Bequest for life with no power of alienation.

JUDGMENT.-The plaintiff has preferred this second appeal against the judgment of the Principal District Judge, Pondicherry, in A.S.No. 12 of 1972, confirming the judgment of the Additional Subordinate Judge, Pondicherry, in O.S.No. 277 of 1968 and dismissing the plaintiff’s suit with costs.

2. The plaintiff, Ramaswamy Reddiar, sued Adilatchumy Ammal (first defendant) and Appasamy Nayagar (second defendant), husband of the first defendant, for annulment of the sale-deed dated 10th September, 1958, executed by one Kama-lammal in favour of the first defendant in respect of the suit property and for recovery of possession of the property with costs.

3. The suit itself was filed under the following circumstances: The suit property originally belonged to one Rayalu Reddiar, who died on 26th October, 1946, after disposing of all his properties under a notarial testament (Exhibit A-1) dated 10th April, 1946. The testator begot no issue. At the time of the will and of his death, he had the following relatives: (1) Adilatchumy Ammal, his wife; (2) Sambasiva Reddiar, his wife’s sister’s son ; and (3) Kamalammal, the testator’s sister, who was then a widow and presumably childless. Under the will which is in French, he bequeathed the suit property to Kamalammal to be enjoyed, by her for the term of her life without any power to mortgage, gift or sell the same. As regards all his other properties, movable, immovable and outstandings, he bequeathed the same to his wife, AdilatchumyAmmal to be enjoyed by her after his death without any liberty to alienate. The next clause in the will, which has been the subject of controversy between the parties, may be translated as follows:

“After the death of Kamalammal and Adilatchumy Ammal, my aforesaid properties shall belong, in full ownership and with all powers of alienation, to my nephew Sambasiva Reddiar. I also decide that after my death, my business concern shall be run by Sambasiva Reddiar and accounts in respect thereof renderad by him to my wife. The said Sambasiva Reddiar will perform all my funeral cremonies and those of my wife, Adilatchumy Ammal.”

After the death of the testator on 26th April, 1946, Kamalammal took possession of the property in pursuance of the bequest made to heir. It was admitted by both counsel before me that Sambasiva died sometime ‘after the testator’s death and Sambasiva’s heir is the plaintiff, who is his brother. Subsequently, that is to say, on 10th September, 1958, Kamalammal sold the suit property under a notarial deed in favour of the first defendant, Kamalammal herself died on 17th May, 1967. On 16th September, 1967, the plaintiff instituted the suit, out of which this second appeal arises.

4. The trial Court, upon an interpretation of the will, held that as Sambasiva Reddiar predeceased both the testator and Kamalammal, the latter became the absolute owner of the property by operation of the doctrine of “substitution fidei commis-saire ”. The trial Court also held that if the testator had stated in his will that Kamalammal would have the usufructuary right and after her death, the nue propriete should go to his nephew (Sambasiva Reddiar), there would be no substitution fideicommissaire, and Sambasiva Reddiar would have become the owner of the property from the date of the demise of the testator, and the plaintiff would, on the death of Sambasiva Reddiar, become entitled to the property as his heir. It is admitted that the trial Court committed an error in assuming that Sambasiva predeceased the testator. However, upon the construction put by the trial Court on the will, it dismissed the suit with costs.

5. Against this judgment, the plaintiff preferred an appeal to the Principal District Judge, Pondicherry. Before the learned Judge, it was contended on behalf of the plaintiff that under the will, Sambasiva Reddiar had obtained a vested interest under section 19 of the Transfer of Property Act, though possession of the property was postponed till after the lifetim

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