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Judgment
K. Veeraswami, C.J.—This is an appeal from a judgment of RAMAMURTI J., in Savitri v. Government of Madras ILR 1969 Mad. 393 a suit by Originating Summons instituted by the Respondent. Her husband, one M.G. Venugopal, died in 1949, leaving his last Will and testament, dated September 6, 1948. He had a daughter by name Kalyani by the Respondent, but she died in 1955. The Will is a cryptic one which reads:
I hereby bequeath all my immovable properties wherever situate and movable properties such as furniture, utensils, cash, bank deposit, etc., to my wife Mrs. M.V. Savithri Ammal to be enjoyed by her during her life-time and thereafter to my daughter Miss. M.V. Kalyani to be enjoyed by her during her life time without power of alienation. After the life time of my daughter Miss. M.V. Kalyani, the properties then remaining shall be absolutely enjoyed by the children of my daughter to be taken in equal shares.
In the event of there being no children, male or female, to my daughter Miss. M.V. Kalyani, I give her the right to adopt a heir or heirs if she so desires but in the event of her dying issueless or leaving no adoption, all my properties shall be handed over to the Government of Madras for medical relief to suffering humanity especially children''s diseases.
The Respondent prayed for a construction of the Will and for a declaration that the provision in favour of the State, which is the Appellant before us, could not, in law, take effect and that she would be the heir-at-law taking the whole estate under the Hindu Succession Act (XXX of 1956). Ramamurti J., held that there was an intestacy in respect of the gift over after the Respondent and granted a decree declaring that the residuary bequest made by the testator in favour of the Appellant State was void, invalid and inoperative and it lapsed in favour of the Respondent, and that, as a result, she was the full and absolute owner of the properties set out in the plaint schedule.
The point at issue in the ultimate analysis is whether in view of the fact that Kalyani pre-deceased her mother leaving no issue, there was an intestacy in respect of the gift over with the result that the bequest in favour of the State could not take effect. That would depend upon whether the bequest in favour of the State, having regard to the entire terms of the Will, was substitutional or conditional, that is to say, if the will were construed that in the event of Kalyani pre-deceasing her mother without issue, natural or adopted, the State would be substituted for Kalyani, the bequest in its favour would take effect; but if on the other hand the bequest in favour of the State were to be construed as conditional upon Kalyani surviving her mother, then in that event, there would be intestacy in respect of the gift over. The purpose of construing a Will is eventually to ascertain the true intention of the testator. But in doing so, certain rules of construction should have to be borne in mind. Ramamurti J., referred to a number of English decisions, none of which, in our opinion, seems to be of much assistance. The principal rules of construction which have a bearing upon the interpretation of the present Will are those contained in Sections 129 and 130 of the Indian Succession Act (XXXIX of 1925). It seems to us that Section 129 applies to a substitutional gift. The section says:
Where there is a bequest to one person and bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.
It may be seen that what is contemplated by this rule is that if a gift is made to a certain person, but that gift, for some reason, cannot take effect, a substitution is made by the testator to receive the same bequest, though the precise manner of failure of the prior bequest contemplated by the testator may not have come to pass. But Section 130 visualises a different situation, viz., the coming into effect of a second bequest made conditional upon failure of an earlier event in the specified manner. Section 130 is to the effect:
Where the Will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.
In the light of these rules, what is the effect of the Will? It appears to us, on a reading of the entire Will, that it was not at all within the contemplation of the testator as to what should happen if Kalyani happened to pre-decease her mother. The Will proceeds on the expectation of the testator that Kalyani would take a life interest after the life-time of her mother, and, if only she died issueless or without an adopted son, the ultimate bequest in favour of the State should take effect. While, therefore, the bequest in favour of the State is conditional upon whether Kalyani died issueless or not, and if Kalyani died issueless the State would be substituted as a legatee, there is no indication anywhere in the Will as to what should happen if Kalyani should die during the life-time of her mother. It is not stated in, nor is it possible to infer from the Will that in the event of Kalyani pre-deceasing her mother, the State should be substituted for Kalyani. That being the case, in our opinion, Section 130 will be applicable and not Section 129 .
The construction we have placed upon the Will seems to receive support from the ratio in Nammalwar v. Appavu Udayar (1960) 1 M.L.J. 209 In that case a testator executed a Will and a codicil. The modification made by the codicil was that the testator''s widows should after his life-time take certain properties without powers of alienation, but if any of his daughters should be get a male heir, all the properties should go to that heir. Further, the Will, as modified, proceeded to say that in case no such male heir was born, all the properties should go to charity. A grandson was born before the dates on which Madras Act I of 1914, came into force. The Division Bench of this Court held that the gifts in favour of the grandson and in favour of the charity were not independent gifts and as a result the gift in favour of charity was only conditional, the specific conditions being that there should be no male child born to any of the daughters who could take at the date of the death of the testator. The Court further held,
The gift in favour of the charity could therefore take effect only if the gift in favour of the grandson failed in the particular manner indicated by the testator. The gift in favour of the grandson failed, not because there was no grandson to take the gift, but because of the rule in the Tagore Case (1872) 9 Bengal L.R. 377 Consequently, it is Section 130 of the Succession Act applied and on intestacy consequent upon the failure of the gift in favour of the grandson, the grandson will take the property as the heir-at-law after the widow.
The ratio of this case is that Section 129 would be applicable only to substitutional bequests, which is not the case here, for as we said, the Will under construction does not substitute the State for Kalyani in the event of her pre-deceasing her mother. The State has been substituted by the testator only for the grandchildren by his daughter in the event of Kalyani dying issueless, whether natural or adopted.
Learned Additional Government Pleader invited our attention to Shirinbai Maneckshaw and Others Vs. Nargacebai J. Motishaw and Others, in support of his contention that there was no intestacy at all on the demise of Kalyani. The Supreme Court in that case on a construction of the Will was of opinion that there was a gift attracting the principle of Section 129. The decision turned upon the particular language of the Will.
In our view, therefore, Ramamurti J., was right in his conclusion. But we think that the decree granted by him requires modification. The suit was by way of originating Summons and the question arising in the suit must be confined to the construction of the Will. The only decree the Respondent can get is a declaration that on account of Kalyani predeceasing her mother, there was intestacy in respect of the gift over with the result the bequest in favour of the State failed. The decree will be accordingly modified. Subject to this modification, the appeal is dismissed. But there will be no order as to costs.