S. Narayana Doss vs Arumuga Thammal and another

Subrahmanyam, J.—The points for determination in this second appeal relate to the nature of the interest bequeathed to Shanmugathammal, the deceased wife of the plaintiff-appellant, under the wilt, Ex A, executed by her father Velayutha Konar, on 11th February, 1924 Velayutha Konar died in 1927, leaving him surviving his widow, Chellathammal and three daughters Arumugathammal,'' Subbammal and Shanmugathammal. Chellathammal was the stepmother of the daughters Under the will he divided his proper ties into three separate shares, describing them in Schedules 1, 2 and 3 appended to the will He bequeathed the properties in Sch. I to his first daughter Arumugathammal those in Sch. 2 to his second daughter, Subbammal and those in Sch. 3 to the third daughter, Shanmughathammal In regard to each of these three daughters, he said in the will that she would hold and enjoy the properties described in the appropriate schedule absolutely and with full powers of alienation. He had to pay about Rs. 250 in 25 monthly installments of Rs. 10 each towards a chit which he was subscribing to and he directed his daughters to pay that chit debt in equal shares. If any daughter defaulted and if any of the other daughters had on that account to pay more than her proportionate share he said that such daughter could recover the excess out of the property bequeathed to the daughter'' who defaulted. He directed the sons-in-law to meet the expenses of the funeral and annual ceremonies of himself and his wife; and then appear in the will the clauses which have given rise to the present controversy.

If any one of my said three daughters has no issue, she shall till her lifetime enjoy the same without making any distribution whatever thereof, and after the lifetime, the same shall pass on to my other daughters having heirs. If any one without any issue as mentioned above effects any alienation that will not to valid.

Velayutha, the testator, died in 1927. The will shows that all the three daughters were married on the date of the will Shanmughatammal, the third daughter died in 1929 It is admitted that no child was born of her womb Chellathammal, Velayutha Konar''s widow, died on 9th January 1943 Sch. 3 which described the property bequeathed to Shanmughathammal consists of an item of wet land and moveable properties in the possession of the testator There is no evidence as to what happened to the moveable properties after Chellathammal''s death. The immovable property namely, the item of wet land, was taken possession of by the other two daughters and was in their (or their representatives'') possession when the suit which has given rise to this second appeal was instituted on 5th December 1952 Shanmugathammal''s husband is the plaintiff Arumugathammal, the surviving daughter of Vhlayutha Konar is the first defendant, Velayutha Konar, the second defendant, is the son of the other daughter Subbammal. The plaintiff-appellant contends that, under the will Shanmughathammal took an absolute estate in the immovable property described in the third schedule, that the property devolved on him on his wife''s death and that he became entitled to the possession of the property on the death of Chellathammal in 1943. The defendants contend that, under the will, Shartmughathammal took only a life estate in the property, or, that in any event the estate conferred on her was subject to the executor devise made in favour of her sisters, which was capable of taking effect; and that the devise did take effect and the sisters became entitled to the property on Shanmughammal''s death.

The learned District Munsif held that Shanmughathammal took an absolute estate and that it passed on her death to her husband, the plaintiff-appellant. In appeal, the learned District Judge held that the bequest in favour of Shanmugathammal was subject to the defeasance clause in favour of her sisters, which took effect and by reason of which the property bequeathed to Shanmugathammal devolved on her sisters on her death.

The points for determination are: (I) Did Shanmughathammal take a life estate in the property described in Sch. 3 to the will, Ex. A. 1 and (2) Is the estate granted to Shanmughathammal under the will Ex. A. 1, subject to an executor devise in favour of her sisters, capable of taking effect on Shanmugathammal dying without issue Point I: In construing a will, we start with the proposition that all its clauses should, if possible, be given effect to The rule has its basis on the principle that a testator does not intend to say inconsistent things and that he wishes that everything that he says should come to pass. That, of course involves the condition that everything that the testator says is capable of being legally given effect to. On the question of giving effect to a will, thus, two questions are involved. The first is whether all the terms could be so construed as to harmonies with one another; and the second is whether, thus construed, all the terms could legally be given effect to.

In the early part of the Will, Ex. A.1, the testator says that each of the daughters will take the property allotted to. her absolutely and with full powers of alienation In a subsequent portion of the will, he says that if any of the daughters has no issue, she shall enjoy the property during her lifetime without subjecting it to any encumbrance and that the property shall on her death pass over to her sister or stators who have heirs Is there any necessary inconsistency between these two parts of the will ? As pointed out by the learned Counsel for the respondents the testator expected that, in the usual course of things, each of his daughters would have children; and therefore, the earlier part of the will provides for what may be called normalcy The testator, however, was not unaware of the possibility of a daughter or daughters not having children The later part of the will provides for the special contingency of a daughter not having issue The later part should therefore be read as a proviso to the earlier part. Thus read, what the will says is this: each of the daughters shall enjoy the property given to her under the will absolutely, provided that, if any of the daughters does not have issue she shall have no power of alienation and the property shall pass free of all encumbrances, to her sister or sisters who have issues surviving.

The testator was an agriculturist and the draftsman of the will was clearly a person without the requisite knowledge of law or skill in drafting. I shall give an example of the lack of knowledge and skill. It is clear from the will that the testator desired that his wife should have a life estate in the properties and that his daughters should have no right to possession of enjoyment of the properties during his wife''s lifetime. The proper way to give effect to that idea was to state that his wife was granted a life estate and that the interest conferred on the daughters could be reduced to possession only after the wife''s lifetime. But that is not the language used in the will. What the will says is This will should come into force after my lifetime and the lifetime of my first wife Chellathammal," The will would, of course, take effect if at all at the moment of his death. Its operation could not be deferred until after the death of Chellathammal. So as, however, to give effect to the testator''s intention, we have to construe that particular sentence not as deferring the operation of the will, but as conferring on Chellathammals a life estate in the properties with gifts-over in favour of the daughters. I am mentioning that circumstance merely to show that, in construing, the will, we should not adopt standards which would be appropriate to a will drafted by an expert draftsman.

On the first question namely, as to the intention of the testator as expressed in the clause conferring an absolute estate and the clause depriving the childless daughters of the power of alienation. I hold that the testator intended that the daughter who had no issue at the time of his death should have a life estate in the property allotted to her and that the daughter or daughters who had issue at that time should each take an absolute estate in the property respectively allotted to them.

The question arises as to what happens if the daughter who, having no issue at the time of the testator''s death takes only a life estate has a child or children born to her thereafter The answer would obviously, be that the proviso which deprives the daughter who has no issue, of the power of alienation, would cease to be applicable, and the general clause conferring an absolute estate would come into operation on the birth of such issue and the life estate would get augmented into an absolute estate The point, in my opinion, is placed beyond doubt by the sentence in the will which says :" If anyone without any issue as mentioned above effects any alienation, that alienation will not be valid." It follows there from that, if a daughter having issue, effects an alienation, such alienation would be valid that is to say the alienation would not cease to have effect on such daughter''s death.

In this case, Shanmughathammal had no issue at any time The estate which she took, on the death of her father, in the properties described in Sch. 3, was a life estate. It never got augmented into an absolute estate. Since the estate ceased on her death, there was nothing which the plaintiff could inherit. I find the point in the affirmative. Point 2: This is the only point on which the learned District Judge dismissed the plaintiff''s suit. He said that the will contained an executor devise in favour of the sisters of Shanmugathammal on her dying issueless that the devise was capable of taking effect and took effect and that consequently the property passed to her sisters on her death. Some Late. complication might have, arisen if Shanmugathammal, who died issueless, had had issue during her lifetimes In complication mint No. 1. I have given reasons for the view that the estate which devolved on Shanmughathammal when the will took effect, namely, on the date of her father''s death was a limited estate and that it was capable of being augmented into an absolute estate if a child was born of her womb. If a child was born and if such child died during Shanmughathammal lifetime, the estate would not, in my opinion, get contracted into a limited estate. She might, for example, have a son, for the expenses of whose marriage she sells a part of the property. The aliened would under the terms of the will get an absolute estate in the property alienated If the son died issueless thereafter and the mother who survived the son died issueless, the property of which she died possessed would, in my opinion, pass to her heirs and not, under the will, to her sisters. No such problems present themselves for solution in this case, because the plaintiff''s wife had never any child born of her. Therefore, the clause in the will which says.

If anyone of my said three daughters had no issue. the same (the property bequeathed to her under the will) shall pass on to my other daughters having heirs.

becomes an executor devise capable of taking effect, when the other daughters have children That point is covered by direct authority. The case in Govindaraja Pillai v. Mangalam Pillai 63 M.L.J 911=36 L.W. 733 dealt with a prenuptial settlement by a husband in favour of his wife in the following terms:

I have accordingly given you the under mentioned properties valued at Rs. 1000 and you shall yourself from this day hold and enjoy the same with all rights. Should any issue be born to us, that issue shall get the properties after our death. If there is no issue, after your death, your brothers should take the properties.

It was held that the estate taken by the wife was an absolute estate subject to defeasance in the event of her dying without issue and that the defeasance clause was not opposed to any rule of law Consequently, her brothers were held entitled to the properties on her death without issue On the point, there is no difference in principle between a transfer inter vivo and a bequest (Vide S. 28 of the Transfer of Property Act and S. 131 of the Indian Succession Act). To the same effect, though slightly different reasons are given, is the decision in Mst Rameshwar Kuer v. Sheo Lal Upadhyaya 14 Pat. 640. On the other side, the learned Counsel for the appellant places strong reliance on Tiruchendur Sri Subramaniaswami Temple Vs. P. Ramasamia Pillai (insane) through his wife and guardian R. Muthammal and Others, . The bequest in that case was in these terms

I have bequeathed to my son Pichai Pillai the right to all my properties and moneys etc. and he shall alone enjoy them, If he or his son hag no child, the said properties shall pass to Sri Subrahmaniaswami at Tiruehendur.

It was held by this Court that there was no executor devise in favour of the Deity. The judgment was affirmed by the Privy Council in Sri Subramaniaswami Temple v. Ramaswami Pillai (1950) 1 M.L.J. 300=63 L.W. 193 The claim made on behalf of the temple could not have been upheld except on the view that there was a gift-over in favour of the son of Pichai Pillai in the event of Picha Pillai leaving a son and an alternative gift-over in favour of Sri Subramaniaswami in the event of Picha Pillai dying without a son and a further gift over in favour of Sri Subramaniaswami in the event of Picha Pillai having a son and such son dying issueless Picha Pillai took an absolute estate in the properties bequeathed, if he died leaving a son, such son would take an absolute estate in the properties provided they had not been alienated during the father''s lifetime The intention of the testator was that if such son of Picha Pillai died without issue, the properties should be taken by the temple The effect of the judgment of this court and of the Judicial Committee of the Privy Council is that the law will not give effect to such intention. The terms of the will before us are in part materia with the terms of the instruments construed in Govindaraju Pillai v. Mangalam Pillai 63 M.L.J. 911=36 L.W. 738 and Mst. Rameshwar Kuer v. Sheo Lal Upodhyaya 14 fat 640. I find that the bequest to Shanmughathammal was subject to an executor devise in favour of her sisters in the event of her dying without issue and that that devise was capable of taking effect and, in the events that happened, took effect No other point is argued The second appeal is dismissed with costs (one set) Leave to appeal granted.