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15. An examination of some of the cases referred to in the above statements of the law shows that in several cases, Courts have adopted an intermediate construction of construing a prior absolute gift as an estate for life with a power of appointment by deed or will and the subsequent limitation or bequest taking effect in case the power of appointment had not been exercised. Even though for practical purposes, there is no distinction between an absolute estate and a life estate coupled with a power of appointment by will or deed, it is settled law that the two ideas are two distinct conceptions and that it is quite competent to a testator to confer a life estate with a power of appointment by a deed or will following it up by an independent or subsequent bequest, in case the first legatee dies without exercising the power of appointment. It is sufficient to refer the decision of Mr. Justice Venkataramana Rao in Misnor Ananthasayana Naidu v. Kandappa Naidu (1940) 1 M.L.J. 212 at 219 Reference may also be made to the statement of the law in Williams on Wills--Volume 1, page 495 at page 496:

16. It will be seen that in some of the cases, this construction of the clause as conferring an estate for life coupled with a power of appointment by a deed or will, would best effectuate the intentions of the testator in either case, when there is an alienation in pursuance of the exercise of the power of appointment or when the first legatee dies without alienating. In a case where the prior legatee alienates the property before his death, such an alienation has to be and is upheld in view of the fact that the absolute estate with powers of alienation has been conferred under the will, and in such a situation, there is nothing on which the latter clause could operate. On the other hand, if the first legatee dies without exercising the powers of alienation the intention of the testator again is effectuated by the legatees mentioned in the latter clause, taking the property as provided therein. On the other hand, if either of the extreme views is accepted viz.,

17. Learned Counsel for the respondent has not drawn my attention to any case in which Courts have construed the second clause as having the effect of cutting down the prior clause as conferring a life estate simplicitor and at the same time holding any alienation made under the first clause, as invalid. All the cases cited by the learned Counsel are cases in which the first legatee died without making any alienation and the question that arose for conideration was whether the latter clause should be ignored as repugnant and void or whether the property should be taken by the heirs of the first legatee, or whether on his death, the legatees specified in the second clause can take the property. The controversy in all the cases cited by learned Counsel was only in this form. If this rule of construction of construing the earlier bequest as a life estate coupled with a power of appointment is borne in mind, it will be seen that many of the cases strongly relied upon by the learned Counsel for the respondent are easily distinguishable. The decsion in Lakshmi Ammal v. Alaudin Sahib (1962) 2 M.L.J. 187 dealt with a case in which it was provided that after the death of the testator his wife was to enjoy the properties with full powers of alienation, gift, sale and with absolute rights, and that after the wife's death the two daughters should take properties with absolute rights. It was observed that taking both the dispositions together it should be held that the second clause containing the provisions for a gift over in favour of the daughters should be construed as cutting down the first absolute estate in favour of the wife into a limited one. An examination of the facts of that case shows that the testator died in 1931, one of the daughters died in 1941, and the widow in the year 1948. The main dispute turned upon the validity of the alienation made by the husband of the deceased daughter, acting as the guardian of their minor daughter. On a consideration of all the clauses this Court held that the predominant intention was to make a bequest in favour of the daughters and for the purpose of giving effect to that intention the absolute estate had to be cut down to a life estate. A reference to the decision shows that the will contained several features pointing to the conclusion. But the important point to notice is that the widow died without making any alienation and the question as to how the express provision in the will conferring an absolute estate on the widow could be given effect to in that specific form did not arise for decision.

18. The decision in Thayalai Achi v. Kannammal (1935) 68 M.L.J. 707 recognises this principle that a legatee under the first clause shall take an absolute estate but that if she did not dispose of the property during her lifetime the property would pass to the legatee specified in the latter clauses.

19. The Bench decision in Narqyandas v. Arumughammal (1362) 1 M.L.J. 401 is again distinguishable on the same principle. In that case it was held that the second clause which was one of defeasance should not be rejected as repugnant but should be construed as cutting down the earlier absolute estate. That again was a case of the first legatee dying without alienating in terms of the absolute powers of alienation conferred on her. The main dispute centered round the question whether the bequests in favour of the daughters could be held to be valid, and not void as repugnant. To reiterate, the question as to how far a power of alienation expressed in unambiguous terms should be construed as conferring a simple life estate did not come up for consideration. In other words, cases which have taken the view that an absolute estate could in a proper outweighing compelling context be constued as a life estate, are besides the point when the instant case concerns the validity of an alienation made by the first legatee.