NARAYANA AYYAR Vs. SUBBARAYA AYYAR

JUDGEMENT

(1.) THE main question argued in this second appeal is whether Vembu Ayyar according to the terms of the document Ex. 13 a will, gets a vested remainder in the suit property. It is stated in Ex. 13 that Vembu Ayyar shall get the above land (i.e., suit property) after performing her obsequies i.e., the obsequies, of his mother in whose favour a disposition has been made in the earlier portion of the document with reference to this condition. Mr. Muthukrishna Ayyar argues that since Vembu Ayyar died before his mother he could not perform her ceremonies and, therefore, the property did not vest in him. I do not think that this provision is introduced as a condition precedent to the son taking property under the will. THE father thought that in the ordinary course of nature the son would survive his mother and so would perform her ceremonies. If the father thought that this was an essential condition, then he would, I think, certainly have made some other provision for the enjoyment of the property on the happening of this contingency. That he has not done. THE decision in the case cited in Periyanayaki Animal V/s. Ratnavelu Mudaliar A.I.R 1925 Mad. 61, depended on the construction of the special terms of the will in that case. Both the lower Courts think that under Ex. 13, Vembu Ayyar took a vested interest in the suit property. I agree with their view. If so, defendant 2 cannot have any claim to this property.

(2.) MR. Muthukrishna Ayyar also argued that Seethalakshmi under the will was given an absolute estate and so defendant 2 as her daughter's son should get the property and not the plaintiff who is only a reversioner. This argument was not put forward in the Courts below. It was assumed that she had only a life-interest and the terms of the document support only this view. The second appeal must therefore be dismissed with costs.