Judgment

R. S. SARKARIA, J.:- This appeal by certificate is directed against an Appellant Judgment and Decree, dated November 15, 1968, of the High Court of Madras.

2. The facts leading to this appeal are as follows :

3. The following pedigree table will be helpful in understanding the relationship of the parties:

4. Palaniandi Pillai, shown in the above pedigree-table owned considerable properties. On December 12, 1927, he executed a will whereby he bequeathed certain properties to each of his three sons. He appointed his sons, Ramaswami Pillai and Vadivelu Pillai, as Executors of his will. In regard to his third son, Nataraja Pillai, the testator in clause 5 of the Will stated:"My third son, Nataraja Pillai, shall take the income accruing from the properties, namely, my cart-stand, house and ground, situate in the Western Row of Mint Street, bearing Municipal Door No. 278, Re-survey No. 600, Collectors Certificate No. 750 and the 5 Godowns, namely 2 Godowns situate in Varadaraja Mudali St., bearing Municipal Door Nos. 90 and 91, and 3 Godowns situate in 3rd North Beach Road bearing Municipal Doors Nos. 5, 6 and 7 to 9, Re-Survey Nos. 3158 and 3187, Collectors Certificate No. 2550. After his lifetime, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienations such as gift, usufructuary mortgagee and sale. If there are no male issues as aforesaid, my heirs shall take the aforesaid properties."

5. Although the will had not been probated, yet, by mutual arrangements between the first two sons who were named Executors in the will, and the third son, Nataraja Pillai, the properties were distributed in consonance with the terms of the Will and the Executors conveyed and transferred the same to the respective legatees, and mutual release deeds were, also, executed by the three sons.

6. Ramaswamy Pillai died in 1954 and Vadivelu Pillai in 1953. Nataraja Pillai died on January 31, 1957, without leaving any issue. His widow Krishnammal, the appellant herein, filed the suit (C. S. No. 7 of 1959) out of which this appeal has arisen. She claimed-

(a) partition and separate possession of one-third share in the (plaint-schedule) properties left by her husband Palaniandi (sic) Pillai, alleging that the properties were in the possession of the joint family consisting of his sons, or in the alternative. (b) for a declaration of her title and for possession of the properties on the ground that her husband Nataraja Pillai got the same absolutely by way of partition under the deed, dated July 14, 1928, she, as his heir, inherited the properties; in the alternative, (c) for a declaration of her rights to the properties on a true construction of the Will of her father-in-law, Palaniandi Pillai, and for possession of the properties.

7. The sons of Ramaswamy Pillai, respondent 1 and 2 herein, were impleaded as defendants 1 and 2, and the daughters of Vadivelu Pillai, respondents 3 to 7, were defendants 3 to 7. The daughter-in-law of Vadivelu Pillai, respondent 8 herein, was added as 8th defendant.

8. The findings of the learned trial Judge, material for our purpose, were as follows :

(i) Nataraja Pillai got only a life estate in the properties set out in Schedule I of the Plaint, (ii) the contingent interest in favour of the heirs of Palaniandi Pillai became vested only on the death of Nataraja Pillai; (iii) it is not open to the plaintiff, Krishnammal, to invoke Section 8 of the Hindu Succession Act, 1956; (iv) on the termination of the life interest given to Nataraja Pillai, the gift over in favour of the male issues could not take effect as he did not leave any male issue, with the consequence, that the properties, in effect, became revested in Palaniandi Pillai, but devolved on his heirs as if on intestacy; (v) Section 111 of the Indian Succession Act would be applicable.

9. In the result, the appellants suit was decreed and it was held that she was entitled to one-third share and separate possession of the same by par