SUBRAMANIA PADAYACHI Vs. PAKKIRI PADAYACHI

JUDGEMENT

(1.) The defendants are the appellants. The facts of the case are very simple and may be briefly stated. The suit property belonged to one Subbaraya Padayachi. His wife predeceased him. He had only a minor son Pavadai by name. On 26 November 1918 Subbaraya Padayachi executed a will Ex. B. His son died in 1914 and he himself died in July 1916. The suit property was sold to the plaintiff under Ex. A by Anjalai Ammal who is a sister of Subbaraya Padayachi. The plaintiff's case is that under the will the property came to Anjalai Ammal and since he purchased the same from her he is now entitled to it. In other words, his title to the suit property is based upon Exs. A and B. The defendants are people in possession of the suit property and they say that they obtained the property under an oral gift from Subbaraya Padayachi. This oral gift has been found against by both the lower Courts. After the death of his son, under Ex. 1 some of the properties included in the will were gifted to one Thangaswami, a relation, by Subbaraya Padayachi while some others were sold by him to his sister Anjalai Ammal under Ex. 2. The suit property did not fall either within Ex. 1 or Ex. 2. The question is whether it fell to Anjalai Ammal under the will Ex. B. The answer to the above question would depend upon the construction of the will, which is the only point involved in this second appeal. I shall now briefly refer to the relevant portions of the will. After referring to the death of his wife and his bad health the will stated: I have got a minor son Pavadai Padayachi aged eight years. He should suceced to and enjoy the undermentioned properties as his own after my lifetime and should perform my religious rites.

(2.) Then it says that Anjalai Ammal-testator's sister who has been looking after him (the testator)-should be the guardian of the minor after his own lifetime and protect him. Then it ends by saying: If my minor son loses his life after my death, Amjalai Ammal, the guardian of the minor, should enjoy the said properties with all rights.

(3.) Shortly stated the will says that the testator's minor son should succeed him after his own death and if the minor dies after him, then Anjalai Ammal should enjoy the properties. Obviously, it was contemplated by the testator at the time when he wrote the will that his son would die only after him. The last clause says that if his (Subbaraya Padayachi s) minor son lost his life after his death, then Anjalai Ammal should succeed to the properties. But things did not happen according to Subbaraya Padayachi's expectation, for his minor son Pavadai Padayachi died in. 1914, i.e., two years before he died. The Question is, having regard the fact that the minor sondied before Subbaraya Padayachi, does Anjalai Ammal get any property under the will which says that she would get the properties if the minor son loses his life after "Subbaraya Padayachi's death. The first Court anwered the question in the negative holding that the plaintiff's vendor got no title to the suit property and dismissed the plaintiff's suit. The appellate Court set aside this decision and gave the plaintiff a decree as he had validly purchased the property from Anjalai Ammal. Cases have laid down that in construing a will effect should be given to the intention of the testator as expressed by his words. In Chunnilal Parvati Shankar V/s. Bai Samrath 1914 P.C. 60, at 412, the Privy Council pointed out that there is nothing specifically either English or Indian in the idea that the will of a testator must be construed on that principle which would enable the Court of law most fully to give effect to the intention expressed by his words.