Anantha Sayana Naidu, by next friend Renu Ammal vs Kondappa Naidu alias Devarajulu Naidu and Others

Venkataramana Rao, J.—The question in this second appeal turns upon the construction of a will Ex. III, dated 27th November, 1917, left

by one Vijiaraghavalu Naidu. It was his last will and testament. He executed the previous wills Exs. I and II dated 25th July, 1917 and 21st

November, 1917, respectively. Before July, 1917, the testator was ill. He had no male issue. He had only a daughter by name Kuppammal. The

persons who were the objects of his affection were his wife Chinnammal, the said daughter Kuppammal and her husband Rangaswami Naidu the

seventh defendant in this case. He had properties in four villages, namely, Vallam, Nemili, Mazhayur and Vadakku-mangalam in the North Arcot

District. By his will dated 25th July, 1917, he purported to bequeath his properties in the Vallam village to his daughter Kuppammal and the extent

of the bequest is thus stated in the said will:

She shall hold and enjoy the same from generation to generation with powers of alienation by gift, mortgage, sale, etc.

By his second will dated 21st November, 1917, he purported to make a bequest of the properties both in favour of his daughter and son-in-law

the seventh defendant. There are two schedules to the said Will A and B. The A schedule properties tomprise the properties in the Vallam village

the subject-matter of the prior will and also the properties in Mazhayur village and these he gave to his daughter Kuppammal. The B schedule

comprises the properties in the village of Nemili and these he - gave to his son-in-law the seventh defendant. The extent of the bequest is stated

thus in the said will:

They shall hold and enjoy the same from generation to generation with powers of alienation by gift, mortgage, sale, etc. If besides these any other

properties have been left out, the same shall be got by my daughter Kuppammal.

Six days later he made a third will the construction of which is now in question. It will be seen from the first two wills that no provision was made

for his wife Chinnammal and so he purported to make one. It may be necessary to give the terms thereof so far as they ma}'' be relevant for the

decision of the question in issue. It runs thus:

I am at present physically weak on account of asthma, as I apprehend that I may not live long, as you are my wife, and as, in the wills previously

executed (by me), no mention is made about your maintenance, all the properties that belong to me, that is, all the immovable and movable

properties in these villages, namely, Vellam, Vadakkumangalam and Mazhayur, shall after my lifetime be enjoyed by you with powers of alienation

by gift, mortgage, sale, etc., and after you, the properties then remaining shall, according to the wills executed by me on 25th July, 1917 and 21st

November, 1917, be held and enjoyed by our daughter, Kuppammal, with powers of alienation by gift, mortgage, sale, etc.

On the date of his death Chinnammal, Kuppammal and Rangaswami Naidu were alive. Kuppammal died first in 1924 leaving a daughter

Vijialakshmi who died six months later. Chinnammal died after June, 1927, having before her death executed three deeds of settlement dated 1st

June, 1927, in and by which she disposed all the properties that were bequeathed to her under the said will in favour of defendants 1 to 3,

defendants 1 and 2 being her brothers and the third defendant being her sister''s son-in-law. ''The plaintiff is an alienee of a fourth share of the said

properties from the seventh defendant who claims to succeed thereto on the ground that after the death of Chinnammal he became entitled thereto.

His case is that Chinnammal had only a life interest in the said properties and his wife Kuppammal had a vested remainder and that vested

remainder on her death vested in her daughter Vijialakshmi and on the latter''s death vested in him as her father. The questions for decision in this

case are, what is the nature and extent of interest taken by Chinnammal under the will and whether the deeds of settlement executed by her are

valid. If they are yalid, the plaintiff''s suit fails because no interest would vest in the seventh defendant capable of being disposed of by him. The

learned District Munsif was of the opinion that Chinnammal had only a life interest in the said property and the settlement deeds executed by her

were invalid. The learned Subordinate Judge reversed this decision holding that Chinnammal took an absolute estate and she was competent to

dispose of the properties bequeathed to her under the will. It is against this decision this second appeal has been preferred by the plaintiff.

Mr. Rajah Aiyar who appeared on his behalf contended that the will conferred only a life interest on Chinnammal and the gift over in favour of

her daughter took effect. The contention of Mr. T.M. Krishnaswamy Aiyar on behalf of defendants 1 and 2 is that Chinnammal took an absolute

estate or a life estate with a power of appointment and in either case the settlement deeds were valid. The question is which of these contentions is

right. Both the learned Counsel relied upon a number of cases, English and Indian, in support of their respective contentions. Before I deal with the

said cases, it is better to remember the rule so often laid down that each will must be construed by itself and all the light that can be got from the

decisions serves only to show in what manner the principle of reasonable construction have by Judges of high authority been applied to cases more

or less similar--vide the observations of Lord Chancellor Selborne in Waite v. Little-wood (1872) 8 Ch. Ap. 70 . Therefore without reference to

cases it is the duty of the Court to ascertain what is the expressed intention of the testator and whether, there is anything in law to preclude effect

being given to the said intention. The intention has to be collected from the words used in the will having regard to the facts and circumstances

respecting persons to which the will relates. The question therefore is, what is the nature and extent of interest conferred on Chinnammal under the

terms of Ex. III which is the last will and testament? The language used is:

shall after my lifetime be enjoyed by you with powers of alienation by gift, mortgage, sale, etc. and after you, the properties then remaining shall,

If the testator had died intestate Chinnammal would have inherited his property and taken a widow''s estate therein. She would be the owner for

the time being with a restricted power of alienation, which restriction could only be removed by a power of alienation conferred by her husband.

The power of alienation may be partial or absolute. Where he confers an unrestricted absolute power of alienation, she will take an absolute estate

unless he intended to confer on her, by the language used by him a life estate with such a power. Whatever may have been the view taken in some

of the early decisions in regard to the nature of the interest taken by a Hindu widow under a husband''s gift or will, since the decision of the Privy

Council in Surajmani v. Rabi Nath Ojha (1907) 18 M.L.J. 7 : L.R. 35 IndAp 17 : ILR 30 All. 84 , it is settled law that:

If words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express

and additional terms, unless the circumstances or the context were sufficient to show that such absolute ownership was not intended."" (Bhaidas

Shivdas v. Bai Gulab (1921) 42 M.L.J. 385 : L.R. 49 IndAp 1 : ILR 46 Bom. 153 )

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 principle

is sustained on various grounds, such as public policy or repugnancy to the prior estate. It is well expressed by Lord Justice James in In re

Stringer''s Estate: Shaw v. Jones-Ford (1877) 6 Ch. D. 1

It is settled by authority that if you give a man some property, real or personal, to be his absolutely, then you cannot by your will dispose of that

property which becomes his. You cannot say that, if he does not spend it, if he does not give it away, if he does not will it, that which he happened

to have in his possession, or in his drawer, or in his pocket at the time of his death, shall not go to his heir at law if it is realty, or to his next of kin if

it is personalty, or to his creditors who may have a paramount claim to it. You cannot do that if you once vest property absolutely in the first

donee. That is because that which is once vested in a man, and vested de facto in him, cannot be taken from him out of the due course of

devolution at his death by any expression of wish on the part of the original testator.

In short, a man cannot create a new course of devolution when a gift is made. The question therefore is whether there is anything in the will

which would prevent effect being given to the language employed by the testator which ''prima facie confers an absolute estate. It is no doubt true

that although the words are absolute in the first instance, subsequently occurring words may be sufficiently strong to cut down the absolute interest

to a life interest. Vide In re Jones : Richards v. Jones (1898) 1 Ch. 438 . But before this is done there must be words sufficiently precise and

certain to cut down the said interest, it may at once be stated that there are no words in the will in question conferring expressly an heritable estate

nor are there words limiting the gift to a life interest or otherwise, but there are words of wide amplitude to make the estate absolute and therefore

heritable. Mr. Rajah Aiyar however relied on the following circumstances in support of his argument that what was intended to be conferred was

only a life estate; (1) the reason given by the testator for making a provision in favour of his wife is that no-mention was made about her

maintenance in the prior wills; the use of the word ""maintenance"" is strongly relied on for the purpose of indicating that it is only a very limited

interest that was sought to be conferred on the widow and the power of disposal conferred on her is qualified by this word ''maintenance'' so that

whatever power she might exercise she could only do for the purpose of maintaining herself; (2) the gift over in favour of the daughter:

After you, the properties then remaining shall, according to the wills executed by me on 25th July, 1917 and 21st November, 1917, be held and

enjoyed by our daughter Kuppammal with powers of alienation by gift, mortgage, sale, etc.

The argument based on this clause is that the gift over cannot be given effect to unless the prior estate is construed to be a life estate; and (3)

having regard to the prior two wills in which the words ''from generation to generation'' are used in connection with the bequest in favour of the

daughter and the absence of such expression in the bequest in favour of Chinnammal would connote that what was intended to be conferred on

Chinnammal could only be a life interest and what was conferred on the daughter was an absolute heritable interest.

In regard to the first ground urged by Mr. RajahAiyar based on the use of the word ''maintenance'', the context clearly indicates that the words

are only expressive of the motive of the gift and did not cut down the interest intended to be conferred on her. Though the testator gave a reason

for making provision for her, namely, that he omitted to make any provision in the prior wills for her maintenance, the operative portion of the gift is

absolutely clear. The power of alienation is not qualified or restricted to any limited purpose: it is unrestricted. In Jogeswar Narain Deo v. Ram

Chand Dutt (1896) 6 M.L.J. 75 : L.R. 23 IndAp 37 : ILR 23 Cal. 670 , where a testator gave a bequest to his widow and son stating the object

of the gift to be for their maintenance, having regard to the unrestricted power of alienation given in the later clause of the will, their Lordships of the

Privy Council were not inclined to restrict the extent of the interest conferred by the mere fact that the object was stated to be for their

maintenance. Lord Watson says:

These words are quite capable of signifying that the gift was made for the purpose of enahling them to live in comfort and do not necessarily mean

that it was to be limited to a bare right of maintenance."" (Vide also Hilalsing Govinda Patil Vs. Udesing Vithal, .)

The case in In re Fox : Fox v. Fox 62 L.T. 762 is distinguishable. The power to use and enjoy the property was expressly qualified by the

words ""for her maintenance during her lifetime"".

I shall now deal with the second ground urged by Mr. Rajah Aiyar, namely, the argument based on the gift over in favour of the daughter. His

contention is that the gifts both in favour of the wife and in favour of the daughter should be construed together and it must be inferred that what

was intended to be conferred was a life interest in favour of the wife. In the first instance, the two gifts are independent gifts. The two clauses

cannot be read together as forming one gift. Secondly, the fact of a mere gift over should not be taken to cut down a prior absolute interest. The

question therefore is, was there an absolute gift to the wife; if so, no question arises with reference to the gift over. It is in this connection that the

question arises whether there is anything in the context or in the surrounding circumstances which would show that the testator while giving power

of disposition did not intend to confer an absolute estate in the sense that she would take also a heritable estate. One cardinal rule of construction in

construing a will is to give effect to every word in the will and try to effectuate the intention of the testator as far as possible and not frustrate it. As

observed by Joyce, J., in In re Sanford : Sanford v. Sanford (1901) 1 Ch. 939

The rule is to construe a will ut res magis valeat quam pereat,... in a case of obscurity or ambiguity, even when the question is one of invalidity on

the ground of remoteness, repugnancy, or the like, weight may be given to the consideration that it is better to effectuate than to frustrate the

testator''s intention.

In this connection the arguments of Mr. Rajah Aiyar based on the absence in Ex. Ill of the words ''from generation to generation'' used in the

wills Exs. I and II may be relevant. In the gift over it is clearly stated that the property should be held and enjoyed by the daughter according to the

wills executed by him on 25th July, 1917 and 21st November, 1917, with full powers of alienation. The use of the words ''according to the wills

executed by him'' would show that in the case of the daughter he meant to have a heritable estate to be enjoyed by her from generation to

generation; therefore, if the will were to be construed by giving Chinnammal a life estate with an absolute power of appointment the intention of the

testator will be effectuated rather than frustrated. In this view Chinnammal 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 Aiyar contends that

either the estate conferred must be an absolute estate of a life estate and to construe a disposition as a 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 Aiyar 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 is conferred is not property but power. The distinction between a power of

appointment over property and property has always been well recognized - vide Ex parte Gilchrist: In re Arpistrong (1886) 17 Q.B.D. 521 ""No

two ideas can well be more distinct the one from the other than those of ''property'' and ''power'',"" as Lord Justice Fry points out in the same case

at page 531. Both in England and in India it is well settled that it is open to a person to make a disposition of the property either inter vivos or by

will so as to confer on a donee a life estate with a power of appointment - vide In re Stringer''s Estate : Shaw v. Jones-Ford (1877) 6 Ch. D. 1, re

Sanford: Sanford v. Sanford (1901) 1 Ch. 939, Saroda Sundari Dassi v. Kristo Jiban Pal 5 C.W.N. 300 and S.M. Hara Kumari Dasi v. Mohim

Chandra Sarkar 12 C.W.N. 412.

Mr. Rajah Aiyar relied on a number of cases where a distinction is drawn between cases where a power of testamentary disposition is

conferred and where no such power is conferred for indicating that what was conferred on Chinnammal was only a life estate limited to enjoyment

in specie for the bare purpose of maintenance. Having regard to the construction placetl by me that the power of disposition conferred in this case

would include a testamentary disposition and having regard to the fact also that the dispositions in this case were all inter vivos, I think it

unnecessary to deal with those cases. I also think it unnecessary to deal with the question regarding the nature of the estate taken by a Hindu

widow on whom the widow''s estate with an absolute power of alienation is conferred based on the decision in Thayalai Achi v. Kannammal 12

C.W.N. 412 and whether in such a case a gift over will be valid. In this case whatever view is taken, whether it is an absolute estate conferred on

Chinnammal or only a life estate with a power of appointment or a widow''s estate with a power of appointment, the deeds of settlement are valid.

The result is that the plaintiff''s suit fails and the second appeal is dismissed with costs.

Leave to appeal granted.