JUDGMENT

(Delivered by the Chief Justice).

The plaintiffs in O. S. No. 20 of 1959 on the file of the Subordinate Judge's Court, Kumba-konam, have filed this appeal against the decree therein dismissing their suit for a declaration of their title to the properties in suit and for recovery of possession of the same. The claim was made on the basis that the plaintiffs were the reversioners to the estate of their paternal uncle Ranganathan Chettiar, to whom, they stated, they succeeded on the death of his widow, Bagirathi on 21st March, 1959. The father of the plaintiffs, Chakrapani Chettiar and Ranganathan Chettiar were brothers. The latter was employed at Jaffna in Ceylon. They effected a partition of their family properties on 19th October, 1913. Under the partition Ranganathan Chettiar was allotted, besides other properties, two houses to the west of the house allotted to his brother, the eastern one among them being his residential house. On 9th October 1916 Ranganathan Chettiar executed a Will, the truth and genuineness of which has not been disputed before us. Under that Will, he bequeathed the properties obtained by him at partition to his wife. A substantial part of the controversy in this case turns on the construction to be placed on this will. The testator died shortly alter the execution of the Will; Bagirathi entered immediately into possession of all the properties; but Chakrapani Chettiar did not give her peace. He was the first defendant in O. S. No. 81 of 1917 in the Subordinate Judge's Court, Kumbakonam, disputing the genuineness of his brother's Will. The Court found that the Will was true and had been validly executed. After the death of Chakrapani Chettiar, Bagirathi filed O. S. No. 170 of 1943 in the District Munsif Court, Kumbakonam, to avoid a disposition made by her mother-in-law. In that litigation also the validity of the Will executed by Ranganathan Chettiar was upheld.

During her life time Bagirathi effected a number of alienations in respect of her properties, the principal one being a settlement deed, Ex. B. 17, executed in favour of the 4th defendant, Sivaprakasa Chettiar, a cousin brother of hers and in favour of her sister's children. Sivaprakasa has been living with Bagirathi since then and there is ample evidence in the case to show that he was devoted to her and has been looking alter her. It is claimed by him that on 25th January 1959 Bagirathi executed her Will, Ex. B. 61, in his favour bequeathing him the two houses specified in Schedules A and B to the plaint. The plaintiffs impugn that Will. It is also their case that Bagirathi had obtained only an interest for her life under husband's Will and that she was not, therefore, competent to dispose of the propertes beyond her life time.

The learned Subordinate Judge did not accept their claim. He held that Bagirathi obtained an absolute estate under her husband's Will, that the settlement deed and other alienations effected by her were equally valid and that her own Will in favour of Sivaprakasa had been proved to be genuine and duly executed.

In this appeal three contentions have been raised on behalf of the plaintiffs: (1) that on a true construction of Ranganathan Chettiar's Will, Ex. A. 2, Bagirathi had only an estate for her life and that the dispositions made by her cannot enure beyond her lifetime; (2) that the settlement deed Ex. B. 17 is sham and nominal and (3) the Will, Ex.B 61, is not a genuine one.

The Will of Ranganathan Chettiar, on the true interpretation of which the answer to the first question depends, is brief. It is in Tamil and can be freely translated thus:

“The properties obtained by me by way of partition of my maternal grandfather's properties and the jewels worn by my wife Bagirathi shall be taken by Bagirathi alone, who will be entitled to enjoy them throughout her life; thereafter Bagirathi can dedicate them to any charity she might desire. But the house situate to the west of my residential house shall be enjoyed by Bagirathi for the duration of her life-time. Thereafter she shall make a gift of the same to any one of my brothers Chakrapani Chettiar's sons who might be beholden to her.”

A reading of the Will shows that the testator has made a significant distinction between the hou.se situate on the west and his other properties. So far as the latter is concerned, the Will does not itself designate the charity to which they were expected to be endowed by Bagirathi. It was left completely to her discretion to give them to such charity as she might choose. But it is evident that he intended that Bagirathi's right to the western house should be more limited. That such a distinction was intended between the two sets of properties is clear from the interposition of the word (but) between them. Secondly while in the case of other properties, Rangana-than Chettiar says that Bagirathi should enjoy them (for the entire period ot her life), in respect of the house and he says that Bagirathi would be entitled to enjoy it indicating thereby that the latter was to be for the duration of her life. Further in the latter case he gives a direction, mandatory in form, that it should be given to his brother's son. No son of Chakrapani Chettiar was in existence at the time when Ranganatha Chettiar executed the Will. She was left to choose him. If any son of his brother were to get the property it must be by virtue of Bagirathi's appointment; nevertheless there is an unmistakable indication in the language of the Will that the testator intended that western bouse should not be disposed of in the same manner as the rest of the property. That should go to one of the sons of his brother. Therefore the estate to be taken by Bagirathi should be different in regard to the two sets of properties.

The learned Subordinate Judge, however, did not make any distinction between the two sets of properties. He held that the language of the Will was wide enough to confer an absolute estate on Bagirathi in respect of all the properties dealt with thereunder. In our opinion, the Will has got to be construed differently in regard to the two dispositions.

We shall now take up the first disposition, which bequeathes properties other than the western house. There are no words in the document to show that the interest created in favour of Bagirathi in respect thereof is a mere life estate; there is no prohibition against alienation.

A limited grant can of course be inferred either from the language employed in the document, or by the nature of the various dispositions. An instance of the former is a case where it is said that the donee will enjoy for her life. In the present case, the document says that Bagirathi alone shall enjoy the properties during her lifetime. The word (enjoy) is of wide import. The word “enjoy” itself will include within it, power of aliena-nation etc., unless there be other indications in the document to show that a more limited meaning was intended. An example of the latter kind is found where property is given to a person to be enjoyed in apparently wide terms but there are other dispositions of the same property by way of remainder or otherwise. In such a case, difficult questions will arise whether the latter disposition of the property is invalid as being repugnant to the former, or only thus reveal an intention in the donor to restrict the apparently absolute estate conferred on the first taker. The primary rule in such cases is to ascertain the intention of the settlor or testator. Such intention is to be ascertained from a reading of the document as a whole. If it is found that the intention of the testator is to give an absolute estate to the first person, the subsequent dispositions will have to be regarded as void, being repugnant to the estate given to that person. If, on the other hand, it is found that the latter disposition was intended to cut down the first, effect must be given to both the dispositions by importing the grant of a limited estate to the first and the remainder to the subsequent donee. Mr. R. Ramamurthi Iyer appearing for the appellants has contended that the provision as to disposition of the property to the charity at the end of Bagirathi's life time must be taken to indicate that she was given only a life estate. Learned Coumel in this connection has invited our attention to certain decisions to support that contention. Lakshmana Nadar v. Ramier 1953, 1 M.L.J 834 S. C. was one of of such cases. There a Hindu bequeathed his properties to his wife expressly to be enjoyed for her life and that after her life time the properties were to go to his daughter. The Supreme Court held that the language of the Will clearly showed that the wife was to get nothing more than a life interest and that thereafter the daughter should take the property absolutely. At the same time, their Lordships pointed out that in ascertaining the intention of a testator the Court was bound to keep in view the surrounding circumstances, his ordinary notions in respect of the devolution of his property, his family relationship etc. The contention in that case was that the widow got a Hindu widow's estate and not a mere life estate and that the disposition in favour of the daughter was nothing more than a spes successionis. This contention was negatived, as the language of the Will clearly envisaged an immediate vesting of the remainder in the daughter. We are unable to see how this decision can be applied to the present case where there is no such express language, In Periasami v. Dhanalakshmi A.I.R 1960 Mad. 391. Ramaswami and Anantanarayanan JJ., had to construe a Will which provided that the widow of the testator should enjoy the properties to carry on her livelihood etc., and that after her lifetime his grandchildren, then alive, were to take all the properties absolutely. The learned Judges inferred from the existence of a gift over of ihe properties to the grand-children, that what preceded it was merely a life estate. In a more recent case before the Supreme Court, Raghunatha v. Ganesh 1 A.I.R 1964 S. C. 24. the testator provided that his widow was to enjoy the property during her lifetime as the owner of the income in any manner she might like. It was further provided that after her death the property should go to the son to be adopted by her. It was held that the Will conferred only a life estate on the widow. In that case also the disposition of the remainder in favour of another was taken to be an indication of the testator's intention that the first donee was to take only a limited estate.

In the present case, there is no disposition in favour of the charities directly by the testator. In other words, even if Bagirathi were to dedicate the properties to the charity, the latter will obtain the same only by virtue of Bagirathi's disposition and not under the Will of Ranganathan Chettiar. There being thus no disposition of the properties by Ranganathan Chettiar beyond the one in favour of Bagirathi, the rule of construction recognised in the decision referred to above cannot apply. On the other hand, the language employed as well as the circumstance that Bagirathi was given unfettered powers in the choice of her object of charity, would appear, prima facie to indicate that the testator did not intend any limitation on the powers of her enjoyment of the properties.

But this does not, however, conclude the matter. Even if it be held that there is no express gift over in favour of any person other than the first donee, there may be cases where, from the language of the document, a limited estate can be inferred. For example, if it is to be held that the direction to the wife to devote the properties to charity amounts to a trust in favour of such a charity, or at any rate, a power of appointment in her to such objects, it can reasonably be argued that what was conferred on the legates was a limited estate, coupled with a trust or a power of appointment; for existence of such trust or power would show an intention that a limited estate was given to her.

A trust is an obligation annexed to ownership and the tiustee holds the property subject to the obligation which the testator has imposed on him. We have therefore to see “was there an obligation in Bagirathi to make over after her lifetime the properties to a charity?” A tiustee has no freedom of choice, and he will be bound to distribute in accordance with the directions given by the testator; he no doubt holds legal title in the property but the choice of the beneficiary is not his but of the testator. Aproved of appointment on the other hand, does not imply any idea of property in the donee of the power. Unlike the case of a trust, there is no obligation in the case of a donee of the power, to exercise the power. In Lewin on Trusts, 15th Edn., at page 324, the distinction between a bare power and powers in the nature of a trust, is stated thus:

“The former are powers in the proper sense of the word-that is, not imperative, but purely discretionaly; powers which the trustee cannot be compelled to execute and which, on failure of the trustee, cannot be executed vicariously by the Court. The latter, on the other band, are not discretionary, but imperative, have all the nature and substance of a trust, and ought rather, as Lord Hardwicke observed, to be designated by the name of trusts.”

The question whether an imperative or discretionary obligation is imposed on the donee of a power will have to be determined on a consideration of the entire document. No trust can be held to be imposed if the language used, leaves it uncertain as to in whose favour the property is to be applied. There being no such language in this case, no obligation by way of trust could be held to be imposed on the legatee. Now let us see whether a power of appointment is vested in her. In Brijlal v. Suraj Biram Singh a testator bequeathed certain properties in favour of his daughter-in-law for her life and empowered her to nominate any one whom she might think fit as heir, so that the family name might continue. It was contended that what was given to the daughter-in-law was an absolute estate. The Privy Council negatived the contention, holding that under the Will the only right given to the daughter-in-law was to remain in possession of the property and that right was coupled with a power of appointing an heir in her lifetime or by her Will. That was a case where, apart from the power of appointment given the language employed in the document was clear that the daughter-in-law was to obtain a mere right of occupation of the property for the duration of her lifetime. Mussoorie Bank v. Rayner was a case where the property was bequeathed by a testator to his wife, expressing confidence that she would act justly to her children in dividing the same when no longer required by her. It was held that there being no direct gift to the children to cut down what was given to the widow, the latter obtained an absolute estate. That decision was considered by a Bench of this Court in Kumarasami v. Subbaraya where the executors were directed to give the properties to the testator's brothers etc., “according to your wishes”. It was held that no trust could be held to be created. The direction to distribute, in such cases, must be regarded as a mere expression of a desire. The following passage in Theobald on Wills, 12th Edn., page 1255, will be found useful in this connection:

“Therefore, mere expressions, of a desire that the donee will be kind to remember, consider, deal justly, educate and provide for, take care of, or do justice to, a certain class of persons, will raise no trust”.

In Albert Karunakaran Stephen v. Administrator-General Of Madras 49 M.L.J 197 = 22 L.W 94,, an Indian Christian gave his properties to his wife, saying “After me she should enjoy the said properties and she would be at her death divide and give the same to these three persons, A, B and C, according to her wishes.” The Court held that there was an absolute bequest in favour of the wife and not a mere life estate coupled with a power of appointment. Krishnan J. observed:

“…It is not a case at all of any power of appointment. It is merely a case of absolute bequest to the widow with a recommendation to her, so far as I can understand, to deal with the properties in the manner mentioned which is not binding on her.”

Applying the principles referred to above, we are unable to find either a trust or a power of appointment in favour of the charity in the first clause of the Will. What was intended was a mere recommendation to devote the properties to such charities as Bagirathi might choose. Probably, Ranganathan Chettiar expected that his wife would respect his wishes. But that cannot mean that her powers over the properties were in any way curtailed. We, therefore, agree with the learned Subordinate Judge that Bagirathi took an absolute estate under her husband's Will in regard to properties other than the western house.

The western house, however, stands on a different footing. As we have pointed out above, there is a mandatory direction to Bagirathi to settle that property on any one of his brother's sons. The testator would not have intended an absolute estate in her in regard to that property, having regard to his manifest intention that that property should go to one of his brother's sons. It is true that the brother's son was not the direct object of gift; a power was given to his wife to select him. He must therefore have intended to give to Bagirathi only a life estate in the property. The fact that she did not exercise the power of appointment vested in her cannot enlarge her estate. The remainder will have to bo treated as undisposed of by the testator and the plaintiffs, who are his heirs, would be entitled to recover posseseion of the same.

The next question relates to the operative nature of the settlement deed, Ex. B. 17. That was executed by Bagirathi in favour of her cousin brother Sivaprakasani on 9th July, 1945. On 26th of November 1956 nearly eleven years after the settlement deed, Bagirathi purpoted to convey one of the properties mentioned in the settlement deed to the third defendant Kunjithapatham Chettiar, for a consideration of Rs. 2000; vide Ex.B 16. Therein she stated that the settlement deed executed by her in favour of Sivaprakasa was a nominal one. Sivaprakasa has himself attested this document. This recital completely supports the case of the plaintiffs that Ex. B. 17 was not intended to be operative. It is not very clear from the evidence as to why that recital was made and how it happened that Sivaprakasa agreed to it. There is however other evidence in the case to show that the settlement deed must have been intended to be an operative document. For example, under Ex. B. 13, both Bagirathi and Sivaprakasa conveyed a property included in the settlement deed to the first defendant, the Kumbakonam Municipality. Besides, there are a number of lease deeds showing that Sivaprakasa was in possession of the properties concerned in the settlement deed. That he was living with his cousin-sister right through and was in dt facto possession of the properties is not disputed. The learned Subordinate Judge has iound that the setttlement deed was intended to be operative. We are unable to say that his conclusion, based as it is on the evidence, in the case is wrong.

But this question has lost much of its importance, because of the residuary clause contained in Ex. B. 61, the alleged Will executed by Bagirathi prior to her death. If that Will were found to be genuine, Sivaprakasa will be entitled to the properties under the Will at least and the alienations made by him would be protected.

On behalf of the appellants, the Will Ex.B 61 is attacked as a forgery.

After discusssing the evidence, His Lordship held:—

Although there are certain infirmative circumstances like the letter to the Municipality, Ex. B. 62, we are satisfied, on the whole that the Will must have been a true and genuine one. Its exemption has also been satisfactorily proved. The disposition under it, will be operative to convey all the properties possessed by Bagirathi to Sivaprakasa, except the western house, in respect of which there will be a decree in favour of the plaintiffs. In other respects, the appeal fails and is dismissed with costs.