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PETITIONER: N. KASTURI

       Vs.

RESPONDENT: D.   PONNAMMAL AND OTHERS.

DATE OF JUDGMENT: 23/02/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1961 AIR 1302            1961 SCR  (3) 955

ACT: Will-Construction-Bequest  to K in the absence of  adoption- Testator’s intention to adopt K-Authority to adopt given  to widow  No adoption made-K’s rights, whether vested  interest subject to defeasance by subsequent adoptions.

HEADNOTE: A testator, who was childless, executed a will on April  28, 1937  and died on March 10, 1939, leaving him surviving  his widow.   In  cl. 6 of the will he expressed  his  desire  to adopt  a  boy  and stated that in case he did  not  make  an adoption  during  his life-time his wife shall adopt  K.  He also conferred authority, on his 122 956 wife to make an adoption in case K died before being adopted By  cl.   11 of the will he provided that exclusive  of  the properties  that might be given for T’s wives, M. A. and  K. A., and daughter and for his wife for being enjoyed by  each during  her  lifetime,  in respect of one-half  of  all  the remaining  properties of his family, his wife  shall  before making  an adoption, execute in favour of K. S.  a  document under  which  he  shall enjoy only  the  income  from  those properties  during his lifetime and that after his  lifetime his heirs shall get them with absolute rights, and she shall also make an arrangement to the effect that his adopted  son similarly got  and enjoyed only the remaining half.   Clause 12 provided.. "Should myself and my wife die without  making an adoption or should my wife predecease me or in case I  do not  adopt any boy or in case the boy adopted by me  is  not alive at the time of my death, the above K and the above  K. S.   shall  get  the  whole  of  my  properties   in   equal shares...... Should myself and my wife die without making an adoption  as  stated  above  and  should  the  above  K.  S. predecease  us, the above M. A. and K. A. shall get all  the properties........" No adoption was made either by the testator before his death or  by  his  widow thereafter.  K instituted a  suit  for  a declaration  of his rights under the will basing  his  claim under  Cl. 12 on the footing that under that clause when  no adoption  was made and until it was so made he had a  vested interest  in  respect  of half  the  properties  subject  to

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defeasance by subsequent adoption. Held,  that on a true construction of the will  dated  April 28, 1937, cl. 12 was intended to operate at the time of  the death of the testator and not later and that K would get  an interest under that clause only if the widow of the testator predeceased  the testator and there was no adoption  by  the testator before his death.  In the circumstances K’s  rights were provided for by cl. 11 only and those rights could  not come  into existence unless and until he was adopted by  the widow.  On this view there was a postponement of vesting and a possibility of intestacy, but that cannot be avoided. The  rules of construction of a will against a  postponement of  vesting and avoidance of intestacy are not absolute  and the  court  cannot embark on the task of construing  a  will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The  intention  of  the testator should  be  ascertained  by construing  the  will  as a whole and  giving  the  relevant clauses   in  the  will  their  plain  grammatical   meaning considered together. Gnanambal  Ammal  v. T. Raju Ayyar and Others,  A.I.R.  1951 S.C.  103 and Venkata Narasimha V. Parthasarathy, L.  R.  41 I.A, 51, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION; Civil Appeal No. 373 of 1956, 957 Appeal  from,  the judgment and decree dated  September  17, 1952, of the Madras High Court in A. S. No. 270 of 1948. A. V. Viswanatha Sastri, A. V. Narayanaswami and M. S. Narasimhan for T. K. Sundara Raman, for the appellant. M.   C.  Setalvad, Attorney-General, R. Ramamurthi Iyer  and B. K. B. Naidu, for respondent No. 1. R.   Ramamurthi  Iyer  and B. K. B. Naidu,  for  respondents Nos.  2 and 4 and the legal representatives  of  ,respondent No. 5. 1961.  February 23.  The Judgment of the Court was delivered by GAJENDRAGADKAR,  J.-This  appeal raises  a  short(  question about  the construction of a will executed by the  testator, Diraviyam  Pillai, on April 28, 1937, and it arises  from  a suit instituted by the appellant N. Kasturi in the Court  of the Subordinate Judge at ’Madura.  In his suit the appellant alleged that under cl. 12 of the will certain rights  either vested or contingent had been conferred on him in regard  to the  property as therein described, and it was in  pursuance of  the  said rights that he claimed a declaration  with  a, view  to protect his interest and safeguard the estate  from being  wasted by, and lost in the hands of,  the  testator’s widow,  respondent  1, Ponnammal, who was in charge  of  the said  estate.  The trial court construed ’the  will  against the  appellant and held that it conferred no right,  on  him and so he could not claim any of the reliefs set out in  his plaint.   Incidentally,  on the merits the trial  court  was satisfied that a case had been made out by the appellant and that  it did appear that the estate was being wasted by  its present  holder, respondent 1. The appellant then  took  the matter before the Madras High Court by his appeal.  The High Court has agreed with the trial court in the construction of the will.  It has held that the appellant had no right under the  will  which  would justify his claim for’  any  of  the reliefs  set  out in his plaint.  On that finding  the  High Court thought it unnecessary to consider the  merits of  the

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case set out by the appellant and denied 958 by respondent 1. The appellant then applied for and obtained a certificate from the High Court, and it if; with the  said certificate  that he has come to this court by  his  present appeal;  and  so,  the only question  which  falls  for  our decision  is:  Have  the courts below  put  an  unreasonable construction  on the will as Mr. Viswanatha Sastri  for  the appellant contends? As  we have already seen the testator executed the  will  on April  28, 1937, and he died on March 10, 1939.  During  his lifetime the testator was a member of a joint and  undivided Hindu   family  consisting  of  himself  and   his   cousin, Thayumanaswami Pillal.  Neither of them had any son.  At his death which took place on May 9,1935, Thayumanaswami  Pillai left  behind  him two widows, respondent  2,  Mangayarkarasi Ammal  and respondent 3, Kanniammal, and a widowed  daughter by the former, respondent 4, Pichai Ammal.  The testator who survived  his  cousin became entitled to the  whole  of  the family  property by survivorship, and it is as such that  he made, and was competent to make, the will in question.   The appellant  is  the  sister’s  daughter’s  grandson  of   the testator, whereas Kalyanasundaram, respondent 5, was treated as  a  foster-son by the testator’s  cousin,  Thayumanaswami Pillai.   Respondent 5 died pending the appeal  before  this Court leaving behind him two widows, two minor sons and  two minor  daughters who have been brought on the record as  his heirs and legal representatives.  These are the persons  who have  been  mentioned in the will and who appear to  be  the objects of the testator’s bounty in one way or another. It is now necessary to refer to the will in general and read the  two clauses which specifically fall to be construed  in the present appeal.  Clause 1 of the will refers to the fact that  the testator had already executed a will on  June  12, 1935, and had registered it.  The present will was  executed by  him with a view to cancel his earlier will and with  the object  of  making  fresh  arrangements  in  regard  to  his property as specified in the present will. Clause 2 of the will states that the testator and his senior cousin, the deceased Thayumanaswami Pillai, 959 were  members of an undivided Hindu family and as  such  had acquired  property and carried on money-lending business  in the  names of both of them.  The testator adds that  on  the death  of  his cousin, as the sole surviving  coparcener  he became the absolute owner of the whole of the property. Clause 3 recites that the testator was then 64 years of  age and that he and his wife, respondent 1, had no issue.   Then he refers to his other relations in whom he was interested. In  cl. 4 the testator points out that circumstanced  as  he was it was necessary to make arrangements with regard to the family property " so that the family affairs may be  carried on  according  to my desire without any dispute  or  quarrel whatever  in the family after my lifetime." This case,  like many  others,  illustrates  that the  hope  and  expectation expressed by the testator that the making of his will should prevent litigation and disputes has not come true. Clause  5 is in the nature of a preamble to the  dispositive clauses  of  the will and is as follows.  It says  that  his deceased  cousin  had  expressed  some  desire  during   his lifetime  regarding the properties, and the testator out  of deference to his wishes was making the arrangements set  out in  the will agreeably to the said wishes and in  accordance therewith.  Clause  6  begins with the declaration  that  the  testator

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wanted to adopt a boy for the propagation of his family; and it  says that in case the testator did not make an  adoption during his lifetime his wife, respondent 1, shall adopt  the appellant.   Then the clause says that should the  appellant die  providentially  before  he is  taken  in  adoption  the testator  permitted and authorised his wife to adopt as  she pleases  another  good  and suitable boy  from  amongst  his community; and as a precaution the testator also deals  with the  possibility of the death of the boy so adopted  by  his wife and Authorises her to make subsequent adoptions  neces- sary,.   Thus  cl. 6 of the will  expresses  the  testator’s desire to make an adoption himself and confers authority  on his wife to make such an adoption after his death in case he does not adopt in his fifetime. 960 Clause  7 provides for the management of the estate  if  the adopted son happens to be a minor.  It lays down that during the  minority  of  the adopted son his  wife  shall  be  his guardian  and shall take only the advice necessary  for  the management of the properties and also regarding other family affairs from the advisers specified by him in his will.   On the  adopted son attaining majority she is directed to  hand over  the properties to him.  The testator makes  it,  clear that  the  adopted  son  shall  enjoy  the  properties  thus received  by  him without subjecting  them  to  usufructuary mortgage,  simple mortgage, sale, etc., and after his  death his  heir  shall get them with absolute  rights.   Thus  the testator has conferred on his adopted son a life estate  and left the estate absolutely to the heirs of the adopted son. By  cl. 8 the testator makes his wife the execution  of  his will  in  case he died without making any adoption;  and  it confers on her the powers to carry out the provisions of the will  in that connection and take the necessary advice  from advisers  specified  by him.  This clause enjoins  upon  the execution the obligation to execute in favour of respondents 2, 3, 4 and 5 the necessary documents as mentioned in detail under  the following clauses, to adopt a boy  in  accordance with  the permission given by him, to manage the  properties till  the boy attains majority and to hand over to  him  the properties  on his attaining majority.  In  discharging  her obligations  set  out in this clause she has been  asked  to consult  the  advisers and carry out her  duties  "duly  and properly.   " In this clause the testator has indicated  the objects of his bounty and has imposed upon his execution the obligations  to carry out the dispositions specified in  the will. Clause   9  deals  with  the  dispositions  in   favour   of respondents  2,  3  and 4. In respect of  respondent  4  the testator  has expressed his special solicitude  because  she had  become  a  widow while young and he  was  keen  that  a provision  should  be made for her  maintenance  during  her lifetime  consistent with the status of the family  so  that she   might  maintain  herself  without   difficulty.    The direction contained in this clause shows 961 that  the testator wanted the three respondents  to  receive properties   separately  for  their  maintenance  with   the condition  that  they  shall enjoy the income  of  the  said properties  as  they  liked during  their  lifetime  without subjecting  them  to  sale,  usufructuary  mortgage,  simple mortgage, etc. Clause  10 deals with respondent 5. Respondent 5 is the  son of the first wife of the late Muthuswami Pillai who was  the husband of respondent 4 and sister’s son of respondent 2. He had  been treated by Thayumana. swami Pillai, the cousin  of

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the  testator,  as his abhimanaputran (foster son)  and  the said  cousin had the desire to give properties to  him  with which  desire the testator had agreed.  In  accordance  with this desire the testator proceeded to make a disposition  in favour  of respondent 5 in the succeeding clauses.  That  is the  effect of cl. 10.  Clauses 1 1 and 12 are  the  clauses which  fall to be construed and so we will now read them  in extenso:               Cl. 11.  Exclusive of the properties that  may               be  given in writing, as stated above, to  the               late   Thayumanaswami   Pillai’s   wives   and               daughter and similarly for herself, that is to               say,  for my wife, for being enjoyed  by  each               during her lifetime, in respect of one-half of               all the remaining properties of my family,  my               wife shall, before making an adoption, execute               in  favour  of  the  above  Kalyanasundaram  a               document with suitable recitals to the  effect               that  he shall enjoy only the income that  may               be  derived  therefrom  during  his   lifetime               without  subjecting them to  any  encumbrances               whatever that is to say, without effecting any               sale, usufructuary mortgage, simple  mortgage,               etc.,  and that after his lifetime, his  heirs               shall  get them with absolute rights and,  she               shall  also make an arrangement to the  effect               that my adopted son similarly gets and  enjoys               only  the. remaining half.  My wife  Ponnammal               herself  shall  also manage  one-half  of  the               properties   aforesaid  till   Kalyanasundaram               attains  majority, and as soon as  he  attains               majority,  she  shall  hand over  to  him  the               Properties due to him for being enjoyed by him               according   to  the  terms  mentioned   above,               Whereas               962               properties  have  been set  &part,  as  stated               above  for  the late  Thayumanaswami  Pillai’s               wives,   daughter   Pichammal  and   my   wife               Ponnammal  for their maintenance, it shall  be               mentioned  in the documents that  after  their               respective  lifetime,  the  above   properties               shall  be taken in equal shares by  the  above               Kalyanasundaram  and  the  boy  that  may   be               adopted by me or my wife, or that on the death               of  the  respective persons  their  respective               male  heirs,  if any, shall succeed  to  their               respective one-half share and that should  any               one  of them die without a male heir  and  the               other alone survive such survivor alone  shall               take both the shares.               Cl. 12.  Should myself and my wife die without               making   an   adoption  or  should   my   wife               predecease  me or in case I do not  adopt  any               boy  or in case the, boy adopted by me is  not               alive  at  the  time of my  death,  the  above               Kasturi  and the above  Kalyanasundaram  shall               get  and  take the whole of MY  properties  in               equal  shares for being enjoyed  according  to               the terms mentioned in paragraph 11 above  and               subject   to  the  conditions  regarding   the               properties to be set &part for maintenance  as               stated  above.  Should myself and my wife  die               without making an adoption as stated above and               should  the above  Kalyanasundaram  predecease

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             us,   the  above  Mangayarkarasi   Ammal   and               Kanniammal  shall get all the  properties  and               enjoy  them  during  their  lifetime   without               subjecting  them to any encumbrances  whatever               and by virtue of the permission hereby granted               by  me  to them to adopt a  boy,  they,  shall               adopt a boy and that adopted boy shall succeed               to them." Before  proceeding  to construe these clauses we  may  refer briefly  to  the remaining clauses of the will.   Clause  13 refers  to the charitable dispositions already made  by  the testator  and the arrangements made by him in  that  behalf. It adds " even as regards the other charities which I intend to  do  hereafter, the respective documents shall  be  acted upon.   " Clause 14 names the advisers in consultation  with whom  the executrix has been asked by the testator to  carry out 963 the  terms of his will.  Under cl. 15 the testator  provides that  after  his wife’s death or in the event  of  his  wife dying  even  at  the  outset  when  his  will  takes  effect respondent  2  shall  be  the  executrix  and  guardian   of respondent  5  " suitably to circumstances.  " In  case  she also  is  not  alive at the relevant time  respondent  3  G. should  be the executrix and guardian.  Clause  16  provides that  in case the testator dies without making  an  adoption during  his  lifetime his obsequies shall  be  performed  by respondent  5  and the appellant; the said two  persons  are also  required to perform the obsequies of his wife  if  she dies  without  making any adoption as well as  obsequies  of respondents 2 and 3. Respondent 5 is required to perform the obsequies  of  respondent 4. Under cl. 17 the  testator  has provided that in case respondent 2 or 3 became the testatrix she  shall  manage the properties in consultation  with  the advisers  specified  in the will.  By cl.  18  the  testator provided  that  his will take effect from the  date  of  his death,  and  by cl. 19 the testator reserved  the  power  to alter his will or to add to it.  It would thus be seen  that this  will  which contains 19 clauses is a  very  reasonable will and it seeks to do justice to the claims of all persons belonging to the family in whom the testator was  interested and  in respect of whom as the sole surviving coparcener  he recognised   his  responsibilities.   He  has   scrupulously attempted  to carry out the desires of his deceased  cousin, and  on  the whole its terms are very fair  and  reasonable. The  question  which arises for our decision  is:  Does  the appellant get any right under cl. 12 of the will which would justify  his claim. for a declaration and other  appropriate reliefs made by him in the present suit ? As we have already indicated, both the courts below have answered this question against the appellant. Mr.  Sastri  contends that in construing  the  two  relevant clauses it is necessary to bear in mind two principles which govern  the construction of wills.  The first  principle  is that  so far as is reasonably possible courts  should  adopt that  construction of the will which would avoid  intestacy; and  the  second principle is that  the  construction  which postpones the vesting of 123 964 the  estate  after  the  death of  the  testator  should  be avoided.   In support of the first principle Mr. Sastri  has relied  on  the observation of Mookerjee,  J.,  in  Sarojini Dassi   V.Gnanendranath  Das  &  Others  etc.  (1).   On   a construction of the several dispositions contained   in  the

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will with which the learned judge was dealing he came to the conclusion  that taken together the said  dispositions  show that the testator intended to dispose of all his properties, and  then  he  added " if there is any doubt,  we  ought  if possible to read the will so as to lead to a testacy, not to an  intestacy.  " in support of this conclusion the  learned judge referred to four English decisions, In re  Redfern(2), In  re  Harrison (3), Kirby Smith v. Parnell (4) and  In  re Edwards  (5). In support of the second principle  enunciated by  Mr.  Sastri he has relied on the decision of  the  Privy Council in Bickersteth & Another v. Shanu(6).  In that  case the  Privy  Council  held  that  the  established  rule  for construing  devises of real estate is that they are held  to be  vested  unless a condition precedent to the  vesting  is expressed with reasonable clearness. On the other hand, the learned Attorney-General has  invited our attention to a decision of this Court in Gnanambal Ammal v.  T.  Raju  Ayyar & Others(7), in  which  this  Court  has definitely ruled that a presumption against intestacy may be raised if it is justified by the context of the document  or the  surrounding circumstances; but it can be  invoked  only when  there is undoubted ambiguity in ascertainment  of  the intentions of the testator.  Mukherjea, J., as he then  was, observed that the cardinal maxim to be observed by courts in construing   a  will  is  to  endeavour  to  ascertain   the intentions  of  the  testator.  This  intention  has  to  be gathered  primarily from the language of the document  which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been (1) (1916) 23 Cal. L.J. 241, 253.    (4) [1903] 1 Ch. 483. (2) (1877) 6 Ch. D. 133.            (5) [1906] 1 Ch. 570. (3) (1885) 30 Ch. D. 390.           (6) [1936] A.C. 290. (7)  A.I.R. 1951 S.C. 103. 965 better  informed or better advised; and in support  of  this view  the learned judge cited similar observations  made  by the Privy Council in Venkata Narasimha v. Parthasarathy (1). In  dealing  with  the principle that  intestacy  should  be avoided,  Mukherjea,  J.  said  that  the  desire  to  avoid intestacy  was  based  on English habits  of  thought  which should  not  necessarily bind an Indian  court.   Therefore, there can be little doubt that what Mr. Sastri formulated as a  rule of construction against the avoidance  of  intestacy cannot  be  treated as an absolute rule  which  should  have overriding   importance  in  construing  a  will.   If   two constructions  are  reasonably  possible, and  one  of  them avoids  intestacy  while the other involves  intestacy,  the court  would  certainly  be  justified  in  preferring  that construction which avoids intestacy.  It may be  permissible to  invoke this rule even in cases where the words used  are ambiguous and an attempt may be made to remove the ambiguity by   adopting   a  construction  which   avoids   intestacy. Similarly, in regard to the rule that vesting should not  be postponed  the position is exactly the same.  It is  obvious that a court cannot embark on the task of construing a  will with a preconceived notion that intestacy must be avoided or vesting  must  not  be  postponed.   The  intention  of  the testator and the effect of the dispositions contained in the will  must be decided by construing the will as a whole  and giving  the  relevant  clauses  in  the  will  their   plain grammatical  meaning considered together.  In  construing  a will  it is generally not profitable or useful to  refer  to the construction of other wills because the construction  of each will must necessarily depend upon the terms used by the

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will considered as a whole, and the result which follows  on a  fair and reasonable construction of the said  words  must vary  from  will to will.  Therefore, we must  look  at  the relevant clauses carefully and decide which of the two rival constructions should be accepted. Mr.  Sastri  argued  that cls. 11 and 12  are  separate  and independent clauses and they deal with two (1)  (1913) L.R. 41 I.A. 51, 70. 966 separate and different positions.  According to him, cl.  11 deals  with  the  position which would  have  arisen  if  an adoption had been made by the widow of the testator, whereas cl.  12 deals with the position which would arise  where  no adoption is made.  His argument is that when no adoption  is made  and  until it is so made there is a  vested  right  in respect of half the properties in the appellant which  right no  doubt  may be defeated if an  adoption  is  subsequently made.   He contends that this is a vested right  subject  to defeasance  by  subsequent  adoption,  and  this  right  has nothing to do with the right which would be conferred on the appellant if he is adopted as contemplated by cl.  11.  That according  to the appellant is the tenor and the  effect  of cl.  12, and that is how the appellant avoids intestacy  and postponement of vesting. The  respondents’  case, however, is, and that is  the  case which  has  been accepted by the courts below, that  cl.  12 should be construed as operating at the time of the death of the testator and not later, and according to this  argument, as  soon as the testator died the said clause ceased  to  be applicable  and  the  rights of the  appellant  fall  to  be considered only under cl. 11.  If cl. 12 had to be construed by itself separately and in isolation from cl. 11 much could have  been  said in favour of the contention  urged  by  the appellant;  but,  in  our  opinion,  it  would  be   plainly inconsistent with all the rules of construction to take  cl. 12  by  itself  and isolate it from the rest  of  the  will. Clauses  6 to 11 deal primarily with the adoption which  the testator contemplated would be made by his widow in case  he did not make an adoption in his lifetime.  Clause 11 confers a  vested  interest  on respondent 5. This has  to  be  done before  respondent 1 makes any adoption and indeed it is  an independent  bequest  by  itself.   Then  the  said   clause contemplates  the appellant as a possible adopted  and  then deals  with  his  rights on that footing.   With  the  other bequests  made  by  the  said clause  we  are  not  directly concerned.  Having thus made the provisions in cl.11 on  the basis  that  his  widow  may adopt, cl.  12  deals  with  an alternative situation which would arise in 967 oases contemplated by the said clause, and it is intended to be  operative only at the time of the death of the  testator and  not otherwise.  If that be the true position  then  the appellant would not be entitled to any right under cl. 12 at all. Now,  as a matter of construction there are some G.  serious difficulties  in the way of accepting the appellant’s  case. The  first  part, of cl. 12 refers to four  possible  cases, joint  adoption by the testator and his wife, the  death  of his wife during the lifetime of the testator, the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death.   If the appellant’s argument was accepted the  first part  of the clause would have to be split up into  two  and would  have  to  be  read as covering  the  failure  of  the testator or that of his wife to make an adoption.  In  other

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words, the expression " myself and my wife " has to be  read as  "  myself or my wife ", and in the  context  that  seems inappropriate.   The argument that there cannot be  a  joint adoption  by the testator and his wife is, in  our  opinion, too academic and technical.  It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator,  but it is equally true that if the  testator  had made  an  adoption during his lifetime his wife  would  have joined him and there is little doubt that Hindu law does  in that     sense     recognizes     an     adoptive     mother (Iratigrihitrimata’(9))  (Vide: Annapurni Nachiar v.  Forbes (10).   Therefore, it does not sound reasonable  to  contend that since joint adoption by husband and wife is unknown  to Hindu  law the word " and" should be read as " or "  in  the relevant clause.  That is the first difficulty in  accepting the appellant’s construction. The second difficulty is that if the word " and " is read as " or " the third case contemplated in the first part of  the clause of the testator adopting the boy himself alone  would be superfluous.  The adoption by the testator himself acting alone is already covered in (9) Mayne on Hindu Law It Usage,  11th Edn., pp. 244, 245. (10) (1899) 26 I.A. 246, 253. 968 the  first part of the clause.  Mr, Sastri  fairly  conceded that  this  superfluity would follow on his  construction  ; but,  he  argued,  that  need  not  necessarily  defeat  his construction. The  third difficulty in accepting the said construction  is that  the  right which has already vested under  cl.  11  in respondent 5 is again vested by cl. 12.  As we have  already seen, under cl. 11 respondent 5 was given half the estate in pursuance  of  the agreement between the  testator  and  his deceased cousin Thayumanaswami Pillai.  Therefore, there  is hardly  any occasion or necessity to make a  disposition  in favour  of  respondent  5  once again  under  cl.  12.   The presence of this difficulty also is not seriously  disputed. The only argument in respect of this difficulty was that  as ’an abundant precaution the testator repeated the bequest in favour  of  respondent 5 though the said  bequest  had  been completely provided for under cl. 11. There  is  still  one  more  difficulty  in  accepting   the appellant’s construction, and that is in regard to the  last part of cl. 12.  Under this clause, if the testator and  his wife died without making any adoption and if Kalyanasundaram predeceased  them respondents 2 and 3 were to take  all  the properties  and enjoy them during their lifetime subject  to the conditions specified in the clause.  Now, it is  obvious that  if the expression " all the properties " means, as  it must,  all  of  them without any  exception,  then  what  is already vested in respondent 5 is divested by this clause in case  he  dies after the testator but before his  widow  and neither  of  them has made any adoption, and that  would  be plainly   inconsistent  with  cl.  11.   Faced   with   this difficulty  Mr. Sastri suggested that the  context  requires that  " all the properties " would mean all  the  properties which  would  have  gone to the appellant  if  he  had  been adopted;  that is to say, half the properties given  to  him under  cl.  11  on  the  basis  of  his  adoption.   Such  a limitation on the meaning of the words " all the  properties "  seems to us to be wholly unjustified.  Therefore, we  are satisfied  that  reading cls. 11 and 12  together  the  High Court  was  right  in holding that cl. 12  was  intended  to operate 969

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at  the time of the death of the testator and not later  and that  the appellant would get an interest under cl. 12  only if  the widow of the testator predeceased the  testator  and there  is no adoption by the testator before his death.   If that be so, the appellant cannot claim any right or title on the  strength of cl. 12 because at the relevant time it  was not  intended to be operative at all.  In the  circumstances the appellant’s rights are provided for by cl. 11 alone, and those rights cannot come into existence unless and until  he is  adopted  by  respondent  1. On  that  view  there  is  a possibility  of  intestacy  and  there  is  postponement  of vesting; but that cannot be avoided.  That is the view taken by  the  courts below, and having carefully  considered  the argument  urged  before us by Mr. Sastri on  behalf  of  the appellant  we  see  no reason to  interfere  with  the  said conclusion. The  result is the appeal fails; there would be no order  as to costs. Appeal dismissed.