Executing devise a repugnant provision.

This is a Letters Patent Appeal against the Judgment of Subrahmanyam J., in S.A. No. 73 of 1955 on the file of this Court, confirming the judgment and decree in A.S. Nos. 88 and 90 of 1954 on the file of the District Court of Tirunelveli.

The decision of the dispute between the parties to this appeal depends upon the true construction of the will, Exhibit A-1 in the case, executed by one Velayutha Konar on nth February, 1924. The testator died in 1927 leaving him surviving his widow, Sellathammal and three daughters, Arumugathammal, Subbammal and Shanmugathammal by his pre-deceased wife. Under the will he made bequests in favour of his three daughters, and it is the nature of these bequests that is in controversy The third daughter Shanmugathammal died in 1929. She died issueless. Sellathammal, Velayutha Konar’s widow died on 9th January, 1943. Shanmugathammal’s husband instituted the suit, O.S. No. 1 of 1953, on the file of the District Munsif’s Court, Tirunelveli, for possession of the immoveable property which formed the bequest in favour of his wife under the will of her father Velayutha Konar. The first defendant in the suit is Arumugathammal, one of the three daughter, and the second defendant is the son of the other daughter, Subbammal, Subbammal herself having died sometime after the death of Sellathammal. The plaintiff claimed as the heir of his deceased wife, Shanmugathammal and his contention was that the bequest in favour of Shanmugathammal under the will conferred an absolute estate upon her. The contention of the defendants was that Shanmugathammal having died issueless, under the terms of the will she got only a life estate, and that there was a gift over in favour of the two daughters, Arumugathammal and Subbammal.

The learned District Munsif of Tirunelveli who tried the suit construed the will as conferring an absolute estate in favour of Shanmugathammal and granted a decree as prayed for in favour of the plaintiff. On appeal by the defendants before the District Court of Tirunelveli (A.S. Nos. 88 and 90 of 1954) the judgment and decree of the trial Court were set aside and the suit was dismissed on the finding of the lower appellate Court that Shanmugathammal did not obtain an absolute heritable estate under the will. The plaintiff preferred a Second Appeal, S.A. No. 73 of 1955 in this Court, and Subrahmanyam, J., confirmed the judgment and decree of the lower appellate Court but granted leave to appeal under the Letters Patent. This Letters Patent Appeal has therefore been preferred by the plaintiff.

The material portion of Exhibit A-1 conferring the bequests in favour of the daughters is as follows:

“In order that no disputes whatever may arise amongst my three daughters after my lifetime and the lifetime of Chellathayammal, my first wife I have made the following arrangements in respect of the ahovesaid properties as per my intention to make a proper arrangement for the matters that shall come into force The following are the arrangements that I have made in respect of the said properties. My first daughter Arumugathammal the wife of Arumugadoss residing at Vellanthangi Pillayarkoil Street and the issue born of her womb shall, after my lifetime hold and enjoy the house and nanja land mentioned in the First Schedule and the debts mentioned therein with sbsolute rights My second daughter Subbammal, the wife of Sudalaimuthu Konar residing at the said Vellanthangi Pillaiyarkoil Street and the issue born of her womb shall after my lifetime hold and enjoy the house and nanja land mentioned in the Second Schedule hereunder with absolute rights My third daughter, Shanmugathammal, and the issue born of her womb shall, after my lifetime, hold and enjoy the nanja land mentioned in the Third Schedule hereunder and the movable properties in my possession absolutely with powers of alienation.”

There is a provision in the will that the debt due to be paid by the testator towards a chit transaction should be di