S. Ganesan, J.
1. O.E.A. No. 129 of 1965 in O.E.P. No. 64 of 1965 in O.S. No. 387 of 1964 on the file of the District Munsif of Ranipet out of which this appeal arises has been instituted by Thiru Ramaseenivasa Iyengar, the first appellant (since deceased), whose legal representative is Rajalakshmi Ammal, the second appellant herein, under Section 50, Civil Procedure Code for impleading the respondent Srimathi Padmasani Ammal as a legal representative of the deceased judgment-debtor Chellammal ; and it is alleged in the affidavit that Chellammal, the judgment-debtor died without any issue and that Srimathi Padmasani Ammal her legal representative is in possession of her assets.
2. It is contended by the respondent who is the sister of the judgment-debtor Chellammal that their father Venkatachari executed a will on 15th March, 1940 bequeathing the properties to his two daughters, namely, the respondent and Chellammal with a stipulation that, in the event of any one of them dying issueless, the surviving daughter should get the properties absolutely under the will. Admittedly Chellammal had died issueless and it is therefore alleged that the respondent had become the absolute owner of the properties.
3. The controversy centres round only the interpretation of the terms of the will; and the Courts below have upheld the contention of the respondent that the respondent had under the will become the absolute owner of the suit properties after the death of Chellammal. The same point is agitated over again in this appeal.
4. The will recites that the properties should be taken by both the ladies in equal shares with absolute rights over the same, but the share of the lady without issues will, however, after her death, be taken by the lady with issues along with her children.
5. On behalf of the appellant herein it is contended that Chellammal was given an absolute right by the earlier clause in the will and that the defeasance clause found later cannot therefore operate and whittle down the absolute estate so conferred on the lady under the document. On behalf of the respondent it is stated that, as the defeasance clause is repugnant to the earlier clause, the said clause must be struck down and brushed aside as having no legal effect.
6. Several authorities, have been cited on both sides. The leading authority relied on by the learned Counsel is a judgment of the Privy Council in the well-known case Sri Subramaniaswami Temple v. Ramaswami Pillai (1950) 1 M.L.J. 300 : A.I.R. 1950 P C 32. In that case the testator had bequeathed under his will absolutely in the following terms:
I have bequeathed to my son P the right to all my properties and moneys etc., and he shall solely enjoy them. If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur.
On a construction of the will, the Privy Council held that the bequest to the son was unconditional and therefore conferred upon him an absolute estate and that the provision for devolution of the property in case the son should die without issue was not in any way intended to limit either the character of the estate that was given by the earlier bequest in favour of the son or make it conditional and liable to be divested at his death without issue. Their Lordships have thereby confirmed the judgment of a Division Bench of this Court in the same case reported in Tiruchendur Sri Subramaniaswami Temple V. P. Ramaswami Pillai : AIR1941Mad39
7. Reference is also made to the judgment of Venkataramana Rao, J., in Anantha Sajana Naidu v. Kondappa Naidu : AIR1940Mad479 . In that case the testator has stated in his will that his wife shall enjoy the properties in dispute with powers of alienation, namely gift, mortgage, sale etc. and that, after her death, the properties then remaining shall be enjoyed by the daughter Kuppammal absolutely. Venkataramana Rao, J., has held in construing the will, purporting to give the plain grammatical meaning to the language, that the widow of the testator took an absolute estate and has laid down that it is settled law that, if an absolute estate is given to the 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, the donor cannot dispose of another man's property.
8. In Pugalumperumal Pillai v. Thangathammal : (1949)1MLJ389 , in the operative portion of the will it was recited that the daughter Veeraperumal Ammal should enjoy the property hereditarily so long as the sun and moon lasted, that after her lifetime, her issues if any should get the property and that, if she had no male or female issues, the property should revert on her death to the testator and her male heirs. It was laid down by a Division Bench of this Court that the second clause providing for the reversion to the donor and her male heirs in the absence of any issues to the donee is a mode of devolution of the property according to the known ideas of the community to which the parties belonged and should not be regarded as indicating an intention on the part of the donor to grant a life estate to the donee and that such a restriction being repugnant to the absolute estate is void. The learned Judges have observed that it was a cardinal principle in the construction of wills that the clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention and that no materials could be gathered from the four corners of the document from which it can even be surmised that the intention of the donor was to give a lesser estate to the donee than she was herself enjoying. They have further stated that, in view of the fact that by the first clause, an absolute estate was granted to the donee, the next clause should be read rather as an attempt to restrict the powers of an absolute owner than as an intention to grant a life estate and that such a restriction being repugnant to an absolute estate is void on that ground.
9. In Venkatasubba Rao v. Krishnamurthi (1958) A.L.T. 413 : (1958) 2 AW.R. 25 : A.I.R. 1958 A.P. 447 a Division Bench of the High Court of Andhra Pradesh had to deal with a will whereunder the properties were bequeathed to one Chinna Seshamma after the lifetime of the testator's daughter-in-law Gopalamma; and it was recited in the will that, if Chinna Seshamma had no issue, the properties should after her lifetime, pass to the testator's grandsons. Rajagopalan, J. of this Court had held before the bifurcation of the Madras State that all that the settlor intended to bestow on Chinna Seshamma was only a life estate and not an absolute one, since the scheme taken as a whole indicated the desire of the testator that all his properties should ultimately go to his grand-sons, that the women members of the household were to be provided only maintenance and did not contemplate an absolute gift so far as they were concerned. Chandra Reddy, J. (as he then was) who delivered the leading judgment of the Andhra Pradesh Court after partition has reversed the decision of Rajagopalan, J. and held that Seshamma was given an absolute estate under the will and that the subsequent clause which provided for the contingency of Seshamma dying without any issue was repugnant to the prior absolute gift and was void, as it was contrary to the earlier absolute disposition. The learned Judge has further observed that the relevant language did not in any way limit the nature of the estate or make it conditional and liable to be divested on the death of the donee without any issue, that the grant of the absolute estate was not expressly or impliedly made subject to a defeasance on the happening of a contingency and that it looked as though the settlor wanted as an afterthought to determine devolution of property in case the donee died without any issue. In so observing, the learned Judge purports to follow the decision in Sri Subrmaniaswami Temple v. Ramaswami Pillai and also the decision of this Court in Pugalumperumal Pillai v. Thangathammal : (1949)1MLJ389 , cited above. The learned Judge has laid down the law thus:
The cardinal principle in construing the terms of wills and other instruments is that clear and unambiguous dispositive words should be given their full effect and should not be controlled or qualified by general expression of intention. The Court is not concerned with what the parties intended, but with the meaning of words used and if the language is clear and consistent it should receive its liberal construction unless there is something in it to suggest a departure from it.
10. In Jebamalai Mariammal v. Madalamuthu Thevar : (1966)2MLJ7 , Ramamurti, J., had occasion to consider the nature of the bequest clauses in a will which provided that, after the testator's death, her husband should become absolute owner of the property and enjoy the same with full rights of alienation by gift or otherwise, that, after her lifetime and after the death of her husband, their son Madalamuthu Thevar should become the absolute owner of a portion of the property with full powers of alienation and should pay her daughter-in-law and her daughter a sum of Rs. 300 in cash each. It was held by the learned Judge that an unqualified estate was conferred on the husband in that case without any restrictions whatsoever and that the subsequent bequest in favour of the son would take effect only if the husband died without alienating the property.
11. On behalf of the respondent the following decisions have been cited. In Govindaraja Pillai v. Mangalam Pillai 1933 63 M.L.J 911 : A.I.R. 1933 Mad. 80, the testator's husband settled some properties in favour of his wife stating that she should from that date hold and enjoy the same with all rights, that should any issue be born to herself and the testator, that issue should get the properties after their death and that, if there was no issue, her brothers should after her death take the properties. The wife predeceased the husband leaving no issue and Sundaram Chetty, J., had upheld the claim of the brothers and laid down the distinction between a repugnant and defeasance provision thus:
The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void, but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative.
12. The decision in Govindaraja Pillai's case 1933 63 M.L.J 911 : A.I.R. 1933 Mad. 80 and the observations made by Sundaram Chetty, J., on the distinction between the repugnant provision and the defeasance provision were quoted with approval by a Division Bench of the Patna High Court in Rameshwar Kuer v. Shiolal A.I.R. 1935 Pat. 401. The facts are practically in pari materia with the present case. In the earlier part of the will the testator had made his three daughters absolute proprietresses of the property given in gift and put them in possession and occupation as absolute owners thereof. The next and concluding sentence of the deed however provided that if any daughter, out of the three died issueless, the surviving daughters should in equal shares be the absolute proprietresses of the property specified. The Patna High Court ruled that the document must be read as a whole, that though the earlier clause, if considered by itself, would-confer an absolute interest, the donor did intend that the property should (not?) go to another family but should continue as long as possible in the hands of her daughters and the survivors of them and that it could not have been in his contemplation that either of the daughters would be at liberty so to dispose of her share of the property in her lifetime as to defeat the intention expressed in the last clause and that they took only a life estate. Reference is made in the judgment to Bhoobun Mohini Debia v. Hurrish Chunder (1879) I.L.R. 4 Cal. 23, where the gift was to a lady and the generations born of her womb successively; but the last clause stated that no other heir of hers should have right or interest. The Privy Council held that the words, had they stood exclusive of the last sentence, would have conferred an absolute estate upon the lady, but the last sentence cut down the gift so that in the event of failure of issue living at the time of her death, the estate was to revert to the donor and his heirs, that there was nothing in such a condition repugnant to Hindu Law and that, as the uncertain event contemplated had not occurred, the lady was able to dispose of the property legally by a will. In the second Privy Council case cited Sreemutty Soorjeemoney Dossy v. Denobundoar Mullick (1861-63) 9 M.I.A. 123, a devise was made by the testator among five sons in equal shares, but there was a defeasance clause to the effect that, should any of the sons or son's son die, such of his sons and his son's son, would take the property according to their respective shares. The Privy Council upheld the defeasance clause. In a later case Krishtoromoni Dasi v. Marendra Krishna Bahadur (1889) I.L.R. 16 Cal. 383, the Privy Council had approved of the construction of the will in Bhoobun Mohini Devia's case (1879) I.L.R 4 Cal. 23 referred to above and had observed that the absolute interest given to the lady would remain unaffected, if she left any issue and that in default the estate would be cut down to a life interest and that in that event nothing had passed to the donor but the life interest. In Saraju Bala Devi v. Jyotirmoyee Debi , the Privy Council reiterated the rule that, though the earlier part of the document may appear to grant an absolute estate, the gift over may be sufficient indication that only a life estate to the first taker was intended.
13. The observation made in Govindaraja Pillai's case 63 M.L.J 911 : A.I.R. 1933 Mad. 80 cited above were quoted again with approval by a Division Bench of this Court in Narayana Dass v. Arumugathammal : AIR1962Mad259 , where the facts were shortly these. The testator made three different absolute bequests in favour of his three daughters in the same will; but in the subsequent clause, the testator had made a provision that, if any one of the said three daughters had no issue, she should till her lifetime enjoy the same without subjecting the same to any encumbrance and without making any distribution whatever thereof, that after her lifetime the same shall pass on to her other daughters having heirs and that the daughters without issues had no right of alienation. After the death of the third daughter without issues, her husband claimed that the bequest in favour of his wife under the will conferred an absolute estate; and the learned Judges upheld the validity of the defeasance clause and observed that it cannot be construed to be in any way repugnant to the bequest in favour of the daughters in the first portion of the will, since the testator conferred only a life estate to them being anxious that his property should be enjoyed absolutely by his grandchildren.
14. In Lakshmi Amma v. Allauddin Sahib : AIR1962Mad247 , Ramakrishnan, J., had upheld the validity of the defeasance clause in a will which provided that, after the death of the testator's wife, who was given by the earlier clause an absolute right with all powers of alienation, his two daughters should take items 1 and 2 respectively with absolute rights. On a construction of the will the learned Judge ruled that, as the testator had taken care to indicate that the properties without any diminution whatsoever should go to each of his daughters after his wife's life-time, his predominant intention was that the wife should take only a life estate and not an absolute one.
15. It will thus be clear that the construction of a will is a delicate and onerous task ; and the cases cited earlier are apparently difficult to reconcile with each other. One rule however is clearly established and it is that, in construing a will, a Court has to ascertain the real intention of the testator as revealed by the plain language of the entire instrument, and as pointed out by Jagadisan, J., in Narayana Dass v. Arumugathammal : AIR1962Mad259 , one clause of the will is as important as the other and the dominant intention of the testator has to be gathered only from the cumulative effect of all the clauses. The main task lies in ascertaining whether the testator had made an absolute or limited bequest to the earlier devisee. The language used in describing the be-quest may not in some cases be precise and clear; and in some cases complication may arise because of the introduction of a defeasance provision in the later clauses. In deciding the question, the Court has to take into consideration not only the terms of the earlier devise but also other subsequent provisions inconsistent with an absolute gift such as a restriction of alienation or gift over on the donee disposing or failing to dispose of the property. The distinction between a repugnant provision and a defeasance provision is very subtle and is very well brought out by Sundaram Chetty, J., in Govindaraja Pillai's case 63 M.L.J. 911 : A.I.R. 1933 Mad 80 cited above in the observations of the learned Judge which have been quoted at length in the earlier part of this judgment and I respectfully agree with those observations. Once it is found that the earlier bequest is absolute in character, there can be no difficulty in ignoring the subsequent restrictive clauses in derogation of the absolute estate conferred earlier as being repugnant in character. A condition tacked on to an absolute estate that it was not to be transferred by gift except to a limited extent for religious purposes is a clear illustration of a repugnant clause contemplated by Sundaram Chetty, J.
16. The decisions relied on by the learned Counsel for the appellant are easily distinguishable, Thiruchendur Sri Subramaniaswami Temple's case (1950) 1 M.L.J 300 : A.I.R. 1950 P.C. 32, turned upon the construction which their Lord-ships of the Privy Council placed upon the terms of the will ; and their Lordships were influenced by the fact that the donee was the son of the testator and had observed that the devise in favour of the temple was only an afterthought. The decision in Anantha Sayana Naidu v. Kondappa Naidu : AIR1940Mad479 , presents no difficulty; the testator had specifically stated in the subsequent clause that, after the death of the earlier donee, the properties then remaining shall be enjoyed by her daughter absolutely and it was therefore plain that there was no scope for holding that the earlier donee was given only a life estate. In Pugalumperumal Pillai v. Thangathammal : (1949)1MLJ389 , the learned Judges were concerned with the fact that the clause providing for the reversion to the donor and her male heirs in the absence of any issues to the donee was a mode of devolution of the property according to the known ideas of the community to which the parties belonged and therefore they held that the clause should not be regarded as indicating an intention on the part of the donor to grant a life estate to the donee. The clause was regarded as an attempt to restrict the powers of an absolute owner and was therefore struck down on the ground of repugnancy.
17. The decision of the Division Bench of the Andhra Pradesh High Court in Venkatasubbarao v. Krishnamurthi (1958) 2 An.W.R. 25 : (1958) Andh.L.T. 413, does not commend itself to me; on the other hand the decision of Rajagopalan J. of this Court which was reversed by the Andhra High Court appears to correctly reflect the intention of the donor. While I agree with the statement of the principle in that case that the cardinal principle in construing the terms of the wills and other instruments is that clear and un-ambiguous dispositive words should be given their full effect and should not be controlled or qualified by general expression of intention and that the intention must be gathered from the meaning of the words used, it must also be remembered that there are cases where it may appear sufficiently clear 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 life interest only.
18. The decision of Ramamurti. J., in Jebamalai Mariammal v. Madalamuthu Thevar : (1966)2MLJ7 , noted above is a case of alienation by the husband who was given an absolute estate in the earlier clause and the learned Judge has introduced novel mode of approach to the whole problem by suggesting that the intention of the testator can be properly and fully given effect to only if the absolute estate conferred in the earlier clause is read as a life estate coupled with a power of appointment. I find that this legal fiction is peculiar to English Law and does not appear to have been availed of by or to have the sanction of the Courts of the land either before or after India attained Independence; and I would prefer to tread the orthodox path and to act on the principles laid down by the Privy Council land the Courts in India.
19. On a fair construction of the terms of the will in this case and taking the document as a whole, I am clear that the testator intended by the earlier clause that the two daughters including Chellammal 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. It appears to me obvious that his dominant intention was to preserve the estate in his family and that he intended that the estate should descend ultimately to his grandchildren. This construction derives considerable support from the principles laid down in the decisions in Govindaraja Pillai v. Mangalam Pillai 63 M.L.J 911 : A.I.R. 1933 Mad. 80, Rameshwar Kuer v. Shiolal A.I.R. 1935 Pat. 401, the decision of the Privy Council quoted in the Patna judgment and Lakshmi Ammal v. Allauddin Sahib : AIR1962Mad247 , cited above.
20. In the result the appeal fails and is dismissed with costs Rs. 50 (fifty)....