(Delivered by VENKATARAMAN, J.)

These appeals arise out of a suit (O.S. No. 184 of 1964) filed before the learned Subordinate Judge, Cuddalore, for partition of the estate of one Koneri Gounder, who died on or about 8th July 1926. The plaintiff claims that on 15th June 1926 Koner. Gounder left his last Will (registration copy is Ex. A-4). After bequeathing two items to his cousin Narayanaswami (P.W. 2) and the Mariamma temple, he bequeathed half of the remaining properties to the plaintiff, his sisters son. He bequeathed the remaining half to three persons (i) Muthuthandava Gounder, son of another elder sister of his, Poornammal, (ii) Natesa Gounder, son of another sister of his, Yasothammal; and (iii) Ramaswami Gounder, son of his wifes sister, Balammal. The three were to take equally. The will was to be given effect to after the lifetime 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 Gounder, one of the legatees in respect of the remaining half died after the testator. The plaintiff claims that he and K. Ramaswami Gounder (first defendant) are the heirs of the said Natesa Gounder, being his Athmabandhus. Natesa Gounder 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 Gounder.

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

The properties in which the plaintiff claims a share are shown in the B and C schedules to the plaint, the B schedule being immoveable properties and the C Schedule moveables.

Sowbagyammal sold some of the properties in the B schedule under four sale deeds: (1) Ex. B, 43 dated 21st October 1940 to Muthaiya Gounder (3rd defendant) for Rs. 1100; (ii) Ex. B-44 dated 21st October 1940 (registration copy) to Chinnamuthu Gounder, represented in the suit by his daughter-in-law, the fifth defendant, and his grandsons, defendants 5 to 12, for Rs. 735: (iii) Ex. B-27 dated 16th November 1940 for Rs. 400 in favour of Ranganatha Gounder (4th defendant); and (iv) Ex. B.23 dated 2nd February 1953 for Rs. 1750 in favour of one Manicka Gounder, represented by his son Damodara Gounder, the thirteenth 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 remainderman, that is, the plaintiff and the other three legatees or their heirs.

The first defendant denies the truth and validity of the will Ex. A-4 dated 5th July 1926. On the other hand, according to the first defendant, the last will of Koneri Gounder was one dated 28th June 1926 (Ex. 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 lifetime of Sowbagyammal. It may be mentioned that Ex. A.4 itself refers to this earlier will and says that the testator had revoked it by executing the will Ex. A.4 dated 5th July, 1926.

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 conditions under the will, namely, that he should live with Sowbagyammal and project her. The plaintiff states in this connection that he lived with Sowbagyammal for twelve years and assisted her, but on account of some misunderstanding he did not continue to live with her. This allegation in the plaint is denied. The first defendant contends, that the alienations effected by Sowbagyammal would bind the legatees, because Sowbagyyamal had to discharge some of the debts contracted by Koneri Gounder himself and later by Sowbagyammal and the plaintiff himself and also for the maintenance of Sowbagyammal. The first defendant also denies the existence some of the moveables. He also urges a minor contention that under the will there was no disposition of a half share in favour of the plaintiff.

Defendants 3 and 4 filed a joint written statement stating that the sales to them were necessary, because Sowbagyyammal had to discharge some debts contracted by Koneri Gounder and later by Sowbagyyamal and the plaintiff and also for the maintenance of Sowbagyyammal, that there was not sufficient income from the lands and that these sales would be binding on the plaintiff and the other legatees as well. They also say that, in any event, they are entitled to the value of the improvements effected on the properties purchased by them.

Defendants 5 to 12 filed a similar written statement. So also the thirteenth defendant. A reply statement was filed by the plaintiff on 5th February 1965.

Subsequently, after the trial began, the first defendant filed an additional written statement on 8th March, 1966, stating that Sowbagyyammal became absolutely entitled to the properties of her husband under S. 14(1) of the Hindu Succession Act (30 of 1956) and that Sowbagyyammal executed a will on 25th August, 1960 (Ex. B.26) bequeathing some of these properties in favour of the sons of the second defendant and the remaining properties in favour of the first defendant.

The plaintiff filed two additional reply statements on 10th March, 1965 denying the truth and validity of the will of 25th August, 1960 and contending that S. 14(1) of Act 30 of 1956 could not be invoked by Sowbagyammal, because under Ex. A.4 she was given only a restricted estate, that is, life estate (The reference is to Sec. 14(2) of Act 30 of 1956).

The learned Subordinate Judge has held that the will dated 5th July, 1926 (Ex. A.4) was true and valid, that it superseded the earlier will, Ex. B.11 dated 28th June, 1926, that under the will of 5th July, 1926 Sowbagyammal was given only a bare life estate with a vested remainder to the plaintiff in respect of one half, and to Muthuthandava Gounder (father of the second defendant), Natesa Gounder and the first defendant in respect of the remaining half, that consequently, S. 14(2) of Act 30 of 1956 applied in respect of her life estate, that, therefore, S. 14(1) could not be invoked by the first defendant and that consequently the sales effected by Sowbagyyammal could not hold good beyond her lifetime. He held that the recital in the will (dated 5th July, 1926) that the plaintiff should reside with Sowbagyyammal was only a pious wish and that his living away from her would not disentitle him to the bequest. In respect of the moveables he held that the plaintiff had not adduced any evidence and, therfore, decided that issue against him. In the result he gave a decree in respect of 7/12 share in the B schedule properties, and other incidental reliefs of accounting. Aggrieved by this judgment the first defendant has preferred App. 624 of 1966, and defendants 4, 5 and 9 to 13 have preferred App. 736 of 1967.

The main contention of Mr. Gopalaswami Iyengar, the learned counsel for the appellant in App. No. 624 of 1966 is that the will Ex. A.4 is neither true nor valid. Even assuming that it is true and valid, it did not confer any estate specifically on Sowbagyammal. She, therefore, inherited her husbands properties under law in the ordinary way and got a Hindu widows estate. That estate because enlarged into that of a full owner under S. 14(1) of the Hindu Succession Act. She having thus become full owner on either view, she was competent to execute the will Ex. B.26 dated 25th August 1960 and the first defendant and the sons of the second defendant became entitled to the properties thereunder. Mr. Gopalaswami Iyengar also urged that even assuming that under Ex. A.4 Sowbagyammal got only a life estate and not a Hindu widows estate, the alienations effected by her would be binding on the legatees to whom the vested remainder was bequeathed. He submits that that is because the alienations were made to discharge the debts binding on the estate of Koneri Gounder as such, or for the maintenance of Sowbagyammal or for effecting repairs and improvements to some of the properties.

Mr. T.S. Ramaswami, the learned counsel appearing for the appellants in A.3. 736 of 1967 has adopted the arguments of Mr. Gopalaswami Iyengar, Mr. T.S. Ramaswami also filed three applications, C.M.P. 14264, 14265 and 14266 of 1970 in App. 624 of 1966 stating that the third defendant, Muthiah Gounder, died on 16th October 1966 after filing the appeal (App. 624 of 1966-that appeal was filed on 29th August 1966), that his legal representatives were not brought on record within the prescribed time, that consequently that appeal abated and that it was necessary to set aside the abatement and bring on record his legal representatives. The applications have been filed by four persons claiming to be the son and daughters of the deceased third defendant. In the affidavit filed by the son in support of the applications, it is stated that they were under the bona fide impression that their father had filed an appeal himself and that they discovered late that it was not so. These applications have been opposed by Mr. Vedantachari, the learned counsel for the plaintiff-respondent (who has, however, not filed any formal counter), the ground of opposition being that even allowing these applications would not be sufficient to give any relief to the third defendant and that the proper remedy of the third defendant was to have filed an independent appeal.

It will be seen that these contentions raise a number of points which will have to be dealt with in detail in due course.

The first point which arises to be dealt with is the truth and validity of the will dated 5th July 1926 (Ex. A.4). Before we consider the actual evidence placed before the court, it will be convenient to give a free translation of material portions of the will:

I am executing this will with full consciousness cancelling my will dated 28th June 1926 (Ex. B.11). I am not hopeful of living for long on account of my illness. I am therefore making this will to take effect after my lifetime: My junior paternal uncles son Narayanaswami Gounder (P.W. 2) son of Muguva Gounder of Kandamangalam should take the two small extents of 45 cents and 83 cents in S. No. 160/7 and 157/4 of Kandamangalam village. Ramaswami Gounder son of my elder sister Parvathiammal (plaintiff) should utilise the net income of an extent of 34 cents in S. No. 48/4 for performing the Neivedyam, etc. in the Mariamman temple of my village, after meeting the expenses for kist. I have purchased in the name of Singaravelu Naicker (P.W.) 1) son of Sanjeevi Gounder an extent of 39 cents in S. No. 126/6 from one Pachai Gounder for Rs. 60, This property, my house and all my moveables and immoveable properties should be taken as follows:

Half by Ramaswami Gounder, son of my elder sister (plaintiff). The remaining half to be taken by (i) Muthuthandava Gounder, son of my elder sister Poornammal; (ii) Natesa Gounder, son of my elder sister Yasodai Ammal; (iii) Ramaswami Gounder son of my wifes sister Balambal.

These four persons should take the property after my life time and the lifetime of my wife Sowbagyamma after performing the obsequies of both of us. The said Ramaswami Gounder (plaintiff) should remain in the family and act according to the wishes of my wife Sowbagyyammal, attend to the cultivation and maintain the family. The said Ramaswami Gounder alone should collect the outstandings due to me and discharge the debts due by me. This will is to take effect after my lifetime and that of my wife Sowbagy ammal. I have every right to revoke this will.

This will Ex. A-4 is attested by (1) M. Natesa Gounder (D.W. 2), (2) Ratna Sadasiva Naicker (not examined), (3) Pachaimuthu Pillai (the karnam, scribe and attestor, P.W. 5). Rathnasadasiva Naicker is said to be dead (see page 15 of typed papersP.W. 1s evidence).

The registration endorsement shows that it was presented or, 7-10-1960 (sic) in the office of the Sub Registrar, Valavanur between 3 and 4 pm by Koneri Gounder, that he admitted before the Sub-Registrar the execution of the will, and that he was identified by R. Pachamuthu Pillai, the karnam (P.W. 5) and the Maniagar Muthialu Reddiar.

The terms of the earlier will, Ex. B-11, are substantially similar except that in the place of the four persons the name of the first defendant alone figures and the testator described him as his Abhimana kumaran (fourth son).

(Discussion of facts is omittedEd.)

In the face of these circumstances, we have no hesitation in agreeing with the learned Subordinate Judge in upholding the later will, Ex. A-4 dated 5th July, 1926. It is clear that P.W. 5 was over by the contesting defendants and that D.W. 2 is unwilling to admit the attestation of the will.

The next important question to be considered is the construction of the will. We have already set out the translation of the will. The operative portion in the will is this;

Tamil

Leaving out the property given to P.W. 2 and the Mariamman temple, this means that after the lifetime of the testator and Sowbagyammal, half of the remaiaing property should go to the plaintiff absolutely and the other half to Muthuthandava, Natesa and the first defendant absolutely. This means that Sowbagyammal was given a life estate and the vested remainder was given to the plaintiff (half), Muthuthandava (1/6th), Natesa (1/6th) and the first defendant (1/6th). The bequest to the plaintiff, Muthuthandava, Natesa and the first defendant is a vested remainder within the meaning of S. 119 of the Indian Succession Act, 1925. Incidentally we may staightaway dispose of a minor contention that there were no specific terms of bequest in favour of the plaintiff in respect of the half. Reading the will it is clear that the plaintiff was to get a half, because, otherwise, there would be intestacy in respect of a half. The word (Tamil) applies both to the half which was given to the plaintiff and the half which was given to Muthuthandava, Natesa and the first defendant.

In our opinion, the construction of the will offers to difficulty and it is unnecessary to cite any decision. However, we may refer to some of the decisions cited before us by Mr. Vedantachari, counsel for the plaintiff. In Bhagwati Barmanya v. Kali Charon Singh 38 I.A. 54=38 Cal. 458 [LQ/CalHC/1911/79] the material portion of the will was this:

My mother Phudan Kumari Barmanya and my wife Bhagobati Barmanya shall, as long as they shall live hold possession of all my properties, moveable and immoveable, and enjoy the sameThey shall not be competent in any way to transfer the immoveable property to and one. On the death of my mother any my wife, the sons of my sisters, Golap Sundari Barmanya and Annapurna Barmanya, that is to say, their sons who are now in existence, as also those who may be born hereafter, shall, in equal shares, hold the said properties in possession and enjoyment by right of inheritance. ..

Their Lordships observed that probably the gift to the after-born children of the sisters was confined to children coming into existence between the date of the will and the testators death. But they disposed of the case on the assumption that the testator intended that children born to his sisters after his death should also be included in the will. They then observed:

Apart from this point the learned counsel for the appellant argued in the first place that there was no vesting until the death of the survivor of the mother and the widow. Their Lordships, however, think it is clear on the construction of the will that the nephews were intended to take a vested and transmit-table interest on the death of the testator, though their possession and enjoyment were postponed. Whether it was the intention of the testator that on the birth of nephews after his death interests vested should be divested so as to let in such after-born nephews is another question.

The above decision was followed by a Bench of the Allahabad High Court in Beni Madho v. Bhagwan Prasad 33 All. 558. The testator gave his property after the death of himself and his wife M to his daughter B and his nephew D.D survived the testator but predeceased M , his widow. It was contended that these terms did not confer a vested interest but merely a contingent interest and that D having died before his aunt, his sons were not entitled to succeed to the property. It is observed:

We think, that the courts below were right in holding that Duli Chand took a vested interest in the property which was transmittable to his heirs.

In Ramakrishniah v. Official Receiver, East Godavari (1948) 2 M.L.J. 285 a Bench of this court had to construe a will where clauses 5 and 12 ran as follows:

Clause 5: The entire moveable and immoveable properties belonging to me, excluding what I have given herein and what I am going to give in future, the remaining entire property shall pass to my wife P.S.

Clause 12: The house wherein I am residing shall, after the death of my wife, pass to my fourth son Pyda Satyanarayanamurthi.

It was held that under Cl. 12, a life estate was given to the wife in the house and a vested remainder was given to the fourth son.

In Lakshmana Nadar v. Ramier 1953 S.C.R. 848=(1953) 1 M.L.J the will provided as follows:

After my lifetime, you, the aforesaid Ranganayakiammal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me and the chit amounts payable by me. After your life time Ramalakshmi Ammal, our daughter and wife of Rama Iyer Avergal of Melagaram village and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to Chinnammal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed.

Ranganayaki entered into possession of the property on the death of the testator. In 1928, she settled the maintenance claim of the daughter-in-law Lakshmiammal and that was by executing an agreement stipulating to pay her a sum of Rs. 240 per annum. The daughter Ramalakshmi died in 1938 during the lifetime of the widow, leaving as her heir her husband. In 1945, the widow of the testator describing herself to be the absolute owner of the properties of her husband sold some items of the properties to the second defendant and executed settlement deeds in respect of other defendants. Ramalakshmis husband instituted the suit contending that Ramalakshmi had obtained a vested interest. The defendants contended that the widow was entitled under the will to an absolute estate or at least she was to take an estate analogous to a widows estate, that the daughters interest was only in the nature of a contingent remainder and the suit was therefore not maintainable. The learned Subordinate Judge who tried the suit decreed the suit. That was affirmed in appeal by the High Court. That again was affirmed by the Supreme Court. Their Lordships pointed out that the widow got only a life estate and that Ramalakshmi Ammal, the daughter got a vested remainder. We shall have to refer to this decision in detail later.

In Ramachandra Shenoy v. Hilda Brito (1964) 2 S.C.R. 772=A.I.R. 1954 S.C. 1373, the testator Mrs. Mary Magdolence Coelho provided by her will thus

All these (properties) my eldest daughter shall after my lifetime enjoy and after her life time her male children also shall enjoy permanently and with absolute right...

It was held that the daughter got only a life estate and her male children got the vested remainder.

The contention of Mr. Gopalaswami Iyengar is primarily that under the will there were no words of disposition at all in favour of the widow, that therefore she got nothing under the will and she inherited her husbands properties under law in the usual course as if he had died intestate. The further step in the argument is that the Hindu widows estate became enlarged under Sec. 14(1) of the Hindu Succession Act of 1956 into a full absolute estate. This contention is based on the fact that no express words of disposition are used conferring a life estate on the widow. But that was clearly implied in the will. The will states in two places that the dispositions in favour of the plaintiff, Muthuthandava, Natesa and the first defendant would come into effect after his lifetime and the lifetime of his widow. Of course, every will would come into effect only after the testators lifetime and therefore, no special significance can be attached to that provision, but significance has to be attached to the provision that the provisions would come into effect after the lifetime of his widow. It could not be that the testator wanted the estate to hang in the air during the lifetime of the widow. That is the negative aspect. The positive aspect of it is that he could not have intended to give nothing to his widow which is what the contention of Mr. Gopalaswami Iyengar really amounts to. It should be noted that the contention of Mr. Gopalaswami Iyengar involves not merely that the widow herself got nothing under the will but also that there was no immediate gift to the plaintiff and the other three persons, Muthuthandava, Natesa and the first defendant. That would be ignoring the specific bequests made to them. It is clear that the testator intended to give a life estate to the widow by necessary implication and a vested remainder expressly to the plaintiff and the other three persons.

An argument, similar to that put forth by Mr. Gopalaswami Iyengar before us was advanced before the Bench which decided Ramakrishniah v. Official Receiver, East Godavari 1948 2 M.L.J. 285, already referred to. The argument put forth by Mr. Raghava Rao for the first defendant, son of the testator) was that clause 12 of the will did not expressly give the wife any life interest so that clause 12 could not operate immediately on the death of the testator, and hence under Cl. 6, the wife obtained an absolute interest in the property which ultimately devolved upon her sons including the first defendant. The learned Judges repelled this contention thus:

It is conceded that in certain simple cases, such as, where a person bequeathes property, to his heir-at-law B on the death of A, a court would hold that by necessary implication there was a grant to A, with the remainder to B; because otherwise there would be something in the nature of an intestacy, there being nobody to take the property upon the testators death.

The learned Judges referred to Theobald on Wills and observed:

Such an example is given in Theobald where there is a gift to a residuary devisee after the death of A, A should then take a life estate by implication, the reason being that the very wording used indicates that the testator did not intend with regard to that particular gift that the residuary devisee should take the property immediately on the testators death but only after the life of A.

Then they referred to Halsbury (Hailshams Edn, (Volume 34, page 475, where it is stated.

Thus, life estate has been held to be implicitly conferred on a person where the will contains a gift after the death of that person, and the court has from the context of the will inferred an intention on the part of the testator that that person should enjoy the property in the meantime.

The corresponding passage in Simonds Edition is in Volume 39, at page 1163 (paragraph 1711).

We, therefore, reject the argument that under the will Sowbagyammal got nothing whatsoever. The next argument of Mr. Gopalaswami Iyengar is that if it is to be held that the will gave her something, something was a Hindu widows estate. We have already indicated our opinion that what was given to her was only a life estate with a vested remainder to the plaintiff, Muthuthandava, Natesa and the first defendant. We are clearly of opinion that a Hindu widows estate was not given to Sowbagyammal under the will and our reasons are these:

Firstly, the bequest to the plaintiff Muthuthandava, Natesa and the first defendant is a vested interest and is not a contingent remainder, contingent on their surviving the widow. If the intention of the testator was that they should get only if they survived the widow, words to that effect would have been used, but that is not the case. The conferment of a vested interest on the plaintiff and the other three persons is inconsistent with the notion that the Hindu widows estate was what was given to Sowbagyammal, because a Hindu widow is not a bare life estate holder but a full owner though her powers of alienation are limited and the persons who take after her would only have a mere spes successions or chance of succession; only those reversionary heirs living at the time of her death would be entitled to take under the Hindu Law. Secondly, a Hindu widow would have powers of alienation binding the reversioner in certain limited circumstances, but a bare life estate holder would not have any such powers and in this case no such powers of alienation have been conferred on the widow. In particular, there is no provision that the plaintiff and the other three persons should take such properties as might remain after any alienation by the widow. All the properties of the testator were given to them without any possible diminution by the widow. These reasons underlying the distinction between a bare life estate and a Hindu widows estate have been forcibly brought out in the decision of the Supreme Court in Lakshmana Nadar and others v. Ramier 1948 2 M.L.J. 285 already referred to. It is, therefore, necessary to quote in full material portions of the judgment:

Considering the will in the light of these principles, it seems to us that Lakshminarayana Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should therefore be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation by way of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that the should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his minds eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widows estate on her daughter will only have a mere spies successions under the Hindu law which may or may not mature and under the will her interest would only be a contingent one in what was left undisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left undisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy the entire properties mentioned in the schedule during her lifetime, in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widows estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow.

The widow cannot be held to have been given a full Hindu widows estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued that such a power was implicit within the acts she was authorised to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes if necessity arose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of the will cannot be sustained. For the purpose of her maintenance, for payment of debts, etc., and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorised purposes. It cannot be said that a Hindu widow can only alienate her husbands estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and necessities have to be judged on a variety of considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the terms than like a full Hindu widows estate in spite of the directions above men-mentioned. She bad complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept in tact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testators death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills) the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testators properties on his death.

It is therefore clear that under the will Sowbagyammal was given only a bare life estate with a vested remainder to the plaintiff, Muthuthandava, Natesa and the first defendant. In such a case, S. 14(2) of the Hindu Succession Act, will apply and Sowbagyammals estate will not be enlarged under S. 14(1) of the Act. It is here necessary to quote the whole of S. 14 of the Hindu Succession Act:

Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, property includes both moveable and immoveable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-S. (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Mr. Gopalaswami Iyengar contends that in order that S. 14(2) of the Act may apply, the terms of the will themselves should specifically say that only a restricted estate, that is a life estate, was given to the widow. We do not agree. The word prescribe merely means that there must be something in writing and in order that S. 14(2) should apply it is enough that on a construction of the terms of the will, the court finds that what was given to the widow was only a restricted estate, that is a life est ate with a vested remainder to others. The intention displayed by the Legislature is that where a vested remainder is given to persons other than the widow, that should not be taken away.

It follows that the sales effected by the widow should be judged not on the criteria applicable to a sale by a Hindu widow holding an estate known as the Hindu widows estate, but on the footing that she was given only a life estate with a vested remainder to the plaintiff and the three others.

We would first ascertain the facts relating to these sales, namely, how far they are supported by consideration and for what purpose the particular sale was effected. Here we must notice one circumstance, namely, that though there are four different sales to be considered, viz., (1) Ex. B-43 in favour of the third defendant; (2) Ex. B-44 in favour of Chinamuthu Gounder, father of defendants 5 to 12; (3) Ex. B-27 in favour of the fourth defendant and (4) Ex. B-43 in favour of Manicka Gounder, father of the 13th defendant, and the learned Subordinate Judge has held in respect of all of them that they are not binding on the plaintiff and the other remaindermen after the lifetime of the widow, appeals have been preferred only in respect of the last mentioned three alienations and no appeal has been preferred in respect of the sale under Ex. B-43 in favour of the third defendant. It was obviously necessary for the third defendant or his legal representatives to file an independent appeal, but Mr. T.S. Ramaswami has filed three petitions, C.M.P. 14264 to 14266 of 1970 on behalf of the legal representatives of the third defendant claiming that even without filing an independent appeal, the court could give relief to them under Or. 41, R. 33, C.P.C., if otherwise the court was enabled to give relief to them. No doubt Or 41, rule 33, C.P.C., is in wide terms, but it has been held authoritatively by a Bench of this court in Krishnareddi v. Ramireddi 1948 2 M.L.J. 285 that Or. 41, rule, 33 should not be invoked in such a case. That was a case arising out of a suit brought by the plaintiff claiming that he and the defendants 1 and 2 were reversioners of one Rami Reddi and were entitled to recover possession of the properties. It was alleged that the alienations effected by the widow and the daughters were not for necessity and were not binding on the reversioners. One of the defences was that Rami Reddi had no daughter of the name Mahalakshmamma, that consequently the plaintiff and the first defendant who claimed to be the sons of Mahalakshmamma were not the reversioners. Another defence was that the properties did not belong to Rami Reddi. The learned District Munsif who tried the suit decreed the suit. Only some of the alienees preferred an appeal to the Subordinate Judge. He admitted some additional evidence and on the basis of that held that Mahalakshmamma was not proved to be the daughter of Rami Reddi and that therefore the plaintiff was not the reversioner of Rami Reddi. He also held that the suit properties did not belong to Rami Reddi. On these findings, he dismissed the suit not only against the defendants who filed the appeal but also against the other defendants who had not. He did this in exercise of his powers under Or. 41, rule. 33, C.P.C. His decision was upheld in second appeal. In the further Letters Patent Appeal, Rajamannar, C.J. and Venkatarama Iyer, J. held that there was no reason to interfere in respect of the defendants who had appealed, but set aside the decision in respect of the defendants who had not appealed. It was held that O. 41, rule 33 should not be invoked in such a case. They observed:

Normally, a party who is aggrieved by a decree should if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Or 41 rule 33But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to re-adjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases in which this rule has been applied, is when the relief prayed for is single and indivisible, but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject matter two decrees which are in-consistent and contradictory. This, however, is not intended to be an exhaustive enumeration of the classes of cases in which courts could interfere under Or. 41, rule 33But, however extensive this power may be, one principle can be taken to be well established; it is that when a party having a right to appeal fails to do so relief should ordinarily be refused to him under Or. 41, rule 38. The court will exercise a sound discretion in refusing to grant relief under that rule to one who has submitted to the decree.

Then they went on to point out that in a suit by a reversioner to recover several items of properties alienated under different sales, some of them might be valid and others not, that there was no community of interest between the defendants, that indeed the plaintiff could have filed a separate suit in respect of each item and impleaded as defendant therein only the alienee interested in that item and that merely because, for purpose of convenience, the plaintiff combined several suits into one, it would not follow that the reversal by the appellate court of the decree granted to the reversioner should automatically result in relief being granted to the other alienees who had not appealed. They observe:

Considering the question on principle, when a decree is in substance a combination of several decrees against several defendants, there is no reason why an appeal presented by one of the defendants in respect of his interest should enure for the benefit of the other defendants with reference to their interest.

That is precisely the position in the present case. It is true that relief could be granted under Or. 41, rule 4, even though the particular party has not appealed. That rule runs thus:

Where there are more plaintiffs or more defendants than one in a suit, and the coerce appealed from proceeds on any ground common to all the plaintiffs, or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

But this rule has not been satisfied by the third defendant or his legal representatives either in appeal No. 624 of 1966 preferred by the first defendant or in the other appeal A.S. 736 of 1967 preferred by defendants 4, 5, and 9 to 12. Taking up App. No. 624 of 1966, the only question common to the first defendant and the third defendant would be the contention of the first defendant that the widow estate under the will, Ex. A.4 and that it became enlarged into full ownership under S. 14(1) of Act 30 of 1956, but that would not compel the court to uphold the sale, Ex. B.43, because the third defendant and his legal representatives would still have to justify the sale as being within the powers of a Hindu widow. This last question is not one which can validly be raised by the first defendant, though that is one of the contentions in the grounds of appeal by the first defendant. This question whether the particular sale, Ex. B.43 can be justified on the footing that Sowbagyammal had a Hindu widows estate is not a question common to the first defendant and the third defendant and therefore even if relief were to be given to the first defendant in the appeal, A.S. 624 of 1966, that would not help the third defendant. Similarly, taking up the other appeal, A.S. No. 736 of 1967, only some of the questions would be common between these appellants and the third defendant. The common question would be the contention that Sowbagyammal got a Hindu widows estate either by inheritance or on the terms of the Will, but the question as to whether the particular sale was justified by necessity or supported by consideration would not be a common question and would have to be answered with reference to each sale separately. Similarly another common question between the appellants in App. No. 736 of 1967 and the third defendant would be the contention that even if Sowbagyammal acquired only a bare life estate under the terms of the will, the law might permit relief being granted to the alienees under certain circumstances, but there again, whether in the particular sale, those circumstances existed would be a question relating to that particular sale and would not be a common question relating to all the sales. Thus it is clear that neither under O. 41, rule 33, nor under O. 41, rule 4, could any relief be given to the third defendant or his legal representatives. Since we are making these clear, there is no harm in allowing C.M.P. No. 14264 to 14266 of 1970, because allowing those applications is not going to result in any relief to the legal representatives of the third defendant.

Learned counsel, Mr. T.S. Ramaswami, cited the decision of the Supreme Court in Gianiram v. Ramjilal 1935 S.C.R. 845 where O. 41, rule 33, is invoked, but that case is distinguishable. He also cited the decision in Parvathi v. Mannalal 1954 Mad. 1126 [LQ/MadHC/1954/169] . It may be noted that in that case, only a principle was laid down that O. 41, rule 33, and O. 41, rule 4 could be invoked even in favour of a defendant who has not been impleaded in the appeal, but whether the discretion should be exercised was left for decision by the first appeal Bench. The case is therefore not helpful.

Sri Vedantachari for the plaintiff-respondent had cited Nirmala Bala v. Balaichand A.I.R. 1959 S.C. 1144 as another instance where the majority of their Lordships of the Supreme Court held that O. 41, rule 33, C.P.C. should not be invoked.

Since we have held that the third defendant and his legal representatives should file an independent appeal, we do not think it right to discuss the evidence relating to the sale Ex. B.43, except in so far as it would be incidentally necessary for a decision in respect of the other sales, Ex. B.44, B.27 and B.23.

[The discussion of the evidence is omitted Ed.].

We therefore confirm the finding of the learned Subordinate Judge in paragraphs 19 and 20 that consideration passed for Ex. B.23, sale deed, but it had not been proved that the sum of Rs 1200 was utilised for any improvement.

Even with regard to the sum of Rs. 550 received at the time of the execution for maintenance expenses we are not at all satisfied that it was necessary for Sowbagyammal. We have already discussed this matter to some extent with reference to Ex. B.25. Koneri Gounden owned an extent of 30 acres and even the evidence of D.W. 2 shows that there must have been an income of Rs. 3000 per. year and D.W. 2 would say that Sowbagiammal would have required Rs. 30 per mensem for her maintenance (page 44 and 45 of the typed papers). Further we have seen that Ex. B-18, B-25 and even Ex. B-27 were got up with a view to defraud the plaintiff. It is in that background that we must consider the recital in Ex. B-23 that a sum of Rs. 550 was received for maintenance expenses. We are not at all satisfied that that amount was necessary for maintenance.

The question will be whether these three sales Ex. B.43, B.27 and B-23 by Sowbagyammal are binding on the remaindermen. We have held that Sowbagiammal was only a bare life-estate holder with a vested remainder to the plaintiff, Muthuthandava, Natesa and the first defendant. Mr. Gopalaswami Iyengar referred to the following statement in Maynes Hindu Law, 11th Edn. at page 894

A life estate can be given with a power of alienation by will or gift inter vivos subject to the proviso that to the extent to which the power is not exercised, there is to be a gift over.

The authority cited is Mari Kumari Dasi v. Monimchandra Sarkar, A.I.R. 1956 Pat. 414 [LQ/PatHC/1956/57] . In that case, the testator left his widow and daughter a will which ran as follows:

I have given my daughter in marriage You are my legally married wife, and entitled to the property to be left by me. Should I, on a sudden, the at Benares, you shall, under this will, become possessor of my properties etc. You will have the right and power to alienate by gift or sale all the aforesaid moveable and immoveable properties My daughter, Smt. Hara Kumari Dasi shall become entitled to, and possessor of whatever properties will remain after your death, and she shall enjoy the same keeping up and maintaining the aforesaid shebas.

It was held that the widow took a life estate with powers of alienation, and the daughter similarly took the properties, to the extent to which such powers were not exercised by the widow. It was observed:

There is not, in so many words, any clear, and absolute gift to the widow, and we can give effect to all the words in the will by holding that the widow took for life, with a power of alienation, but to the extent to which such power was not exercised, the daughter similarly took the property

The decision thus turned on the particular recitals in the will. In Ex. A-4, however, there are no such recitals empowering the widow to alienate the properties. Similarly the decision of Kaul, J. in Beni Madho v. Harihar Prasad (1955) 3 S.C.R. 550=A.I.R. 1965 S.C. 1874 which was confirmed in Beni Madho v. Harihar Prasad (1908) 12 C.W.N. 412 = 7 Cal. L.J. 540 also turned on the particular terms of the will conferring such powers of alienation on the life estate holder. Mr. Gopalaswami Iyengar further urged that though there were no specific words in Ex. A-4 empowering the widow, still we could legitimately hold that the testator, intended to clothe her with a power to sell property to the extent necessary to maintain herself. Mr. Gopalaswami Iyengar argues that the testator indicated that the plaintiff should maintain and protect the widow by living with her and therefore he did not intend his wife to starve. We have held on the facts that we are not convinced that there was any necessity to sell any portion of the land for the maintenance of the widow. Apart from this we are not satisfied that the will can be construed as implying such a power of sale for the maintenance of the widow. Apart from the argument that on a construction of this will we should hold that Sowbagyammal had power to sell the property in order to maintain herself, Mr. Gopalaswami Iyengar and Mr. T.S. Ramaswami Iyer did not urge that in law a bare life estate holder would have power to alienate any portion of the property so as to bind the remaindermen. Indeed it does not appear to be tenable that a bare life estate holder could, even for his or her maintenance sell the property so as to bind the remainderman; that is because, the testator by giving a life estate to A with a vested remainder to B intended that the property would go in tact to B and on no account it should be sold for the maintenance of A. So far as A is concerned he has intended that A, the life estate holder could only look to the income of the property for maintaining himself or herself. Unless therefore, it could be urged that such a power of sale to bind the remainderman could be implied on the terms of a particular will, a life estate holder cannot effect a sale which would enure beyond his or her lifetime. We have, however, looked up the law in England to ascertain whether relief could be given to any extent in respect of the sales, Ex. B-44, B-23 and B-27 which have been held to be supported by consideration. The law is found stated in pages 73 to 77 of Cheshires Modern Law of Real Property, 10th Edn. (5th Edn. 389) thus:

The person who under this system has every appearance of being owner is the life tenant in possession, but since his beneficial interest must necessarily determine with his death it follows that any interest granted by him must also determine at that moment.

Cheshiregoes on to point out that since this limited power of alienation reduced the value pf property in the hards of life tenants, statutes were passed enlarging the powers of the life tenant.

In Halsburys laws of England, Vol. 32, Simonds Edn. page 296 also, the law is thus stated:

Save under statutory powers, the tenant for life can dispose of the land only to the extent of his own interest. Hence, on a sale or gift of the land, whether expressed to be for the life of the tenant for life or any greater interest the purchaser or donee takes an interest only for the rest of the life of the tenant for life, that is, an estate pur autre vie ; and, on a lease of the land, the lessee takes a term which is liable to be determined by the death of the lessor. Under statutory power, the tenant for life can dispose of the land by sale, exchange or lease; but any capital sum received on the transaction is paid to trustees or into court, and follows the limitations of the land.

Since no such statute has been passed in India enlarging the powers of a life tenant, we have to ascertain the law in England apart from the statutory law enlarging the power of a life-tenant.

In Theobald on Wills, 8th Edn. page 1188, Volume 2, the law is stated thus:

A tenant for life cannot charge the expenses of improvements upon the property Naira v. Marjoribans A.I.R. 1946 Oudh 20; Re Leighs Estate A.I.R. 1947 Oudh 71, Bestook v. Blakeney 3 Russel 582 = 28 E.R. 882 except under the Settled Land Acts, but the court has jurisdiction to permit him to charge moneys expended for salvage Highbert v. Cooks L.R. 6 Ch. 887, Bent v. Bent 2 B.C.C. 653 = 20 E.R. 332, Dixon v. Peacock 1 S. and St. 552, Ferguson v. Ferguson 30 Bea. 363 or to pay them out of capital moneys, Re Hawkers settled estates 3 Dr. 288 or in some cases for the benefit of the trust estate.

In Theobald on Wills, 8th Edn., the law is thus stated at page 607:

Apart from the Settled Land Acts, a tenant for life who makes permanent improvements which increases the value of the inheritance, such as repairs necessitated by dry not buildings, farm buildings and cottages, draining marshes and the like, does so at his own risk, and is not entitled to a charge for his expenditure. Hibbort v. Cooke L.R. 6 Ch. 887 Bostock v. Balankeney 3 Russel 582 = 28 E.R. 882, Nairn v. Harjoribanks A.I.R. 1946 Oudh 20, Dixon v. Peacock 1 S. and St. 552 Caldecott v. Brown 17 L.R. Ir. 652, Dunne v. Dunne 76 L.T. 288, Dent v. Dent 2 B.C.C. 653 = 20 E.R. 332, In re. Barringtons settlement 2 Ha. 144, In re. Orard settled estate 7 D.M. and G. 207; see In re Mantage Derbishire v. Montague 1 J. and H. 142.

But he will be allowed expenditure (including the costs of legal proceedings made to preserve the property of which he is a tenant for life from injury, destruction or forfeiture. Dent v. Dent 2 B.C.C. 653 = 20 E.R. 332, (the Aroa mine) In re. Earl De La Warrsestate , (1892) 2 Ch. 318; In re. Ormreds settled estate , 7 D.M. and G. 207, Hamiltonv. Tighes (1897) 2 Ch. 8.

On this principle, we may complete a mansion house upon the estate left unfinished by the testator, and charge the inheritance with the cost. Hibbert v. Cooke L.R. 6 Ch. 887, Dent v. Dent 2 B.C.C. 653 = 20 E.R. 332.

And if he completes houses commenced by a testator on a building estate he may be entitled to the expenditure, if but for the outlay the buildings would have been lost to the estate. Fergusonv. Ferguson30 Bea. 363, Galliland v. Crawford 16 Ch. D. 587

In Halsburys Laws of England, 3rd Edn. (Simonds Edn. Vol. 34, at page 638, under the heading Capital outgoings it is stated:

The corpus of a trust estate must be resorted to for all costs, charges and expenses, properly incurred for the benefit of the whole estate, such as the costs of carrying into execution the trusts of a willthe cost of legal proceedings for the administration and protection of the whole estate.

In 20 Halsburys Laws of England, (Hail-sham Edn. at pages 575 and 576, the law is thus stated:

Where trustees and incumbrancers, and even in some cases creditor, though their debts be disputed and limited owners have made payment for the redemption of property, or for fines on renewal of leases or other payments to save property from destruction, for the benefit of all persons interested in its preservation, a lien will arise in their favour for the amount of the expenditure against the property in priority to all other claims.

Thus the law in England, apart from the Settled Land Act is that a tenant for life is entitled to what is called a salvage lien right, that is, a lien for the money that he expended in saving the property for himself and the remaindermen, but he is not entitled to the value of any improvements effected on the estate. Beyond this lien, he does not have any power of sale as such and the purchaser from him would only have a lien against the remaindermen. In fact the principle of salvage being that the property is to be saved it will be inconsistent with that position to uphold a sale of that property or even a portion thereof as binding on the remaindermen, to do justice, it would be quite sufficient to hold that there will be a lien for the amount spent for salvage.

In our opinion, these are principles of justice, equity and good conscience and can be adopted in India also. Thus it is obviously just and reasonable that if a tenant for life spent some money to save the property from forfeiture by a creditor of the estate, he should have a lien for the money spent in saving the estate for himself and for the remainderman, but no such corresponding equity can be invoked by the tenant for life if he spends for improvement of the property. This rests on the principle that he cannot saddle the remaindermen with the expanses of improvement which the remainderman may not be inclined to incur. If the tenant wants to derive an increased income by improving the property, it is open to him to do so, but he cannot pass the burden of the cost of improvement to the remaindermen. The principles themselves are clear though it may be difficult in particular cases to determine whether, what has been expended has been spent only to preserve the estate or to improve the estate. We would also observe that where money is spent by a tenant for life for saving the property from forfeiture by a creditor, it is enough to give the tenant for life a lien for the money expended. That would give him all the relief that he is entitled to in justice and equity. He cannot be permitted to sell a portion of the property and contend that the same is binding on the remaindermen. As pointed out earlier, the very principle of salvage being that the property has to be saved, the tenant for life cannot be permitted to sell that property or even a portion thereof so as to bind the remaindermen, except, of course, with the consent of the remaindermen. In some cases it may be impracticable to sell just the extent of the property which is requisite to save the property. Further, the question would also arise whether the sale was for a proper price. On account of all these considerations a sale of the property or even a portion thereof by a life tenant cannot be upheld.

We shall now examine some of the cases cited in the passages extracted above in the chronological order:

In Dent v. Dent (1891) 1 Ir. 123 the headnote gives a succinct idea of the case:

A tenant for life had expended on the estate large sumsI, in completing a mansion left unfinished by the testatrixII. In erecting a conservatory and vinery. III. In rebuilding a farm-house and buildings. IV in erecting cottages. V. In erecting permanent furnaces, works, buildings and cottages at some copper works. VI. In draining marshy ground; and VII in making payment to keep a foreign mine working, so as to prevent its forfeiture.

Held : that he was entitled to no allowance for these sums out of the personal estate of the testatrix held upon similar trusts, or to any enquiry respecting them, except those laid out in completing the mansion and for the foreign mine, as to which an enquiry was directed whether the outlay was for the benefit of the inheritance.

This headnote brings out the distinction between a case of salvage on the one hand and improvement on the other. So far as the mansion house is concerned, the facts are these as stated at page 369:

A house had been begun by the testatrix and which was unfinished at her death; what was to be done with it It is clear that she thought that the estate required a mansion, but she had begun to build one; it is also perfectly clear, that it could not be permitted to remain in the state it was in at her death, in which case the money already laid out would have been lost and the building itself would fall into ruin and become an unsightly incumbrance on the estate. It ought therefore to be completed and considering that there is a distinct authority for this in the case of Hibboert v. Cooke L.R. 4 Eq. 35, I think it will be proper for me to direct a reference to ascertain whether anything and what was properly expended, by which I mean for the benefit of the inheritance, in the completion of the house left unfinished by the testatrix upon the Flass estate; when that is ascertained I shall deal with it.

With respect to the Aroa mine it is stated to be the law of Columbia, that if a mine is not worked for a certain time it is denounced and thereupon the owner forfeits the whole of the property and the Government take possession of it. In consequence of this, a considerable sum of money has been laid out every year in supporting the mine and making such works as were necessary to prevent a denouncement of the property, and those sums seem to have been very considerable amounting in some years to as much as 900. But a most beneficial arrangement seems to have been made now, by which this mine, which has only been a burthen hitherto has been contracted to be sold for a sum of 50,000. It is obvious that this is a most extremely beneficial arrangement, and, as it cannot be now carried into effect without the sanction of the court, I shall direct a general reference with respect to the Aroa mine, to ascertain, what has been done with respect to it since the death of the testatrix, and whether any contract has been entered into for its sale, which it would be proper for this court to confirm, or generally what steps should be taken with respect to that property. I shall direct this enquiry in the most general terms, and when this case comes back, I will consider whether it was not for the benefit of the inheritance that this sum of money was laid out, when probably shall not consider it in the mere light of a burthen that fell upon a tenant for life, life a rent charge or an annuity charged upon it, to be kept down by him, but rather in the light of acts done to preserve the property from destruction, involving an outlay in respect of which either the whole outlay itself, or a considerable portion of it, ought to be allowed to him. I will therefore, direct a reference upon those two subjects alone.

In In re Earl De Lawerrs estates Sim. and Stu. 552, the tenant for life incurred certain expenses for the prosecution undertaken for the preservation of the settled estates and for defending some

(1) Sim. and Stu. 552.

(2) (1881) 16 Ch. D. 587.

other action. It was held that the court could permit the trustee to reimburse the tenant for life.

In Fergusonv. Ferguson(1881) 16 ch. D.587 the testator had commenced to build upon part of his real estate a terrace of thirteen houses, and expended upon them a large sum of money. These houses were unfinished at the testators death, and the executors, at the request of the tenants for life, laid out the sum of 2914 on their completion, and the houses were then let out at good rent. It was held by the court of appeal (reversing the decision of the Master of the Rolls that the expenditure came within the principle of salvage, and that the tenants for life of the real estate were entitled to a lien upon the houses so completed for such expenditure incurred in their completion; but, having regard to the perishable nature of the property, that such lien should be repaid within fifty years. In other words it was estimated that the house would last for fifty years and since the tenant for life himself would be having some benefit from the same, the total expenditure was divided into fifty parts and the charge on the remaindermen was diminished by one fiftieth of the original outlay and interest for each year during which the tenants for life received the profits. In the case of Ex. B.44, however, such a deduction may not be necessary, as we shall explain later. In the Court of Appeal, Maish, C. observed

I am satisfied that, having regard to the unfinished state in which the houses were left, the expenditure which took place was absolutely necessary, in order to prevent the houses from becoming a total loss not only to the tenants for life, but to the remainderman. There does not appear to have been any possible mode of making these houses productive in their unfinished states; and, unless this expnditure had been incurred, all the previous expenditure would have become valueless. The very site itself would have become valueless. Therefore it was, in my opinion, essentially a case of Salvage. Lower down it is observed

This is not a case of improvements on a property, neither is it one of repairs.

Palles, C.B. observed at page 573:

Upon these facts, I think the principle of salvage applies, and that the authorities not only authorise, but coerce us to hold that the appellants are entitled to this lien.

Again at page 577, as observed

In my opinion, the case has been brought within the well-known rule of equity, that where a tenant for life expends money in the preservation of property, which otherwise would be lost, he is entitled to a lien for his expenditure on the property so preserved.

Fitz Gibbon, L.J. after observing that the tenants for life would the entitled to a charge over the estate goes on to state at page 576:

Expenditure on buildings of this class is however not of perpetual advantage. The profits arising from the completion of the houses last so long only as buildings of that class continue to return appreciable profit over the cost of repairs and maintenance but such property is liable to rapid depreciation; the life of such houses would seem to be approximately fixed by the analogy of the periods allowed for the repayment of building loans by the Board of Public Works; and, subject to any observation or enquiry which the parties may suggest, I think it would be about right to limit the charge to fifty annual installments, the credit against the inheritance to be determined by one-fiftieth of the original outlay and interest for each year during which the tenant for life receive the profits. As the expenditure was, in the first instance, beneficial to themselves, I think it not unjust to allow the tenants for life interest at the court rate only; and of course they must keep down de anno in annum the interest on the principle due for the time being.

Barry, J. gave the same opinion.

In re Oymroads Settled estates (1886) 17 L.R. (Ireland) 552 an estate was settled by the will of a testator his widow being the first, and his nephew the second tenant for life. The widow, prior to the commencement of the Settled Land, Act 1882, paid out of her own moneys the cost of the successful opposition of the trustees to some bills in Parliament promoted by a water company and by the Corporation of Manchester, and which contained provisions injuriously affecting the estate. The opposition resulted in the insertion of clauses for the protection of the estate. It was held that independently of Sec. 36 of the Settled Lands Act, 1882, the court, under its general jurisdiction, had power to direct the payment of the costs of the parliamentary opposition out of the capital money, and payment was directed accordingly. North, J. observed:

As regards the Parliamentary expenditure, it is obvious that it was incurred by the tenant for life, or forced upon the tenant for life, for the purpose of defending the estate.

He, however, disallowed cost of improvement.

In Hamiltonv. Tighes , (1892) 2. Ch. D.318 an action was brought by the tenant for life and the trustees of a settled estate to establish their right to a fishery which formed part of the settled estate, against certain fishermen who had been in the habit of cot-fishing in the River Nore, within the limits of the said fishery. The tenant for life and the others had obtained a decree and perpetual injunction with costs but they were unable to recover the costs from the defendants. They accordingly instituted a separate action to have the costs m ade a charge on the ground that the original action had been brought for preservation of the fishery, and was in the nature of a salvage suit and made defendants the next tenant for life, and the first tenant in tail in remainder. The latter consented to a judgment. The court gave a decree observing:

In the present case it was absolutely necessary for the protection of the Tighe estate that the action in Tigue v. Sinnott (1898)-1. Ir. Rep. 123 should have been brought.. if the action had not been brought, or had not been successful, this valuable fishery would have been lost to the estate. Therefore, on the ground of pure salvage, which prinniple was extended afterwards to cases of protecting the settled estate, I have jurisdiction to declare the costs of the action of Tighe v. Sinnott (1887)-1. Ir. R. 140 a charge on the inheritance.

On the principles deducible from the above discussion we hold that defendants 5 to 12 who are the heirs of Chinnathu Gounden, the vendee under Ex. B.44, are entitled to a salvage lien for Rs. 735 which was expended in partial discharge of the decree in O.S. 216 of 1934. The properties of Koneri Gounden had been brought to sale in execution of the decree and the payment was made to avert that sale. By such payment, the property was preserved not only for the benefit of Sowbagyammal the tenant for the but also the remaindermen, namely, the plaintiff, Muthuthandavan, Natesa and the first defendant. In the normal case where such expenditure would benefit both the tenant for life and the remain dermen, an apportionment should be made between the tenant for life on the one hand and the remaindermen on the other, but that is not necessary for practical purposes in this case because the property which was salvaged in this case, was not the house property which could be expected to remain only for fifty years. Here the property is land which could go on yielding income indefinitely. In relation to the indefinite length of time for which the remaindermen and their heirs and successors-in-interest could enjoy the profits of the land, the period during which the tenant for life was benefited would be negligible. In this view, we think that no reduction need be made out of the sum of Rs. 735 and that it is proper to ask the plaintiff and the other remaindermen to pay the sum of Rs. 735 in proportion to their shares before they could recover the property, to the defendants 5 to 12. This would mean that the plaintiff would have to pay 7/12 of this amount, the first defendant would have to pay 3/12 and the second defendant 2/12. The question arises whether the defendants 5 to 12 will be entitled to any interest on the sum of Rs. 735. It may be noted that in paragraph 35 of the judgment, the learned Subordinate Judge has held that the defendants 5 to 12 should render an account of the mesne profits from 4th December, 1962, the date of the death of Sowbagyammal. If so, it seems to us just and equitable that the defendants 5 to 12 would be entitled to set off the interest on the sum of Rs. 735 at six per cent from 4th December, 1962, from the above mesne profits. But if it should happen that the interest exceeds the amount of mesne profits, they will not be entitled to get anything more; they should be allowed set off to the extent of the mesne profits and they cannot claim anything further.

With regard to Ex. B-27, we have held that it is not supported by consideration. Accordingly no question of any salvage lien arises. With regard to Ex. B-28, though it is supported by consideration, the alienee is not entitled to any salvage lien.

In other words, A.S. 736 of 1967 is partially allowed in respect of the, defendants 5 to 12 and is otherwise dismissed. It may be noted that so far as defendants 5, 7 and 8 are concerned, though they have not appealed, relief would have to be given to them in the same way as to defendants 5 and 9 to 12 who have appealed on the principle of O. 41, R. 4 and O. 33, C.P. Code, as already explained.

In the result, A.S. No. 624 of 1968 is dismissed. A.S. No. 726 of 1967 is allowed in part. The parties will bear their own costs in these two appeals.