Madras High Court
M. Sivagnanam (Died), M. Nagarajan, M. ... vs S. Rajeswari, S. Anusuya, S. Janaki, M. ... on 5 July, 2002
Equivalent citations: (2002)3MLJ8
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. Should the 1928 will of the testator who died in the year 1929 be construed in the light of the provisions of the Hindu Succession Act, 1956 and whether the testator intended that the ultimate bequest should go to the heirs of his son both male and female are the questions to be decided here.
2. One Subramania Pillai executed a will Ex. A2 dated 22.05.1928. The recitals of the Will will be extracted later. Broadly the intention of the testator appears to have been to protect the properties from being dissipated by his son Manickam who according to the testator was weak and liable to be taken advantage of by others. Therefore, he gave his son a life interest in the property without powers of alienation with the absolute interest to be taken by the heirs of his son. There are other clauses which deal with what should happen if the son Manickam died issueless. On 01.07.1963 under Ex. A4 Manickam executed a settlement deed in respect of the properties bequeathed under the Will in favour of various persons. Manickam had two wives.
3. In 1976, Ex.A5 notice was issued by the 1st respondent, one of Manickam's daughters to her father and the children born to Manickam out of the two wives. There was no reply. No action was taken thereafter by the respondent. On 08.04.1983, Manickam died. On 05.08.1983, another notice Ex. A6 was sent and thereafter O.S.No.271 if 1984 was filed on 26.04.1984, for partition by the respondents who are the daughters against the other children of Manickam. According to the respondents, the will Ex. A2 does not indicate that female heirs should be excluded and since the bequest to Manickam's heirs would come into effect only on his death i.e. 1983, his heirs will have to be determined according to the Hindu Succession Act. The settlement deed executed by the father Manickam who had no right of alienation would not bind them and therefore they were entitled to partition of the suit properties. The appellants who are the defendants, of course denied the claim made by the respondents. According to them, the properties had vested with the male issues of Manickam and therefore there was no property available for partition. In any event, the respondents knew about the 1963 settlement deed as evidenced by the notice Ex. A5 and the suit filed beyond the period of limitation is not maintainable. According to them, the recitals of the will clearly excluded female heirs.
4. The trial Court was inclined to construe the Will as including the female heirs and also held that the settlement deed was of no legal effect. The suit was decreed. So, the four sons of Manickam and their mother Ambalammal who is the second wife of Manickam have filed the appeal. The first wife Nallammal and the children were arrayed as defendants. But it is clear that the contest is really between the respondents 1 to 3 who are plaintiffs and the appellants.
5. C.M.P. Nos.11640 and 11641 of 1992 were filed to receive the additional written statement and additional evidence which would show that items 5, 19 and 20 are not liable for partition since they are also Pappammal's property have not been purchased subsequent to the death of the testator. No counter has been filed to these applications. These applications were ordered.
6. Mr. M. Velusamy, learned counsel appearing for the appellants would submit that the suit was barred by time. The respondents knew about the Ex. A4 settlement deed, had issued Ex.A5 notice thirteen years thereafter. They chose to file the suit only in 1984. It was submitted that out of the suit items, item 2 must be excluded since it is a trust property; items 24 to 29 were purchased by the wife of the testator subsequent to his death in 1929 and therefore they have to be excluded from partition. The documents are registered sale deeds and certified copy of the Athatchi.
7. From the additional evidence, it is seen that item 19 is purchased in the name of Pappammal in the year 1932, item 21 has been purchased on 25.06.1935 in the name of Pappammal and item 5 has been purchased in the name of Pappammal on 03.01.1936. Therefore, according to the learned counsel, actually the dispute is with regard to items 1, 3 and 4, 6 to 20 and 22 and 23.
8. The learned counsel would submit that the testator had used the word "thhpR" and "re;jjp" in 1928 to mean only the male heirs. He could not have anticipated the enactment of the Hindu Succession Act in 1956. It was also submitted that succession in 1929 opened on the date of death of the testator and not in 1983 when Manickam died. Therefore, Hindu Succession Act will not apply. The crucial clauses in the Will were explained to show that the bequest was only in favour Manickam's male issues. Reliance was placed on
(i)K.M.S.L.Sundaramier Vs. K.N.Sarojini (1984 1 MLJ 255)
(ii)Abdulsakur Haji Rahimtulla and Others Vs. Abubakkar Haji Abba and Others (AIR 1930 Bombay 191)
(iii) Sm.Angurbala Mullick Vs. Debabrata Mullick and
(iv) Dr.Mahesh Chand Sharma Vs. Smt.Raj Kumari Sharma and Others
9. The learned counsel for the respondents on the other hand would submit, at the outset that item 19 cannot be excluded since that was a purchase by Pappammal representing the estate of Manickam. As regards exclusion of items 2,5,20 & 24 to 29, he had no objection. It was submitted that a life estate was given to Manickam and until he died, the respondents' right to file a suit did not arise and since there was a restraint on alienation in the Will even if the settlement deed was valid what was transferred under the said deed was only the life estate of Manickam. Manickam cannot give a larger interest than he possessed. Upon his death, the Will came into effect. Therefore, even though the notice of the year 1976 was issued by the respondents, the absolute interest bequeathed in their favour in the will came into effect only in 1983 and the suit filed in 1984 was in time. It was submitted that the heirs at law must be determined as on the date of death of the limited estate owner and not on the date of death of the testator. As regards the will, he would submit that four different terms have been used by the testator. "thhpRfs;. Mz; re;jjp.re;jjp.g[j;jpu bgsj;jpu ghhk;ghpakha;@/ It is therefore clear that the testator had knowledge of the legal implication of the various terms and he used them advisedly.
10. Under Clause 25 of the will, the testator's wife was given a right to adopt her daughter's son in the absence of a male issue to Manickam and if Manickam pre-deceased her. This should be seen in the light of a Hindu's pious wish that the funeral rites must be performed, by a male descendant and nothing more. The fact that the word "Mz; re;jjp@ has been used in this clause cannot be construed to mean that female heirs have been impliedly excluded in the will. The learned counsel submitted that the will has to be read as a whole and that paragraphs or terms cannot be taken out of context to give a meaning that was never intended. The learned counsel relied on
(i)Safdar Ali Vs. Maksudali (AIR 1930 Privy Council 41)
(ii)N.Krishnammal Vs. R.Ekambram and Others
(iii)Narayan Singh Vs. Ram Saran Lal (1918 Privy Council 203)
11. The important clauses in the disputed Will are as follows:
(18) ,t;tpUtUs; ahUf;fhtJ bja;thjPdkha; xUfhy; re;jjpfs; ,y;yhtpoy; ,jd; K:yk; fpilf;Fk; brhj;Jf;fs; v;d Fkhud; nkw;go khzpf;fk;gps;isf;Fk; mtd; thhpRfSf;Fk; ghj;jpank jtpu ntW ahUf;Fk; ghj;jpak; ,y;iy/ (19) nkw;fz;lgo vd; Fkhuj;jpfSf;F tpl;oUf;fpw brhj;Jf;fisj; jtpu kw;wbay;yhr; brhj;Jf;fisa[k; ,dpnky; / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / (20) vd;Dila ghhp ghg;gk;khspd; tUjpg;go vdJ Fkhud; khzpf;fk; gps;is ele;J tuntz;oaJ/ / / / / / / / / / / / / / / / / / / / / / / / / / (21) FLk;g ed;ikiaa[k; brsfhpaj;ija[k; yhgj;ija[k; cj;njrpj;J. vd; Ma[Sf;Fg; gpd; vd; rk;rhuk; ghg;gk;khs; / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / (23) vdJ ghhp ic& ghg;gk;khs; $Ptjpirf;Fg; gpd; vdJ Fkhud; ic& khzpf;fk;gps;is nkw;fz;lgo vdJ Fkhuj;jpfSf;F ,dhkha; tplg;gl;l brhj;Jf;fs; jtpu ,ju rfytpj brhj;Jf;fisa[k; mile;J mtd; $Ptjpir tiu mitfspd; tUk;gofis kl;Lk; mDgtpj;J tuntz;oaJ/ (24) vdJ Fkhud; nkw;go khzpf;fk; gps;is $Ptjpirf;Fg; gpd; nkw;goahd; thhpRfs; rfytpj brhj;Jf;fisa[k; mile;J vd;bwd;iwf;Fk; g[j;jpu bgsj;jpu ghuk; ghpakha; jhdhjp tpepakha; tpw;fpiua';fSf;F nahf;fpakha; $yjUghc&d tpUj;jp nahf mc&;l nghf njr thkpa';fSld; rh;t Rje;jpu ghj;jpakha; Mz;lDgtpj;Jf; bfhs;s ntz;oaJ.
Some properties were bequeathed to the two daughters of the testator and as regards these properties clause 18 will apply. His wife Pappammal was appointed as executrix and clause 19, 20 and 21 would clearly show that the testator was not very confident of his son and therefore the son's actions were to be under his wife's supervision. According to Clause 23, after Pappammal's life time, Manickam can enjoy only the income from the properties bequeathed to him. Under Clause 24, absolute interest in the properties with full rights of alienation have been given to the heirs of Manickam after Manickam's life time. Under Clause 25, the testator has provided for the contingency of Manickam dying without a male issue and had given his wife Pappammal the right to choose one grandson from and out of his daughter's sons to be taken in adoption. Under Clause 26, he had provided that in the event of Manickam dying without any issues and Pappammal dying "before such adoption", all the properties would go to the two daughters of the testator equally. Clause 27 deals with certain charitable activities which would be done by Manickam as Dharmakartha and after him, his eldest heirs shall take it by inheritance.
12. The will was written before 1956. The judgment in K.M.S.L.Sundaramier Vs. K.N.Sarojini (1984 1 MLJ 255) dealt with the deed of trust which provided for continuance of charities after the death of one of the settlors by his @n$c&;l thhpR@/ The Division Bench considered in detail various judgments and came to the conclusion that the word "thhpR@ would mean a heir at law (that is) both males and females who are entitled to the property of another under the law of inheritance; 're;jjp@ would mean the descendant or heir or son and though the dictionary meaning would denote all classes of issues of heirs whether male or female, yet in a particular context, they may be restricted to male heirs only. The Division Bench also held that prior to the introduction of the Hindu Succession Act, on the death of a male hindu, who was a member of the Hindu undivided family, the co-parcenery property would devolve by survivorship but the separate property would devolve on his son or grandson of predeceased son or a great grandson whose father and grandfather were dead and the female heirs would take after the male estates and that too a limited estate. Therefore it was held that taking into account the surrounding circumstances and the notions of a Hindu which would have prevailed in 1919, the intention of the executant would have been to give the right of the trusteeship only to the eldest male members of the family when they used the words @n$c&;l thhpR. re;jjp.g[j;jpu bgsj;jpu ghhk;ghpakha;@/ Reference was made in this judgment to the Supreme Court's observation in Lakshmana Nadar and Others Vs. R.Ramier as hereunder:
"The Court's primary duty in such cases is to ascertain from the language employed by the testator 'what were his intentions', keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc., in other words, to ascertain his wishes by putting itself, so to say, in his arm-chair."
Mayne's Hindu Law and Usage 10th Edition at page 906 was extracted to show that to arrive at the right of construction of a particular will or to ascertain the intention of a particular testator is to bear in mind;
"the surrounding circumstances, the position of the testator, his family relationships, probability that he would use words in a particular sense and his social, the cultural environment. In other words, the Court is entitled to put itself into the testator's arm-chair.".
These guidelines will hold good whenever a Will has to be understood. In Safdar Ali Vs. Maksudali (AIR 1930 Privy Council 41), it was held that "It is plain, according to every rule of interpretation, that if you wish to limit the word "heirs" either to the male or female line, it is essential that you should do so in direct terms, or by necessary implication; and in the absence of that limitation there is nothing where female inheritance is possible to prevent the female being an heir equally with the male."
13. Therefore if the appellants must succeed it must be shown that there was either a direct or implied exclusion of women, when the word thhpR was used in Clause 24. In N.Krishnammal Vs. R.Ekambram and Others . There was one Palaniandi. He had three sons. The son Nataraja is the one who is relevant to this case. The bequest was made to Nataraja for his life time and if he left any male issue they would take the said properties but if there are no male issues "my heirs" shall take the properties. The observations of the Supreme Court are as follows:
"Whether the heirs of the testator, on whom the estate was to devolve in the event of Nataraja dying sonless, were to be ascertained according to Hindu Law in force at the time of Nataraja's death or according to Hindu Law, prevailing in 1928 when the testator died. This question also is one of reaching at the real intent of the testator.
In order to expatiate the true import of the last two sentences of Clause 5 of the will (Ex. P2), the same can be legitimately expanded, parenthesized and elucidated so as to read like this:
"After Nataraja's lifetime, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienation .... If Nataraja dies without leaving any male issue, then my heirs, then ascertained according to law of inheritance, shall take the aforesaid properties." "
Therefore the Supreme Court held that on amplification and elucidation of the Will, it could be seen that ascertainment of the heirs is to be done on the date of Nataraja's death without male issue.
14. In Dr.Mahesh Chand Sharma Vs. Smt.Raj Kumari Sharma and Others the will in question gave the testator's wife a bequest for life and after her death to the legal heirs of the testator. The Supreme Court held that Section 119 of Succession Act would apply. In fact, in this case, (cited supra) was also considered and the Supreme Court in its decision dealt with the difference in the date of vesting when the payment or possession is postponed and when it is a contingent bequest. In (cited supra), the life estate holder was one Satyawati. The Supreme Curt held that the death of Satyawati was not a specified uncertain event as opposed to the bequest in the case of . The latter was a case of contingent bequest because there, the life estate holder dying sonless was a specified uncertain event and the bequest was contingent upon Nataraja's dying sonless. So, the Supreme Court held the ratio in 1979 decision will not apply to the 1996 one. In 1996 SC 869 cited supra, it was held that the right of the legal heirs of the testator became vested on the date of death of the testator.
15. To interpret a Will, one must ascertain the intention of the testator. According to the Will, that was considered in the 1996 case, the house was to devolve on the legal heirs of the testator on the death of testator's wife. It was held that the Will has to be understood and construed in the light of the statutory rules governing the Will i.e. provisions of the Indian Succession Act, 1925 and therefore where a property was bequeathed to A for life and after his death to B, the legacy became vested on the date of death of the testator. The Supreme Court refused to accept the argument that the vesting of bequest was postponed till the death of Satyawati, that the Court must deal with, the bequest as if the testator was referring to such legal heirs who may be in existence on the date of death of Satyawati. The Supreme Court held as follows:
"In our opinion, this argument is plainly unacceptable. In the year 1942, Ram Nath could not have foreseen the enactment of Hindu Succession Act, 1956 or that in future his daughters would also become his "legal heirs" by some change in law. The language of clause (i) does, no doubt convey, the intention of the testator, viz., immediate bequest (for life) is to Satyawati and the ultimate (absolute) bequest is to his legal heirs after the death of Satyawati. But this clause has to be read, understood and construed in the light of the rule contained in Section 119 of the Indian Succession Act, as explained herein above - with the necessary consequence, which too has been set out hereinabove."
16. There is a slight difference between the above case and the case on hand. In the Supreme Court decision, the persons who were given the absolute interest were existing on the date of death of the testator. Therefore, the Supreme Court held that the absolute interest vested in B only it was postponed for the lifetime of the life interest holder. In the present case, the heirs of Manickam were not born either on the date of the will or on the date of death of the testator. So one must see what is the date on which the absolute estate vested and on whom has to be considered. Usha Subbarao Vs. B.E.Vishveswariah and Others clarifies the position. In this, the Supreme Court has dealt with the distinction between the vested interest and the contingent interest as defined in Section 19 and 21 of the Transfer of Property Act, and Section 119 and 120 of Indian Succession Act:
"Although the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the Court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear (See: Rajes Kanta Roy Vs. Santi Devi, 1957 SCR 77 at p.90 : AIR 1957 SC 225 at p.261) As regards wills, the rule is that "where there is doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift and accordingly it vests at the testator's death or at the earliest moment after that date which is possible in the context.""
17. In Parukh's Indian Succession Act 9th Edition, the above said decision is referred to while dealing with the distinction between the vested interest and the contingent interest. The following paragraph at page 612 in that text is relevant:
"Apart from the instances given in the explanation, if the Will itself contains words indicating that the vesting should not be in the legatee on the testator's death, the Court must give effect to it and an example of such intention is the use of the expression 'then living' or 'then surviving'. In Ganesh Prosad Agarwal Vs. Manohar Lal, it was observed that ordinarily the words 'after the death of the life tenant' operate to vest the property in the remainderman on the death of the testator; but if the word used is 'then', e.g., after the death of the life tenant 'to vest in the sons who may be then in existence', the intention of the testator is only to vest after the death of the life tenant, and until then the interest of the remainderman is only contingent."
The following paragraph at page 613 is also very clear:
"If a bequest is to a person for life and after his death to his children, the bequest becomes vested in each child as and when it is born and vesting is not postponed till the death of his life tenant. The expression 'after his death' is taken to indicate merely the time when the gift becomes reduced to possession and not the time where the right to such possession vests. A bequest made to a legatee, who is not entitled to immediate possession of the bequest, gets vested in such legatee on the date of death of testator. Where a person bequests a house to his wife, and after her death, to his legal heirs, the legacy to the legal heirs of the testator becomes vested in them at the death of the testator. There is no question of the heirs being divested therefrom or of them getting the property prior to the death of the wife."
18. From the above, it is clear that Clauses 25 and 26 which speak of the contingent interest will cease to have any effect, the moment a male son was born to Manickam. D.W.1, the first appellant herein was born in 1937. Therefore, the moment he was born, he was entitled to the absolute interest after his father's death. Even otherwise, it is clear from the reading of the Will that though Manickam used various terms in his Will, he only intended that the male issue of Manickam should take the property. It is clear that the testator was astute enough to provide for various eventualities. He speaks of thhpR at page 24 who will take the property absolutely after the life time of Manickam. On that date i.e. in 1928, there was no reason for him to anticipate the coming of the Hindu Succession Act. So, the heirs that he had in mind on that date were only the male heirs of Manickam. Clause 25 and 26 lend support to this.
19. Under Clause 25, Pappammal, the testator's wife was given the right to adopt a grandson if Manickam predeceased her without Mz; re;jjp. It was urged on behalf of the respondents that this right was given to her only because of the pious wish of every Hindu regarding performance of funeral rites. But if it was the intention of the testator that this adoption was only for the performance of doing the last rites, he would have made it specific because he had specifically dealt with and provided for all possible situations. Clause 26 makes it clearer. Under Clause 26, the testator says that if Manickam dies without santhathi and if Pappammal dies before such adoption, the property should go to his daughters. Therefore, if there was an adopted son, he would exclude two daughters. It is clear therefore that the adoption was not only for the purpose of performing the funeral rites but also for the purpose of inheritance.
20. Clauses 25 and 26 will have to be read together and the possibility of Manickam dying without Santhathi can only be construed to mean Manickam dying without male santhathi. Because only then the word "Mz; re;jjp " in Clause 25 will have any meaning. The word "such adoption" in Clause 26 shows that though Clause 26 uses re;jjp since it is referrable to the previous clause it must be male santhathi. The testator had clearly provided for all eventualities that may arise which he could have conceived of, keeping in mind the situations that prevailed at the time of the execution of the will. If his intention was that female santhathi will inherit if Manickam died without a "Mz; re;jjp" before the adoption was made. He would have definitely made that position clear. Clause 24, 25 and 26, if read together show that when he talks of Manickam's heirs, he has in mind only the male heirs. The female heirs stood excluded by implication. It is not possible to give any other construction to Clause 26. In any event, Clause 25 and 26 only speak of the contingent bequest in case of the "specified uncertain event" of Manickam dying without a male issue or Pappammal dying before such adoption. Clause 25 and 26 speak of contingent interest whereas Clause 24 speaks of vested interest. The Supreme Court decisions cited above show that Courts should construe the terms of a will with a bias in favour of vested interest. The earliest moment when the vesting can take place is when the first male issue was born to Manickam. This was before 1956 and in fact it is seen from the ages of the appellants as given in the cause title that the first appellant was born in 1934, the second appellant in 1938, the third appellant in 1954 and the fourth appellant in 1939. Therefore, vesting in their favour took place prior to the coming of Hindu Succession Act and there cannot be any divesting of interest thereafter.
21. In the light of the Division Bench judgment reported in 1984 1 MLJ 255 as well as the two Supreme Court decisions , the Will has to be construed to mean that the testator's bequest was in favour of the male issue alone. will not apply for the reasons stated earlier.
22. The question of limitation must be answered in favour of the respondents. If the Will included female heirs, their right to claim partition comes alive only after the death of Manickam, the life estate holder. So the suit is in time. However, in view of the finding that they are not entitled to any share in the property, the judgment and decree of the trial Court is set aside and the appeal is allowed. No costs.