Madras High Court
Lalji Rao And Two Ors. vs Jayarama Rao @ Jawaharlal Rao And Anr. on 23 April, 2004
Equivalent citations: 2004(3)CTC707, (2004)3MLJ421
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The appellants are the defendants in the suit filed by the respondents.
2. The respondents filed a suit for partition and permanent injunction. Though the relief of partition was refused, the permanent injunction was granted. Challenging the refusal of the partition, the respondents filed an appeal before the lower appellate Court. The said appeal was allowed. Hence, the second appeal filed by the defendants.
3. According to the plaintiffs, the suit property originally belonged to one Ambaji Rao. He is the brother of one Sami Rao. Ambaji Rao had no issues. His brother Sami Rao also died. So, Ambaji Rao executed a settlement deed dated 7.10.1950 giving life interest to his wife Mothi Bai and after her life time, his brother's son, viz., first plaintiff Jawaharlal Rao and the father of the defendants, Hemaji Rao. As per the settlement deed, both the sons of Sami Rao have to enjoy the suit property equally without any alienation and after their life time, their children have to enjoy the property equally. Ambaji Rao died in 1955 and Moti Bai died on 6.2.1996. After the death of Mothi Bai, as per the settlement deed, first plaintiff Jawaharlal Rao and the defendants, the sons of Hemaji Rao are entitled to 1/2 share each. The second plaintiff is the son of Jawaharlal Rao, the first plaintiff. Though the properties were enjoyed as joint owners, the defendants, the sons of Hemaji Rao did not pay any amount towards the property tax and they also did not spend any money for the maintenance of the properties. Therefore, on behalf of the plaintiffs, a notice was sent seeking for partition on 5.3.1998. There was no response. In the meantime, there was disturbance to the possession of the properties by the plaintiffs. Hence, the suit was filed seeking for partition of 1/2 share and permanent injunction and other consequential reliefs.
4. The case of the defendants is this:
"The fact that the settlement deed dated 7.10.1950 was executed by Ambaji Rao who died later. Mothi Bai, his wife with whom life interest was vested, also died. As per the settlement deed, after the life time of the first plaintiff and the defendants' father, each of their sons and daughters have to take equal shares. The first plaintiff had only one son, viz., the second plaintiff. The defendants' father had two sons and one daughter. Therefore, after the life time of the first plaintiff, the second plaintiff, the only son of the frist plaintiff will take one share and the defendants being the sons and daughter of Hemaji Rao will take only share each. Therefore, the second plaintiff will get 1/4 share and all the other defendants will get 1/4 share each. The intention behind the executor was that he himself being issueless had wanted to give each share to each of his brother's children. Further, the suit is pre-mature since the first plaintiff is still alive."
5. On the basis of the pleadings, necessary issues were framed. After considering the evidence adduced by the parties, the trial Court dismissed the suit for partition as pre-mature and however, granted permanent injunction in respect of 1/2 share being enjoyed by the first plaintiff. Challenging the same, the plaintiffs approached the lower appellate Court, which in turn, granted all the reliefs sought for by the plaintiffs. Hence, the second appeal by the defendants.
6. While admitting the Second Appeal, this Court formulated the following substantial question of law:
"Whether the lower Appellate Court failed to see that interpretation of Ex.A1 and Ex.A21 goes to the very root of the dispute and hence the lower Appellate Court ought to have given proper interpretation to the said documents ?"
7. On the strength of the above substantial question of law, Mr. K.V. Sundararajan, the learned counsel for the appellants would strenuously argue that proper interpretation has not been given by the lower Appellate Court and as such, the second appeal has to be allowed.
8. According to the counsel for the appellants, the reading of the recitals of the settlement deed would make it clear that Hemaji Rao and his brother Jawaharlal Rao have to enjoy the suit property as a life interest and after their life time, each son and daughter of the said Hemaji Rao and Jawaharlal Rao, viz., the children of the first plaintiff and the father of the defendants have to take equal share and as such, the interpretation given by the lower Appellate Court in the concept of "per stripes" is wrong.
9. In justification of the finding given by the lower Appellate Court, Mr. V.S. Subramanyan, the learned counsel for the respondents would submit that the interpretation is correct. Moreover, the factual finding given by the lower Appellate Court cannot be disturbed by this Court by invoking Section 100, C.P.C.
10. On behalf of both sides, various authorities have been cited.
11. I have carefully considered the submissions made by the counsel for the parties and gone through the judgment impugned and also the authorities.
12. Before going to the question, it would be necessary to refer to the relevant portion of the recitals contained in Ex.A1, the settlement deed.
13. It is settled law that a Court while constructing a Will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing, the surrounding circumstances, the position of the testator, his family relationship and the probability that he used the words in a particular sense also must be taken into account. There is a reason as to why the construction put on certain expressions in a Will should not be applied to a similar expression in the Will under question for a will has to be considered and construed as a whole, and not piecemeal. It follows that a fair and reasonable construction of the same expression may vary from Will to Will. In the matter of construction of a will, authorities or precedents are of no help as each Will has to be construed in its own terms and in the setting in which the clauses occur. These principles have been laid down in Ramachandra v. Hilda Brite, and Veerattalingam v. Ramesh, A.I.R.1990 S.C. 2201.
14. In that context, as indicated above, we would refer to the relevant recitals in the settlement deed:
15. If the second paragraph alone is read, it looks as though each child will have one share each. But the conjoint reading of the first paragraph and the second paragraph would indicate that the two brothers, viz., Hemaji Rao and Jawaharlal Rao would take possession of the house at Door No. 20, Choolai Venkatachala Mudali Street and each has to enjoy half portion of the house and they have to pay the tax and incur expenditure for repairs equally and the income should be derived in equal share. The reading of the second paragraph in the light of the first paragraph would now indicate that if there is only one issue for both the brothers, that issue will take the entire property and on the other hand, if children were born in both the families, the properties will go to them under equal share.
16. The lower Appellate Court has given the meaning for these two paragraphs, in my view, correctly that the defendants and the plaintiffs would take the share per stirpes and not per capita.
17. On the similar facts, the Supreme Court had an occasion to deal with the situation where the correct interpretation has to be given. The relevant observations of the Supreme Court in Venkatakrishna Rao v. Satyavathi, , are as follows:
"A life estate has been given to defendants 4 and 5 and as absolute estate to their children. On a fair construction of the language, it is difficult to accede to the contention of the appellants that the children of defendants 4 and 5 who may be actually alive at the time of the death of defendants 4 and 5, would take the properties per capita, ... The bequest in favour of defendants 4 and 5 was that of a life estate with a vested remainder in favour of their children and that the children should take the vested remainder per stirpes and not per capita. In our view, the High Court came to the correct conclusion. .... It would therefore be reasonable to expect that the testator would so arrange her affairs that each of the foster children should get half of the income of the property for life and that their children should succeed to the respective interest of their parents."
This decision, in my view, would squarely apply to the present facts of the case.
18. Distinguishing the above decision, the counsel for the appellants would cite (supra). The said decision would not help the appellants as the said case did not deal with the life interest of the parties. That is the case where the minors on attaining majority would get the share. Further, in that case, it is mentioned specifically in the gift deed that the minors after attaining majority will get equal shares. As indicated above, that is not the recital in the settlement deed Ex.A1 in the present case.
19. Furthermore, as laid down by the Supreme Court in Santosh Hazari v. Pumshottam Tiwari, 2001 (1) CTC 505 : A.I.R. 2001 S.C. 965 and Veerayee Ammal v. Seeni Ammal, 2002 (1) L.W.594, unless the Court is satisfied that there is substantial question of law, this Court would not normally interfere with the factual finding given by the lower Appellate Court on the basis of the recital contained in the settlement deed.
20. Therefore, I do not find merit in the Second Appeal, since there is no substantial question of law. Hence, the Second Appeal is dismissed. No costs.
23.4.2004 After pronouncement of the judgment, learned counsel for the respondents would submit that through the interim order, final decree proceedings alone has been stayed and in view of the dismissal of the second appeal, it would be appropriate to direct the Court concerned to dispose of the final decree proceedings by fixing the time schedule. So, the Court concerned is directed to go on with the final decree proceedings and pass orders within two months from the date of receipt of a copy of this judgment, after giving opportunity to both the parties in accordance with law.