposal of the properties by any document such as sale, mortgage or will inter vivos. Therefore, I hold, in view of the decisions referred to above, that Thillaikannu Ammal had only a right to enjoy the properties with absolute powers of disposal during her lifetime under the settlement deed, Exhibit A-1, and that the clause in Exhibit A-1 providing for the respondent becoming entitled to such of those properties as remained undisposed of by her at the time of her death is not repugnant and void and would only show that he intended that Thillaikannu Ammal should only have such limited right and not have the absolute right of taking the properties to be enjoyed by her from generation to generation. Therefore, I agree with the Courts below and hold that the respondent had become entitled to the suit properties by virtue of the settlement deed, Exhibit A-1, as those properties had been left undisposed of by Thillaikannu Ammal by any document inter vivos.
16. The appeal is, therefore, dismissed, but in the circumstances of the case, without costs.
17. No leave.