Pochiraju Kannamma vs Mannava Machamma and Others

William Watkins Phillips, J.—The decision in this appeal depends entirely on the construction of the Will executed by one Pochiraju

Ramachandrudu, father of the plaintiff and the 1st defendant. By this Will ha devised certain properties to his two daughters, such to get one-half,

and certain other properties to his sister''s two sods. There is then a clause in the Will as follows :

My daughters,...and my sister''s sons...shall each enjoy...his or her respective portions of the property divided to them hereditarily and at their

pleasure, with right of alienation by gift, sale or otherwise.

This clearly gives an absolute estate to each of the legatees but with respect to the daughters it is followed by a defeasance clause, namely.

If out of the said two daughters, Machamma and Kannamma, to either there is no issue, her property shall after her death pass to the other to

whom there is issue. If to neither of them there is issue, then the property remaining at the time of the death of the said two shall pass to the

nephews of the testator.

The first question that arises for decision is whether the phrase ""There is issue"" means issue living at the time of the daughter''s death or merely

whether it means that the daughter should have had a child born to her. The contention for the respondent is that it has the latter meaning, and he

relies upon a case decided by the Privy Council in Guruswami Pillai v. Sivakami Ammal 18 M. 347 : 22 I.A. 119 : 5 M.L.J. 106 : 6 Sar. P.C.J.

610 : 6 Ind. Dec. 591. In that case it was held that the Tamil words which were translated as ""have issue"" and ""have no issue"", respectively could

not be construed to mean ""leave issue"" but must be construed in their literal sense. In coming to this conclusion their Lordships observed:

There is absolutely nothing on the face of the Will to suggest any secondary meaning.

In the present case the Telugu word used is kaligina which I have translated as ""there is"", a meaning which has been adopted also by the learned

Subordinate Judge The Telugu word used for issue is santanam. The words are capable of meaning both ""having issue"" and also ""leaving issue"" and

would appear to be represented very well by the English words ""is issue."" There is, however, an indication in the Will that the words mean ""leave

issue"" for the testator after providing for his two daughters provides definitely for the devolution of the property at their death and it would appear

from the whole Will that it was his intention that his daughters should first enjoy the property and that their children, or else his own nephews should

succeed to the property on their death and it should not pass from them to their husbands'' families. The word ""Santanam"" besides meaning child

has a certain implication of succession or heirship. For these two reasons I must agree with the interpretation put upon these words by the

Subordinate Judge and hold that they mean that the issue must be living at the time of the death of each daughter, respectively. The 1st defendant is

the widow who had a child which died; whereas the plaintiff has a son and two daughters living. On the 1st defendant''s death, therefore, her

property would pass to the plaintiff and it is contended that in the consequence of this the plaintiff is entitled to restrain any alienation by the 1st

defendant. In fact the contention for the plaintiff (appellant) is that the defeasance clause cuts down the absolute estate given to the daughters to a

mere life-estate. To put this construction upon the Will would be to render the words giving absolute estate of no effect at all; but, if consistently

with the intention of the testator, some effect can be given to those words, that interpretation must be adopted, We find that it is provided that if

both of the daughters die leaving no issue, then the property remaining at the time of their death shall pass to the nephews. This pre-supposes that

the daughters may alienate portions of the property during their lifetime, presumably under the absolute powers given by the earlier provisions in the

Will. It is suggested that we must read this clause as a provision for alienation for justifiable necessity alone. As there is no mention of any such

restriction, the words ""remaining property"" must be deemed to be the property after deducting the portions disposed by the daughters during their

lifetime. This construction does not dispose of the whole difficulty for in the clause relating to the death of one of the two daughters the word

remaining"" does not occur. But it is provided that her i.e., the deceased daughter''s property shall pass to the other, Construing the word ""her"" in

the light of the succeeding clause which talks of the ""remaining property"" ""her"" property must be deemed to be the property in her hands at the time

of her death. This is the only construction which will give effect to the provision for an absolute estate, which was clearly intended by the testator.

The Will must be construed as giving an absolute estate to the daughters and providing for the devolution of whatever property may be left at their

death. Such an estate is not unknown to Hindu Law as appears from the cases reported as Saroda Sundari Dassi v. Kristo Jiban Pal 5 C.W.N.

300 and Hara Kumari Dassi v. Mohim Chandra Sarkar 12 C.W.N. 412 : 7 Cri.L.J. 540. The 1st defendant has, therefore, the power of alienating

the property during her lifetime and the plaintiff cannot obtain the decree sought for.

The further question as to whether the word ""issue"" includes an adopted son has been raised, but a decision is not strictly necessary for this

appeal. The word used in the Will is Santanam and although a similar word Santhathi has been held to include an adopted son Vide, Buddha Singh

Vs. Laltu Singh, . In both those cases the issue was to a male heir. Where the issue is of a female it would be straining the meaning of the word to

make it applicable to an adopted eon, for an adoption is always made to the husband. I would hold that the word Santanam in this context does

not refer to an adopted son. The cases cited by the appellant in support of the view that the daughters had merely a life-estate are Comiskey v.

Bowring Hanbury (1905) A.C. 84 : 74 L.J. Ch. 263 : 53 W.R. 402 : 92 L.T. 241 : 21 T.L.R. 252, Mulchand Jekisondas Vs. Bai Rukshmani, and

Bhimsangji Chhatrasangji Vs. Dolatsangi Hamirsangji, , but in all those cases the estate was held to be so limited because there was a gift over

which was inconsistent with the absolute estate previously provided for.

This appeal must accordingly be dismissed with costs.

Reilly, J.

I agree.