DAMODARA MOOTHAN Vs. AMMU AMMA

JUDGEMENT

(1.) The question that arises in this appeal is with regard to the construction of a will which has been marked as Ex. A. It was held by the District Munsiff of Palghat, who tried the suit, that according to the will one Kunjammal, the sixth defendant and mother of the plaintiff, had an absolute interest and that therefore the plaintiff had no cause of action. He therefore dismissed the suit. In appeal, the learned Subordinate Judge construed the will as conferring upon the sixth defendant and her children the plaintiff and the seventh defendant, joint rights in the property after the death of their mother, the widow of the testator. He therefore allowed the appeal and remanded the suit for fresh disposal, because the disposal of the suit then depended upon the result of certain inquiries as to the binding nature of the alienations and other matters.

(2.) After the testator had expressed his regret that he had no male issue and had only a young daughter often years of age, he said that " the aforesaid Kunjammal (6 defendant), born to me by my wife Paru, becomes entitled to all my properties and the proceeds thereof." He then goes on to say that he would manage the property for the remainder of his life, that he and his wife during their lifetime should enjoy the property, and that after they were both dead their property... should be enjoyed by the daughter Kunjammal and the issues that might be born to her." Mr. Krishna Variar, who appears for the appellant, first contends that this document is not a will at all, but is merely a settlement conferring upon his wife rights even during his lifetime; and he relies on the words, "It is settled, however, that till the end of my life and that of my wife, we ourselves should keep in possession and enjoy the properties in any manner we like." The document is, however, described as a will; and I do not think that the testator meant anything more than that his daughter should not come into possession of the property as long as his widow was alive. The reference to enjoyment by himself and his wife was a reference to a natural state of affairs, wherein the wife, equally with the husband, enjoys the income from the husband's property. This recital was intended to emphasise the fact that after the death of one of them the other should continue to enjoy the property.

(3.) Another preliminary argument of Mr. Krishna Variar is that under Section 113 of the Indian Succession Act, a bequest to the children of Kunjammal would be void; but I see no reason why it should be. Section 113 of the Indian Succession Act, and the corresponding Section 13 of the Transfer of Property Act, make void a bequest or a transfer to a person unborn at the time of the bequest or transfer if the interest does not comprise the whole of the remaining interest in the testator or transferor. I see no reason why a reference to a prior bequest or a prior transfer excludes the idea of more than one prior bequest or transfer. The illustrations given in the text beneath these sections do not indicate that when there are two or more prior life interests the bequest or transfer would be void even if it comprised the whole of the interest of the testator.