MRS M E D CRUZ Vs. NAGIAH NAIDU

JUDGEMENT

(1.) This case raises a somewhat knotty point of construction of a will and has been argued fully and with care by Messrs. Pinto and Nambiar. The suit has been brought on a mortgage executed by one Nagiah Naidu, who is the 1 defendant. His minor sons have been joined as defendants 2 to 4. What was the interest, if any, which Nagiah possessed in the property, which could have been validly mortgaged to the plaintiff? This is the question I have to decide.

(2.) The property originally belonged to Narasiah, the father of Nagiah, and he executed the will in question in 1906. Paragraphs 3 and 4 deal with the property in question. The testator says first, that the property shall be taken by his wife Venka-dammal and her minor son Nagiah. He then proceeds to say that his wife shall be in management of the property till Nagiah attains majority; on the happening of this event, Nagiah shall manage the property and pay suitable maintenance to his mother. Pausing here for a moment, find that the meaning is fairly clear. The Tamil equivalent of the word taken in the original will is which connotes that the property shall be taken and enjoyed by the persons mentioned. The testator has also used in his will certain Tamil words which mean administer or manage, and I cannot, therefore, agree with the contention that when the testator uses the word taken , he does not intend to convey a different meaning. A careful perusal of the instrument will show that the testator has used the word (taken) as a dispositive word, as distinct from expressions which convey merely that it is a right of management that is intended. What do the clauses, then, that I have referred to, mean? In the first instance, the testator says that the property shall be taken by his wife and by his son; but the moment the son attains majority, the interest of the wife is immediately cut down to a mere right to maintenance. The two clauses must be read together and I am satisfied that their effect is not that the wife takes an absolute interest but that her right, after Nagiah attains majority, is only to maintenance. (I may mention that Venkadammal is said to be alive, but has not been made a party to the suit). If there were no further clauses, I think the case would present little difficulty.

(3.) I have now done with paragraph 3 and the testator in the next paragraph goes gn to say that neither Nagiah nor Venkadamma shall iaave any power to encumber, sell or mortgage the property. Then follows the clause which reads thus: The aforesaid properties shall be taken by the male issue of my son Nagiah and shall be used and enjoyed by them with power to sell, make gift, etc.