Bequest after the life time of the testator and his widow.

Venkataraman, J.- These appeals arise out of a suit (O.S.No. 184 of 1964) filed before the learned Subordinate Judge of Cuddalore for partition of the estate of one Koneri Goundar, who died on or about 8th July, 1926. The plaintiff claims that on 5th July, 1926, Koneri Goundar left his last Will (Registration Copy is Exhibit A-4). After bequeathing two items to his cousin Narayanaswamy (P.W. 2) and the Mariamman Temple, he bequeathed half of the remaining properties to the plaintiff, his sister’s son. He bequeathed the remaining half to three persons: (i) Muthuthandava Goundar, son of another elder sister of his, Poornammal; (ii) Natesa Goundar, son of another sister of his, Yasothammal; and (iii) Ramaswamy Goundar, son of his wife’s sister, Balammal. The three were to take equally. The Will was to be given effect to after the life-time of the testator and Sowbagyammal, wife of the testator. The plaintiff construes this as a life estate given to Sowbagyammal without powers of alienation. Sowbagyammal died on 4th December, 1962. The suit was laid after her death. The plaintiff claimed a half share given to him directly. Natesa Goundar, was one of the legatees in respect of the remaining he If due after the testator. The plaintiff claims that he and K. Ramaswamy Goundar (first defendant) are the heirs of the said Natesa Goundar, being his Atmabandhus. Natesa Goundar was entitled to 1/3 of the half, that is to say 1/6 and the plaintiff and the first defendant were therefore entitled to 1/12 and 1/12. Thus the plaintiff claims half as direct legatee and 1/12 as the heir of Natesa Goundar.

2. Muthuthandava Goundar, one of the legatees is dead and his heir is Adikesava Goundar, the second defendant in the suit. He will be entitled to the 1 /6 share of his father.

3. The first defendant would be entitled to 1/6 share as a direct legatee and 1/12 share as one of the heirs of Natesa Goundar. Thus, according to the plaintiff he is entitled to 7/12, the first defendant is entitled to 3/12 and the second defendant to 1/6.

4. The properties in which the plaintiff claims a share are shown in the ‘B’ and ‘C’ Schedules to the plaint, the ‘B’ Schedule being immovable properties and the ‘C Schedule moveables.

5. Sowbagyammal sold some of the properties in the ‘B’ Schedule under four sale-deeds: (i) Exhibit B-43 dated 21st October, 1946 to Muthaiya Goundar (third defendant) for Rs. 1,100 ; (ii) Exhibit B-44 dated 21st October, 1940 (Registration Copy) to Chinnathu Goundar, represented in the suit by his daughter-in-law, the fifth defendant, and his grandsons, defendants 6 to 12, tor Rs. 735; (iii) Exhibit B-27 dated 16th November, 1940 for Rs. 400 in favour of Ranganatha Goundar (fourth defendant); and (iv) Exhibit B-23 dated 2nd February, 1953 for Rs. 1,750 in favour of one Manicka Goundar represented by his son Damodara Goundar, the 13th defendant in the suit. The plaintiff contends that under the Will, Sowbagyammal had no powers of alienation and that consequently these sales would only hold good for her lifetime and would not be binding on the remainder-men, that is, the plaintiff and the other three legatees or their heirs.

6. The first defendant denies the truth and validity of the Will Exhibit A-4 dated 5th July, 1936. On the other hand, according to the first defendant, the last Will of Koneri Goundar was one dated 28th June, 1926 (Exhibit B-11) in which, after bequeathing the two small items to his cousin (P.W. 2) and the Mariamman Temple, he gave the remaining properties entirely to the first defendant. The Will was to take effect after the life-time of Sowbagyammal. It may be mentioned that Exhibit A-4 itself refers to this earlier Will and says that the testator had revoked it by executing the Will Exhibit A-4 dated 5th July, 1926.

7. The first defendant goes on to contend that, even assuming that the Will of 5th July, 1926, is true and valid the plaintiff is not entitled to the bequest under the Will, because he did not fulfil one of the

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