(Appeal (disposed of on 4-8-1954) against the decree of the Court of the Subordinate Judge (Principal) of Rajahmundry in A.S. No. 76 of 1919, preferred against the decree of the Court of the District Munsif of Rajahmundry in O.S. No. 267 of 1947.)

The first defendant is the appellant. The only question that arises for consideration is as to the true construction of the will executed by Manikyam on 3rd January, 1913 and marked as Ex. A-

3. There is no doubt that the properties devised under the will belonged to Manikyam absolutely as found by both the Courts below,

According to the case of the plaintiff the properties were bequeathed absolutely in favour of Manikyams sisters sons, i.e., the 2nd defendant and the plaintiffs deceased husband and that as her husband died in 1914, she became entitled to his interest in the suit property. The first defendant (appellant) mainly contested the suit. The District Munsif of Rajahmundry held that Ss. 105 and 107 of the Indian Succession Act did not apply as the Will was executed by a Hindu and that the plaintiff acquired an interest under the terms of the Will Ex. A-

3. On appeal, the Subordinate Judge of Rajahmundry differed from the District Munsif and held that Ss. 105 and 107 of the Indian Succession Act applied also to Hindu Wills. But on a true and proper construction of the Will he confirmed the judgment of the District Munsif and held that as the heir-at-law of Satyanarayana, the plaintiff was entitled to a half share under the terms of Ex. A-3, The second appeal is brought by the first defendant as against the judgment and decree of the Subordinate Judge of Rajahmundry.

As already stated, the sole question that arises for consideration is as to whether by the death of Satyanarayana in 1914, that is, during the life time of the testatrix, his interest lapsed and the plaintiff acquired no interest whatsoever. I have carefully perused the terms of the Will and I agree with the Subordinate Judge that the testatrix clearly intended that her nephews, Krishnamurthi and Satyanarayana, or their Santhathi should take the properties equally.

As regard moveable property the testatrix stated in clear terms in paragraph 3 that after her life-time her sisters sons Krishnamurthi and Satyanarayana, and their descendants according to their fathers branch should take the said properties equally. In Cl. (4) she directed that her nephews or their descendants should give a sum of Rs. 1,000 to the persons specified therein. In Cl. (5) she provided that if the persons specified in Cl. (4) did not survive her, the amounts should be taken by her two nephews or their descendants according to their fathers branch equally. Cl. (6) relating to immoveable property runs in the following terms:

It has been provided that the said Grandhi Krishnamurthy Garu and Satyanarayana Garu and their descendants shall after my life time take even the entire immoveable property that I may purchase from my money or acquire in any other manner, subsequent to this will, along with immoveable property mentioned in this will in the aforesaid manner, with all powers of disposition by way of gilt, sale etc., and they shall enjoy the same happily from their sons to grand-sons and so on in succession.

The contention of the learned Advocate for the appellant is that an absolute estate was given to the nephews Krishnamurthy and Satyanarayana and that as Satyanarayana died during the life time of the testatrix the bequest in his favour lapsed and that the first defendant as the husbands heir of Manikyam was entitled to his share as on intestacy. It is well established that in construing a will all the clauses have to be read together and the intention of the testator or testatrix should be ascertained. Cls. (3) to (5) make it abundantly clear that if any of the nephews should predecease the testatrix, the descendants should take the place of the deceased. In each of the clauses it is stated that the descendants according to their fathers branch should take the properties equally or in other words, the testatrix was anxious that the nephews or if they should the during her lifetime, their Santhathi should take the property.

Reference was made to the terms of Ss. 97 and 105 which run in the following terms:

Section 97:

Where property is bequeathed to a person, and words are added which describe, a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.

Section 105(1):

If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testators property, unless it appears by the will that the testator intended that it should go to some other person. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that she survived the testator.

The argument of the learned Advocate for the appellant is that the use of the expression their descendants in Cl. (6) merely defines the nature and character of the estate taken by Krishnamurthy and Satyanarayana and that applying the rule of construction laid down under S. 97 to the will, the Santhathi acquired no interest whatsoever as the Santhathi was not a direct object of a distinct and independent gift. So, according to the learned Advocate, under the terms of S. 105 Satyanarayana having predeceased the testatrix, the plaintiff his widow, acquired no right whatsoever in the suit properties. But if I am right in my construction of the will that the testatrix intended that the nephew or his Santhathi should take the property, there is no lapse whatsoever so as to attract the terms of S. 105(1) of the Indian Succession Act. The second part of S. 105(1).

Unless it appears by the will that the testator intended that it should go to some other person.

directly applied to the facts of the case. The testatrix herself provided that in the event of the legatee Satyanarayana dying during her life time, his Santhathi should take it. It is therefore unnecessary for me to consider whether the rule of construction laid down in S. 97 of the Succession Act applies to Hindu Wills or not as held by Horwill, J. in Damodara Moothan v. Ammu Atnma (1943) II M.L.J. 332). I, however agree with the observations of the learned Judge:

This section does not apply directly to wills by Hindus; but it lays down a general principle of interpretation of wills which could equally be applied to a will by a Hindu, though if the clear intention of the testator appeared otherwise, the section should not be applied.

The decision of the Bombay High Court in Krishnadas Thulsidas v. Dwarkadas Kalitndas (A.I.R. 1986 Bom. 459) does not in any way affect this question. Wadia, J. rightly held that it is always the intention of the testator as expressed or implied in the language of the will which must be given effect to and that intention must be collected with reasonable certainty from the whole will. He construed the will in question as conferring interest in the sons and daughter of Thulasidas along with him, or in other words, he held that the sons and daughter of Thulasidas were direct objects of a distinct and independent gift as contemplated under S. 9

7. I do not however agree with the observations of the learned Judge that S. 97 embodies an artificial rule of construction of wills, taken from the English law and that rule of construction ought not to be applied to wills made by Hindus. In the view taken by me I do not agree with the observations of the learned Judge as to the scope and effect of illustration (ii) to S. 105.

The next argument of the learned Advocate for the appellant is that the expression Santhathi in Cls. (3) to (6) of the will, will not and cannot by any stretch of language take in the plaintiff, the widow of Satyanarayana, and that the suit is consequently not maintainable. I quite agree with the learned Advocate that the etymological meaning of Santhathi is issue of the body. The expression Santhathi Paramparia used as a word of limitation to define the estate taken by a person has, however, come to acquire the larger significance of heirs. In Rajah of Ramnah v. Sundara Pandiaswami Thevar (27 M.L.J. 694 at p. 718), Seshagiri Ayyar J. held that the words Santhathi paramparia may convey a heritable estate from generation to generation and that

No authority has been quoted for the proposition that the word Santhathi is to be restricted to the lenial descendants.

Ramesam J. in delivering the judgment of the Bench decision in Guruvayamma v. Rangaswami Mudaliar (18 L.W. 513), observed as follows:

Even assuming that the Santhathi in the first sentence, was to be construed as limited to issue, it is not clear that the sentence is intended to describe the devolution of the trusteeship. It merely lays down the manner in which the trust was to be conducted and reference is made to some of the persons who are likely to conduct it. But, even if it were otherwise, I do not think that Santhathi should be construed in its narrow sense. It is true that its etymological meaning is Issue of the body. But it is also true that when used as a word of limitation to define the estate taken by a person it has come to acquire the larger significance of heirs. ..

Adopting those observations, I hold that the expression Santhathi in the present case should not be construed in its narrow or etymological sense but should be construed as meaning heirs. In this view, the second appeal fails and is consequently dismissed with costs. No leave.