Madhavan Nair, J

[1] The defendants are the appellants. The facts of the case are very simple and may be briefly stated. The suit property belonged to one Subbaraya Padayachi. His wife predeceased him. He had only a minor son Pavadai by name. On 26th November 1918 Subbaraya Padayachi executed a will Ex. B. His son died in 1914 and he himself died in July 191

6. The suit property was sold to the plaintiff under Ex. A by Anjalai Ammal who is a sister of Subbaraya Padayachi. The plaintiff s case is that under the will the property came to Anjalai Ammal and since he purchased the same from her he is now entitled to it. In other words, his title to the suit property is based upon Exs. A and B. The defendants are people in possession of the suit property and they say that they obtained the property under an oral gift from Subbaraya Padayachi. This oral gift has been found against by both the lower Courts. After the death of his son, under Ex. 1 some of the properties included in the will were gifted to one Thangaswami, a relation, by Subbaraya Padayachi while some others were sold by him to his sister Anjalai Ammal under Ex. 2. The suit property did not fall either within Ex. 1 or Ex. 2. The question is whether it fell to Anjalai Ammal under the will Ex. B. The answer to the above question would depend upon the construction of the will, which is the only point involved in this second appeal. I shall now briefly refer to the relevant portions of the will. After referring to the death of his wife and his bad health the will stated:

I have got a minor son Pavadai Padayachi aged eight years. He should suceced to and enjoy the undermentioned properties as his own after my lifetime and should perform my religious rites.

[2] Then it says that Anjalai Ammal-testator s sister who has been looking after him (the testator)-should be the guardian of the minor after his own lifetime and protect him. Then it ends by saying:

If my minor son loses his life after my death, Amjalai Ammal, the guardian of the minor, should enjoy the said properties with all rights.

[3] Shortly stated the will says that the testator s minor son should succeed him after his own death and if the minor dies after him, then Anjalai Ammal should enjoy the properties. Obviously, it was contemplated by the testator at the time when he wrote the will that his son would die only after him. The last clause says that if his (Subbaraya Padayachi s) minor son lost his life after his death, then Anjalai Ammal should succeed to the properties. But things did not happen according to Subbaraya Padayachi s expectation, for his minor son Pavadai Padayachi died in. 1914, i.e., two years before he died. The Question is, having regard the fact that the minor sondied before Subbaraya Padayachi, does Anjalai Ammal get any property under the will which says that she would get the properties if the minor son loses his life after "Subbaraya Padayachi s death. The first Court anwered the question in the negative holding that the plaintiff s vendor got no title to the suit property and dismissed the plaintiff s suit. The appellate Court set aside this decision and gave the plaintiff a decree as he had validly purchased the property from Anjalai Ammal. Cases have laid down that in construing a will effect should be given to the intention of the testator as expressed by his words. In Chunnilal Parvati Shankar v. Bai Samrath 1914 P.C. 60, at 412, the Privy Council pointed out that there is nothing specifically either English or Indian in the idea that the will of a testator must be construed on that principle which would enable the Court of law most fully to give effect to the intention expressed by his words.

[4] Then they said that in ordinary circumstances ordinary words must bear their ordinary construction and the whole will, that is, the whole of the words, words employed by the testator, must be looked |at together so as to determine his whole intention. The sole question for us to consider is what was the intention of the testator when he wrote this will. There can be no doubt that he intended that his son should succeed to his properties. That is clear. It is also clear, as expressed in the sentence I have already extracted, that he desired Anjalai Ammal to succeed to the properties if his son lost his life after him, that is, if the died after him. But as I have already said, that condition did not happen because his son predeceased Subbaraya Padayachi, the testator. What is the result If we give effect to the condition mentioned in the will, clearly Anjaiai Ammal is not entitled to succeed to the properties as the son did not die after Subbaraya Padayachi. It must therefore follow that Anjalai Ammal has no title to the suit property and so the plaintiff must fail. This was the opinion of the District Munsif and I think he is right. If the subsequent conduct of Subbaraya Padayachi, that is, his conduct after the death of his son, can be availed of in finding out what was his real intention, there can be no doubt that he must have considered that the will had become abortive inasmuch as his son died before him and that he was therefore left free to deal with the properties; for we find that afterwards he gifted some properties to Thangaswami, a relation of his son and sold some others to Anjalai Ammal herself. If he thought that he will remained effective, he would then not have dealt with the properties ignoring the will in this manner. But his subsequent conduct is not relevant as what we have got to find is what was Subbaraya Padayachi s intention when he executed the will. Of that I have no doubt that he intended that Anjalai Ammal should get the properties only in the event of his son dying after him. That is what he has expressly stated and on no ground can we ignore the condition mentioned in the will by the testator. The learned Judge s construction of the will does not appear to me to be correct. He thinks that the will should be construed in the light of the principle mentioned in Section 12-9, Succession Act. That section says:

Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail the second bequest shall take effect upon failure of the prior bequest although the failure may not have occurred in the mannes contemplated by the tostator.

[5] This in my opinion applies to the case of a prior gift failing altogether for want of an object. It may be presumed as an implication that the testator intended that the gift over should take effect. But that reasoning cannot apply to this case. It appears to me that the principle of Section 130, Succession Act applies to this case rather than the principle of Section 129. Section 130 says:

Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.

[6] In the present case the testator has clearly indicated that the second bequest shall take effect only if the son dies after himself, that is, in the event of the first bequest in favour of the son failing in a particular manner, by the death of the son subsequent to his own death, and as that bequest has failed the particular manner indicated not having taken place it is clear that the second bequest cannot take effect. I would, therefore, hold that the plaintiff has no title to the suit property and that his suit should be dismissed.

In the result, the; lower Court s decree is set aside and the decree of the District Munsif is restored with costs here and in the Court below.