This second appeal arises out of a suit brought by plaintiffs 1 and 2 to recover possession of the plaint mentioned properties, alleging that they became entitled to the same on the death of their sister Madurambal in 1924 without any issue. The 1st defendant is the husband of Madurambal. When he married her, he was a man of advanced age, and at the instance of the parents of the girl he executed a registered settlement deed, Ex. A, on 2nd June 1916 in favour of the girl. The material portion of Ex. A runs thus: “I have accordingly given you the undermentioned properties valued at Rs. 1,000 and you shall yourself from this day hold and enjoy the same with all rights. Should any issue be born to us, that issue shall get the properties after our death. If there is no issue, after your death, your brothers (Plaintiffs 1 and 2) should take the properties.” The plaintiffs' case is that their sister Madurambal having died without any issue the properties covered by Ex. A devolved on them and therefore they are entitled to recover possession of the same. The first Court was of opinion that the intention of the donor (1st defendant) was to confer only a life estate on Madurambal and the gift over in favour of plaintiffs 1 and 2 became operative on the happening of the specified contingency, namely, the death of Madurambal without any issue. But the lower appellate Court came to a different conclusion as regards the construction of Ex.A In its view, Madurambal wag given an absolute estate in the properties, and the gift over in favour of plaintiffs 1 and 2 on the happening of a contingency is void as a repugnant provision and such a clause could not be deemed to be a defeasance provision. The plaintiffs' suit was therefore dismissed.
In this second appeal, it is contended on behalf of the appellants (plaintiffs 2 to 4, the 1st plaintiff having died during the pendency of the suit and plaintiffs 3 and 4 having been added as his legal representatives) that on a proper construction of Ex.A it should be held that either a life estate in favour of Madurambal with a remainder over in favour of plaintiffs 1 and 2 or an absolute estate in her favour subject to defeasance in the event of her failing to have any issue at the time of her death was really conferred on her. Having regard to the terms of the earlier portion of the deed which are to the effect, that the donee should enjoy the properties absolutely or with all rights, it cannot be reasonably contended that what was conferred upon her was primarily a life estate alone. The Tamil word “” clearly indicates an absolute estate. The more difficult question is whether the subsequent clause should be deemed to be a mere repugnant condition imposed on the estate so created or makes the absolute estate primarily granted subject to defeasance in the event of the contemplated contingency. The distinction between a repugnant provision and defeasance provision is sometimes subtle, but the general principle of law seems to be, that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative.
The disposition under a will which was the subject of consideration by the Privy Council in two cases reported in Sreemutty Soor jeemoney Dossee v. Denobundoo Mullick and Sreemutty Soor jeemoney Dossee v. Denobundoo Mullick , is almost similar to the one under Ex. A. In the aforesaid cases, a Hindu testator devised under his will his entire estate to his five sons. On a construction of the will it was found that the testator conferred an absolute Estate on the sons. There was a further clause in the will that if any of the five sons should die without leaving any son or son's son, his estate should devolve upon such of the surviving sons or their sons' sons who shall then be alive. Their Lordships of the Privy Council have held that it was competent to a Hindu testator to give property by way of an executory bequest upon an event which is to happen, if at all, immediately on the close of a life in being. I should observe that in the present case the defeasance clause is exactly similar to the one found in the will above referred to. The provision in Ex. A is that in the event of the donee (Madurambal) dying without any issue the properties should go to her brothers (plaintiffs 1 and 2). The principle of the decision in Sreemutty Soor jeemoney Dossee v. Denobundoo Mullick , is recognised and also explained in a recent decision of the Privy Council reported in Sarajubala Debi v. Jyotirmayee Debi . Their Lordships have observed thus:
“A Hindu, no doubt, may give property by way of an executory gift upon an event which is to happen, if at all immediately on the close of a life in being and in favour of a person born at the date of the gift, and such a gift over might be a sufficient indication that only a life estate to the first taker was intended.”
The disposition under Ex. A being exactly of such a nature, the defeasance clause in it must be held to be valid on the authority of the view expressed by the Privy Oounoil. This is not a case where the executory gift is made to depend upon an event such as an indefinite failure of the male issue of the donee which would not necessarily happen on the close of the donee's life and such a defeasance clause has been held to be void. There is also the decision of this High Court in Lakshminarayana Nainar v. Valliammal , which is almost on all fours with the present case. In that case, the decision depended on the construction of a razinama by which A and B became entitled to hold and enjoy in common, certain properties absolutely. There was a defeasance clause to the effect, that in the event of A dying issueless, his share of the properties should go to B and then B should become entitled to the entire properties. The question was whether the alienation of the properties by A during his lifetime could have any legal validity after his death and prevent his share of the properties from devolving on B. On the footing that A had an absolute estate in a moiety of the properties covered by the razinama, it was held that there was a clear gift over of that moiety on his dying without issue to B. Following the Privy Council decision in Sreesumutty Soorjeemonsy Dossee v. Denobundoo Mullick the learned Judges have held such a defeasance followed by a gift over in favour of a person in being to be perfectly valid under the Hindu law. Reference was also made to the observation's in the Privy Council decisions reported in Bhoobun Mohini Debia v. Hurrish Chunder Chowdhry and Kristoromoni Dasi v. Narendra Krishna Bahadur . Holding that the effect of such defeasance was to cut down the original absolute estate of A to a life estate, the alienation made by him was held to be invalid beyond his lifetime and not affecting the gift over in favour of B. These authorities in my opinion bear directly on the present case, and I am clearly of opinion that the absolute estate conferred upon Madurambal under Ex. A was subject to defeasance in the event of her dying without any issue and such a defeasance clause is not opposed to any rule of law and has been recognised by the Privy Council to be valid. As observed in Lakshminarayana Nainar v. Valliammal by reason of the operation of the defeasance clause on the happening of the contingency, the original estate was cut down to a life estate and the gift over to plaintiffs 1 and 2 became valid and operative.
On the respondents' side, reliance was placed on the decision of the Calcutta High Court reported in Sures Chandra Palit v. Lalit Mohan Dutta . There is an elaborate review of the case-law on a question of this kind in that decision. The principle of the Privy Council decisions in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick and Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick has been held to have no application to the facts of that case. The distinguishing feature in the will which was the subject of consideration in that case was, that though the testator gave an absolute interest in the estate to his widow, the gift over was of what might remain undisposed of by her. The confinement of the gift over to such portion of the estate, if any, which may remain undisposed of by the donee was held to be an indication that the testator intended to maintain an absolute estate in the donee throughout and the gift over was void for uncertainty. Such is not the nature of the defeasance or gift over in the present case. Even the decision of the Privy Council in Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh has no application to the present case. After conferring an absolute estate on the legatee, the testator added clauses which were clearly restrictive of the incidents of ownership. One of the conditions imposed is that the legatee shall be bound to adhere strictly to the Hindu religion. Another condition is that he shall ha a no power to alienate the properties. A further clause is that the entire property shall gradually descend to the successors of the legatee subject to the restrictions laid down as binding upon the legatee. That was a glaring case of a grant of an absolute estate with all sorts of restrictions upon the legatee and his heirs which are certainly repugnant to the grant.
It is next argued that by reason of the compromise in a suit between Madurambal and the 1st defendant some of the properties were allotted to 1st defendant absolutely, the rest being taken by Madurambal. The question is whether such a compromise can bind plaintiffs 1 and 2 who were not parties to it. As I have already observed, the gift over in favour of plaintiffs 1 and 2 being valid and as the effect of the defeasance clause was to curtail the absolute estate of Madurambal to a life estate in the event of the contingency happening as was held in the Lakshminarayana Nainar v. Valliammal case, any arrangement or disposition in respect of the properties covered by Ex.A by Madurambal can have no legal force or validity after her death and cannot affect the rights of plaintiffs 1 and 2.
The fact that the 1st defendant adopted the 3rd defendant subsequent to the death of Madurambal is not of much avail to the respondents. It cannot be denied that Madurambal died without any issue, either natural or adopted. The moment that contingency happened, the properties devolved on plaintiff 1 and 2 by reason of the defeasance clause and the gift over to them. The properties having thus vested in plaintiffs 1 and 2 on the death of Madurambal, they could not be divested of those properties by reason of the subsequent adoption made by the 1st respondent. There is hardly any doubt on this point.
For all these reasons, I am unable to agree with the decision of the lower appellate Court. The decision of the first Court should be restored, except as regards items 12 and 21 which are not comprised in Ex.A, on which alone the claim of plaintiffs 1 and 2 was based. In the result, the decree of the lower appellate Court is set aside and a decree is passed in favour of plaintiffs 2 to 4 in respect of the suit properties except items 12 and 21 with costs against the defendants in all the Courts.
N. R. R.Appeal allowed.