Suit filed by children of "V" for partition held competent.

JUDGMENT.-The main question arising for my consideration in this appeal filed by the first defendant against the judgment and decree of the Subordinate Judge, Erode in O.S. No. 294 of 1969. involves the interpretation to be put on Exhibit A-5 will executed by Arthanari Gounder. It is therefore unnecessary for me to state the entire facts of the case, but only refer to such of the facts as are necessary for determination of the question arising for decision in the appeal.

2. In or about the year 1930 Arthanari Gounder was under sentence of death.

having been found guilty of murder. At the relevant time his mother Karuppayee Ammal, his two sisters Karuppayee Ammal alias Sinnu and Valli Ammal were alive. Plaintiffs 1 to 3 and the second defendant in the present suit are the children of Valli Ammal. Arthanari Gounder’s father Arumuga had a brother by name Palani and he had two daughters Muthakkal and Kali Ammal. Arthanari Gounder executed Exhibit A-5 registered will dated 19th February, 1930. Under the will the testator had provided that his mother Karuppayee Ammal should enjoy the properties for her lifetime. He gave her power under the will to borrow up to the extent of Rs.5,000 on the security of the properties and sell such portion of the properties as was necessary to discharge the debts. He further directed that the properties that remained after the lifetime of Karuppayee Ammal should be taken by his two sisters Karuppayee Ammal alias Sinnu viz., the appellant herein and Valli Ammal in equal shares. The will contained a further direction that his mother Karuppayee Ammal should maintain and conduct the marriage of his uncle Palani’s daughters Muthakkal and Kaliammal, Admittedly, Valli Ammal the sister of Arthanari predeceased Karuppayee Ammal, the mother leaving behind her plaintiffs 1 to 3 and the second defendant.

3. Plaintiffs-respondents filed the suit for partition and separate possession of 3/8th share in the suit properties on the basis that under the terms of Exhibit A-5 will Karuppayee Ammal, the mother got only a limited estate and the remainder vested in the first defendant and Valli Ammal in equal shares on the date of the death of the testator. The suit was resisted by the first defendant on the ground that under Exhibit A-5 will Karuppayee Ammal got an absolute estate and therefore Valli Ammal having predeceased the mother the first defendant alone was entitled to the suit property.

4. The trial Court held that under Exhibit A-5 will Karuppayee Ammal, the mother got only a life estate and that the remainder vested in both Valli Ammal and the first defendant as on the date of death of the testator and that consequently on Valli Ammal’s death her daughter inherited her share of the suit properties and she was competent to execute Exhibit A-4 settlement deed in favour of the plaintiffs. In this view, the trial Court passed a preliminary decree in favour of the plaintiffs as prayed for.

5. Mr. M. R. Narayanaswami on behalf of the appellant submitted that the only point for determination in the appeal was whether under Exhibit A-5 Karuppayee Ammal got an absolute estate or whether she secured only a life estate with Karuppayee Ammal alias Sinnu and Valli Ammal taking the vested remainder as on the date of death of the testator. The learned counsel submitted that if I agreed with the view taken by the trial Court then the preliminary decree passed by the trial Court would have to be confirmed, but on the other hand, if I agreed with his submission that the mother of Arthanari Gounder got an absolute estate and therefore Valli Ammal having predeceased the mother did not take any right at all under the will, then the suit for partition filed by the plaintiffs-respondents claiming under Valli Ammal would have only to be dismissed and that I need not trouble myself with the other facts canvassed in the trial Court.

6. In interpreting a will the Court should read the will as a whole and consider all the clauses and circumstanc

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