JUDGMENT :- The appeal filed by the first defendant arises out of a suit for partition. The parties are governed by the Madras Marumakkathayam Act, 1932. The plaint properties belonged to Ravunni Nair father of the plaintiff and defendants 1, 2, 11 and 20. Defendants 3 to 10 are members of the tavazhi of the 2nd defendant Lakshmikutty Amma. Defendants 12 to 19 are members of the branch of the 11th defendant Devaki Amma. Defendants 21 to 28 are members of the branch of the 20th defendant Karthayanikutty Amma. The plaintiff and the first defendant are the sons of Ravunni Nair.

2. Ravunni Nair executed Ext. B-8 will, dated 10-10-1945, in respect of the plaint properties. According to the plaintiff and defendants 2 to 10 who support him Ravunni Nair bequeathed the plaint items to all his children subject to a life interest over the plaint items in favour of his wife Sreedevi Amma. It is contended by the 1st defendant that under Ext. B-8 Sreedevi Amma got absolute rights over the plaint properties. Sreedevi Amma executed Ext. B-4 will dated 15-1-1959 bequeathing the plaint items to the 1st defendant. The Courts below took the view that Ext. B-8 creates a life interest in favour of Sreedevi Amma and there was a gift of the remainder to the members of the tavazhi of Sreedevi Amma. The plaintiff was, therefore, granted a decree for recovery of 1/29 share in the plaint schedule items.

3. The question raised in the second appeal relates to the interpretation of Ext. B-8. The substance of Ext. B-8 in so far as it relates to the plaint properties is stated by the learned Subordinate Judge in paragraph 12 of his judgment and this is accepted as correct by both sides.

4. Paragraph 5 of Ext. B-8 reads thus :- (Original in Mallyalam omitted). The contention of the first defendant that an absolute estate is created in favour of Sreedevi Amma is based on the above provision. The duty of the Court in interpreting a will is to find out the intention of the testator from the language used therein by making an

attempt to reconcile all the provisions of the will. In Sanford v. Sanford, (1901) 1 Ch 939 Joyee, J., observed :

"It has been said by the Court of Appeal that the true way to construe a will is to form an opinion apart from the decided cases, and then to see whether these decisions require any modification of that opinion; not to begin by considering how far the will in question resembles other wills upon which decisions have been given."

And also pointed out the following rule in the matter of construction of wills "the rule is to construe a will ut res magis valeat quam pereat and to give effect so far as possible to all the words used by the testator." The words (Original in Mallyalam omitted) in Cl. 5 of Ext. B-8 no doubt indicates the conveyance of an absolute estate in her favour by the testator. The question is whether the other clauses indicate a contrary intention to cut down the life estate by the creation of a vested remainder in favour of the children of the testator or in favour of the members of Sreedevi Amma's tavazhi. A gift over is regarded as a circumstance indicative of the intention of the testator to cut down the absolute estate created in favour of a beneficiary. In Williams on Wills, Volume I, page 495 at 496-497, the learned author sums up the statement of law in these words :

"A gift over in default of disposition by an absolute owner is void. An absolute gift of property followed by a gift of so much of that property as the first donee shall not have disposed of is an absolute gift in the first instance and the gift over is void. The main difficulty in these cases is that what is apparently an absolute gift in the first instance may by reason of subsequent provisions in the will be held to be cut down to a life interest, and the following are examples of such cases. The gift is so cut down (i) where the gift at the death of the first donee of what remains of the estate can be construed as a gift over of the residue after

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