HAMSAVENI AMMAL AND ORS. Vs. S. RAJAGOPAL CHETTIAR

JUDGEMENT

(1.) THE plaintiff's are the appellants. The suit was filed for partition and separate possession. They claimed the right on the basis of a will dated 22nd June, 1924 executed by one Padmanabha Chettiar. The testator's wife was one Dhanalakshmi Ammal and they had a daughter by name Rajalakshmi Ammal. There was a bequest in favour of Rajalaksmi Ammal and after her in favour of her male children. It is the construction of the will that is in question in this second appeal. If Rajalakshmi Ammal had a life estate under the will then there is no dispute that the plaintiffs would be entitled as the children of one of the sons of Rajalakshmi Ammal to one half of the suit properties. If Rajalaksmi Ammal had absolute estate under the will, then since she purported to execute a bequeathing those properties in favour of the defendant, the plaintiffs will not be entitled to any share. The relevant clause in the will reads as follows:

(2.) IN all these cases, as pointed out by the Supreme Court in Ramachandra v. Hilda Brite : [1964] 2 SCR 722 . it is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it; and if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be giver as far as possible to every testamentary intention contained in the will. The will itself, as already said, was executed on 22nd June, 1924. Normally, if an absolute estate was granted in favour of Rajalakshmi Ammal, it would have been her stridhan property and therefore under the Hindu law it would devolve on her female children. The fact that the testator directed that after her death the properties should be inherited by the male children and not even the children in general of Rajalakshmi Ammal clearly showed an intention that Rajalakshmi Ammal's interest in the properties should not be absolute and it will have to devolve on her male children absolutely after her death. Normally even if words are used as possible of conferring an absolute estate in favour of one, that absolute interest could be construed as having been cut down to a life interest where successive absolute estates are given and the dominant intention of the testator was to benefit each donee. In such s case, the successive absolute interests of all will have to be construed as successive life estates. Another way of cutting down this absolute estate is to fetter or use words appropriate disclosing an intention to restrain alienation coupled with a gift over. The apparent absolute conferment of the estate would also become limited, if it was made subject the provisions and directions contained in the will itself and there are limitations on the absolute grant in the later clause. Thus in all these cases, the intention of the testator will have to be given effect to having regard to the successive interests created. If we so construe the document, I have no doubt that the testator would have intended to confer only a life estate on Rajalakshmi Ammal. Though he had used the expression which are words of an absolute grant, since there is a provision in the same clause to the effect that after her death her male children had to take the properties, the intention is made clear that the said Rajalakshmi Ammal should have only a life interest.

(3.) THE decision in Lallu v. Jagamohan, I.L.R.(1898) 22 Bom. 409. had also taken a similar view. In that case it was held that the testator's wife took only a life estate under the will with remainder over to her daughter after her death. These decisions were considered and followed in another case by this Court in Papammal v. Kuppuswamy : (1972) 1 MLJ 481 .