Clause 12 of the will was intended to operate at the time of the death of the testator and not later.

Judgment

GAJENDRAGADKAR, J. : This appeal raises a short question about the construction of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura. In his suit the appellant alleged that under Cl. 12 of the will certain rights either vested or contingent had been conferred on him in regard to the property as therein described, and it was in pursuance of the said rights that he claimed a declaration with a view to protect his interest and safeguard the estate from being wasted by, and lost in the hands of, the testator s widow, respondent 1, Ponnammal, who was in charge of the said estate. The trial court construed the will against the appellant and held that it conferred no right on him & so he could not claim any of the reliefs set out in his plaint,. Incidentally on the merits the trial court was satisfied that a case had been made out by the appellant and that it did appear that the estate was being wasted by its present holder, respondent 1. The appellant then took the matter before the Madras High Court by his appeal. The High Court has agreed with the trial court in the construction of the will. It has held that the appellant had no right under the will which would justify his claim for any of the reliefs set out in his plaint. On that finding the High Court thought it unnecessary to consider the merits of the case set out by the appellant and denied by respondent 1. The appellant then applied for and obtained a certificate from the High Court, and it is will the said certificate that he has come to this court by his present appeal; and so, the only question which falls for our decision is : Have the courts below put an unreasonable construction on the will as Mr. Viswanatha Sastri for the appellant contends?

2. As we have already seen the testator executed the will on April 28, 1937, and he died on March 10, 1939. During his lifetime the testator was a member of a joint and undivided Hindu family consisting of himself and his cousin, Thayumanaswami Pillai. Neither of them had any son. At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows respondent 2, Managayarkarasi Ammal & respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal. The testator who survived his cousin became entitled to the whole of the family property by survivorship, and it is as such that he made, and was competent to make, the will in question. The appellant is the sister s daughter s grandson of the testator, whereas Kalyanasundaram, respondent 5, was treated as a foster-son by the testator s cousin, Thayumanaswami Pillai. Respondent 5 died pending the appeal before this Court leaving behind him two widows, two minor sons and two minor daughters who have been brought on the record as his heirs and legal representatives. These are the persons who have been mentioned in the will and who appear to be the objects of the testator s bounty in one way or another.

3. It is now necessary to refer to the will in general and read the two clauses which specifically fall to be construed in the present appeal. Clause 1 of the will refers to the fact that the testator had already executed a will on June 12, 1935, and had registered it. The present will was executed by him with a view to cancel his earlier will and with the object of making fresh arrangements in regard to his property as specified in the present will.

4. Clause 2 of the will states that the testator and his senior cousin, the deceased Thayumanaswami Pillai, were members of an undivided Hindu family and as such had acquired property and carried on money-lending business in the names of both of them. The testator adds that on the death of his cousin, as the sole surviving coparcener he became the absolute owner of the whole of the property.

5. Clause 3 recites that the testator was them 64 years of age an