Bequest for life with powers of alienation.

Ramaprasada Rao, CJ. — This Letters Patent Appeal is against the judgment of Maharajan, J. in S.A. No. 548 of 1973 in which he granted leave to appeal against his own judgment. The relevant facts in this appeal are as follows:

2. Admittedly foe suit property belonged to one Royalu Reddiar. Under Exhibit A-1, dated 10th April, 1946, Royalu Reddiar disposed of all his properties under a notarial testament. Royalu Reddiar died issueless. Under the will which he made in a French territory he bequeathed the suit property tot his sister Kamalammal to be enjoyed by her for the term of her life without any power to mortgage, gift or sell the same. He gave his other properties both moveable and immoveable to his wife Adilakshmi Ammal and again granted a life-estate to her over such properties without any right to alienate them in any manner. After creating such life-estates in favour of his sister and wife, he made the following bequest:

“After the death of Kamalammal and Adilakshmi 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 rendered by him to my wife. The said Sambasiva Reddiar will perform all my funeral ceremonies and those of my wife, Adilakshmi Ammal.”

In accordance with the tenor and recitals in the will, Kamalammal took possession of the property in pursuance of the bequest as above. It is common ground that Sambasiva, who is the ultimate beneficiary under the will and the universal legatee therein died, sometime after the death of Royalu Reddiar, who died on 26th October, 1946 and the plaintiff is admittedly the heir of Sambasiva as his brother. It appears that on 10th September, 1958, under Exhibit A-2 Kamalammal sold the suit property to the first defendant. Kamalammal died on 17th May, 1967. The plaintiff filed the present suit against the first defendant and also her husband for annulment of the sale deed dated 10th September, 1958, Exhibit A-2. The trial Court dismissed the suit. On appeal the plaintiff was unsuccessful. The plaintiff carried up the matter in second appeal to this Court. Maharajan, J. was of the view that the plaintiff was entitled to a declaration as prayed for and after declaring the plaintiff’s title to the suit property directed the defendants to deliver possession of the same to the plaintiff. He however granted leave to appeal under clause 15 of the Letters Patent.

3. The short question that arises for consideration in this case is, whether by virtue of the dispositary clause in the will of Royalu Reddiar a vested interest was created in favour of Sambasiva and whether possession of the property so vested was only postponed, till after the lifetime of Kamalammal. The first Appellate Court was of the view that the provisions of the Transfer of Property Act having been extended to Pondicherry only on 9th January, 1967, the will has to be interpreted according to the Code Civil prevailing in French territories, Maharajan, J., was of the view that the doctrine of substitution fideicommissaire was not invocable at all in this case. Applying the well known rule of interpreting a testament by sitting in the arm chair of the testator Maharajan, J., was of the view that the intention of the testator was to create a vested right in favour of Sambasiva and that it would be artificial to affix to Exhibit A-1, the label of substitution fideicommissaire. He relied upon a decision of the Supreme Court in Lakshmana Nadar and others v. R. Ramier1. That was a case where the following directions were given in the will of one Lakshminara-yana Iyer.

“After my lifetime, you the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime, enjoy the aforesaid entire properties......After your lifetime, Ramalakshmi Ammal our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as gift,

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