SUBBARAYA GOUNDAN Vs. MUTHAYAMMAL

JUDGEMENT

(1.) THE plaintiff s husband by his will devised to her his one fourth share in a mitta which had fallen on partition to his brother and had been mortgaged by the brother s widow to the plaintiff s husband and to his three divided sons. A further agreement, Exhibit C, to which the widow, the plaintiff s husband and his three sons were parties, provided that on her death the mitta should be divided into four shares, of which the plaintiff s husband and his three sons should each take one share. THE plaintiff s husband was the next reversioner and his sons were remoter reversioners, and they were none of them competent to transfer their reversionary interests. Consequently the agreement Exh. C. was so far void; and all that the plaintiff s husband had at the time of his death was a one-fourth share in the mortgage executed by the widow in favour of himself and his sons, as he predeceased the widow. It has been contended before us that in these circumstances the testator s mortgage interest in the mitta did not pass to his widow, the plaintiff, under his devise of one-fourth of the mitta. THE English cases show that in this as in other cases it is a question of the testator s intention. Jarman, Vol. I, Gh. XII, states it to be clear that a leasehold estate will pass under the description of freehold, citing Doed Wilkins v. Kemeys, In England, as pointed out by Jarman, Ch. XXI, devise of lands does not prima facie include the beneficial interest in a mortgage on the lands, because, though the legal estate is in the mortgagee and passes to his heir or the devisee under his will, the heir or devisee is treated as merely a trustee for the person entitled to the mortgage debt, either as legatee under the will, or as a personal representative of the deceased, if it is otherwise undisposed of. Account has to be taken of these considerations in construing English wills, and therefore Mr. Jarman states that in his opinion, it is " not universally true that an express devise of lands, or (which seems to be the same in effect) a devise of all the testator s lands in a particular place, he having no other than mortgaged lands there, will carry the beneficial interest to the devisee, though the affirmative has been sometimes laid down in very, unqualified terms." A recent unqualified statement of this kind is to be found in Halsbury s Laws of England Vol. 28, p. 702, Section 1324. In Woodhouse v. Meredith (1816) 1 Mer. 450, it was held that there was enough to show that it did, whereas in Bowen v. Barlow (1872) 8 Ch. App. 171, it was held that it did not. In India, where the legal interest is divided between mortgagor and mortgagee just as it is between lessor and lessee, and where there is no distinction between reality and personality as to descent, the question of ascertaining the testator s intention from the terms of the will is less complicated. In the present case it is apparent from a perusal of the will that the testator regarded himself as already entitled to dispose of the one-fourth of the mitta under the terms of Exhibit C and intended to do so. It is true that this agreement, Exhibit C, as to a mere spes successionis was, it is now settled, inoperative, but the testator is not likely to have been aware of this. He clearly intended to dispose of any interest he had in favour of his widow. THE decision of the Subordinate Judge was right and the appeal is dismissed with costs. Time for redemption 3 months from this date.