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(10) The conclusion of the learned Subordinate judge that the bequests made under the codicil failed and there was an intestacy is attacked by Mr. Ramamurthi Aiyar mainly on the ground that the gift to the charity is only a substitutional gift and not a conditional gift. We do not agree. The following clause in the codicil "should any of my daughters beget male heir, my aforesaid entire properties should belong to that male heir" is not capable of any dubious meaning. The first bequest is in favour of the three wives of the testator for their lives. Of course, this bequest is terminable on the birth of a son to any of the daughters of the testator.

"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 the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator."

S. 130 runs thus:

"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.' On the construction of the will in that case, the Supreme Court having ruled that the will did contain a substitutional bequest in favour of the heirs of the adopted mother, the further question whether S. 129 of S. 130 applied had to depend equally on the terms of the will. The facts of the case before us have no resemblance to the facts in the Supreme Court decision. Here, the gifts in favour of the grandson and in favour of the charity are not independent gifts. Nor could they be considered substitutional gifts. Clearly, the gift under the will in favour of the charity and any gift which can be spelled out in its favour under the codicil is a conditional gift, the specific condition being that there would be no male child born to any of the daughters of the testator who could take at the date of the death of the widows of the testator.
The gift in favour of the charity is not therefore substitutional, but is clearly a conditional gift, the condition being the absence of any male grandson of the testator through his daughters. The gift in favour of the charity could therefore take effect only if the gift in favour of the grandson failed in the particular manner indicated by the testator. Here, the gift in favour of the grandson failed, not because there was no grandson to take the gift, but because of the rule in the Tagore case. Consequently, it is S. 130 of the Succession Act that applies and the second bequest cannot take effect since the first bequest did not fail in the manner indicated by the testator.