KANAKAMMAL Vs. CBAKTAVATSULU NAIDU

JUDGEMENT

(1.) The only point arising for decision in this appeal is the construction of the will (dated 29th August 1905 of Chennakesavalu Naidu, the last male owner who died on 4 September 1905 leaving a widow and a daughter. It provides for certain legacies in favour of his sister and Ors. (Cl. )2, 5 and 13). It directs that, until the widow attains proper age, the executors should pay for the domestic expenses of the widow the daughter, Rupees twenty per month from the interest and the rents of the houses (Cl. 7) that, if any special expenses require to be incurred for the daughter or the wife, the executors should consider what is proper and what is improper and should pay only what is proper (Cl 11). Finally it provides "The executors should deliver over the aforesaid my properties and cash and all the other properties to my wife Kanchi Pushpamma after she attains the age of twenty years" this age being apparently what the testator meant by proper age in Clause 7. The executors took out probate in 1906 and delivered the properties to the widow in June, 1909. The daughter died in 1906 and the widow died in 1918 leaving another will. The defendant's claim as legatees under the latter will. The plaintiff sues on the ground that the widow had, under her husband's will, only the estate of a Hindu widow taking as an heir, that she was incompetent to dispose of it by her own will and that he succeeds as reversioner. Seshagiri Aiyar, J. who heard the case on the Original Side held (1) that the will of Chennakesavalu purported to dispose of all his interest in the property and there was no intestacy and (2) that the widow took only a life estate. He decreed the plaintiff's suit. The defendants appeal.

(2.) Before us, it was conceded by both sides that the learned Judge's judgment cannot be supported as it stands. The real issue is "Was there a disposition of the residue of the property, after the payment of the legacies.

(3.) If Clause 14 is a clause disposing of the residue of the property to the widow, then, as there are in it no words cutting down her estate to a life estate or a Hindu widow's estate, she takes absolutely. A devise of an estate to A. is prima facie a devise of an absolute estate. And there is no presumption that, where the devisee is a Hindu female, the estate is the limited estate of a Hindu widow, daughter or mother taking by inheritance. This has been the rule now well established in this court-Vide Ramachandra Rao V/s. Ramachandra Rao (1918) ILR 42M 283 (following Surajmani V/s. Rabi Nath Ojha I L R 30 A 84 (PC) to which Seshagiri Aiyar.J. was a party and in which all the cases were collected and my judgment in Soundarajan v. Natarajan (1921) ILR 44 Mad 446 at Page 482: 40 MLJ. 354