VARALAKSHMI AMMAL Vs. VENKAMMAL

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-respondent, for a declaration that the will Ex. 3, alleged to have been executed by her deceased father, one Krishna Ayyar, is not genuine and that, even if it be found to be genuine, it is invalid. The defendant is the widow of Krishna Iyer, and was his third wife. The plaintiff is her step- daughter. The main point for consideration is whether the deceased Krishna Ayyar had any disposing power over the suit house after the execution of the registered settlement deed by him on 10 April 1920 : vide Ex 1. This question turns upon a proper construction of the terms of Ex. 1. By this deed the settlor gave his wife (the defendant) a right to enjoy the house along with him during his lifetime and after his death to enjoy the house till the end of her lifetime and thereafter the house should be taken by his heirs absolutely. There is no doubt that he intended to confer a life-estate on his wife in this house. The point in dispute is as to what he did with the remainder. The lower appellate Court held that under this deed the deceased made a disposition of the remainder in favour of his heirs absolutely on the termination of the life-estate conferred on his wife In this view, it held that the subsequent; disposal of the house under the will Ex. 3 is ineffectual.

(2.) It is contended for the appellant that the lower Court has misconstrued Ex. 1 and that the words in Ex. 1 relating to the devolution of the property on the settlor's heirs after the wife's lifetime indicate merely that she should take only a life-interest. On a careful consideration I find it difficult to accede to this contention. The words in Ex. 1, namely "after my wife's lifetime my heirs should take the property absolutely indicate to my mind a disposition of the remainder in favour of those who would be his heirs at the time of his wife's death. In order to make this clearer there are words to the effect that he would not make any alienation of the property during his lifetime and that even, if he made any, it would not be valid. This is consistent with the idea that he had divested himself even of the remainder. There is also a direction that those heirs should take the property with absolute) rights. Even if the heir happens to be a female, she takes this property absolutely by virtue of this clause. Some meaning or significance has to be attached to. the word " absolutely " and if the settlor did not intend to make a disposition of the remainder in favour of his heirs there would be no need for him to say that they must take it with absolute rights. Under Ex. 2 which was executed by him on the same day, he gave some lands to his wife with absolute rights, but as regards the suit house he restricted her right to life enjoyment under Ex. 1, giving the remainder to his own heirs absolutely. Even considering Exs. 1 and 2 together, it is difficult to hold that there was no idea of disposition of the remainder in the suit house, in the mind of the deceased. The construction of the terms of Ex. I made by the lower appellate Court is correct.

(3.) The next contention is, that the gift of the remainder in favour of his own heirs-is not legal and valid. It seems to me that after the termination of the life-estate given to the widow, the remainder-should go to the heirs of the settlor who would be in existence at the time of the widow's death and they must take the property absolutely. In a recent decision of the Privy Council reported as Madhavran Ganpatrao V/s. Balabhai Raghunath A.I.R. 1928 P.C. 33 it was held upon a construction of a deed, similarly worded, that the intention was to make an independent gift to those persons who should be the male heirs of the daughter on her death, to whom a life-estate was given : vide also Periynnayaki Ammal V/s. Ratnavelu Mudalior A.I.R. 1925 Mad. 61. In the present case the gift of the remainder is to the settlor's own heirs, who happen to be alive on the date of his wife's death and they take a contingent estate. The decision in Ramguttee Acharjee V/s. Kristo Soonduree Delia 20 W.R. 472, relied on by the learned vakil for the appellant is clearly distinguishable, for in that case the testator attempted to effect a disposition of the property in his own way, if the adopted son in whom the property vested absolutely should die unmarried. It was held that this bequest offended the rule laid down in Jatindra Mohan Tagore V/s. Gnendra Mohan Tagore [1873] I.A. Sup. Vol. 47. Even the decision in Benode Behari Bone v Nistarini Dassi [1903] 33 Cal. 180 does not materially help the appellant's contention in this case. It seams to me that the settlor had no (disposing power over the suit property after the execution of Ex. 1. The plaintiff as a holder of a contingent estate at least, is entitled to maintain the suit for declaration. The decision of the lower appellate Court is correct and this appeal is dismissed with costs.