G. G. SOHANI, J. ( 1 ) THIS is plaintiff's second appeal arising out of a suit for declaration of her title to the suit house and for its possession along with mesne profits. ( 2 ) THE material facts giving rise to this appeal, briefly, are as follows :- panchulal, father of the plaintiff, was possessed of considerable movable and immovable property and carried on business at Mahidpur, district Ujjain. He had only one issue, his daughter Sajanbai, the plaintiff. As he had no son, he had brought up the defendant, who was distantly related to him. On 25-6-1949, Panchulal executed a will, which was duly registered. By that will, he bequeathed some of his houses to the plaintiff and some, to the defendant. As regards the residential house situated at Nagori Bazar, Mahidpur, hereinafter referred to as 'the suit house', he bequeathed it to his wife "panchibai for life and after her death, to the defendant, provided he maintained and looked after Panchibai, who was mentally deranged. It was stated in the will that in the event of failure on the part of the defendant to maintain and look after Panchibai, the suit house would devolve on the plaintiff and her husband if they happened to maintain and look after Panchibai. It was further stated in the will that in case both the plaintiff and the defendant failed to look after Panchibai, then the trustees appointed by the will would look after Panchibai and manage the suit house. The trustees were also required to manage the other property of the testator as directed in the will. Panchibai, wife of the testator, died in the year 1950, during the lifetime of the testator. After the death of the testator, on 7-8-1951, the defendant, who was residing with the testator, took possession of the suit house claiming it under the will. The plaintiff, therefore, filed the present suit for declaration of her title to the suit house and for its possession. ( 3 ) THE plaintiff's case, in brief, was that the bequest of the suit house made by her father in favour of the defendant was conditional, the condition being that the defendant was to maintain and look after the plaintiffs mother, to whom the suit house was bequeathed for life. ( 3 ) THE plaintiff's case, in brief, was that the bequest of the suit house made by her father in favour of the defendant was conditional, the condition being that the defendant was to maintain and look after the plaintiffs mother, to whom the suit house was bequeathed for life. It was averred that as the mother of the plaintiff had died during the lifetime of the testator, the bequest of the suit house in favour of the defendant failed and the plaintiff became entitled to the suit house as she was the only surviving heir of the deceased testator. The claim of the plaintiff was resisted by the defendant on a number of grounds but the main ground, which was pressed at the time of hearing of this appeal, was that under the will, the defendant had become entitled to the suit house as the same was bequeathed to him by the deceased testator. ( 4 ) THE trial Court held that the bequest in favour of the defendant, as provided by Cl. 4 of the will, was conditional in as much as the defendant was to get the suit house only in the event of his having maintained and looked after the wife of the testator, that the object of the bequest having failed as the wife of the testator died in the lifetime of the testator, the suit house did not devolve on the defendant, and the plaintiff, being the sole surviving heir of the deceased testator, became entitled to the suit house. In this view of the matter, the trial Court decreed the plaintiffs suit. On appeal, the lower appellate Court upheld the claim of the defendant to the suit house not under Cl. 4 of the will but under Cl. 8 of the will, which according to the lower appellate Court, embraced all immovable property of the testator, which was bequeathed to the defendant. The lower appellate Court further held that the plaintiff had not objected to the possession of the suit house by the defendant after the death of Panchulal and she had thus acknowledged the defendant to be the owner of the suit house. In this view of the matter, the lower appellate Court set aside the judgment and decree passed by the trial Court and dismissed the plaintiff's suit. In this view of the matter, the lower appellate Court set aside the judgment and decree passed by the trial Court and dismissed the plaintiff's suit. Aggrieved by the judgment and decree passed by the lower appellate Court, the plaintiff has preferred this appeal. ( 5 ) SHRI Waghmare, the learned counsel for the plaintiff-appellant, contended that the lower appellate Court erred in holding that the plaintiff had acquiesced in the claim of the defendant to the suit house. It was further contended that the lower appellate Court erred in construing the will by holding that under Cl. 8 of the will, all the immovable property of the testator fell to the share of the defendant. It was urged that Cl. 8 of the will, which was relied upon by the lower appellate Court, if properly construed, referred to the movable property only. The learned counsel, therefore, contended that the lower appellate Court had erred in holding that the defendant had become entitled to the suit house under the will. ( 6 ) IN reply, Shri Sanghi, learned counsel for the defendant-respondent, contended that Cl. 8 of the will was a residuary clause and by virtue of that clause, the suit house fell to the share of the defendant. It was further, vehemently contended that even under Cl. 4 of the will, which dealt with the suit house, the right to the suit house vested in the defendant on the death of the testator and the bequest of the suit house in favour of the defendant did not fail because of non-fulfilment of the condition to maintain and look after the testator's wife provided by that clause as it was not a condition precedent. ( 7 ) IN view of the contentions raised on behalf of the parties, two questions arise for consideration : (1) Whether the bequest of the suit house in favour of the defendant by Cl. 4 of the will was a bequest subject to the fulfilment of a condition precedent that the defendant should have maintained and looked after the testator's wife, to whom the suit house was bequeathed for life and if so, whether the bequest failed as the performance of the condition precedent became impossible on account of the death of the testator's wife during the lifetime of the testator; and (2) Whether Cl. 8 of the will, on its proper construction, can be held to be a residuary clause bequeathing immovable property including the suit house to the defendant. ( 8 ) BEFORE I proceed to appreciate the contentions advanced on behalf of the parties, it has to be noted that the validity of the will executed by deceased Panchulal is not in dispute. It is also not disputed that if the defendant's claim to the suit house under the will fails, then the plaintiff would become entitled to the suit house being the sole surviving heir of deceased Panchulal. The contention urged on behalf of the defendant in the Courts below that the plaintiff had acquiesced in the title of the defendant to the suit house and hence was estopped from assailing the title of the defendant, was not pressed before me. The controversy in this appeal, therefore, centres round the construction of the will Ex. P. 1 executed by deceased Panchulal. For a proper appreciation of that controversy, it would be useful to set out material portions of that will, which are as follows : a perusal of the Will thus shows that the testator has first disposed of his immovable property by bequeathing some of his houses to the plaintiff and some to the defendant. Then follows Cl. 4, which relates to the suit house. A life estate is created in favour of the wife of the testator and after her death, the suit house is bequeathed to defendant provided he has maintained and looked after the wife of the testator till her death. Cl. 4 further provides that in the event of failure oh the part of the defendant to maintain and look after the wife of the testator, the suit house shall devolve on the plaintiff and her husband if they have looked after the wife of the testator and in case both the defendant as well as the plaintiff have failed to look after the wife of the testator, the suit house shall vest in the trustees, who are charged with the duty to look after the wife of the testator. The terms of Cl. The terms of Cl. 4 of the will, in my opinion, make it clear that the testator is keen to secure proper care of his wife, who was unable to take care of herself as she was mentally deranged, as set out in the preamble to the will. The motive of the testator in making a bequest of the suit house in favour of the defendant was that the wife of the testator should be taken care of after the death of the testator and the prospect of a gift of the suit house should act as an inducement to the defendant and failing him, to the plaintiff and her husband, to look after the wife of the testator. That is why the bequest of the suit house in favour of the defendant is not absolute. There is a condition attached to it, the fulfilment of which entitles the donee to claim the legacy. Thus the conclusion is inescapable that the gift of the suit house is not intended by the testator unless and until the condition is fulfilled. In this connection, I may usefully refer to the following observations in Williams on Wills (4th Edition) at page 278 :-"if, upon the proper construction of the will, there is no gift intended until the condition has been fulfilled, the condition is a condition precedent. Whether a gift is contingent on an event, and until that event does take place, there is no vested gift, the condition is a condition precedent. For a condition to be subsequent, the gift must already have vested and the condition is intended to put an end to the gift. "the principles enunciated by the aforesaid passage were not disputed before me but it was urged on behalf of the defendant-respondent that the condition imposed by Cl. 4 of the Willto the bequest of the suit house to the defendant was not a condition precedent, but a condition of defeasance of the defendant's interest in the suit house. It was urged that the legacy of the suit house in favour of the defendant had become vested in interest in the defendant on the death of the testator, in view of the provisions of Ss. 105 and 119 of the Succession Act, 1956 (hereinafter referred to as 'the Act' ). It was urged that the legacy of the suit house in favour of the defendant had become vested in interest in the defendant on the death of the testator, in view of the provisions of Ss. 105 and 119 of the Succession Act, 1956 (hereinafter referred to as 'the Act' ). Reliance was placed on illustration (iv) to S. 105 of the Act and to illustration (iii) to S. 119 of the Act. It is, therefore, necessary to examine the correctness of the submissions made on behalf of the defendant. ( 9 ) NOW, it is well settled that where it is doubtful whether a condition is precedent or subsequent, the Court prima facie treats it as being subsequent, for there is a presumption in favour of early vesting. But, in my opinion, on a proper construction of Cl. 4 of the will, there is no room for any doubt. Gift of the suit house is not intended until the condition has been fulfilled. As regards S. 105 of the Act, those provisions are not attracted in the instant case. Had the testator in Cl. 4 of the will, after bequeathing life estate to the testator's wife, made a gift of the suit house to the defendant, without any condition being attached to it, the defendant would have undoubtedly been entitled to the suit house on the testator's death as the testator's wife had died during the lifetime of the testator. It was, however, urged that even if the testator's wife had survived the testator, the legacy of the suit house would have become vested in the defendant by virtue of S. 119 of the Act, Illustration (iii) to S. 119 of the Act no doubt provides that a bequest in the form of a direction to pay at a future period vests immediately even if the payment is postponed to let in some other interest. But it cannot be lost sight of that S. 119 of the Act itself provides that inference adverse to vesting may be drawn if a contrary intention appears by the will. The words "unless a contrary intention appears by the Will" occurring in S. 119 of the Act are significant. But it cannot be lost sight of that S. 119 of the Act itself provides that inference adverse to vesting may be drawn if a contrary intention appears by the will. The words "unless a contrary intention appears by the Will" occurring in S. 119 of the Act are significant. The explanation to S. 119 of the Act merely provides that no inference adverse to vesting should be drawn merely because possession of the thing bequeathed is postponed or by the creation of a prior life or other limited interest in the thing bequeathed in favour of some other person. But it is not the case of the plaintiff that inference adverse to vesting should be drawn merely because of the creation of a prior life interest. The real question for consideration is whether a contrary intention appears by the Will so that an inference adverse to vesting of the suit house in the defendant, on the death of the testator, could be drawn. That contrary intention appears by the provision made by the testator in Cl. 4 that if the testator's wife is not looked after by the defendant, then the suit house would go to the plaintiff and her husband if they happen to have looked after the wife of the testator. Therefore, the intention of the testator is clear that the right to the suit house should not vest in the defendant or the plaintiff, immediately on the death of the testator. As I have already observed, the motive of the testator in imposing the aforesaid condition was that his wife, who was mentally deranged, was taken care of after the death of the testator. In my opinion, upon a proper construction of Cl. 4 of the will, bequest to the defendant was subject to a condition precedent and the right to the suit house was not to vest in the defendant on the death of the testator. ( 10 ) THE next question for consideration is whether the impossibility of performing the condition, in the case of a condition precedent, would render the gift void, as was urged on behalf of the plaintiff. Now, in the instant case, it is admitted that the wife of the testator died during the lifetime of the testator. Therefore, the condition, which was imposed on the defendant for the taking of a gift of the suit house under Cl. Now, in the instant case, it is admitted that the wife of the testator died during the lifetime of the testator. Therefore, the condition, which was imposed on the defendant for the taking of a gift of the suit house under Cl. 4 of the will, which was possible, when the will was executed, became impossible, without any fault on the part of the defendant. Does the bequest fail in such a case? ( 11 ) A similar question arose for consideration in Rajendra Lal Ghosh v. Mrinalini Dasi, AIR 1922 Cal 116. In that case, a legacy was given by the testator subject to a condition that the legatee should re-excavate a certain tank, a condition which was not impossible of performance when the will was executed; but became impossible on the death of the testator in view of the fact that after the execution of the Willbut before his death, the testator had himself re-excavated the tank. Consequently, when the testamentary disposition came into operation, the legatee could not re-excavate the tank. The contention of the legatee was that the condition had been discharged by the act of the testator himself and he was, therefore, entitled to claim the legacy as if the condition had never been imposed. Sir Asutosh Mookerjee, J. delivering the judgment of the Court, referred to the observations of Wood V. C. in Re-Clarke's Trusts (1863) 32 LJ Ch 525 that in such a case, reading the will as if there was no condition would militate against the principle that the ascertainment of the testator's intention shown by the will cannot be varied by events, which occur afterwards. Mookerjee, J. , after referring to certain decisions, observed as follows :"reference may, in this connection, be made to Lowther v. Cavendish (1758-28 ER 621) and Priestly v. Holgate (1857-69 ER 1116) which afford illustrations of the principle that where a condition precedent becomes impossible to be performed even though there be no fault or laches on the part of the devisee himself, the devise fails. The case before us is clearly of this description. The case before us is clearly of this description. The motive of the testator was that the water difficulty felt by the people of the locality should be removed and that this should be effected by the re-excavation of the tank in his name, to be accomplished by means of the funds placed by him at the disposal of the legatees. The essense of the intention consequently was that the legacy should be applied in the re-excavation of the tank, and as an inducement to the legatee to carry out this injunction, the testator provided that the surplus should belong to the legatee or his representative in interest. By reason of events over which the legatee had no control, the re-excavation of the tank has become impossible and unnecessary, in other words, the motive of the bequest had ceased to exist at the date of the death of the testator, whence the will takes effect. If we test the matter from a plain common sense point of view, we may put the question whether, if the will had been made at the time of the death of the testator, he would have inserted this particular provision therein. The answer must obviously be in the negative. As the tank had already been re-excavated by him, he could not very well impose the obligation either upon the plaintiff or upon his daughters to re-excavate it. The substance of the matter is that the purpose, which he had in view was not then in existence, it is consequently impossible for us to hold that the Will intended that even in such circumstances, the bequest should take effect. "it may also be useful to refer to the following passage with regard to the Law as to impossible conditions in Halsbury Laws of England, Volume 39 (3rd Edition) at page 926 :-"the law as to impossible conditions is derived, in the case of realty, from the common law and, in the case of personalty, from the civil law. The authorities seem to support the following propositions : Where the condition is a condition precedent and the gift is of realty, if the condition is impossible for whatever reason, the performance of the condition is not excused and the gift does not vest. The authorities seem to support the following propositions : Where the condition is a condition precedent and the gift is of realty, if the condition is impossible for whatever reason, the performance of the condition is not excused and the gift does not vest. If the gift is of personalty and the condition is originally impossible, or is subsequently made so by the act or default of the testator, the condition is rejected and the gift is absolute; it is otherwise, however, where the performance of the condition is the sole motive of the gift, or the impossibility was unknown to the testator, or the condition which was possible at the time of its creation has since become impossible by the act of God, in these cases, the civil law agrees with the common law in holding both gift and condition void. "having regard to the intention of the testator, which was clearly expressed in Cl. 4 of the Will, that performance of the condition was the sole motive of the gift of the suit house to the defendant, even though the performance of the condition became impossible by act of God, bequest of the suit house in favour of the defendant must be held to have failed. The contention urged on behalf of the defendant that the will should be read as if there was no condition, cannot, therefore, be upheld. ( 12 ) THE next question for consideration is whether the defendant became entitled to the suit house under Cl. 8 of the Will, as urged on behalf of the defendant. That was also the finding of the lower appellate Court. Clause 8, according to the defendant, is a residuary clause dealing with movable and immovable property of the testator making a disposition of the same in favour of the defendant. On behalf of the plaintiff-appellant, it was contended that the said clause, if properly construed, referred to movable property only, and the use of the word in that Clause was inadvertently made in place of. Having given my anxious consideration to the matter, the contention urged on behalf of the appellant deserves to be upheld. In the earlier part of the Willex. P-1, the testator has dealt with various items of his immovable property, the houses and fields along with agricultural implements and cattle. Then follows Cl. 8. Having given my anxious consideration to the matter, the contention urged on behalf of the appellant deserves to be upheld. In the earlier part of the Willex. P-1, the testator has dealt with various items of his immovable property, the houses and fields along with agricultural implements and cattle. Then follows Cl. 8. It deals with jewellery, ornaments, gold and silver and the cash. There are directions to give 200 Tolas of Gold to the plaintiff, Rs. 1,000/- to Nathuji, the brother-in-law of the deceased and Rs. 500/- to the sister of the testator. There is then a gift of the balance to the defendant. The use of the word (immovable) in describing the property, which follows thereafter is clearly erroneous because the property included thereunder is gold and silver ornaments, jewellery and cash. It is thus clear that the use of the word 'immovable' in describing the aforesaid property is inadvertent. It is used in place of (movable ). The testator having dealt with his immovable property including the suit house in the earlier part of the will, would not have intended to make a disposition of the suit house again by Cl. 8 of the Will. Merely because he has erroneously used the qualifying word 'immovable' instead of 'movable', Cl. 8 cannot be construed to mean that the testator wanted to bequeath all his immovable property and balance of the movable property, to the defendant. The context and the words, which follow the description 'immovable', make it clear that the testator having dealt with items of his immovable property in the earlier part of the Will, proceeded to dispose of his movable property in the manner provided by Cl. 8. In Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia, AIR 1980 SC 446 , the Supreme Court has approved the following passage from Jarman on Wills, 8th Edn. at page 592 :-"where it is clear on the face of a Will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words, which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context. at page 592 :-"where it is clear on the face of a Will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words, which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context. "therefore, in order to effectuate the intention, as gathered from the context, the Court could be justified in expressing its curial draughtsmanship for the testator, as observed by the Supreme Court in AIR 1980 SC 446 (supra ). In the circumstances of the case, the lower appellate Court should have read the word in place of in Cl. 8 of the Will. The contention that Cl. 8 of the Willembraced the bequest of the suit house to the defendant, cannot, therefore, be upheld. ( 13 ) IT is not disputed that once it is held that the suit house has not come to the share of the defendant, either under Cl. 8 or under Cl. 4 of the Will, then the claim of the plaintiff to the suit house as the sole surviving heir of deceased Panchulal must be held to have been established. ( 14 ) FOR all these reasons, this appeal is allowed with costs. The judgment and decree passed by the lower appellate Court are set aside and those passed by the trial Court are restored. Counsel's fees according to scale, if certified. Appeal allowed. .