KANNIAH NAIDU Vs. MANICKAM PILLAI

JUDGEMENT

(1.) The principal question argued in these Second Appeals relates to the construction of Ex. F, a will, dated 24 October, 1925, left by one Krishnammal. Among the properties belonging to her are a share in a house and a money claim for certain unpaid purchase money. The said Krishnammal was enciente at the time that she executed the will and she died shortly afterwards, leaving a female child which survived her only by a few months. The plaintiff claims that on the true construction of the will he is entitled to the plaint properties on the death of the daughter. The defendants contend that the gift in favour of the plaintiff is void and therefore he is not entitled to maintain the suit. The Courts below have accepted that contention of the defendants and dismissed the plaintiff's suit. Hence the Second Appeal by the plaintiff.

(2.) The relevant clauses of the will are the following: The children which may be born to me shall after my lifetime enjoy with all rights the properties in Schedules A and B mentioned below after my lifetime. Till such children attain majority the aforesaid Kanniah Naidu (plaintiff) himself is to act as executor and when the minors attain majority he is to deliver the aforesaid properties. If the aforesaid minors should happen to die or if no children should be born, the aforesaid Kanniah Naidu...shall take them with all rights and enjoy the same.

(3.) Mr. Rajah Aiyar who appears for the respondents contends that under the above terms, the female child which survived the testatrix took an absolute estate, and that the gift over in favour of the plaintiff is void as the contingency on which the prior absolute gift is made defeasible is really not a contingency at all because death is not regarded as a contingency for this purpose. He also contends that the contingency is capable of more than one manner of fulfilment and that therefore the gift over is bad for uncertainty.