C.S. Visalakshmi Amma and another vs C.Y. Anjaneyalu Chetty and others

Rajamanner, C.J.—These two appeals are from the judgment of Rajagopala Ayyangar, J., disposing of two suits filed on the Original Side of this Court, C. S. No. 45 of 1954 and C. S. No. 55 of 1954 respectively. The two suits were tried together, as they involved common questions of fact and law. One Chinni Yellamanda Chetty died at Madras on 21st September 1923, leaving behind him two minor sons, Anjaneyaiu Chetty and Sanjeevi Chetty. On 14th July 1923, he executed a deed of settlement (Ex. P-1) and a will (Ex, P-2). As the decision of these appeals depends on a construction of the terms and provisions of the said settlement and will, it is necessary to set out the material portion of the two documents. The deed of settlement was apparently first executed, because the will makes a reference to it. The subject matter of this deed consists of two schedules A and B of immovable properties and two sums of Rs. 50,000 each. The immovable properties and the two sums of Rs. 50,000 were transferred under the deed to two trustees, namely, Vattam Gopal Chetty and N. Singaram Pillai. The preamble to the deed runs as follows:

Whereas for and in consideration of the natural love and affection which the settlor has unto the beneficiaries, the settlor is desirous of making a settlement of a portion of his properties giving a life estate in a moiety there of to each of his sons the above-said beneficiaries and the residuary estate in each of the said moieties to the sons and grandsons of each of his two sons who may be alive at the date of the death of each of his said two sons in such shares and in manner as hereinafter set out.

The two beneficiaries are the two sons of the settlor mentioned above. The operative portion runs thus:

The trustees shall hold the items of immovable properties and the two sums of Rs. 50,00 invested in their names which the firm of Messrs. V. Kanakiah Chetty & Co. (Hardware), set out in Schedules A and B hereto in trust for the use and benefit of each or the two sons of the settlor respectively for life and the residue absolutely for the use and benefit for their and each of their sons and grandsons who may be living at the date of death of each of the said two sons in such shares and in such manner as hereinafter set out.

The deed of settlement provided that the trustees shall maintain separate accounts in respect of the two schedules (A and B) of properties and that they shall collect the rents, income etc., from the said properties and the income or interest on the two sums of Rs. 50,000 be invested in the names of the trustees in the firm of Kanakiah Chetty & Co., Hardware merchants, and the income and profits of investments which the trustees may make during the minority of each of the settlor''s two sons, and shall, from out of the net receipts from the properties in schedule A and of any investments made by the trustees in respect of the said properties, pay a sum of Rs. 250 per mensem for the maintenance of Anjaaeyalu Chetty, and similarly, out of the net income from the B schedule properties and of any investments made in respect of the said properties, pay a sum of Rs. 250 for the maintenance of Sanjeevi Chetti. Then follow detailed provisions describing the interest to be taken by the two sons respectively. Paragraph 5 deals with Sanjeevi Chetty. It is in the following terms:

The Settlor does hereby grant unto Chinni Sanjeevi Chetti (the second beneficiary above-named for life the B schedule properties and the other sum of Rs. 50,000 only invested in the names of the trustees in the books of Messrs. V. Kanakia Chetty & Co. (Hardware), as hereinbefore mentioned and the properties which may be purchased and any investments which may be made with the income, receipts and profits of the said properties and of the said money with the right to enjoy the income or profits from the said properties during his life but with no right to alienate, dispose of or deal with the same or any of them or part thereof, either by way of mortgage or tale or in any other manner either inter vivos or by the testamentary instrument. On the death of Chinni Sanjeevi Chetti, the sons and grandsons of any predeceased son or sons of the said Chinni Sanjeevi Chetti who may be alive at date of death of the said Chinni Sanjeevi Chetty shall take the said properties absolutely in such shares as they would under Hindu Law be entitled, that is to say, the grandson or grandsons of any predeceased son or sons of the said Chinni Sanjeevi Chetti shall be entitled to the share to which such predeceased son or sons of the said Chinni Sanjeevi Chetti would be entitled if he were alive at that date.

The following directions are given to the trustees to be carried out on Sanjeevi attaining the age of majority:

The said trustees shall, on the attaining of the age of majority of Chinni Sanjeevi Chetti, the second beneficiary deliver to him the B schedule properties and the mortgages or other securities standing in their names as such trustees as aforesaid in respect of the properties vested in them as trustees for the properties set out in schedule B hereto together with any cash that may remain in their hands from and out of the rents and profits collected by them from the items of immovable properties described in schedule B and from the receipts, income, interest out of the investments made by the trustees aforesaid and shall further execute the necessary instruments in writing, transferring unto said Chinni Sanjeevi Chetti a life estate in the said properties and the remainder to be held by the said Chinni Sanjeevi Chetti in trust for the absolute use of his sons and the grandson or grandsons of any predeceased son or sons of the said Chinni Sanjeevi Chetti who may be alive at the date of death of the said Chinni Sanjeevi Chetti in such shares to which on any intestacy they would be entitled under Hindu Law, that is to say, the grandson or grandsons of any predeceased son or sons would take the share which such predeceased son or sons would take if he were alive on the date of death of Chinni Sanjeevi Chetti, and the trustees shall further render an account to the said Chinni Sanjeevi Chetli in respect of their administration of the properties set out in Schedule B hereto and the mortgages or other securities standing in their names.

In and by the will, Chinni Yellamanda Chetti appointed the two trustees under the settlement as executors. Paragraph 3 of the will refers to the deed of settlement. As some reliance was placed on this paragraph, it is necessary to set it out:

I have caused to be entered in the books of account of Messrs. V. Kanakiah Chetty & Co. (Hardware), the two sums of Rs. 50.000 in the names of Vattam Gopal Chetty and N. Singaram Pillai, the executors above named, to be held by them in trust for the uses and purposes set out in a deed of settlement this day executed by me. I have by the said deed of settlement transferred and conveyed unto Vattam Gopal Chetty and N. Singaram pillai as trustees, certain items of immovable properties and the two sums of Rs. 50,000 to have and to hold the same in trust for the uses and purposes set out in the said deed of settlement and the same do not now form part of my estate.

Paragraph 19 is the only other provision of the will, which it is necessary to extract:

That on the younger of my said two sons attaining the age of majority my executors shall, by an appropriate instrument in writing, transfer unto each of my said two sons one moiety of the movable and immovable properties, securities and other outstandings vested in them as executors under the will, to be held by them, each of them in trust for the uses and purposes, and subject to the terms and conditions hereinafter appearing, that is to say, each of my said sons shall take a life estate in the properties respectively transferred and conveyed to them as aforesaid, the sons and the grandsons by any predeceased son or sons of each of my said two sorts Chinni Anjaneyalu Chetty and Chinni Sanjeevi Chetty shall take absolutely the residuary estate in the properties respectively transferred and conveyed to each of my said two sons; the grandson or grandsons by any such predeceased son or sons of each of my said two sons, shall take the same share to which on an intestacy they would be entitled under the provisions of the Hindu Law, namely, the grandson or grandsons of such predeceased son or sons being entitled to the share or shares to which such predeceased son or sons would be entitled if he were alive on that date.

The executors were also constituted trustees to hold the residue of the testator''s properties in trust as guardians of the property for the two sons.

It is common ground that, in accordance with the directions in the settlement deed, the trustees transferred the properties set out in Schedules A and B to Anjaneyulu Chetty and Sanjeevi Chetty respectively, on their attaining majority. Sanjeevi died on 19th December 1952, leaving behind him his widow, Visalakshmi Ammal, and two daughters. But he left no male issue. On 24th August 1953, Visalakshmi, in pursuance of an authority alleged to have been given to her by her husband, took a boy, Ramakrishna by name, in adoption. Disputes arose between Visalakshmi and Anjaneyalu, regarding rights to the properties which had been in the possession and enjoyment of Sanjeevi. Anjaneyalu contended that, under the deed of settlement and the will, Sanjeevi had merely a life interest and that the remainder was to be taken only by such male issues of Sanjeevi as were alive at the time of his death, and that, as Sanjeevi died without male issue, the properties in which Sanjeevi had a life interest reverted to Yellamanda Chetty, and that he (Anjaneyalu) became entitled to the same as the next heir of his father. Visalakshmi, on the other hand, contended that, on a proper construction of the settlement deed and the will, Sanjeevi became entitled to the properties absolutely, and that, on his death, she and the adopted son became entitled to succeed to them. It may be further mentioned that Anjaneyalu challenged the validity of the adoption made by Visalakshmi on the ground that her husband had not given her the requisite authority to adopt. Thereupon, Visalakshmi, on her behalf and as the next friend of the adopted son, Ramakrishna, instituted a suit (C. S. No. 45 of 1954) on 7th January 1954 for the administration of the estate of Sanjeevi. To this suit, Anjaneyalu and his adopted son and the various creditors of Sanjeevi were made parties. Anjaneyalu and his son filed a written statement, putting forward their contention mentioned above and refuting the claim made by Visalakshmi on the basis of the construction of the settlement deed and the will already referred to.

On 3rd February 1954, Anjaneyalu and his minor son, represented by Anjaneyalu, filed a suit, C. S. No. 55 of 1954, against Visalakshmi and the adopted son (Ramakrishna) for the following reliefs, namely, that the alleged adoption of Ramakrishna by Visalakshmi was invalid and for recovery of possession of the properties which had been in the possession of Sanjeevi in accordance with the provisions of the settlement deed and the will.

The following were the main issues in the two suits:

(1) Whether the plaintiffs (Visalakshmi and Ramakrishnan) or first and second defendants (Anjaneyalu and his son) are entitled to the properties set out in Schedule 1 of the plaint on a true construction of the will and deed of settlement of Yellamanda Chetty-

(2) Whether the first plaintiff became the heir to the properties set out in Schedule 1 by virtue of the provisions of the Indian Succession Act and Hindu Women''s Rights to property Act, as alleged in paragraph 10 of the plaint.

(3) Had the first plaintiff oral authority to adopt the second plaintiff as alleged in paragraph 9 of the plaint.

(4) Is the adoption by the first plaintiff of the second plaintiff on 24th August 1953 true and valid ?

(5) Did the property set out in Schedule 1 of the plaint become the undisposed of residue of Yellamanda Chetti on the death of Sanjeevi Chetty and did they become vested in the first and second defendants as alleged by them in their written statement?

(6) If the adoption is true and valid, (a) is the second plaintiff not the son''s son of Yeliamanda Chetty within the meaning of the settlement deed and the will; (b) if issue 5 is found in the affirmative and the estate is found to be vested in the first and second defendant before his adoption as alleged by the defendants, is the second plaintiff not entitled to divest the same?

The learned Judge held that the estate which Sanjeevi got under the settlement and the will was merely one for life, that, on the termination of this interest on his death, there is a resulting trust or resulting intestacy, that the properties covered by the settlement and the will in regard to the dispositions, which are the subject matter of the suit, would vest in the heirs of Yellamanda Chetty, that Visalakshmi had oral authority from her husband to make an adoption, that the adoption was true and valid, that, however, the adopted son was not entitled to claim as a named donee under the settlement of the Will and that the properties in suit became re-vested in Yallamanda Chetty, and after his death in 1923, Sanjeevi should be deemed to have become entitled to the reversion in regard to one half of the properties disposed of in his favour by the settlement and the will, and that the persons who would be his heirs on his death would succeed to that moiety, with the result that Visalakshmi and the adopted son, Ramakrishna, were entitled to share the said moiety between the two by reason of the provisions of the Hindu Women''s Rights to Property Act. It followed from these findings that Anjaneyalu was entitled only to one half of the properties derived by Sanjeevi under the will and the settlement. Following the judgment, it was decreed that Visalakshmi and Ramakrishna were entitled to one half of the properties in schedule 1 to the plaint in C S. No. 45 of 1954, which is the same as the Schedule to the plaint in C. S. No. 55 of 1954, and to have the share divided by metes and bounds. For this purpose, the matter was referred to the Official Referee for submitting a report regarding the scheme of division. For the disposal of the other issues, the suit was posted for further hearing. The two appeals by Visalakshmi and Ramakrishna, now before us, are from the said judgment and decree.

Two memoranda of cross-objections have been filed by Anjaneyalu and his son, in which they deny the right of Visalakshmi and Ramakrishna even lo the moiety decreed in their favour.

We shall first briefly dispose of the claim based on the adoption of Ramakrishna. Here, it must be mentioned that Mr. R. Gopalaswami Ayyangar, learned Counsel for Anjaneyalu. intimated to us that he was instructed to challenge the finding of the learned Judge that the adoption of Ramakrishna was valid. But, after we had indicated to them our view that, even assuming that Ramakrishna was validly adopted, he would not take directly under the settlement and the will," learned Counsel on both sides agreed that the validity of the adoption might be left open. We accordingly did not hear arguments on that point.

On a construction of the material provision of the settlement deed, we are clearly of opinion that a boy adopted after the death of Sanjeevi could not take the properties which were in the enjoyment of Sanjeevi during his lifetime. Paragraph 5 of the settlement deed inter alia provides :

On the death of Chinni Sanjeevi Chetty, the sons and the grandsons of any predeceased son or sons of the said Chinni Sanjeevi Chetti who may be alive at date of death of the said Chinni Sanjeevi Chetti shall take the said properties absolutely in such shares as they would under the Hindu Law be entitled to.

It was conceded by learned Counsel for Anjaneyalu that the category of sons mentioned in this clause would include adopted sons. One can appreciate this concession, because Anjaneyalu himself has only an adopted son. But the real question is whether a boy adopted after the death of Sanjeevi can be said to be a son who was "alive at the date of the death of the said Chinni Sanjeevi Chetti." It was not disputed before us that a posthumous sou of Sanjeevi would take under the provision, because a child in the womb of the mother is regarded, according to Hindu Law, as being in existence from the moment of conception. But this will not help the appellants, though it was pointed out that the adoption of Ramakrishna was made within the period of natural gestation. It may be recalled that Sanjeevi died on 29th December 1952 and the adoption was made on 24th August 1953. If it had not been an adoption, but a natural birth, then, the son must be deemed to have been conceived during Sanjeevi''s lifetime. But we are unable to apply this doctrine to an adopted son, because the foundation of fact, on which the doctrine is based, is wanting in the case of an adopted son. Reliance was placed on behalf of the appellants on the decision of the Privy Council in Pratapsingh Shivasingh v. Agarsingji Rajasangji ILR 43 Bom. 778. The relevant facts in that case were: The Thaker of Gamph had granted to a junior member of the family a village for jivai, that is, for maintenance, "to be held and enjoyed, so long as the grantee''s male line lasted." The last owner died without male issue in 1903; but, he left a widow, who continued in possession of the village, and, on 12th March 1904, adopted a son to her husband. It was held that the grant did not revert to the Thaker, but was inherited by the adopted son. The Judicial Committee of the Privy Council held that the rights of an adopted son, unless curtailed by express texts, are in every respect the same as those of a natural born son, and an adoption, so far as the continuity of the line of inheritance is concerned, has a retrospective effect; "whenever the adoption may be made, there is no hiatus in the continuity of the line". The material provision in the grant in that case was that the village was to be held and enjoyed, so long as the grantee''s male line lasted. It was contended before Their Lordships that, on the death of the last holder in the case of a jivai grant, the property immediately reverted to the grantor and there was no property left for the adopted son to take. Dealing with this contention, they referred to the case of a posthumous son who would certainly prevent the reversion. Therefore, it could not be said that, immediately on the death of the last holder, there would be reversion. Their Lordships then went on to say as follows:

Here, the adoption was made within the period of natural gestation, and the property was at the time of the adoption in the possession of the widow and stilt is in the possession of the adopted son. It may be that, if a Hindu widow lives by for a considerable time and makes no adoption, and the property comes into the possession of some one who would take it in the absence of a son, natural or adopted, and such person were to create rights in such property within his competency whilst in possession, in such a case totally different considerations would arise. But here, there is nothing of the kind to modify the true application of the Hindu Law.

In our opinion, the decision of the Judicial Committee in that case has no application to the case before us. In the first place, the case before the Privy Council is a case of inheritance. On that reasoning, the adopted son even here will be entitled to inherit the ancestral property. But we are here construing the language of the settlement deed. We agree with the learned trial Judge that the fiction of retrospective existence cannot be availed of in the construction of the words in an instrument of transfer or a testamentary disposition. Ramakrishna was certainly not a son alive at the date of the death of Sanjeevi. He cannot therefore lay any claim to the property under the settlement deed or will.

We shall now deal with the main question in these appeals to the amplitude of the estate taken by Sanjeevi under the will in the circumstances which have happened. It was agreed by learned Counsel on both sides, that, ultimately, the decision of this question would depend upon a proper construction of the language of the material provision in the settlement deed. We entirely agree with the following observations of the learned Trial Judge, with which he prefaced a discussion of some of the decisions cited to him:

The question wholly turns on the proper construction of the particular document in the case, and so, other decisions in which other instruments have been interpreted are really not of much assistance, and it is rather the impression which one forms of the intention of the settlor or the testator as the case may be, of the entire settlement or will before the Court read in the context of the circumstances surrounding this disposition that should ultimately furnish the answer.

Mr. K.V. Venkatasubrahmanya Ayyar, learned Counsel for the appellants, in an able and exhaustive argument, referred us to several decisions of the English Courts, which according to him, lay down a rule of construction which is properly applicable to the provisions of the settlement deed. As an introduction to the cases, he first referred us to S. 139 of the Indian Succession Act and the illustrations to that section as an embodiment of the rule on which he placed reliance. S. 139 of the Indian Succession Act runs thus:

Where a testator absolutely bequeaths a fund, so as to sever it from his own estate, but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a specified benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him as if the will had contained no such direction.

The following are the two illustrations:

(I) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the shares of the daughters shall be settled upon themselves respectively for life and be paid to their children after their death. All the daughters die unmarried. The representatives of each daughter are entitled to her share of the residue.

(II) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the fund and pay the income arising from it to her during her life, and divide the principal among her children after her death. The daughter dies without having ever had a child. Her representatives are entitled to the fund.

The first and earliest of the decisions cited by Mr. Venkatasubrahmanya Ayyar was that of Sir Thomas Plumer, M. R. in Whittell v. Dudin 22 RR, 124. There, the testator after bequeathing certain legacies, made the following disposition regarding the residue:

And as to all the rest, residue, and remainder of my estate and effects whatsoever and of what nature or kind the same may be, I give and bequeath the same and every part thereof, unto, and equally between and among my said wife and my said sons and daughters; subject, nevertheless, as to the parts and shares of my said daughters respectively, which are to be placed and continued in the funds on Government securities, in the names of my said trustees, or the survivors or survivor of them, and the executors and administrators of such survivor; and the dividends, interest, and produce thereof from time to time respectively paid into the respective hands of my said daughters for and during their respective natural lives, and to and for their own respective, sole, and separate use and benefit, to the intent and purpose that the same, or any part thereof, shall not be liable to the debts, control, disposition of their or either of their present or any after taken husband or husbands, but be and remain an unalienable provision to and for them and to and for their and each of their respective, sold, and separate use, and that the receipt and receipts of my said daughters respectively from time to time shall be sufficient discharge or discharges to my said trustees, or the person or persons paying the same; and from and after the deceased of each and every of my said daughters respectively, I give and bequeath the part and share to which my said daughters respectively shall have been entitled, to the interest, dividends, and produce for life as aforesaid, unto the respective child or children of such respective deceased daughter, in equal parts, shares, and proportions, with benefit of survivorship, in case of the death or any or either of them under the said age of twenty-four years, without lawful issue, and if but one such child, then to such only child.

Two of his daughters died without issue. The question was whether the shares of the residue, to the interest of which the daughters who had died without issue, were entitled for their lives, passed to their husbands as their representatives or to the next of kin of the testator, as undisposed of. The contention on behalf of the representatives as can be gathered from the notes of argument, was that the first words of the residuary clause, taken alone, gave the shares absolutely, and that which following was only designed to preserve them from the power of the husbands, and to secure the benefit of the bequests to his daughters and their children. It was held that the deceased daughter''s representatives were entitled to their shares. The learned Master of the Rolls confessed that the construction was not entirely free from doubt and the impression on his mind varied in the progress of the argument. He therefore endeavoured to find out as well as he could, the intention imperfectly expressed. To ascertain that intention, it was necessary to consider not only what the testator intended to happen in the event of the daughters having children, but also what he intended in the other event of their not having any, for, it must be supposed that he looked forward to both events. The question which he then posed was whether the testator intended to leave the latter event unprovided for, or to cover it by any of the provisions in the will. After stating that intestacy should not be imputed to the testator if the words were sufficient to avoid it, the learned Master of the Rolls proceeded to analyse the different parts of the gift of the residue. The first and foremost feature in the scheme of the disposition of the residue, on which he stressed, was that, in the beginning of the clause relating thereto, the testator declared a general purpose of equality between and among his wife and sons and daughters. "Stopping here (not in the construction, but for the sake of observing the intention", he says, "it is evident that the sons and daughters were all to enjoy equal shares, without any distinction/between the sexes; none taking a larger proportion, or a larger interest, than the others". One thing was clear, namely, that he meant to give an absolute interest to the widow and the sons; and if all were to be treated alike, the idea was that the daughters were to take the same interest. It is this element of equality which the learned Master of the Rolls again emphasises in the latter part of his judgment, where he says thus:

It is difficult to conceive it possible that the parent of two married daughters, having at that time no children, should take it to be certain that they must have children. And how can we suppose, equality being his object, that he meant their shares, if they died without issue, to devolve upon the others. Could he have intended such a disposition, destroying all equality ? for the brothers had their shares absolutely, and at all events; the sisters would have it absolutely, if they had children; for giving it to their children, to whom they ought to leave it, is to be considered the same as giving it to them; but if they had no issue, they were only to have a life-interest.

It was improbable that that was the intention. It was possible to reconcile all parts of the will if the shares were deemed to be given equally accompanied with a qualification that was not inconsistent. The adoption of the other construction would convert that which purported to be an absolute gift into a gift for life. The conclusion of the learned Master of the Rolls is thus expressed :

I think that this is the case of a parent professing in the first part of the sentence, to treat all his children equally with respect to the residue, and that the subsequent part is not inconsistent with that design, but is only a cautionary provision, to preserve the benefit of the bequest to the daughter and their children.

It appears clear to us that the ultimate decision of Sir Thomas Plumer M. R. was based on his finding that there was an absolute bequest to the daughters. The subsequent qualification did not detract from the original substantive absolute interest conferred, in the event of the qualification not coming into operation. It is true that the learned Master of the Rolls refers to probabilities, but, at the same time, definitely says, "but we are not to go on probabilities." The decision must depend upon the language of the will. We say this, because, Mr. Venkatasubrahmanya Ayyar strongly relied on the analogy between the facts of that case and the facts of the present case. Yellamanda Chetty might well have expected his two minor sons to grow up, marry and have children. But he certainly ought to have known that either or both of them may die without male issue. This contingency must have been in his contemplation. Why should it be said that he intended to leave this event unprovided for? Certainly, this is an important consideration. But, then, the provision to be applied in that contingency must also be found in the document itself, whether it be a settlement or a will. There are ever so many wills which leave certain contingencies entirely unprovided for, and Courts have been constrained to declare intestacy. In the very beginning of his argument, Mr. Venkatasubrahmanya Ayyar drew our attention to the decision in In re Akeroyd''s Settlement, Roberts v. Akeroyd (1893) 3 Ch. 363, in which it was stated that sometimes when bad drafting has failed to give full effect to the plain intention of the settler, the flaw can be corrected by construction, provided the intention is clear and plain from the document itself. So, after all that is said, it is the document that counts.

The next case which Mr. Venkatasubrahmanya Ayyar cited was Hancock v. Watson (1902) A.C. 14. There, a Will gave residuary personal estate to trustees in trust for the testator''s wife for life and after her death to be divided into five portions which the testator allotted thus: To S. D. (a married woman), I give two of such portions," and directed that the two-fifths allotted to S. D. should remain in trust for her life, for her separate use, and from and after her decease in trust for her children upon attaining 25, if sons, or upon attaining 21 or marriage, if daughters; but, in default of any such issue, the two-fifths to be divided among the children of C, payable to sons at 25, or to daughters at twenty one or marriage. S. D. died without having had a child. At her death, there were children of C, daughters, who had all attained twenty-one or married. It was held by the House of Lords that the whole gift-over on the death of S. D. was void for remoteness, and that, upon her death, there was no intestacy as to the two-fifths, but, that by reason of the invalidity of the gift over on her death, the original absolute gift remained, and upon her death, passed to her representatives. Lord Davay enunciated the following rule as well established :

It is settled law that if you find an absolute girt to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin as the case may be.

The Noble Lord applied this rule to the will before him thus :

In the present case, I cannot feel any doubt that the original gift of two-fifths of the residuary estate to S. D. was in terms an absolute gift to her. The testator uses the words ''I give,'' and speaks of the shares subsequently as ''allotted'' to her....... In other words, as between herself and the estate, there is a complete severance and disposition of her share so as to exclude an intestacy, though as between her and the parties taking under the engrafted trusts she takes for life, only.

In The Attorney-General v. Lloyds Bank Ltd. (1935) A.C. 382, by a deed of settlement, the settler caused to be issued to or transferred into the names of trustees certain shares in a company in trust for all such one or more of her children or remoter issue, or the husbands or wives of the children or remoter issue, as she, the settlor, should by deed removable or irrevocable or by will appoint. By a deed of appointment, she directed the trustees of the settlement to hold the trust fund in trust during her life to accumulate the income and after her death to stand possessed of the trust fund and accumulations in trust for her three named children in equal shares, but so that the share which after her death was to be held for each of the said three children should not vest absolutely, but should be retained by the trustees upon trust during the life of each child to pay to him or her the income of his or her share and after the death of such child to hold that child''s share in trust for the children or remoter issue of that child as he or she should appoint; and in default of such appointment, there were further provisions which are not material. It was held by the House of Lords, on a construction of the deed, that the rule in Lassence v. Tierney (1949) 1 M&G. 551, applied to the settlement and that the three children took absolute and immediate interest in the trust fund (though liable to defeasance). Lord Tomlin thus set out the contention which was accepted by the Noble Lords :

On the other hand, the respondents contend first that the rule commonly known as the rule in Lassence v. Tierney (1949) 1 M&G. 551, approved and applied by your Lordships'' House in Hancock v. Watson (1902) A.C. 14, operates in the present case, with the result that upon the true construction of the appointment there is an absolute initial gift to the three children of the settlor in equal shares, and that the absolute initial gift of each share is only cut down if and when and while there is in existence soma person qualified to take under the trusts of such share declared in derogation of the absolute gift and to the extent necessary to give effect to the rights of such person; and, secondly, that upon this view of the construction nothing passed by reason of the settlor''s death.

The Noble Lord referred to the rule laid down by Lord Devey in Hancock v. Watson (1902) A.C. 14. This is how the conclusion was summed up:

Having regard to the language and circumstances to which I have called attention, I am of opinion that the case is one to which the rule in Lassence v. Tierney (1949) 1 M&G. 551, falls to be applied. Further the result of applying the rule is, I think, that the absolute gift stands, or, to employ Lord Davey''s language, ''takes effect'', except to the extent to which it is cut down by the events which actually happen. At the death of the settlor, nothing had happened to cut down the absolute gifts beyond the fact that all three children were living.

The rule in Lassence v. Tierney (1949) 1 M&G. 551, as re-stated by Lord Davey in Hancock v. Watson (1902) A.C. 14, was again applied by the Court of Appeal In re Burton''s Settlement Trusts (1955) 1 A.E.R. 433. In that case, by a voluntary settlement, the settlor settled certain investments for the benefit of his two daughters, A.B. and I.B. By one of the clauses of the settlement, the investments were transferred to the trustees of the settlement. The trustees were directed upon trust to divide the trust fund or without actual division to treat the same as divided into two equal parts and to appropriate one of such parts as the share of each of the two daughters. Cl. 3 provided that the share of the trust fund of each of the said two daughters was not to vest absolutely in such daughter, but should be retained by the trustees on trust during the life of such daughter to pay the income of such share to her, and, after the death of such daughter, on trust for her issue. Both the daughters died unmarried. It was held by the Court of Appeal, reversing the decision of Roxburgh J. In re Burton''s Settlement Trusts (1954) 3 A.E.R. 23, that on the construction of the settlement, Cl. 2 gave to each of the daughters an absolute beneficial interest in one half of the trust fund, subject to the trusts which were engrafted on those absolute interests by the subsequent clauses; and, applying the rule in Lassence v. Tierney (1949) 1 M&G. 55, and Hancock v. Watson 1902 A.C. 14, 22, it followed that, in the events which had happened, the engrafted trusts had not exhausted the whole beneficial interest in the fund and the original absolute gift in favour of the two daughters remained and there was no resulting trust for the representatives of the settlor. Sir Raymond Evershed, M.R., at the outset posed the question thus:

The question in this case is one of the construction of the particular document, viz, on its true construction, is there here to be found a disposition, absolute in character, first made in favour of the two persons named in the settlement and only qualified to the extent of the detailed and more limited trusts which follow?

After citing passages from Hancock v. Watson 1902 A.C. 14, 22, and A.G. v. Llodys Bank Ltd. 1935 A.C. 382, 394, he came to the conclusion that there was a gift in the first intense to the two daughters, absolute in form, "but only limited, to the extent of the continuing availability of the trusts expressed in the following clauses.

Jenkins, L.J., states the question in the case as follows:

Whether, on its true construction, the settlement of April 10, 1919, gave to the two daughters of the settlor absolute interests in equal shares in the trust fund subject to trusts engrafted on those interests, which, in the events which happened, did not exhaust the whole beneficial interest in the fund, or whether the only interests given to the daughters were limited interests which did not exhaust the whole beneficial interest.

The learned Lord Justice then proceeds to discuss whether it is a settlement, which, on its true construction, attracts the rule in Hancock v. Watson 1902 A.C. 14, 22. At the outset, this is what he says:

In order that this rule may apply, it is necessary to find in the will or settlement an absolute gift of the property in question. And he finds such an absolute gift.

Mr. K. V. Venkatasubrahmanya Ayyar cited to us the decision of this Court in Soundararajan v. Natarajan 44 Mad. 446=13 L.W. 662. In that case, a testator executed a will, directing the formation of a fund for the payment of a monthly sum to his widow during her life and providing that the residuary trust funds be vested in trustees in trust to apportion the fund into as many equal shares as there may be daughters of his, living at the time of his decease, or, who having predeceased shall have left issues her or them and him surviving, and to pay the income of each equal share to his said daughters respectively during their lives and thereafter to stand possessed of the share in trust for all the children of the deceased daughter who shall attain the age of twenty one in equal shares, etc. Some of the grand children were born before the testator died. It was held that the bequest in favour of the whole class of grand-children failed, and that, on the true construction of the provisions of the will, there was a clear intention to confer an absolute estate on each of the daughters and consequently on the failure of the bequest to the grandchildren, the original absolute gift in favour of each of the daughters remained good, and the share of each of the daughters passed on her death to her heirs. The learned Judges purported to apply the rule laid down in Lassence v. Tierney (1849) 1 M&G 551 embodied in S. 126 of the Indian Succession Act (Act X of 1865). The actual decision in the case was reversed by the Privy Council in Soundararajan v. Natarajan 48 Mad. 906 at 915 (P.C.). Their Lordships of the Judicial Committee held that the will read as a whole did not show an intention that the daughters should take an absolute estate in the shares, and that consequently S. 126 of the Succession Act of 1865 did not apply, therefore there was an intestacy as to the residuary trust fund. Though the Privy Council disagreed with this Court as to the construction of the provisions of the will, learned Counsel invited us to the propositions set out by Ramesam, J., on a consideration of several decisions of the English Courts, including Lassence v. Tierney (1849) 1 M&G 551, Hancock v. Watson 1902 A. C. 14 and Whittell v. Dudin 22 RR 124. The propositions relate to the application of the rule in Lassence v. Tierney (1849) 1 M&G. 551 embodied in S. 126 of the Succession Act (corresponding to S. 139 of the present Succession Act). The propositions, in so far as they are material to the disposal of the case before us, are the following:

(a) Where there is a distinct positive gift of an absolute estate in favour of the prior devisee in terms and the intention is express, the rule certainly applies.

(b) Where the will in terms gives clearly a life estate only, it does not apply.

(c) The difficulty arises only where the words of bequest in favour of the prior devisee are ambiguous and are apparently consistent with either an absolute estate or a life estate, but have to be construed as conferring a life estate with reference to the settlements that follow if an when they are valid. In such a case, if the words of bequest can be construed, apart from the settlements that follows, as conferring an absolute estate and the latter clauses relating to the settlement are used to cut down that absolute estate into a life estate for the purpose of giving effect to them then the rule applied. In all such cases, there circumstances, in the will are taken hold of as a guide, e.g.,

(1) The fact that the prior devisee shall have the income only for his life does not prevent the application of the rule,

(2) The fact that there is a connected series of settlements following the first devisee may be a ground for not applying the rule.

(3) The mere fact that there is a gift over to some person other than a child of the first devisee does not prevent the application of the rule.

(4) Where the gifts over exhaust all possible contingencies, that may furnish a reason for not applying the rule, and if they do not, the rule may be applied.

(5) The fact that the medium of trust was employed by the testator does not matter.

(6) This intention to sever completely from the testator''s estate is an important reason for applying the rule.

(7) There must be some dispositive words in favour of the prior devisee.

(8) The fact that the share allotted to the prior devisee is referred to in the later settlements as his or her share is also a good ground for applying the rule.

In Soundararajan v. Natarajan 48 Mad. 906 at 915 (P.C.) Viscount Haldene thus summed up the rule in Lassence v. Tierney (1849) 1 M&G 551 :

The case of Lassence v. Tierney (1849) 1 Mad. and G. 551 shows that where reading the will as a whole, the intention to confer an absolute estate in the first instance is expressed or implied, and following on that absolute estate there is a provision for settlement which in the event cannot be operative, then the words of prior intention prevail and the absolute estate takes effect notwithstanding the failure of the provision for settlement that follows :

The following analysis of the provisions of the will in that case is very instructive :

Reading the will as a whole, their Lord-ships are unable to agree with the conclusion about the construction of these clauses come to by the appellate Court. They think that the first trust for apportionment directs merely division of the fund into as many equal parts or shares as there are daughters living at the testator''s death, or sets of issue then living of daughters then dead.

The words of apportionment are introduced for merely arithmetical purposes and so far do not dispose of property. In order to find the interest given under the will, it is necessary to proceed to the further words, and these, in a case of a daughter, confine her interest to a right to income for life. They are followed by words of disposition in favour of the children and issue. This view of what may be called the apportionment clause is even more apparent as regards the suggested gift to issue of a deceased daughter. There is no unqualified gift to them by the apportionment clause. Their Lordships are, therefore, unable to find in this will the absolute bequests required by S. 126. They think that the three daughters took only for life.

There can be no doubt that, if at the outset there is an absolute gift in favour of a person and trusts are en-grated to impose a cautionary disability only, then, the rule in Hancock Watson 1902 A.C. 14 will undoubtedly apply. But it is essential that there should be operative words in the will or the deed which would in law have the effect of an initial absolute gift. This is to be found in every decision cited at the Bar. We would briefly run over some of the decisions cited by Mr. K. V. Venkatasubrahmanya Ayyar, apart from those with which we have dealt above in details. In Fyfe v. Irwin (1939) 2 A. E. R. 271 both Lord Russell of Killowen and Lord Romer explained fully the rule in Lassence v. Tierney (1849) 1 Mad. & G. 551 as stated Hancock v. Watson 1902 A.C. 14. They pointed out that the statement of the rule by Lord Cottenham, L. C. in Lassence v. Tierney (1849) 1 Mad. & G. 551 that the engrafted trust should be treated as a restriction of the mode of the legatee''s enjoyment for the benefit of the legatee is too narrow and it is material whether the restriction is imposed for the benefit of the legatee or for the benefit of third parties. The rule is designed to reconcile two inconsistent dispositions, and, in doing so, it limits the modification of the absolute gift to such as is necessary to give effect to the trusts engrafted upon it. At the very opening of the discussion, Lord Russell observes thus:

I am of opinion that, upon its true construction, the will does contain an initial gift of fee to Flora, and that the rule in Lassence v. Tierney (1939) 2 A. E. R. 271 does apply.

So it is the initial absolute gift which is of supreme importance.

In Kellett v. Kellett L.R. 3 House of Lords 160 at 168 the Lord Chancellor (Lord Cairns) said :

It appears to me that, after this the only legitimate subject of injury remaining is this : Was there, in any sense, a gift, by the will to the daughters absolutely, or one in which, in any event, they could have taken an absolute interest.

In Hulme v. Hulme (1839) Ch. 9 S 644-47 RR 326 Shadwell V. C., disposed of the construction of the will before him thus :

By the first operative words, the testator makes an absolute gift to all his children by his second wife, who should be living when the youngest child should attain 21. He then super adds a direction for settling the shares of his daughters. The absolute gift remains, except so far as the direction for settling the shares of his daughters has taken it away; and it is not taken away in the case of a daughter dying without having children.

In Ring v. Hardwick 2 B 352-50 RR 202, Lord Lang-dale, M. R., applied the rule as follows :

I think that there is sufficient to be collected from the prior words in this will to give an absolute interest to the daughters; and those prior words are so connected with what follows as to show that the testator intended a restriction of that absolute interest; and the restriction not having become effectual, the whole interest remained according to the original gift.

In Mayer v. Townsend 3 B 443-52 RR 180, a testator directed his trustees to raise �. 5000 for his daughter and to invest his daughter''s legacy and pay the interest to her for life, for her separate use, and the remainder to her children absolutely. The will contained no ultimate limitation of the property. It was held by the same Master of Rolls that, subject to the interests given to the children, the daughter took an absolute interest, and having died, her personal representatives were entitled to the gift. The basis of the decision was that the legacy given absolutely by the first clause was subject only to the qualifications and restrictions mentioned in the will and to no others, and, as none of these had taken effect, the absolute interest remained in the daughter. Reference was made to the early case of Campbell v. Brownrigg 41 E. R. 646. There, the testator bequeathed a sum of money to his daughter to be employed for her use in a manner following and directed that the fund should be invested and the interest only paid to the daughter during her life, and in case she should marry and have children, then the principal was to be divided amongst such children. The daughter died without children. It was held that her personal representative and not the residuary legatee was entitled to the fund. Lynd-hurst, L. C., thus dealt with the provisions of the will:

''The testator gives and bequeathes to his daughter 50,000 sicca rupees; it is to be employed for her use; and he directs in what manner it shall be so employed. It is to be invested by his executors. She is to receive the interest during her life. If she has children, they are to divide the principal between them after her death. This is the manner in which the legacy given to his daughter is to be employed for her use. There are no further directions. To this extent, the use is controlled, but no further. She takes the gift subject to this restriction; when that ceases, it becomes, or rather remains, by virtue or the gift her absolute and unfettered property.

To the list of the above cases relied on by Mr. Venkatasubramanya Ayyar may be added two other cases relied on by Mr. Gopalaswami Ayyangar for the respondents. The first is the leading case of Lassence v. Tierney 1 Mad. and G. 551-41 E.R. 1379, which has given the name of the rule. The material provisions of the will which had to be construed in that case were: the testator bequeathed to his only daughter the residue and remainder of his property to receive the interest thereof during her lifetime for her sole use and purpose, and provided that she shall not have any power to dispose of any property during her life and that after her death the property should be divided between her children in a particular manner. Cottenham, L. C., stated the rule, upon which the principal question in the case must be decided :

If a testator leave a legacy absolutely as regards his estate, but restricts the mode of the legatee''s enjoyment of it to secure certain objects for the benefit of the legatee-upon failure of such objects, the absolute gift prevails; but, if there be no absolute gift as between the legatee and the estate, but particular modes of enjoyment are prescribed, and those modes of enjoyment fail, the legacy, forms part of the testator''s estate, as not having in such event been given away from it. In the latter case, the gift is only for a particular purpose; in the former, the purpose is the benefit of the legatee as to the whole amount of the legacy, and the directions and restrictions are to be considered as applicable to a sum no longer part of the testator''s estate, but already the property of the legatee. In every case, therefore, the question must be one of construction; and, except for the purposes of such construction, very little assistance can be derived from former decisions. It is, however, obvious that the intention that the gift should be absolute as between the legatee and the estate is, as in all cases of construction, to be collected from the whole of the will, and not from there being words, which standing alone, would constitute an absolute gift.

On a construction of the provisions of the will, the learned Lord Chancellor held that the testator did not intend an absolute gift with directions as to the mode in which the property so given should be enjoyed by the legatee and therefore the rule did not apply. The learned Lord Chancellor could not find an absolute positive gift in the first instance which would bring it within the rule.

The other case cited by Mr. Gopalaswami Ayyangar is Scawin v. Watson 10 Beavan 200, which was one of the cases mentioned by Cottenham, L.C. In that case, there was a bequest to a daughter of �. 1000 stock and �. 70 a year during her natural life, which sums were to be under the trust of the executors who were directed to pay the interest from the �. 1000 to her for life, and, at her decease, to divide it between her children. It was held by Lord Langdale, M. R., that the daughter took for life only and not an absolute interest. He was unable to find any general scheme furnishing him with a key to the construction of the particular bequest, and he was of opinion that there was no absolute gift, having regard to the general purport and effect of the will. The gift amounted to this : "I give �. 1000 to trustees for the benefit of my daughter, to pay her the interest for her life, with remainder to her children after her decease." This grant, the Master of the Rolls said, amounted only to a life interest. It may be mentioned that this decision of the Master of the Rolls was affirmed by Lord Cottenham, L. C.

Having dealt with all the decisions cited at the Bar by learned Counsel, it remains for us to consider the terms of the settlement before us to find out if the settlor can be said to have conferred initially an absolute estate in a moiety of the properties covered by the settlement deed to each of his two sons respectively. It is dear that unless we are able to find such a disposition, the rule in Lassence v. Tierney 1 Mac. and G. 551=41 E.R. 1379 or Hancock v. Watson 1902 A. C. 14 or Whittell v. Dudin 22 RR 124 cannot apply, nor the rule embodied in S. 139 of the Indian Succession Act and the illustrations thereto. We are free to confess that on account of certain unusual features of the terms of the deed, its construction has given us some difficulty. We shall refer to these features. The two sons are described as the " beneficiaries ". The consideration of the deed is stated to be the natural love and affection which the settlor has unto the beneficiaries. The preamble summarises the intention of the settlor, namely, to make a settlement of a portion of his properties giving a life estate in a moiety thereof to each of his sons and the residuary estate in each of the said moieties to the sons and grandsons of each of his two sons who may be alive on the date of the death of each of his said two sons. The properties are conveyed to trustees. They are directed to hold the properties in trust for the use and benefit of each of the two sons for life and the residue absolutely for the benefit of their sons and grandsons. The operative part of the settlement in favour of the two sons is in the following terms :

The settlor does hereby grant upto....for life..... with the right to enjoy the income or profits from the said properties during his life but with no right to alienate, dispose of or deal with the same either inter vivos or by testamentary instrument.

There is then an express gift over thus :

On the death of (the son) the sons and the grandsons of any predeceased son or sons of the said (son) who may be alive at date of death of the said (son) shall take the said properties absolutely.

The trustees are directed to deliver to the respective sons the respective properties allotted to them on their attaining the age of majority. But there is a peculiar provision regarding the manner in which the delivery should be made. The properties are to be conveyed to the respective sons as trustees for their respective sons and grandsons. The trustees are directed to execute the necessary instruments in writing transferring to each son a life estate in their respective properties and the remainder to be held in trust for the absolute use of the sons and grandsons of each of them respectively.

Mr. Venkatasubramania Ayyar was right in submitting that it is not necessary for the application of the rule in Hancock v. Watson 1902 A. C. 14 that there should be an express conferment of an absolute estate in terms usually employed for that purpose. If there is language from which an absolute grant can be inferred or reasonably presumed to have been intended, it is then open to the Court to hold that there is such absolute provision. It is also well established that if there is any ambiguity in the opening clauses of the deed or will, the entire will may be taken as a whole to arrive at a conclusion. We are unable to find any such initial absolute grant in favour of either son. From the preamble down to the last clause of the settlement, the estate conferred on the two sons is described only as an estate for life in unambiguous terms. There are no words from which the grant of an absolute estate can be inferred even by straining the language. In Whittell v. Dudin 22 RR 124 there was at the outset a provision as follows :

And as to all the rest, residue, and remainder of my estate..... I give and bequeath the same and every part thereof, unto and equally between and among my said wife and my said sons and daughters.

In Hancock v. Watson 1902 A. C. 14 the initial bequest was

To S.D....... I give two of such portions.

Subsequently there was a reference to the share allotted to her. In Attorney General v. Lloyds Bank, Ltd. 1935 A.C. 382 394 the trustees were directed to stand possessed of the trust fund in trust for the settlor''s three named children in equal shares. In In re Burton''s Settlement Trusts (1955) 1 A.E.R. 433, the trustees were directed upon trust to divide the trust fund into two equal parts and to appropriate one of such parts as the share of one of each of the two daughters. Similarly in every decision relied upon by Mr. Venkatasubrahmania Ayyar there were words which could be taken as indicating the conferment of an absolute estate. But even after a careful and minute reading of the entire settlement in the present case we are unable to find any words either at the beginning or in any subsequent part of the deed which can reasonably be said to convey an absolute interest to the two sons. The trust in favour of the sons and grandsons of the settlor''s sons is not in the nature of a trust engrafted on an absolute estate but in the nature of a gift over. It is obvious that in the absence of a manifest intention to confer an absolute estate on the sons, and therefore, taking the estate conferred on each of the sons as an estate for life only, it is not possible for the Court to enlarge the estate for life into an absolute estate merely because the gift over has failed. Mr. Venkatasubrahmania Ayyar did not contend that if there is a gift of a property to A for life and after A''s death to B and the gift over in favour of B fails for any reason, then ipso facto A gets an absolute estate.

What we have said above really concludes the matter, but we shall refer to the circumstances and features relating to the settlement in question which were relied upon by Mr. Venkatasubrahmania Ayyar in support of his contention that in the events which have happened Sanjeevi Chetty must be deemed to have taken an absolute estate.

(1) There is a complete severance of the properties covered by the settlement deed from the estate of the settlor. The settlor himself in the will executed by him on the same day said that these properties "do not now form part of my estate." This may be said of every gift or disposition which does not expressly provide for a reverter to the donor or testator or his estate. A person may make a settlement intending that certain beneficiaries should take his property in a particular manner and to that extent it may be said that he has severed that property from his estate. But on account of the failure of the provision made by him, the result may be that the property may revert to him. Every case of intestacy by reason of the failure of particular dispositions made under a will is an illustration of this point. Learned Counsel was apparently seeking to make use of the language of Lord Davey in Hancock v. Watson (1902) A.C. 14, where the noble Lord refers to a complete severance between the testator and one of his daughter, S. D. But there the severance is as between the testator''s estate and S. D. There is no such severance between the two sons and the settlor in the present case because the grant in favour of the sons is only of an estate for life.

(2) Mr. Venkatasubrahmania Ayyar relied on the absence of an alternative disposition on failure of male issue, in support of his contention that the presumed intention of the settlor was to confer an absolute estate on the sons on failure of issue. Learned Counsel stressed on the circumstance that the settlor should have known that either son might have no male issue but he has not provided for that contingency. This line of argument leads us nowhere. If this is a proper aid to construction, then it should follow that in every case where there is a gift to A for life and the remainder to B in a particular contingency, but the gift over to B fails, the life estate given to A should be automatically enlarged. This is certainly not the law. It can be said with equal force that the settlor was aware of the possibility of either son leaving only female issue but evidently the settlor did not intend any part of this property to go to the son''s daughters. There can be no doubt that the settlor knew the general rules of succession and it must not be forgotten that the settlement deed was drafted by an Advocate of this Court. The settlor might well have intended that if either son did not leave any male issue, then the property should devolve according to the general rules of Hindu Law. Indeed in the settlement deed there is mention both of intestacy and Hindu Law.

(3) Mr. Venkatasubramania Ayyar made an ingenious suggestion that the settlor must be deemed to have conferred in each of the sons an estate with the well-known incidents of ancestral property. The settlor in effect intended that each son should take a moiety of the properties as the manager of his branch of the joint family. The difficulty in the way of accepting this suggestion is that the settlor expressly says that he grants to each of his sons the properties for life. If the language had been that the settlor grants unto each of his sons a moiety of his properties but restricts his powers of alienation and follows a scheme of further devolution after the death of the son, then we might have accepted the suggestion.

(4) Mr. Venkatasubramania Ayyar commented on the old provision in the settlement for a conveyance by the trustee of the settlement to the two sons respectively on their attaining majority of a moiety of the properties but with a trust engrafted for the benefit of the male issue of each son respectively. Each son is made a trustee for sons and sons'' son after his lifetime because the gift in their favour would take effect only after the death of the son. The provision is certainly not happy but at the same time it emphasises the fact that the settlor intended each of his sons to have only a life estate. The trustees are directed to execute necessary instruments in writing transferring to each of the sons a life estate in the said properties. It is the "remainder" which is to be held by the son in trust for the absolute use of his sons, etc.

We are clearly of opinion, taking all the material provisions of the settlement deed, that each of the two sons of the settlor took only an estate for life. The provisions relating to the sons and sons'' sons of each son are in no way inconsistent with the gift in favour of each son. There is therefore no scope for the application of the rule laid down by Lord Davey in Hancock v. Watson 1902 A.C. 14. As Lord Romer pointed out in Fyfe v. Irwin (1939) 2 A.E.R. 271 the basis of the rule is an attempt to reconcile two inconsistent dispositions made by the original absolute gift on the one hand, and by the engrafted trust which restricts the absolute estate on the other hand. The Court makes the reconciliation by imputing to the testator the intention to modify the gift only so far as is necessary to give effect to the trust. The consequence is that if the trust fails, the original absolute gift remains. In the present case, as we have said before, we are unable to find the initial absolute gift in favour of each son, expressly or by necessary implication. We are in entire agreement with the reasoning and conclusion of the learned Trial Judge, Rajagopala Ayyangar, J. as regards the construction of the settlement deed. The appeals fail and are dismissed with costs in O.S. Appeal 24 of 1956. In each of the two appeals there is a memorandum of objections filed by Anjaneyalu Chetty and his minor son. The main point raised in the cross-objection is that the learned Trial Judge ought to have held that the entire properties settled upon Sanjeevi Chetty devolved on them, and Sanjeevi Chetti''s widow was not entitled to any share therein. But their learned Counsel did not press this point, nor any of the other points raised in the memoranda of cross-objections. They are therefore dismissed with costs in the memorandum in O.S.A. 24 of 1956.