Kanniah Naidu vs Manickam Pillai and Another

Varadachariar, J.—The principal question argued in these Second Appeals relates to the construction of Ex. F, a will, dated 24th October,

1925, left by one Krishnammal. Among the properties belonging to her are a share in a house and a money claim for certain unpaid purchase

money. The said Krishnammal was enciente at the time that she executed the will and she died shortly afterwards, leaving a female child which

survived her only by a few months. The plaintiff claims that on the true construction of the will he is entitled to the plaint properties on the death of

the daughter. The defendants contend that the gift in favour of the plaintiff is void and therefore he is not entitled to maintain the suit. The Courts

below have accepted that contention of the defendants and dismissed the plaintiff''s suit. Hence the Second Appeal by the plaintiff.

The relevant clauses of the will are the following:

The children which may be born to me shall after my lifetime enjoy with all rights the properties in Schedules A and B mentioned below after my

lifetime. Till such children attain majority the aforesaid Kanniah Naidu (plaintiff) himself is to act as executor and when the minors attain majority he

is to deliver the aforesaid properties. If the aforesaid minors should happen to die or if no children should be born, the aforesaid Kanniah

Naidu...shall take them with all rights and enjoy the same.

Mr. Rajah Aiyar who appears for the respondents contends that under the above terms, the female child which survived the testatrix took an

absolute estate, and that the gift over in favour of the plaintiff is void as the contingency on which the prior absolute gift is made defeasible is really

not a contingency at all because death is not regarded as a contingency for this purpose. He also contends that the contingency is capable of more

than one manner of fulfilment and that therefore the gift over is bad for uncertainty.

The general principles of law governing these questions are well enough established whatever difficulty there may be in their application to the

language of particular documents. It may be that in some circumstances a gift over accompanying a prior absolute gift of the same property will be

bad in law as an attempt to interfere with the legal devolution of the prior absolute interest. But it has long been established that within certain limits

it is competent to a Hindu to provide for the defeasance of a prior absolute estate contingently upon the happening of a future event. See (1888)

L.R. 16 I.A. 29 (Privy Council) . Mr. Rajah Aiyar contends that the condition of the gift over clause in favour of the plaintiff means nothing more

than that if the children should die, - in which case of course it will be bad. But he concedes that if in the context the reasonable construction of that

clause is that the property should go over to the plaintiff if the children should die during their minority, the gift over would be good in law. He

points out that if there should be more than one child, a question may arise as to whether the gift over clause comes into operation only if all the

children should die under age or even if some of them should so die. I am unable to read the gift over clause in any other sense than as referring to

the death of the children during their minority. Otherwise the expression ""the aforesaid minors"" will not receive due effect. It must be remembered

that at the time the testatrix was executing the will no children had been born to her. Therefore the reference to them as minors cannot really be

regarded as words of description. The word ""aforesaid"" refers back to the immediately preceding clause in which the plaintiff is asked to manage

the estate till the children attain majority and to hand it over to them when they attain majority. When immediately after those words the expression

occurs ""if the aforesaid minors should happen to die"", I think it is only a fair interpretation of that clause to say that it refers to their death during

minority and not merely to their death at any time.

As for the question whether the condition requires that all of them should die during minority if there should be more than one child, I see no

difficulty in holding that that must be the reasonable meaning. But in the circumstances of the case that question does not arise. The argument of

uncertainty has therefore no force.

A decision of the Calcutta High Court reported in Durga Prosad v. Raghu Nandan Lal (1914) 23 I.C. 597 (2) is the nearest approach to the

facts of this case so far as the legal proposition is concerned. But as already stated Mr. Rajah Aiyar does not contend that if the words are to be

read as making the gift over conditional upon the death of the children during their minority the gift over would be void. A number of cases were

cited before the Courts below but the learned Subordinate Judge has brushed them all aside with the remark that it is difficult to reconcile all the

decisions. This is hardly a satisfactory way of dealing with the matter. It is true that it is difficult to extract any hard and fast rule in regard to the

construction of a particular document from case-law. But that is different from trying to see what principles either as to construction or as to

authority the case-law furnishes.

I therefore set aside the decision of the Courts below on the question of the construction of the Will and hold that the gift over to the plaintiff is

valid.

* * * * *

The result is that the second appeals are allowed with costs throughout. The plaintiff will have a decree for his one-fourth share of the house

claimed in Second Appeal No. 1311 and for the sum of Rs. 656 claimed in S.A. No. 1310 with interest at one per cent, per mensem from 2nd

April, 1925, up to this date and thereafter at six per cent, per annum on the aggregate amount up to date of payment and a charge therefor on the

properties comprised in the sale. The contesting defendants shall pay to the Government the court-fee payable on the plaint and Memoranda of

Appeal in the two Appellate Courts, in the respective suits. S.A. No. 1311 will be sent back to the Court of first instance for directing a partition

of the plaintiff''s one-fourth share and for ascertaining the amount payable to the plaintiff by way of mesne profits both prior and subsequent to the

suit.

Leave refused.