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HAMSAVENI AMMAL & OTHERS V/S S. RAJAGOPAL CHETTIAR, decided on Tuesday, July 13, 1976.
[ In the High Court of Madras, S.A. No. 1575 of 1973. ] 13/07/1976
Judge(s) : V. RAMASWAMI
Advocate(s) : E. Padmanabhan. M/s. T.R. Ramachandran & T.R. Rajagopalan.
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hamsaveni,ammal,and,s,rajagopal,chettiar,

  "1978 (91) LW 32"  







judgment - 1. The plaintiffs are the appellants. The suit was filed for partition and separate possession. They claimed the right on the basis of a will dated 22nd June 1924 executed by one Padmanabha Chettiar. The testator's wife was one Dhanalakshmi Ammal and they had a daughter by name Rajalakshmi Ammal. There was a bequest in favour of Rajalakshmi Ammal and after her in favour of her male children. It is the construction of the will that is in question in this second appeal. If Rajalakshmi Ammal had a life estate under the will then there is no dispute that the plaintiffs would be entitled as the children of one of the sons of Rajalakshmi Ammal to one half of the suit properties. If Rajalakshmi Ammal had absolute estate under the will then since she purported to execute a will bequeathing those properties in favour of the defendant the plaintiffs will not be entitled to any share. The relevant clause in the will reads as follows:TamilIt was the case of the plaintiffs that Rajalaksmi Ammal had only a life estate and after her her male children had to inherit the properties absolutely. On the other hand the learned counsel for the defendant contends that there is an absolute grant in favour of Rajalakshmi Ammal and the gift over in favour of her male children becomes ineffective and invalid as it would cut down the absolute grant already made in favour of Rajalakshmi Ammal.2. In all these cases as pointed out by the Supreme Court in Ramachandra v. Hilda Brits A.I.R. 1964 S. C. 1323 it is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it; and if there are two repugnant provision conferring successive interests if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will. The Will itself as already said was executed on 22nd June 1924. Normally if an abslolute estate was granted in favour of Rajalakshmi Ammal it would have been her stridhana property and therefore under the Hindu Law it would devolve on her female children. The fact that the testator directed that after her death the properties should be inherited by the male children and not even the children in general of Rajalakshmi Ammal clearly showed an intention that Rajalakshmi Animal's interest in the properties should not be absolute and it will have to devolve on her male children absolutely after her death. Normally even if words are used as possible of con truing an absolute estate in favour of one that absolute interest could be construed as having been cut down to a life interest where successive absolute estates are given and the dominant intention of the testator was to benefit each donee. In such a case the successive absolute interests all will have to be construed as successive life estates. Another way of cutting down this absolute estate is to fetter or use words appropriate disclosing an intention to restrain alienation coupled with a gift over. The apparent absolute conferment of the estate would also become limited if it was made subject to the provisions and directions contained in the Will itself and there are limitations on the absolute grant in the later clauses. Thus in all these cases the intention of the testator will have to be given effect to having regard to the successive interests created. If we so construe the document I have no doubt that the testator would have intended to confer only a life estate on Rajalakshmi Ammal. Though he had used the expression ‘(Tamil)’ which are words of an absolute grant since there is a provision in the same clause to the effect that after her death her male children had to take the properties the intention is made clear that the said Rajalakhshmi Ammal should only a life interest.3. In Ramachandra v. Hilda Brits the Supreme Court had to construe a similar document. The relevant clause in that document read as follows—“All these (properties) shall after me be enjoyed by eldest daughter Severina Sabina and after her life-time by her male children too as permanent and absolute hukdars”.The Supreme Court held that since the dominant intention of the testatrix was to confer a permanent and absolute remainder on the male issue of her daughter after the lifetime of the first done the daughter got only a life estate and not an absolute interest. The Supreme Court also pointed out that the expressions ‘after the lifetime’ and ‘after the death’ were words understood by the draftsman of the Will to indicate that the interest referred to was a terminable one namely a life interest.4. The decision in Lallu v. Jaganmohan had also taken a similar view. In that case it was held that the testator's wife took only a life estate under the Will with remainder over to her daughter after her death. These decisions were considered and followed in another case by this court in Pappammal v. Kuppusami 1972 1 M.L.J. 481.=85 L.W. 387.5. The learned counsel for the respondent relied on the decision in SubramaniasamiTemplev. Ramaswami A.I.R. 1950 P.C. 32.The relevant clauses in the Will which were considered in the case read as follows—“I have bequeathed to my son P the right to all my properties and moneys etc. and he shall solely enjoy them. If he or his son has no child the said properties shall pass to ‘Subramaniaswami’ at Tiruchendur”.Having regard to the wording used and the bequest being to a male who is the son of the testator the Privy Council held that the bequest in favour of the son was absolute and the gift over in default of children to Subramaniaswami temple was invalid and ineffective. That decision in my opinion does not help the argument of the learned counsel for the respondent.6. In the result therefore Rajalakshmi Ammal should be deemed to have held only a life estate in the properties and after her death her male children got the properties absolutely. The plaintiffs are therefore entitled to the decree for partition and separate possession as prayed for in the suit. The judgment and decree of the lower appellate court are therefore set aside and the judgment and decree of the trial court are restored. The parties will bear their respective costs throughout. No leave.