Ramaprasada Rao, C.J.
1. This Letters Patent Appeal is against the judgment of Maharajan, J. in S.A. No. 548 of 1973 in which he granted leave to appeal against his own judgment. The relevant facts in this appeal are as follows:
2. Admittedly the suit properly belonged to one Royalu Reddiar. Tinder Exhibit A-1, dated 10th April, 1946, Royalu Reddiar disposed of all his properties under a notarial testament. Royalu Reddiar died issueless. Under the will which he made in a French territory he bequeathed the suit property to' his sister Kamalammal to be enjoyed by her for the term of her life without any power to mortgage, gift or sell the same. He gave his other properties both moveable and immoveable to his wife Adilakshmi Ammal and again granted, a life-estate to her over such properties without any right to alienate them in any manner. After creating such life-estates in favour of his sister and wife, he made the following bequest:
After the death of Kamalammal and Adilakshmi 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 rendered by him to my wife. The said Sambasiva Reddiar will perform all my funeral ceremonies and those of my wife, Adilakshmi Ammal.
In accordance with the tenor and recitals in the will, Kamalammal took possession of the property in pursuance of the bequest as above. It 19 common ground that Sambasiva, who is the ultimate beneficiary under the will and the universal legatee therein died sometime after the death of Royalu Reddiar, who died on 26th October, 1946 and the plaintiff is admittedly the heir of Sambasiva as his brother. It appears that on 10th September, 1958, under Exhibit A-2 Kamalammal sold the suit property to the first defendant. Kamalammal died on 17th May, 1967. The plaintiff filed the present suit against the first defendant and also her husband for annulment of the sale deed dated 10th September, 1958, Exhibit A-2. The trial Court dismissed the suit. On appeal the plaintiff was unsuccessful. The plaintiff carried up the matter in second appeal to this Court. Maharajan, J. was of the view that the plaintiff was entitled to a declaration as prayed for and after declaring the plaintiff's title to the suit property directed the defendants to deliver possession of the same to the plaintiff. He however granted leave to appeal under Clause 15 of the Letters Patent.
3. The short question that arises for consideration in this case is, whether by virtue of the dispositary Clause in the will of Royalu Reddiar a vested interest was created in favour of Sambasiva and whether possession of the property so vested was only postponed, till after the lifetime of Kamalammal. The first Appellate Court was of the view that the provisions of the Transfer of Property Act having been extended to Pondicherry only on 9th January, 1967, the will has to be interpreted according to the Code Civil prevailing in French territories, Maharajan, J., was of the view that the doctrine of substitution fideicommissaire was not invocable at all in this case. Applying the well known rule of interpreting a testament by sitting in the arm chair of the testator Maharajan, J., was of the view that the intention of the testator was to create a vested right in favour of Sambasiva and that it would be artificial to affix to Exhibit A-1, the label of substitution fideicommissaire. He relied upon a decision of the Supreme Court in Lakshmana Nadar arid others v. R. Ramier : 4SCR848 That was a case where the following directions were given in the will of one Lakshminarayana Iyer.
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 gift, exchange and sale from son to grandson and so on for generations.
The Supreme Court while construing the Clause made the following observations:
Considering 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 the 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 dis bounty. In ex-ultimate recipients of his bounty. In express terms he conferred on his daughter change, sale, but in sharp contrast to this, on his widow he conferred no such powers. The directions to her was that she should enjoy the entire properties including the out standings, 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 eve 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 which may or may not mature and under the will her interest would only be a contingent one in what was left undisposed of by the widow.
Following the ratio in this case the learned Judge came to the conclusion that the ultimate estate granted to Sambasiva. was not' a mere spes successionis and that the mechanism of the bequest under Exhibit A-1 is radically differedent from that restored to in what is called substitution fideicommissaire. He also made it clear as the notarised will did not even use the term substitution fideicommissaire, that doctrine cannot be invoked at all, that in accordance with the provisions of the Code Civil, there was only a postponement of the right of enjoyment of the suit property by Sambasiva and there was an immediate vesting of the absolute right in him notwithstanding the intervention of a life estate in favour of Kamalammal. He also considered in detail the distinction between the two doctrines substitution fideicommissaire and nue properties and after invoking the relevant Clause in the Code Civil, he came to the conclusion that the intention of the testator was merely to let Kamalammal to enjoy the usufruct of the property so long as she was alive and to give the ownership of the property in praesenti to Sambasiva subject to such a life-estate in favour of Kamalammal. He also finally said that the sale effected by Kamalammal under Exhibit A-2 would enure until the death of Kamalammal and on her death the defendants' rights over the suit property got extinguished and that the plaintiff who is the undisputed heir of Sambasiva became entitled to immediate possession of the suit property. It is as against this, the present appeal has been filed.
4. Substitution fideicommissaire has been understood as a disposition by which the first beneficiary is juridically bound by an obligation to conserve during his lifetime the property and to pass on after his death to another beneficiary the subject of the gift or devise on condition that the latter will survive. This is how Article 896 in Code Civil has been understood by Dalloz, the famous author and interpreter of the French Law. This method of disposition enjoins the first beneficiary to conserve the property during his lifetime. Under Article 896, according to Dalloz, the second beneficiary must be alive on the date of the death of the first beneficiary. Such a thing is not present in our disposition. In our view Articles 1040 and 1041 instead of Article 896 of the French Code Civil applies to the facts of this case.
5. Articles 1040 and 1041 of the Code Civil are extracted hereunder for ready reference.
1040. All dispositions by will which are made conditional on the happening of an uncertain event, and which the testator does not intend to have effect (vest) 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. (C. 900, 1168, 1183).
1041. 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 (C. 1181, 1185).
This is not a case in which the bequest of Sambasiva is made conditional on the happening of an uncertain event. But on the other hand the intendment of the testator is to suspend the operation of the bequest in favour of Sambasiva during the lifetime of Kamalammal. Article 1041 therefore, directly applies to the facts of this case. Even in Indian Law under Section 119 of the Indian Succession Act the date of vesting of the legacy when possession is postponed is made clear by the language of that section. Section 119 of the Indian Succession Act reads as follows:
119. Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.
Explanation.--An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives or from a provision that, if a particular event shall happen, the legacy shall go over to another person?
The Court had occasion to deal with such a provision and expressed the view that an interest is said to be vested when it is not subject to any condition precedent, when it is to take effect on the happening of an event which is certain whereas an estate is contingent when the right to own it depends upon the happening of an uncertain event which' may or may not happen. As there is an interregnum where a life estate is followed by an absolute- estate since the absolute estate must vest somewhere, the interpretation of the Clause in the will under consideration lends to the only conclusion that by reason of the dispositive Clause already excerpted by us, on the death of Royalu Reddiar, the suit property vested in Sambasiva. But the right to possession was postponed until after the death of Kamalammal. There was an interdict to Kamalammal not to alienate the property in any manner. But as she had possessory title to the property that limited right could be dealt with by her but without prejudice to the ultimate beneficiary namely Sambasiva. This would mean that the sale of the property under Exhibit A-2 dated 10th September, 1958 effected by Kamalammal became ineffective for all purposes on her death on 17th May, 1967. The subject could be approached in a slightly different angle also. What was granted to Kamalammal was the right to enjoy the usufruct. Under Article 617 of the Code Civil an usufruct is extinguished by the actual or civil death of the usufructuary. Having regard to this provision in the French Code, we are of the opinion that since the estate has already vested in Sambasiva on the death of the testator, the heirs of Sambasiva are entitled to possession of the property after the death of Kamalammal who by reason of the life estate created in her favour in the first instance, was entitled to possess it only till her lifetime.
6. We agree with the conclusion of Maharajan, J., that the bequest in favour of Kamalammal did not enable her to convey, an absolute interest to the first defendant and the right which the first defendant secured was only the bare right of enjoyment over the suit property so long as Kamalammal was alive. If it intended to convey any better right to the first defendant, it was void, as Kamalammal herself did not have such a conveyable interest. The plaintiff therefore would be entitled to a declaratory decree that he is the owner of the suit property and for a consequential direction that the defendants do deliver possession of the suit property to him.
7. The Letters Patent Appeal therefore, fails and is dismissed. No costs. The defendants are granted three months time to deliver possession of the property.