Effect of further disposition about devolution at properly after daughter’s death.

The plaintiff is the appellant in the above second appeal. The question involved in the appeal is one of construction of the will, Ex. P-1, in the case. It was executed by one Vithilingam Pillai on 5th May, 1915. The donee under the will was his daughter, Kathayi, and the plaintiff is the grandson of the said Kathayi. The will, after setting out the properties he had and the debts, proceeds to state as follows:

“After my lifetime my daughter Kathayi shall take all my immoveable and moveable properties with absolute rights. If the said mortgage debt is not discharged during my lifetime the said debt shall be discharged by Kathayi. My obsequies shall be performed by Ratnaswami, grandson of my daughter, Kathayi and son of Maria Pillai of East Tanjore. These arrangements shall take effect after my lifetime. My daughter Kathayi shall get these properties after my lifetime with absolute rights. After her lifetime, her grandson Ratnaswami shall get the properties.”

It may be mentioned here that the testator signed the will on the first page which ends with the portion relating to description of properties, and after the signature of the testator, the following recital:

“If there be any debt after my lifetime Kathayi shall sell the land only for the discharge of that debt and she should not alienate the same for any other purpose”

was added. Similarly, the recital already mentioned, viz.:

“my daughter Kathayi shall get these properties after my lifetime with absolute rights. After her lifetime her grandsoh Ratnaswami shall get the properties,”

was added on the next page after the will was signed and attested. The question now is what was the estate that was conferred on Kathayi, whether it was only a life estate or an absolute one. Both the Courts below have held that it was an absolute estate that was conferred on Kathayi and dismissed the plaintiff’s suit.

In appeal it was contended by Mr. M.S. Venkatarama Aiyar for the appellant that the recital which was subsequently added on the first page prohibiting the donee from selling the land except for the discharge of the debt clearly indicates that the testator intended to give only a life estate. He further contends that the gift over to the grandson, Ratnaswami Pillai, the plaintiff herein, is another indication that the testator wanted that the properties should pass on to him and that he should perform the obsequies. His contention is that if there be two conflicting clauses, viz., granting of an absolute estate earlier and restriction as to alienation later, the latter clause must prevail and therefore the estate that was conferred in this case was only a life estate. The contention of learned counsel for the respondent is that the dispositive words used by the testator are clearly indicating an absolute estate and any other clause must be construed to be repugnant and therefore the clause restricting alienation is invalid. In any event, it should not be taken more than as a mere direction to the donee. The question now is which of the two constructions is correct.

It is a well settled principle that in the matter of construction of a will, the will of one testator cannot be construed by reference to that of another. As observed by Joyce, J., in Sanford v. Sanford1, the true way to construe a will is to form an opinion apart from the decided cases and then to see whether these decisions require any modification of that opinion; nor to begin by considering how far the will in question resembles other wills upon which decision has been given.

As pointed out by Venkataramana Rao, J., in Ananthasayanam Naidu v. Kondappa Naidu2:

“It is better to remember the rule so often laid down that each will must be construed by itself and all the light that can be got from the decisions serves only to show in what manner the principle of reasonable construction have by judges of high authority been applied to cases more or less similar-vide the observations of Lord Chalencellor Selborne in Waite v