Orthodox path preferred.

O.E.A. No. 129 of 1965 in O.E.P. No. 64 of 1965 in O.S. No. 387 of 1964 on the file of the District Munsif of Ranipet out of which this appeal arises has been instituted by Thiru Ramaseenivasa Iyengar, the first appellant (since deceased), whose legal representative is Rajalakshmi Ammal, the second appellant herein, under section 50, Civil Procedure Code for impleading the respondent Srimathi Padmasani Ammal as a legal representative of the deceased judgment debtor Chellammal; and it is alleged in the affidavit that Chellammal, the judgment-debtor died without any issue and that Srimathi Padmasani Ammal her legal representative is in possession of her assets.

2. It is contended by the respondent who is the sister of the judgment-debtor Chellammal that their father Venkatachari executed a will on 15th March, 1940 bequeathing the properties to his two daughters, namely, the respondent and Chellammal with a stipulation that, in the event of any one of them dying issueless, the surviving daughter should get the properties absolutely under the will. Admittedly Chellammal had died issueless and it is therefore alleged that the respondent had become the absolute owner of the properties.

3. The controversy centres round only the interpretation of the terms of the will; and the Courts below have upheld the contention of the respondent that the respondent had under the will become the absolute owner of the suit properties after the death of Chellammal. The same point is agitated over again m this appeal.

4. The will recites that the properties should be taken by both the ladies in equal shares with absolute rights over the same, but the share of the lady without issues will, however, after her death, be taken by the lady with issues along with her children. The words in Tamil are these:

5. On behalf of the appellant herein it is contended that Chellammal was given an absolute right by the earlier clause in the will and that the defeasance clause found later cannot therefore operate and whittle down the absolute estate so conferred on the lady under the document. On behalf of the respondent it is stated that, as the defeasance clause is repugnant to the earlier clause, the said clause must be struck down and brushed aside as having no legal effect.

6. Several authorities have been cited on. both sides. The leading authority relied on by the learned Counsel is a judgment of the Privy Council in the well-known case Sri Subramaniaswami Temple v. Ramaswami Pillai1. In that case the testator had bequeathed under his will absolutely in the following terms:

“I have bequeathed to my son P the right to all my properties and moneys etc., and he shall solely enjoy them. If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur.”

On a construction of the will, the Privy Council held that the bequest to the son was unconditional and therefore conferred upon him an absolute estate arid that the provision for devolution of the property in case the son should the without issue was not in any way intended to limit either the character of the estate that was given by the earlier bequest in favour of the son or make it conditional and liable to be divested at his death without issue. Their Lordships have thereby confirmed the judgment of a Division Bench of this Court in the same case reported in Tiruchendur Sri Subramaniaswami Temple v. P. Ramaswami Pillai2.

7. Reference is also made to the judgement of Venkataramana Rao, J., in Anantha Sayana Naidu v. Kondappa Naidu3. In that case the testator has stated in his will that his wife shall enjoy the properties in dispute with powers of alienation, namely gift, mortgage, sale etc. and that, after her death, the properties then remaining shall be enjoyed by the daughter Kuppammal absolutely. Venkataramana Rao, J., has held in construing the will, purporting to give the plain grammatical meaning to the language, that the widow of the testator took an absolute estate and h