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Judgment
K. Veeraswami, C.J.—This is an appeal from a judgment of Ramamurti, J. In 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 6-9-1948. He had a daughter by name Kalvani 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 moveable properties such as furniture, utensils, cash, bank deposit etc. to
my wife Mrs. N. V. Savitri Ammal to be enjoyed by her during her lifetime and thereafter to my daughter Miss. M. V. Kalyani to be enjoyed by
her during her lifetime without power of alienation. After the lifetime 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. 1956. Ramamurthi. J.
held that there was an intestacy in respect of the gift over after the respondent arid 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 predeceased 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 predeceasing her mother without issue, natural or adopted, the State would be substituted for Kalyani, the
bequest in its favour would take effect; but, if oh 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 Section 129 and Section 130 of the Succession Act . It seems to us that
Section 129 applies to a substitutional gift. The section says:--
Where there is a bequest to one person and a 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 sift, for some reason, cannot take effect, a
substitution Es 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 predecease her mother. The will proceeds on the expectation of the testator that
Kaivani would take a life Interest after the lifetime 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 the during the lifetime of her mother. It is not stated, in, nor is"" it possible to infer from the will that in the event of Kalyani
predeceasing 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 and Others Vs. Appavu Udayar and
Others, . 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
lifetime take certain properties without powers of alienation, but if any of his daughters should beget 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 Ro to charity. A grandson was
born before the dates on which Madras Act 1 of 1914 came into force. The Division Bench of this Court held that 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 Beng LR 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 widows"",
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 predeceasing 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 substitutional 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.