The defendants in O.S No. 278 of 1964 on the file of the Sub-Court, Coimbatore, are appellants. The respondent-plaintiff filed the suit for a declaration that his mother Poovathal had acquired a vested interest in the suit properties under the terms of the will dated 12th December, 1929 executed by his maternal grand-father, one Ramana Gounder that he has inherited the said vested right on the death of his mother and that the Will dated 4th August 1964 executed by the first defendant in favour of the second defendant as though she had an absolute right over the property was not valid and binding on him.

The defendants resisted the suit contending that the will dated 12th December 1929, executed by Ramana Gounder gave an absolute right to the first defendant in the suit properties, that the first defendant could dispose of the same by her will, dated 4th August 1964, and that the plaintiff had not acquired any vested interest in the suit properties under the will of Ramana Gounder.

The trial court held that the plaintiff did not acquire any vested interest under the will of Ramana Gounder, dated 12th December, 1929. The lower appellate court, however, disagreed with the trial court and passed a decree in favour of the plaintiff upholding his case that he acquired a vested interest in the suit properties under the said will.

In this second appeal the defendants contend that the view taken by the lower appellate court is erroneous and that the view taken by the trial court is the correct one.

The suit properties originally belonged to the family of Ramana Gounder. He had an only son, Chinnappa Gounder. The first defendant is the wife of the said Chinnappa Gounder Chinnappa Gounder had two daughters the second defendant Papammai and the plaintiff's mother, Poovathal. The third defendant is the husband of the second defendant, After the death of Chinnappa Gounder, Ramana Gounder executed a will dated 12th December 1929. According to the plaintiff under the will the first defendant was given a right to enjoy the suit properties: with a vested remainder in favour of the plaintiff's mother and the second defendant, each being entitled to a half. According to the defendants the will had given an absolute right in favour of the first defendant with no vested interest in favour of the daughters. The properties covered by the will dated 12th December 1929 are about 15 acres of garden lands with electric meter and pump set, etc., in addition to houses and sheds. The same properties have been bequeathed by the first defendant under her will, Ex. B-1, dated 4th August 1964 in favour of her daughter, the second defendant, purporting to deal with the property as an absolute owner. Thus the main question relates to the construction of the will, Ex. A-1, dated 12th December 1929.

A perusal of the will shows that the testator has addressed the will to his widowed daughter-in-law, Kaliakkal, the first defendant. It recites that after the death of the testator, Kaliakkal should enter into possession and enjoy the properties, that she should discharge the debts of the testator, if any, that she should continue to maintain authanneer pandal Dharmam” in the local Pilliar koil at a cost of not less than Rs. 100 per year from the income of the properties that that ‘thanneer pandal dharmam’ should continue even after her lifetime and that whoever gets the properties after her lifetime and whoever may be in possession of the properties by virtue of any alienation, are bound to continue the dharmam as aforesaid. The will further directs that after the lifetime of Kaliakkal her daughters, Pappammal and Poovathal, should get the properties absolutely. The devise in favour of the first defendant is as follows:

Regarding the devise in favour of the two grand daughters the terms are as follows:

Thus, it is seen that the testator used a different phraseology in respect of the two devises which he had made in favour of the daughter-in-law and the other in favour of the grand-daughters. While referring to the daughter-in-law the testator says that she is to enter into possession of the properties and enjoy the same. But while referring to the right which the grand-daughters are to get he expresses the intention that they should enjoy all the properties with powers of alienation. As pointed out by Ramamurti, J. in Jabalamalai Mariammal v. Madalamuthu Thevar(1) while interpreting a will it is the duty of the court to find out the intention of the testator from the language used by him and all the parts of the will are to be considered with reference to each other so as, if possible, to form one consistent whole. In that case the learned Judge compared the phraseology used in two different wills made by the testator and construed the will in the light of the difference in phraseology. It is, therefore, significant that when the testator directed that his grand-children should take the property with powers of alienation without giving any such power to their mother, the first defendant, it should be inferred that he intended to confer on the first defendant only a life interest.

In Lailu v. Jagmohan, the material portion of the will that came up for consideration was as follows:

“My property consists of dwelling houses and moveables such as cash, jewels and furniture, the silk etc., appertaining to my business, and outstanding debts, whatever that may be. As to this, when I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's kaja raja (death), my daughter Mahalaxmi is owner of the said property after that (death). I have, therefore, made this my will in respect thereof’

and the court held that the testator's wife Suraj took only a life estate under the will, with remainder over to Mahalaxmi after death and that the bequest to Mahalaxmi was not contingent on her surviving Suraj and that she took a vested remainder which upon her death passed to her heirs. In that case even though the testator was given absolute powers to his wife, the bequest in her favour was treated as life estate in view of the subsequent bequest made in favour of his daughter. The operative portion of the will which came up for consideration in Lakshmana Nadar v. Ramier(2) was as follows:

“After my lifetime, you, the aforesaid R, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the out standings due to me, the debts payable by me and the chit amounts payable by me. After your lifetime, L, our daughter and wife of M and her heirs shall enjoy then with absolute rights and powers of alienation, such as gift, exchange, and sale from son to grandson and so on for generations. …..”

Their Lordships of the Supreme Court held that the estate conferred on the testator's widow was more like the limited estate in the English sense of the term than life a full Hindu widow's estate, that though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time, that she got an interest in it on the testator's death and that she has been given a present right of future enjoyment in the property. The will in this case is somewhat anologous to the will considered by the Supreme Court in the above case. In that case it was held that the subsequent absolute bequest in favour of the daughter should be taken to limit the nature of the bequest given to the widow. The reasoning of the court is contained in the following observations:

“It is significant that the testator did not say in the will that the daughter will enjoy only the properties left undisposed by the widow. The extent of the grant so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy the entire properties mentioned in the schedule during her lifetime, in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow.”

In Ramachandra v. Hilda Brito(3), the Supreme Court construed a will whose operative portion was as follows:

“All these properties shall after me be enjoyed by my eldest daughter Severina Sabina and after her lifetime by her male children too as permanent and absolute hukdars.”

According to the Supreme Court the said bequest to Saverina Sabina was only to ‘enjoy’ as the testatrix proceeded to add that after the lifetime of Saverina Sabina, her male issues were to have permanent and absolute rights in the same and the very contrast in the phraseology should lead one irresistibly to the conclusion that the nature of quantum of Segerina's interest was different from that of those who took after her lifetime, and the dominent 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 donee, and the words used are apt and capable of supporting such a construction. In the case on hand also there is a difference in phraseology used by the testator. The first defendant is merely given the right to enjoy the property, while the grand children have been given the right to enjoy the properties absolutely. Ramakrishnan, J. in Lakshmi Ammal v. Allauddin Sahib had construed a will containing the following two clauses among others:

“After my lifetime, my wife L should perform my death ceremonies, the aforesaid L should possess and enjoy the undermentioned properties with full powers of alienation, gift, sale and with absolute right and ‘after my wife's death, my daughters, both the aforesaid-should perform her death ceremonies, my first daughter should take the first item and the second daughter should take the second item with absolute rights and enjoy the same”.

The learned Judge expressed the view that where two kinds of dispositions are found, the first creating an absolute estate and the second a gift over after lifetime of the donee of the estate, the language of the will has to be considered to find out the predominent intention of the testator, that the clauses in the will clearly showed that the testator was having in his mind the interest of his daughters as pre-eminently as the interest of his wife, all three of them being his heirs, that after giving an absolute estate to his wife over the two items, he provided that these properties after the wife's ifetime should devolve on the daughters who would have absolute rights, and that the wife's estate was only to be a limited or life estate, and not an absolute one. The above decisions clearly support the view taken by the lower appellate court that the devise in favour of the first defendant was not an absolute one.

The learned counsel for the appellant, however, refers to that portion of the will, which states that whoever gets the properties after the lifetime of the donee or whoever may be in possession of the properties by virtue of any alienations are bound to continue the dharmam mentioned therein, as showing that the testator contemplated sale of the properties by the first defendant and that the devise in favour of the first defendant was absolute. It is not possible to construe that portion of the will as granting an absolute interest in favour of the first defendant. The alienee referred to can be from the grand daughters who had been granted absolute interest under the will. Whatever it be, even if the devise in favour of the first defendant is construed to be absolute, in view of the latter absolute devise in favour of the grand children, the interest which the first defendant took under the will should be taken to be a limited interest.

The learned counsel then contends that the interest which the daughters will get under the will, Ex. A-1, will only be contingent and riot a vested interest. It is stated that the daughters will get the property only if they survive the mother, the first defendant. As pointed out by the decision in Lailu v. Jagmohan the death of the first defendant is a certain event and its reference does not import any contingency as it is only a euphemism to denote the time of the first defendant's death. In my view, the interest cannot be said to be contingent. Hence this contention of the appellants has also to fail. The result is the plaintiff has been rightly granted the declaration sought for by him. The second appeal is therefore dismissed. No costs. No Leave.

V.C.S