Nature of interest of son in the bequest.

Judgment.- The question involved in this second appeal is the construction of a will executed by one Venugopala Naidu on 14th December, 1932, a registration copy of which has been marked as Exhibit A-1 in these proceedings. The said Venugopala Naidu had only a daughter by name Sethulakshmi Ammal and he had no son. However, he adopted one Narayanaswami Naidu as his son. Under the will, he gave one house to the adopted son and another house to the daughter Sethulakshmi Ammal. He also provided for his lands to be divided in the proportion of 2:1, the adopted son taking a two-third share and the daughter taking an one-third share; with regard to his movables also, he provided that they should be taken equally by the adopted son and the daughter. In clauses 4 and 5 of the will, he provided for the manner and the extent of the enjoyment of the properties by the daughter and what should happen to the same after her death. In clause 4, he provided that the daughter should enjoy the property without any right of alienation during her lifetime and if male children were born to her, they would take the property absolutely and without male children if she had a daughter, she should marry that daughter to any son of Narayanassami Naidu of her choice and thereafter the couple and their children would take the property absolutely. In clause 5 of the will, he dealt with the lands and other movable properties, in addition to the house referred to in clause 4. In clause 5 again he repeated that the daughter will have to enjoy the properties without any power of alienation but after her the properties shall be taken by her male heirs or in the absence of male heirs by her female heirs. It is found in this case that the testator died in or about 1937. A son was born to the daughter and her husband the first plaintiff in the suit on 5th January, 1948. But that son died on 29th September, 1948. Thereafter, Sethulakshmi Ammal did not have any further issue. She herself died in February, 1961, after leaving a will marked as Exhibit A-22, dated 27th January, 1961 under which she bequathed all her estate to her husband the first plaintiff in the suit. It is under these circumstances the first plaintiff, the husband of Sethulakshmi Ammal, and the second plaintiff, a tenant under the first plaintiff, instituted the suit for a declaration that the first plaintiff is absolutely entitled to the suit properties and for a permanent injunction restraining the defendants who are the sons of Narayanaswami Naidu, the adopted son of the testator, from interfering with the plaintiff’s possession and enjoyment of the properties.

2. After the death of Venugopala Naidu, it appears that Narayanaswami Naidu and Sethulakshmi Animal exchanged the houses bequeathed to them respectively and it is the exchanged house with reference to which the suit for declaration of title was instituted. The case of the plaintiffs was that on the birth of a child on 5th January, 1948 to Sethulakshmi Ammal and the first plaintiff, the estate under the terms of the will vested in that child and on his death on 29th September, 1948, Sethulakshmi Ammal inherited the same as the heir to the child and whatever interest Sethulakshmi Ammal inherited which was form the very nature of the case, a woman’s estate known to Hindu law, became an absolute estate under the Hindu Succession Act, 1956, and consequently she was competent to will away the same in favour of her husband under Exhibit A-22. Alternatively it was contended that even apart from the will, the first plaintiff would be the heir to Sethulakshmi Ammal under section 15 of the Hindu Succession Act, 1956, and therefore in that capacity also he will be entitled to the properties in question. As against this case of the respondents, namely, the plaintiffs, the case of the defendants was that the child of Sethulakshmi Ammal had only a contingent remainder and the contingency contemplated being the survival of the child, of Sethulakshmi Ammal an

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