Kolandayammal vs R. Senniappa Goundan and others

Natesan, J.—This second appeal has been preferred by the first defendant and the question involved is the true construction of the will

executed by one Appichi Goundan, the father of the 1st defendant on 3rd April, 1957. The plaintiff in the suit is purchaser of the suit properties

from one Periammal, mother of the 1st defendant and wife of the said Appichi Goundan, under a registered sale deed Ex. A-3 dated 30th January,

1959. Appichi Goundan, the testator owned the suit properties a 1/12th share in the plaint A schedule properties and 1/8th share in the plaint B

schedule properties and another item of property, not the subject matter of the suit. Appichi Goundan had an unnatural end on 25th August, 1958

(he was murdered). The will in question executed on 3rd April, 1957 and registered on 4th April, 1957, comprised all the three items of property

above mentioned. Long prior to his death on 13th August, 1957 itself, the testator sold away the other item of the property, not the subject-matter

of the suit. His widow Periammal claiming absolute title to the suit properties under the aforesaid will, sold the suit properties to the plaintiff for a

consideration of Rs. 6000, under Ex. A-3, referred to above. The 2nd defendant to the suit is the husband of the 1st defendant and the plaintiff

charges defendants 1 and 2 with setting up frivolous pleas, that Periammal was not entitled to succeed to her husband''s properties under the will

and the sale to the plaintiff was not valid. Alleging acts of trespass, the suit has been filed for a declaration of the plaintiff''s title to the separate

possession of a 1/12th share in that A schedule properties and a 1/8th share in the B schedule properties with future mesne profits. The other

defendants to the suit are co-sharers in the properties in respect of the remaining shares. Defendants 1 and 2 raised a variety of defences, inter alia,

that Periammal, the wife, had taken part in the murder of her husband and therefore she was not entitle to inherit his estate. It was also contended

that by reason of the prior conveyance of one of the items dealt with under the will by the testator the will should be deemed to have been

cancelled. The substantial contention was, that in any event under the will Periammal got only a life estate in the properties and not an absolute

estate, the vested remainder being in the 1st defendant. It is this last defence that was accepted by the trial court. It may be stated Periammal was

made an accused in the sessions case that followed the murder of Appichi Goundan, but she was acquitted. There was no question about the

genuineness of the will or its valid execution. On its findings the trial court granted the plaintiff a preliminary decree for partition and separate

possession of the shares in the suit properties as prayed for, but conditioned the decree with a declaration that the plaintiff can remain in possession

of the suit properties until the death of Periammal and that after her death the 1st defendant will be entitled to the suit properties. Periammal, though

alive, had not been made a party to the suit. In fact, she has come and given evidence on the side of the plaintiff. The plaintiff alone appealed from

the decree and the only question mooted in the appeal was as to the nature of the estate taken by Periammal tinder the husband''s will. In the

appeal the Subordinate Judge, Coimbatore, differing from the trial court, held that Periammal took the properties under the will absolutely with all

rights, and that under its terms the testator''s daughter (1st defendant) had no vested remainder in the properties. On this finding, the consequential

modification of the decree of the trial court was directed and the plaintiff was held entitled to mesne profits to be determined in proceedings under

Or XX Rule 12 C.P.C.

The testator was an agriculturist of Puvampalayam Village, Erode Taluk, Coimbatore Dt. The will which is in Tamil starts with a preamble setting

out the relationship between the testator and Periammal as husband and wife, the fact that they had no male issue and that the only female issue

they had, had been given away in marriage. After setting cut his then ill-health and the need for making provision for the wife the will proceeds to

state that with a view to avoid disputes and court proceeding with reference to the schedule immovable properties acquired and ancestrally and by

self exertion, he was giving the properties to his wife by way of will. The preamble further states that the will was executed in her favour, so that

she may, during her lifetime, enjoy the schedule properties with absolute rights, with full powers of alienation, by way of gift, sale, exchange etc.

The testator expressed the hope that she would properly take care of them and like him she would, when she desired, execute a will of the

properties in favour of the daughter. The operative portion of the will provided that after lifetime she can enjoy the properties with an absolute

rights and that he hoped that she too will execute a will so that after her, their heir and daughter Kolandai Ammal would take the properties with

absolutes rights. The learned District Munsif interpreted the will as revealing that the dominant intention of the testator was to make provision not

only for the donee Periammal, for the daughter also. He would read the will as providing that on the death of Periammal, the daughter as heir took

the properties absolutely. On the appeal the learned Subordinate Judge would emphasise those words of the will which gave Periammal an

absolute estate in the properties with rights of alienation by way of gift, sale etc. Language has been employed with reference to the gift granting the

donee the highest form of estate. The Subordinate Judge would point out that the full proprietary interest conveyed under the language employed

was at variance with the life interest pleaded, and that the provision in favour of the daughter should be regarded as the expression of a pious wish

by the testator.

The courts below have referred to a number of decisions on the construction of wills. Needless to state that there can be no binding precedent in

the construction of wills. Each will, has to be construed according to its tenor in its setting having regard to the executants; the circumstances and

the modes of expression prevalent in the locality. The task of interpretation being to ascertain the true intension of the testator, it has to be borne in

mind that no two testators would be identically placed in all respects, and intend alike in similar circumstances. Decisions in regard to other wills

can only give guidance in the application of general principles by reference to instances. The best way of construing a will is to read the will as a

whole and form an opinion as to its import and then see whether the intention could be sustained in the light of the general principles found in

decided cases. It has to be seen whether the estate inferred on a reading of the will as a whole is legal and whether the opinion formed as to its

import require modification in the light of decisions. Every effort must be made to avoided an interpretation which lead to intestacy to any extent.

Equally, if possible, specific instructions of the testator as regards devolutions of his estate must not be whittled down. If there are apparently

conflicting provisions in the will, an attempt should first be made to reconcile the conflicting provisions and see if a legally permissible estate could

be inferred from the terms of the will, giving effect to every expression therein. The court of construction must proceed on the assumption that the

testator has intended to create a legally valid estate.

For applying the principles above enunciated it will be convenient here to set out the relevant portions of will in Tamil. In the preamble.

In the operative part:

The testator has stated at the outset in his will that his only heir, the daughter, had been married away and he was providing for his wife. Clearly

the testator states that the donee would have full proprietary rights in the properties. The expression has been repeatedly held to be the strongest

expression that may be employed to confer an absolute estate. Here, in the preamble portion, the testator employees the further words powers of

gift, exchange, sale etc. The operative portion entitles the donee to hold sway and enjoy the properties with absolute rights. These expressions

standing by themselves without the least doubt and unquestionably give to the donee all the rights the testator had in the properties, that is, full

proprietary rights. But it is said for the appellant, that two expression in the will detract from this absolute estate. In the preamble, it is stated that

for her lifetime she will enjoy and secondly it is also said that she will properly protect the properties. To take these expressions, the testator

states:-- ""For her lifetime the donee shall enjoy in absolute rights with powers of alienation by way of gift, sale, etc"". Properly understood, it means

that during the lifetime she can exercise full proprietary powers over the properties enjoyment of property during life may be either in full

proprietary rights, or of an estate for life and the donees enjoyment personally can be only during her lifetime. An alienation by her would convey

interest in the properties according to the rights possessed by her. After referring to the powers she has during her lifetime, in the preamble the

testator expressed the hope that the donee would, like him, will away the properties in favour of the daughter that is the testator expects the donee

to do as he was doing. The testator was executing the will as absolute owner of the properties and be expects his wife also to execute a will of the

properties in favour of the daughter in like manner. To convey the properties by testament like the testator, she must have absolute rights in the

properties. The words in the preamble that the properties have to be looked after properly do not conflict with the full powers of alienation

contemplated therein. It is expected that the properties would not be wasted when we take up the operative part of the will, there is no ambiguity

as to the estate granted to Periammal. After the testator, she has to enjoy the estate with absolute rights and after her she is expected to give the

properties by way of will to her daughter. The testator here uses words of hope and confidence to indicate that Periammal would execute a will in

favour of her daughter. He provides that Periammal under his will shall enjoy the properties Her donee has also to enjoy the properties As the

expression must normally have the same connotation in the will which he makes and which he hopes his wife Periammal would execute, we have to

reconcile the several provisions in a legal and rational way.

To hold that the daughter gets a vested remainder under the will, she must be the direct object of gift under the will. There is no provision for

that in the will. The testator expects his donee only to execute a will. The only manner in which it is provided that the daughter should get the

properties is by way of will. The testamentary power in regard to the properties therefore vests only in Periammal, the donee under Ex. A. 1.

Periammal has power not only to alienate the properties during her lifetime, that is inter vivos, but she is also conferred power to provide by will for

devolution of the properties after her lifetime. To pass down properties by will she must have an heritable estate. This power she can have only if

she has full proprietary rights over the properties.

In Williams on Wills, 2nd Edn. at page 527, it is stated:--

An absolute interest has been similarly inferred even when the testator contemplated dispositions made only by the will of the donee.

At page 530, the learned author states:--

A device in the fee simple to a wife with the intention that she may enjoy the same during her life and by her will dispose of the same as she thinks

proper, gives her a fee simple estate nor is an absolute gift cut down by an expression of a wish as to how she shall dispose of the property.

As the daughter in this case is not the direct object of gift under Ex. A. 1, it is unnecessary to consider where the provision for a will in her

favour by the donee under A. 2 is a clause that has effect of cutting down the absolute estate granted to the wife. There are no two bequests in this

case-first a bequest in favour of the wife and next after her death a bequest in favour of the daughter, both bequests being absolute. If such had

been the case a question would arise for consideration whether there is repugnancy between the two bequests and an attempt will have to be made

to reconcile both in a legally permissible way. Even if the estate conferred on Periammal is looked upon as a life estate with power to dispose of

the properties absolutely either by way of alienation inter vivos or by way of will, such an estate being recognised as legal it cannot help the

appellant in this case as the power has been exercised. If it is a life estate with power of disposal, only when the power is not exercised the gift

over can take effect-see Anantha Sayana Naidu, by next friend Renu Ammal Vs. Kondappa Naidu alias Devarajulu Naidu and Others, and

Jagamalai Mariammal v. Madalamuthu Thevar (1966) 2 M.L.J. 7, 12. In the latter case, where the language used in granting the estate which

preceded the gift over was of the widest amplitude construing the will and the effect of the latter clause which apparently cut down the prior

absolute estate to a simple life estate, Ramamurti J. remarks.

...the latter clause being construed as cutting down the prior absolute estate as a simple life estate with no power of alienation, he will not be giving

effect to both the clauses together, the intention of the testator would be defeated.....in such cases the proper view would be to construe the prior

estate as a life estate with a power of appointment, by deed of will.

In that case, the testator provided in her will that after her death her husband shall become the absolute owner of her property and enjoy the

same with full powers of alienation, and after the lifetime of her husband her son shall become the absolute owner of the property. The husband,

the first donee, alienated the property, during his lifetime and it was held that the alienation could not be questioned by the son. In Thayalai Achi v.

Kannammal 68 M.L.J. 707 at 710 referring to words granting an absolute estate to the widow, followed by a gift of what remainder at her death

to another, a Division Bench of this Court observed: --

She could in the fullest possible sense enjoy the property. She could, we think (it is not necessary for the purpose of this case to determine the

point), have left the property by will and have thus enjoyed in relation to it the pleasure of giving it away after her death, she could have exchanged

it for other property, she could have sold it and spent the proceeds. But if she did not, during her lifetime, thus get rid of the property of that into

which it had been turned, and did not leave it by will, her enjoyment comes to an end with her death and what is last (subject course to the

payment of debts and expense) passes to Natara Pillai.

In the present case, the testator has clearly and in unequivocal language conferred on his wife full powers of alienation. That being so, even if

her estate is to be regarded as one for life, she will have full powers of alienation. If there are two bequests one after the other, which is not so in

this case, the two estates may have to be reconciled and full meaning given to all words used by the testator by holding that there was an absolute

estate in favour of the wife with gift over to operate by way of defeasance in certain circumstances of that there was life estate coupled with full

powers of alienation. To construe Ex. A. 1, as conferring only a life estate on the wife when there are no words of bequest in favour of the

daughter, will be to bring about intestacy after the death of Periammal if she fails to leave a will. And that is an interpretation to be avoided if

possible. It is manifest from the above discussion that thus examined the wife gets full title to the properties.

Learned counsel for the appellant raises a new point and would present his case from a fresh angle to confine the estate in favour of the wife to

an estate for her life only. It is submitted that the will must be read as conferring a life estate with power to nominate the daughter as the next taker

of the estate by way of will, and that it is a case where having regard to all the circumstances a trust is raised in favour of the daughter then being an

obligation on the wife to exercise the power. The argument is that a duty is imposed on the wife to execute a will and the power in this case regard

is in the nature of a trust which the court would regard as having been exercised on failure of the donee to exercise the power. In Browne v. Higgs

8 Ves. 570 at 574 Lord Eldon stated the relevant proposition in the following terms:--

It is perfectly clear that, where there is a mere power of disposing and that power is not executed, the court cannot execute it. It is equally clear,

that, wherever a trust is created, and the execution of that trust fails by the death of the trustee or by accident, the court will exercise the trust. But

there are not only a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is entrusted and

required to execute; and with regard to that species of power, the court considers as partaking so much of the nature and qualities of a trust that if

the person who has the duty imposed upon him does not discharge it, the court will, to a certain extent, discharge the duty in his room and place.

The principle is that if an imperative power is committed to a trustee, his non-exercise of the power will not prejudice, the cestui que trust and

the court will execute it, if by any possibility it can be done.

In support of this new stand, learned Counsel for the appellant refers to the decision in A.C. Aiyathurai Chettiar and Another Vs. Municipal

Council, Kumbakonam and Others, . In that case in the will of one Ranganatha Chettiar executed in favour of his wife, Bagirathi, there were two

provisions. Under the first provision Bagirathi was entitled to enjoy certain properties throughout her life and thereafter she should dedicate them to

any charity she might desire. Under the second provision it was provided that she should enjoy a house for the duration of her lifetime and

thereafter should make a gift of the same to any one of his brother Chakrapani Chettiar''s sons who might be beholden to her. A Division Bench of

this court (Ramachandra Iyer, C.J., and Venkatadri, J.) held that the estate taken by Bagirathi in regard to the two sets of properties was different.

In regard to the disposition in favour of the charities, it was pointed out that there was no disposition in favour of the charities directly by the

testator and the charities could get the same only by virtue of Bagirathi''s disposition. Having regard to the fact that there was no disposition of the

properties by the testator beyond the one in favour of Bagirathi, it was held that the decisions holding that the effect of a gift over is to cut down the

first estate to one for life could not apply. It is observed:--

Even if it be held that there is no express gift over is no favour of any person other than the first donee, there may be cases where from the

language of the document a limited estate can be inferred. For example, If it is to be held that the direction to the wife to devote the properties to

charity amounts to a trust in favour of such a charity, or, at any rate, a power of appointment in her to such objects, it can reasonably be argued

that that was conferred on the legatee was a limited estate, coupled with a trust or a power of appointment for existence of such trust or power

would show an intention that a limited estate was given to her.

However in view of the uncertainties as to the object of the charities it was held that no trust was imposed in favour of the charities under the

first provision. But in regard to the second provision in respect of the house it is observed:

It is true that the brother''s son was not the direct object of gift; a gift was given to his wife to select him. He must therefore have intended to give to

Bagirathi only a life estate in the property. The fact that she did not exercise the power of appointment vested in her cannot enlarge the estate. The

remainder will have to be treated as undisposed of by the testator and the plaintiffs, who are his heirs, would be entitled to recover possession of

the same.

This case brings out very clearly the distinction between an obligatory power or a power which is in the nature of trust, and a recommendatory

direction. In regard to the house with reference to which the court held that Bagirathi had only life estate, the language was very clear. The

provision was that she could enjoy for the duration of her life and the direction for the gift to be made by her was mandatory. In the course of

discussion of the principles, reference is made to a passage in Theobald on Will, 12th Edn. paragraph 1255, where it is stated:

Therefore mere expression of a desire that the donee will be kind to remember, consider, deal justly by educate and provide for, take care of, or

do justice to a certain class of persons, will raise no trust.

This case cannot help the appellant, the first part favours the plaintiff and the latter part is clearly distinguishable. In Basavayya v. Ramayya

(1956) 2 A.W.R. 582 where a bequest in favour of the wife, after providing for her to enjoy the property with absolute powers of disposition by

way of gift, sale etc., directed her to give 53 cents of lands of her own choice to the testator''s brother Ramaiah, the court held that there was a

valid gift in favour of the testator''s brother of the 53 cents of land. The case want on the language of the will. The direction in regard to the gift was

held not repugnant to the grant of an absolute estate to the wife. But there was clear obligation attached to the gift that during her lifetime she

should select and allot to the brother 33 cents of land. The plaintiff in that case was the brother who was given 33 cents and the suit was brought

during the lifetime of the first donee. The court in the circumstances granted a declaration that the plaintiff would be entitled to 33 cents out of the

land bequeathed to the wife, the 33 cents to be partitioned by the court with reference to the good and bad qualities of land in the event of the

wife, the first donee, dying without granting 33 cents and allotting the same to the plaintiff. Here again it must be noticed that the obligation for

making the gift was found imperative.

Reliance was placed by counsel for the appellant on Burlay in re Alexander v. Burley (1910) Vol. I, ILR Ch. Div. 215. That was a case where

by a will a legacy was given to one R with a direction to use part of the legacy for endowment in his own name of a cot in a hospital. It was

followed by a codicil directing the use of the balance for any other charitable purposes on R''s absolute discretion. The legatee disclaimed the

legacy and the court held that there was a trust created for charitable purposes mentioned in the codicil. Emphasis was laid on the fact that the

testator made a separate instrument for the only purpose of making provision or giving a direction with reference to a particular bequest. This case

must be confined to its facts and cannot help the appellant here. Ratnasabapathi Chetti v. Lakshmiammal 20 L.W. 243 is again a case of clear gift

over after the first donee. The language used is ""after your lifetime you shall leave the said Manai house to Rajammal"" The contention was that there

was only a power and this court remarked that it had never hears of a power which can and must only be exercised in one way and in favour of

one donee. In Bhaidas Shivdas v. Bai Gulab 42 M.L.J. 385, 388 and 389 P.C. a Hindu left a will making his wife owner of the properties and

directed that whatever property there may remain after her death, his wife shall leave the said property to his two daughters in such manner as she

may like. The Judicial Committee held that there was no trust created in favour of the daughters, as the subject matter on which the trust was to

operate was too uncertain to enable the court to give it administration. Though this is the basis of the decision, in passing they dealt with another

aspect in regard to the provision in the will in favour of the daughters. The material part of the relevant clause in the will run thus:--

And I constitute her the owner. And as to whatever property there may remain after her death my wife shall leave the said property to my two

daughters in such manner as she may like (either) by making a ''will'' or by making (some) other instrument.

Referring to this clause, their Lordships observed:

If clause 3 stood by itself, it would, their Lordships think be difficult to dispute that whatever the testator desired with regard to the disposition of

his property after the death of his wife he had not expressed his wisher in such a manner that they bound the property. The words under which the

appellant claims are words which only attach to whatever property there may remain after the death of the wife. Without for the moment

considering whether the desire expressed by the testator is expressed in a form that makes her disposition of it mandatory or not.........

In Karunakara Stephen v. Administrator-General, Madras 49 M.L.J. 197 the will, after giving the second wife all the moveable and

immoveable properties possessed by the testator, provided that she should enjoy the said properties and on her death should divide and give them

to three persons according to her wishes. On the construction of the will, it was held that it amounted to an absolute bequest in favour of the wife

and was not even a life estate coupled with power of appointment. It was said that the provision that the wife should divide the estate on her death

and give it to the three persons did not cut down the absolute estate, that the matter was left entirely to the wishes of the lady, and that there was

no binding disposition of the property in favour of the three named persons. It was a mere recommendation to the lady to do whatever the testator

would have liked to be done with his property at the time of her death. In the Mussoori Bank v. Albert Charles Raynor A. All 500 P.C. at 510 the

judicial Committee remarked that in order to create a ''precatory trust'' the words must be such that the court finds them to be imperative on the

first taker of the property and that the subject of the gift over must be well defined and certain. The gift in that case provided that the testator was

confident that his wife, the donee, would deal justly in dividing the property among the children when it was no longer required by her. It was held

that the widow took absolute interest in the property and that no trust for the benefit of the children was created. Their Lordships observed: --

No case has been cited, and probably no case could be cited; which the doctrine of precatory trust has been held to prevail when the property

said to be given over is only given when no longer required by the first taker. Now this rules are clear with respect to the doctrine of precatory

trusts, that the words of the gift used by the testator must be such that the court finds them to be imperative on the first taker of the property, and

that the subject of the gift over must be well defined and certain but the uncertainty in the subject of the gift has a reflex action upon the previous

words and throws doubt upon the intention of the testator, and seems to show that he could not possibly have intended his word of confidence,

hope, or whatever they may be, his appeal to the conscience of the first taker-- to be imperative words.

Learned counsel for the appellant referred to some older English cases to sustain a trust in this case from the precatory words of the will. The

testator in this case has confidence in his wife that even as he was doing she would when she pleased, execute a will in favour of the daughter.

There is no specific imperative direction making it in so many words a condition of the gift that she must leave the properties to her daughter by a

will. The doctrine of precatory trusts comes in where then the testator does not use language clearly imposing a trust, it is ascertained from a

consideration of the whole will, that imperative obligation was intended to be imposed on the donee. It is unnecessary to refer to the older English

cases cited for the appellant, as from Lambe v. Homes (1871) 6 Ch. 597 it is clear that the leaning of the English courts has been not to construe

words used in a will, not being words of a strict and defined legal character or words that are beyond all doubt, equivalent words, as creating a

trust. In Theobald on Wills, 12th Edn. the position is thus summed up in paragraph 1254:--

There is a long list of cases in which words of confidence, request desire, and the like, following a gift, have been construed in imposing a trust on

the legatee. ''In some of the older cases obligations were inferred from language, which in modern times would be thought insufficient to justify such

an inference, and the modern cases appear to show that such words will prima facie not create a trust. Thus, gift followed by such expressions as

in ''full confidence'' or in ''full trust and confidence'', or ''well knowing'' or the expression of a desire, or request, or wish that the legatee will dispose

of the property in accordance with the testator''s wishes, or even in a certain specified manner, will not now impose a trust on the donee. The court

may still, on the construction of the will as a whole come to the conclusion that a bind trust is effected by precatory words.

In the latter line of cases may be cited in re Adams and the Kingsington Vestry 27 Ch. D. 394, 410. In that case a testator gave all his real and

personal estate into and to the absolute use of his wife, her heirs, executors, administrators, and assigns ''in full confidence that she would do what

was right as to the disposal thereof between his children, either in her lifetime or by will after her decease"". The court held that under the words

used the widow took an absolute interest in the property, unfettered by any trust in favour of the children. Cotton L.J. in the course of his reasoning

observed thus:--

Undoubtedly confidence, if the rest of the context shows that a trust is intended, may make a trust, but what we have to look at is the whole of the

will which we have to construe and if the confidence is that she will do what is right as regards the disposal of the property. I cannot say that that is,

on the true construction of the will, a trust impose upon her. In my opinion here he has expressed his will in such a way as not to show an intention

of imposing a trust on the wife, but on the contrary, in may opinion, he has shown an intention to leave the property, as he says he says he does, to

her absolutely.

Lindley L.J. would say that beneficiaries are not to be made trustees unless intended to be so by the testator.

As Theobald in his wills puts it in paragraph 1255, no trust will be implied from precatory words where the donee may at his discretion apply

the property to other purposes or where the donee is to take free and unfettered. In the present case, the language used for the grant to the wife is

the expression of widest amplitude in the matter of an proprietary rights. The expression means an absolute estate or a free and unfettered estate,

an estate unlimited in point of user and duration and uninhibited in the matter of enjoyment and disposition. It is in the exercise of this free and

unfettered right of enjoyment, she is expected to leave the properties by will to her daughter. In the preamble, the testator would have his wife

occupy the same position he had with reference to the properties and even as he did, he wanted her, at her pleasure, to bequeath his properties to

his daughter. The words that is, in the confidence that you would execute the will, do not and cannot in the context charge her with an obligation to

execute a will. That will be wholly inconsistent with the absolute estate which in the earlier part of the same sentence he has conferred on the

donee. As I read the will, conscious of his obligation to his wife, he wants her to take the properties absolutely and enjoy the same as he was doing

after his lifetime. But he calls her attention to her moral obligation to pass on the properties to her daughter. But does not curtail the powers of

enjoyment and disposal of the properties. During her lifetime she may enjoy the properties with all powers. An absolute heritable estate is also

enjoyed during lifetime. It confers on the owner the power of disposition inter vivos, the transferee getting an absolute heritable estate. The owner

may also enjoy the right to dispose of the properties by will and provide for devolution of the properties on death.

In Inre Adams and the Kinisington Vestry 27 Ch. D. 394, at 409 above cited, Cotton L.J. explains the position thus :--

But it is said that the testator would be very much astonished if he found that he had given his wife power to leave the property away. That is a

proposition which I should express in a different way. He would be much surprised if the wife to whom he had left his property absolutely should

so act as not to provide for the children, that is to say, not to do what is right. That is a vary different thing. He would have said ''I expected that

she would do what was right and therefore I left to her absolutely. I find she has not done what I think is right, but I cannot held it, I am very sorry

that she has done so. That would be the surprise, I think, that he would express, and feel, if he could do either, if the wife did what was

unreasonable as regards the children.

It is doubtful if the testator in this case would feel so. The wife has been charged with his murder. She had to go through a sessions trial and get

an acquittal. As P.W. 3 she deposes that her daughter falsely stated that he murdered her husband, and that she had to alienate the properties for

the defence of the case and for other expenses. In fact the defence taken in this case is that she had forfeited her right under the will having

partaken in the murder. Here as pointed out earlier, it is the alienee from the wife that is seeking to sustain his absolute title to the properties a title

that would ensure beyond the life time of the wife.

I may usefully refer also to the decision in Atkinson, In re Atkinson v. Atkinson (1911) 80 Ch. D. 370 at 373 and 376. where the doctrine of

precatory trusts as defined and limited by modern authority was considered and stated. In that case �. 5000 was bequeathed absolutely by the

testator to his father. The will expressed that it was the specific wish of the testator that the sum should be distributed in a particular manner, �.

4000 to a certain school, �. 500 to another school and �. 500 to be given to ten or more deserving people as mentioned therein. Holding that

the testator''s father was entitled to the legacy of �. 5000 free from any trust or legal obligation, Dozens Hardy M.R. Observed:--

In the first place I wish attach very great importance to the word ''absolutely''. There is nothing to suggest a contrast between a gift for life and a gift

of the absolute interest, if those words primarily, as it seems to me have the meaning which Lord Justice James attributed to them in the case of

Irvin v. Sullivan (1897) 2 Ch. D. 12, 21 were he said that they mean unfettered and unlimited. It is remarkable that in Knight v. Knight 9 L.J. Ch.

354 Lord Langdale--whose decision is relied upon, and naturally relied upon, by the respondents here makes the remark that the words ""free and

unfettered"" if accompanied by the strongest expression of request being imperative. So, if we adopt that which I think is the prima facie meaning of

the word ''absolute'' and say that it means unfettered and unlimited, we have the authority of Lord Longdale in Knight v. Knight 9 L.J. Ch. 354 that

the subsequent words of request of wish are not obligatory, but are merely expressions of desire, and that the person who takes the property

unfettered may nevertheless at his own discretion, if he thinks fit, without any legal obligation dispose of the property in a particular way.

Referring to the language used in the will, therein under consideration ''specific wish'' of the testator, it is observed:--

Well, a wish is rather a different thing. A ''wish'' is not the same as a ''will'', it is not the same as a ''direction. I am not saying that from the context,

or taking the document as a whole, the word ''wish'' may not sometimes have a wider meaning when I find in one part of the will a direction ''I

direct that sufficient part be applied.'' and so on. I take it that it is not unreasonable to draw a distinction between that which is a mandatory

direction and that which is merely a wish as distinct from a direction a wish as distinct from a trust.

Fletcher Moulton L.J. expressed the same thing thus:

He meant legacy to go absolutely to one of these legatees. He meant to influence them in the use of it. But he did not mean that second step to be

under his authority as testator and bind them.

While dealing with the question Bukley L.J. how a will in such cases should be construed and whether the words precatory or otherwise are

such as by their true construction have the effect of declaring a trust created by the owner of the property, points out three conditions for finding a

trust from precatory words-first if the words are so used, that upon the whole, they ought to be construed as imperative; secondly if the subject of

the recommendation or wish be certain; and, thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also

certain. While construing precatory words by which a trust is sought to be founded, the Lord Justice says:--

We have to say to ourselves. ''Here is an absolute legal or equitable right created by appropriate right created by appropriate words, is it taken

away or cut down by the subsequent words which we find? If so, then, of course there will be a trust created; If not, there will not be a trust

created.

Another principle to be applied is also reiterated, that is, if there are two clauses in a will which, upon one construction, are perfectly

reconcilable the one with the other, but upon a different construction are in conflict with one another, then that construction ought to be adopted

which reconciles them rather than that which putt them in conflict.

In the instant case, the language is very clear that the testator was granting an absolute and unlimited estate to his wife. Repeating, in the latter

part of the will he would like her to bequeath the properties by will to his daughter. All the words in the operative part of the will cannot be given

full effect, if as trust is imposed on the wife and her estate is a limited one for life taking away the unfettered powers of disposition which had been

specifically conferred upon her. If it was the intention of the testator that the wife should enjoy the properties only for her life and like a conduit

pipe should pass on the properties to her daughter, he would have used apt words conferring on her a life estate. A reading of the entire will shows

that the testator wanted his wife to have the same rights as he was having in the properties and expresses the hope that she will give the same rights

to her daughter. It is manifest that the estate granted to the wife under the will is an absolute estate and not a life estate or an estate subject to a

trust to make a will in favour of her daughter. If the direction of bequeathing the properties by a will is to be regarded as mandatory, then the

legatee cannot have any power of disposition during her lifetime. If it could be said that she could leave to her daughter by a will what remains at

the time of her death, then again there will be uncertainty as regards the properties and there can be no trust. Then full discretion is given to the wife

to dispose of the properties during her lifetime and nothing may be left for her daughter for a will. An uncertain trust left to the discretion of the

owner of the property cannot be recognised in law. The material words in the will in plain Tamil only show that the testator may be disappointed if

the donee does not pass on the properties to her daughter under a will, and not that he would feel that he has been disobeyed.

One more case illustrative of the limitation placed in inferring precatory trust from the language of a testament may be referred to. In re Johnson

Public Trustee v. Calvert (1939) 2 A.E.L.R. 458 the testator who inter alia gave a moiety of his estate to one Mary Elizabeth Calvert, added in the

statement the following:--

I request that Mary Elizabeth Calvert will on her death leave her property to my four sisters.

The court was called upon to construe whether Mary Elizabeth Calvert took under the gift absolutely that is subject to no trust or condition and

the sisters took no legal or equitable interest in the moiety of the estate which she got under the will. It is pointed in the decision that the question is

entirely one of construction of the document the point for determination being whether there is something imperative in the will, something which

requires that something shall be done. The court held that the testator in that case did not mean to impose any imperative obligation, and he was

only expressing a wish, not intending a trust, but he trusted and hoped that his legatee would give effect to his with and he gave the property to her

absolutely.

The decision in Williams v. Parochial Church Council of the Parish of all Souls, Hastings 1933 Ch. D. 244 referred to by learned counsel for

the appellant has no relevancy here. In that case, was applied the principle, that if a person permits his property to go undisposed of to his heir-at-

law or next of kind, or makes a will leaving his property to a particular person on the faith of an understanding or promise by the beneficiary to deal

with the property in a particular way, then, if the beneficiary takes the property, that promise or agreement is an obligation which is binding upon

his conscience, and if he fails to give, effect to the promise, of the agreement a court of equity will enforce the obligation, and see that the promise

is carried into effect, because it is against conscience for the beneficiary to take the property, and disregard the obligation The decision points out

that evidence is admissible to prove the existence of an agreement or promise to give effect to the testator''s wishes, not withstanding that the gift in

the will to the legatee is in terms absolute. A case in this from is a matter for pleading and proof. It is nobody''s case here that there was an

understanding or agreement between the husband and wife and she was obliged by reason of the agreement to leave the properties on her death

by a will to her daughter. In the case cited above, the court found on the evidence that husband who was the legatee of agreed to carry out the

wishes of the wife, the testator. It was said that in view of the agreement which preceded the gift under the will it was against the conscience of the

husband to take the property for himself and that the court of equity would enforce the obligation and give the property to Parochail Church

Council which was named by the wife as the institution to which her property should go on the death of her husband. In the present case, far from

the existence of any agreement the preamble of the will shows that the testator felt obliged only to provide for his wife. He points out that he had no

male issue and his only daughter had been married away. In the circumstances it is clear that the added direction in the will after the grant of the

absolute estate to the wife is merely the expression of a desire as to how the properties should go after the death of his wife. There is no trust or

obligation which the court can be called upon to enforce. The properties have been placed at the absolute disposal of the wife under the will. To

re-state, when there is an absolute gift, a super added expression of hope or confidence that the donee would dispose of the properties by a will to

a specified individual, cannot out down the absolute gift. It follows that the conclusion of the learned Subordinate Judge in appeal is correct and his

construction of the will is perfectly in accordance with law. The second appeal therefore fails and is dismissed. No costs throughout. No leave.