Kerala High Court
Damodara Pillai vs Madhavan Pillai on 6 April, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 142 of 1997()
1. DAMODARA PILLAI
... Petitioner
Vs
1. MADHAVAN PILLAI
... Respondent
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :06/04/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 142 of 1997
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Dated this the 6th day of April, 2011.
JUDGMENT
A litigation, which started in the year 1970 goes on and on with no end in sight. This is the second round of litigation before this court. Presently defendants 3 to 11 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court.
2. The suit was one for redemption. Madhevan Pillai and Pankajakshi Pillai had nine children. Madhevan Pillai had large extent of properties. He had mortgaged the plaint schedule item to Kesavan Sukumaran and his wife Kunji Lekshmikutty in the year 1954, which is evidenced by Ext.A1 document dated 24.5.1954. Madhevan Pillai had executed Ext.A6 will dated 26.9.1966 bequeathing his properties to the various legatees, details of which will be referred to at a later stage. Madhevan Pillai died on 27.1.1967. His legal heirs, based on the Will, is claimed to S.A.142/997. 2 have entered into a partition deed Ext.A2 dated 7.12.1972 whereby the plaint schedule property was set apart to the share of the plaintiff. The mortgagee's right was assigned to the defendants and they are now in possession of the property. The plaintiff seeks to have the property redeemed.
3. Defendants 1 and 2 filed a joint written statement and resisted the suit. They admitted the mortgage and also that they had got assignment of the mortgage by virtue of a deed of the year 1957. According to them, as per the Will said to have been executed by Madhevan Pillai, the property had devolved on the mother of the plaintiff and neither the plaintiff nor his brothers had any right over the suit property. They disputed Ext.A2 partition deed. According to them, they are entitled to fixity of tenure under the Kerala Land Reforms Act. In fact they would say that the mother of the plaintiff had instituted O.S.203 of 1970 for the very same relief. In the said suit, there was a reference to the Land Tribunal on the basis of S.A.142/997. 3 the claim made by the defendants and the Land Tribunal returned a finding in favour of the defendants holding that they are entitled to fixity of tenure. Thereafter the suit was dismissed. That has become final. The said decision operates as res judica and estoppel.
4. In the separate written statement filed by the third defendant, he too admitted the allegations regarding the mortgage. Rest of the contentions are almost similar to that contained in the written statement of defendants 1 and 2. The 5th, 6th, 9th and 11th defendants filed written statements adopting the contentions of the first and second defendants.
5. A replication was filed by the plaintiff controverting some of the contentions taken in the written statements and also pointing out that defendants 3 and 5 are precluded from taking any contentions against the one taken in by defendants 1 and 2. It was pointed out that the first defendant expired and defendants 3 to 11 were S.A.142/997. 4 impleaded. Since they are the legal representatives of the first defendant, they cannot take any contention against the contentions taken by the first defendant.
6. On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had Exts.B1 and B2 marked and did not adduce any oral evidence. Exts.C1 and C2 are the commission report and mahazar.
7. On an appreciation of the evidence, the trial court found that Pankajakshi Pillai, who is the mother of the plaintiff, by virtue of Ext.A6 Will obtained absolute rights over the property consequent on the death of Madhevan Pillai in 1967. She had instituted O.S. 203 of 1970 evidenced by Exts.B1 and B2, wherein the very same reliefs were sought for by Pankajakshi Pillai. On a reference to the Land Tribunal, the claim of the defendants that they are entitled to fixity of tenure was upheld and the suit was dismissed. That had become final and therefore the trial S.A.142/997. 5 court held that the present suit is barred by res judicata. Since it was found that the suit is barred by res judicata, the other issues were not gone into by the trial court.
8. The plaintiff carried the matter in appeal as A.S.236 of 1994. The lower appellate court found that Pankajakshi Pillai had only a life interest and properties vested with the donees made mention of in the document soon after the death of Madhevan Pillai, among whom the plaintiff also figured. Then finding that as per Ext.A2 partition deed, the plaintiff has been allotted plaint schedule property, the lower appellate court went on to hold that the decision evidenced by Exts.B1 and B2 is not binding on the plaintiff and he is entitled to redeem the mortgage. Accordingly, the suit was decreed.
9. Before going further, one aspect may be noticed. Before this round of litigation, there was an earlier round of litigation wherein the only issue was regarding redemption. The sole issue considered was whether the plaintiff was entitled to redeem the mortgage. It appears S.A.142/997. 6 that in the earlier round of litigation, the Will had not been produced. The trial court dismissed the suit initially and the lower appellate court confirmed the same. The matter was brought up before this court in S.A.865 of 1981. This court by judgment dated 21.8.1987 allowed the appeal and remanded the matter to the trial court since it was found that the decision regarding Will is absolutely necessary for the proper resolution of the issues involved in the suit. Currently defendants 3 to 11 have come up in appeal.
10. Notice is seen issued on the following questions of law:
"i) Is not the finding of the court below that Ext.A6 did not confer absolute title on Pankajakshy Pillai as regards the suit property contrary to law?
Is not the finding that Ext.B1 decree does not operate as res judicata to this suit contrary to law?
ii) Assuming that Pankajakshy Pillai had only a life estate under Ext.A6 over the suit property, does not Ext.B1 decree dismissing the suit filed by S.A.142/997. 7 her to redeem Ext.A1 mortgage constitute res judicata to the suit from which this second appeal arises?
iii) Is not the plea of fixity of tenure of defendants concluded in their favour as against the plaintiff as per Ext.B1 decree?
iv) Did not the court below act contrary to law in the matter of interpretation of Exts.A6 and A2 documents?"
11. As already stated Madhevan Pillai had executed Ext.A6 Will. The Will contains three schedules, A, B and C. A schedule property was set apart to Pankajakshy Pillai, B schedule to Thankamma, his daughter and C schedule to Ramakrishnan Nair, his eldest son. Going by the terms of the Will, the other children are to divide A schedule property equally among them after the death of Pankajakshy Pillai. Madhevan Pillai died on 27.1.1967. The dispute is essentially regarding the question whether consequent on the death of Madhevan Pillai, Pankajakshy Pillai gets absolute estate in relation to A schedule to Ext.A6 S.A.142/997. 8 or the vested interest vests with the other children made mention of in the Will. It appears that the legatees, who claimed to have obtained A schedule property as per Ext.A6 Will entered into a partition evidenced by Ext.A2 partition deed dated 7.12.1972. In the said partition, as already noticed, the plaint schedule property seems to have been set apart to the plaintiff. That enabled the plaintiff to institute the suit.
12. It may be noticed that the mortgage is not disputed. It has also come out in evidence that Pankajakshy Pillai had instituted the earlier suit, O.S. 203 of 1970 before the very same court seeking redemption of the very same mortgage relating to the plaint schedule property. Ext.B2 judgment shows that the defendants therein had raised a plea of fixity of tenure under the Kerala Land Reforms Act and the same was referred to the Land Tribunal for decision. It is also seen from Ext.B2 that the Land Tribunal held in favour of the defendants and the suit was dismissed. That has become final.
S.A.142/997. 9
13. Though the memorandum of Second Appeal contains several contentions and grounds, at the time of argument, learned Senior Counsel Sri. Krishnanunni appearing for the appellants, raised only three points for consideration. They are,
i) Going by the terms of Ext.A6 Will, consequent on the death of Madhevan Pillai, Pankajakshy Pillai obtained absolute right over plaint A schedule property.
ii) If it is found that she had only a life interest, her suit should be treated as one on behalf of the persons interested in the estate and the decision therein binds the other sharers.
iii) At any rate, the decision is binding on the plaintiff in view of Explanation VI to Section 11 since even assuming that Pankajakshy Pillai was only a life interest holder, she falls in the category of persons interested as contemplated under Section 91 of the Transfer of Property Act.
S.A.142/997. 10
14. In reply, learned Senior Counsel Sri. S.V. Balakrishna Iyer, appearing for the respondents contended that
i) Pankajakshy Pillai had only a life estate over plaint A schedule property.
ii) Ext.B2 suit was not a representative suit and therefore the decision is not binding on anyone other than Pankajakshy Pillai.
iii) In order to raise the plea of res judicata, the defendants had to produce the pleadings in O.S. 203 of 1970 and that has not been done. Only the judgment has been produced and that is not sufficient. Therefore it is contended that no grounds are made out to interfere with the judgment and decree of the court below.
15. After hearing both sides and on going through the evidence it appears that the principal issue is regarding interpretation of the terms in Ext.A6 Will. If as contended by the learned Senior Counsel for the appellants, it is to be found that going by the terms of Ext.A6 Will, Pankajakshy S.A.142/997. 11 Pillai gets absolute estate over plaint A schedule property consequent on the death of Madhevan Pillai, then, of course Ext.B2 is a bar for the present suit. Even otherwise, it remains to be considered whether even if Pankajakshy Pillai has only a life interest over plaint A schedule property, she being an interested person under Section 91 of the Transfer of Property Act, which is not disputed by the learned counsel for the respondents, if the decision in O.S. 203 of 1970 can bind the plaintiff and preclude him from raising the very same issue.
16. The principles regarding the construction of Wills are well settled. In Halsbury's Laws of England, 4th Edn,. Vol.50 at page 339 paragraph 481 it is observed as follows:
"..........In a court of construction the primary evidence of the testator's intentions is the will itself, properly authenticated, and any codicil to it. For the purpose of construing a codicil, the court may look at the original will or any other codicil to it, and, similarly, the court may look at a codicil S.A.142/997. 12 for the purpose of construing the original will. The court may look at a recital of a will contained in a codicil and may construe the will by reference to this recital, unless it is obviously erroneous. In order that the will may be properly expounded, the court adopts the general rule that any evidence of the circumstances is admissible which on its nature and effect simply explains what the testator has written, but in general no evidence may be admitted which in its nature or effect is applicable to the purpose of showing merely what he intended to have written........"
In paragraph 512 it is observed as follows:
"512. Basic principles of construction. There have been recent changes in the approach to the construction of legal documents. The decisions which introduced this change concerned the construction of commercial agreements but they affect the approach to the construction of legal documents generally. The principles as they apply to wills may be briefly stated as follows: S.A.142/997. 13
(1) interpretation is the ascertainment of the meaning which a document would convey to a reasonable person having all the background knowledge which would reasonably have been available at the time the will was made;
(2) the admissible background knowledge includes 'absolutely anything which would have affected the way in which the language of the will would have been understood by a reasonable man', provided that it is relevant;
(3) the law excludes from the admissible background declarations of subjective intent;
(4) the meaning which a will would convey to a reasonable man is not the same thing as the meaning of its words: the meaning of words is a matter of dictionaries and grammars; the meaning of the will is what having regard to the relevant background the testator would reasonably have been understood to mean; the background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even to conclude that the testator must, for whatever reason, have used the wrong words or syntax;
S.A.142/997. 14
(5) the 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents; on the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the testator an intention which he plainly could not have had.
Many of the more technical rules formerly applied in the construction of wills may need to be re-examined in the light of the new approach."
17. In Mantha Ramamurti's Law of Wills, 7th Edn., Vol.1 at page 449 it is observed as follows:
"........One of the elementary rules of construction is that the document should be read as a whole. It is not permissible to single out one clause and to hold on the strength of it and without reference to other clauses that the interest conferred upon the legatee is that of an absolute owner, and then reject other clauses S.A.142/997. 15 which materially qualify the earlier clause, on the ground that they are repugnant to the earlier clause.
When various clauses are not entirely
irreconcilable and in absence of latent
inconsistency the intention of the testator can be gathered without much difficulty, the Will has to be enforced........."
18. In the decision reported in Ramkishorelal v. Kamalnarayanan (AIR 1963 SC 890) it was held as follows:
"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even S.A.142/997. 16 where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyance would use it, it may not be reasonable and proper to give the same strict interpretation of the word when use by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if S.A.142/997. 17 possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."
19. In the decision reported in Rameshwar Bakhsh v. Balraj Kaur ( A.I.R. 1935 Privy Council 187) it was held as follows:
"In interpreting a will it is the duty of the Court to find out the intention of the testator. That intention is to be gathered from the language used by the testator, because it is the words used in the instrument, by which he has conveyed the expression of his wishes. The meaning to the attached to the words may however be affected by surrounding circumstances and, when this is the case, those circumstances should be taken into consideration. The meaning of any clause in a will is to be collected from the entire instrument; and all the parts of a will are to be construed with reference to each other and so as, if possible to S.A.142/997. 18 form one consistent whole. Where it is not possible to reconcile all the parts, the latter must prevail."
20. In the decision reported in Sammut v.
Manzi ((2009) 2 All.E.R. 234) it was held as follows:
".........The starting point in construction of a will was to look at the natural meaning of the wording to be construed without reference to other decisions or to prima facie principles of construction."
21. From the above materials, the principles regarding the interpretation of a Will can be gathered. The document has to be read as a whole and as far as possible the intention of the testator is to be given effect to, often this is known as Armchair theory. Even though there may be apparent inconsistent clauses, effort should be to reconcile them and as far as possible to give effect to the various dispositions intended by the testator. If the words of the will are plain and unambiguous, they are to be given effect to no matter what the result would be. If on the other hand S.A.142/997. 19 there are inconsistent provisions, then again the court will try to adopt a harmonious construction so as to avoid any intestacy and if that is not possible, then the various provisions of the Indian Succession Act are resorted to. Bearing these provisions in mind, one may have a look at the relevant clause in Ext.A6 Will. In the opening portion of the document it is stated that the Will is being written in the name of Pankajakshy Pillai. Therein it is stated as follows:
Page 4 ".........fa :xNgVW" .H_AaU UXmJa U55{af? I_X Da?V:n^U5^V" H_9ZAaDfK X_i_AafNKaUx_5_\a"
UXmJa U55{af? H_\H_WI_Ha" H_9{af? f.5cDAa"
Xb^DLcJ_Ha" M^U_ gdVOT_Ha" OfD^xa U^GgN^ g5^GgN^ DG^fD H_\H_WACfNKaU )ggVgJ^?a" \fcgJ^?a"
5b?_ ............." (Page 4 ) ".......... L_ X_ .K`NbKaIG_55{^O_ U_M<_:nm / IG_5UXqaU55Z ?_ IC<^f__ ?_ N^GUX I_U 2Ma"_ 5 I_UAa" L_ IG_5 UXqaU55Z H_9{_W DCNAa" X_ IG_5 UXqaU55Z ?_ x^N5cWmCXH^OVAaN^O_ H_Vm:O"
f:Oq_x_AaKDa" ........................."(Page 5 ) S.A.142/997. 20 ".............'UVAm ?_ IC<^f_I_UOaf? <`U_D5^\" Ufx UXqaU55Z f5^?aJ_G_\o^JDaN^5aKa.e.fa 5^\^HLx"
NaDW / IG_5 UXqaU55Z ?_ IC<^f_I_UOa" L_ IG_5 UXqaU55Z H_9{_W DCNOmAa".eX_ IG_5 U55Z x^N5cWmCX H^Oxa" h5UV" .?aJHaMU_:nm 5CAa" I?_ 5x" D`VJa xX`Da" gIx_WAbG_ gI^AaUxUa f:On_:nm IG_5d5N" IGO9{a" I_?_:na" XVUn Xb^DLcN^Oa"
V^VbDN^Oa" U^]mKaf5^gUIDa" &5aKa.e/ IG_5 UXqaU55Z ?_ IC<^f_ I_UO_W H_f_IqN^O_x_AaKDa"
.K^W ?_ IC<^f_ I_UOaf? <`U_DgVW" NaDW NA{^O gNWIy> XxXbD_ON_ ?_ N^GUXI_U 2Ma"_6_ V^xFON, g7^I_H^EX H^OV, \{_D^"L_5 gFU_, U_<O:dwX H^OV, :dwgV6xX H^OV .". .Xm 5aN^V 'UV / IG_5UXqa U55f{ Da\cN^O_ 5bG^gO^ %xa5aD_x_:naM^7_g:n^ h5UVfN?aJHaMU_:nm 5CAa" I?_5x"D`VJm xX`Da"
gIx_WAbG_ gI^AaUxUaf:On_:nm dIgDc5" dIgDc5" IGOB {a" I_?_:na" XVUnXb^DLcN^Oa" VVbDN^Oa" U^]mKa f5^gUIDa" ?_ / IG_5 UXqaU55Z ?_ IC<^f_I_UOaf? <`U_D5^\" Ufx %UVAm XVUn Xb^DLc^U5^VJ_W f5^?aJ_x_AaKDa" ?_O^{af?
<`U_DgVWgN gNWIyE gIxa5^VAa X_i_A^X %VYDOaUDaN^5aKa."e(pages 6 & 7) S.A.142/997. 21
22. The trial court on a reading of the document as a whole formed the opinion that in respect of A schedule to Ext.A6 Pankajakshy Pillai takes absolute estate. The trial court wasgto thethaopinioni that having given an absolute ropiveqtljr no i of EveptritPiq tri a intac st estate to Pankajakshy Pillai, the recital that after her death, some of their children will be entitled to the property and can divide it into equal shares or enjoy it jointly cannot cut down the estate that has vested with Pankajakshy Pillai to a life estate. The lower appellate court thought otherwise.
23. Learn t a jj-chioittfn e itathevt7-tshN7a1ai-E pt Aoc1o aii? so t is oen th 7--
p heThe l
.
S.A.142/997. 22
reason that after giving an absolute bequeath in respect of the estate, nothing remains to be given thereafter. It was also contended that once having given an absolute estate to a person, the testator thereafter cannot determine the line of succession in respect of that properties after the death of the person to whom the properties are absolutely given. In support of his contention, learned counsel relied on the decisions reported in Mauleshwar Mani v. Jagdish Prasad ((2002) 2 SCC 468) and Sadaram Suryanarayana v. Kalla Surya Kantham ( 2010 AIR SCW 6721). According to the learned counsel, the trial court was justified in its conclusion that Pankajakshy Pillai consequent on the death of Madhevan Pillai obtained absolute estate in respect of A schedule properties to Ext.A6.
24. Learned counsel appearing for the respondents on the other hand pointed out that it could not be said that on a reading of the Will as a whole that an absolute estate vests with Pankajakshy Pillai consequent on the death of Madhevan Pillai. The intention that can be S.A.142/997. 23 gathered from a reading of the various clauses in the Will is that the testator desired that Pankajakshy Pillai was to enjoy only a life estate over A schedule properties and vested right to immediately fall on the other legatees made mention of in the Will though their enjoyment may be postponed to a later date. Learned counsel also stressed that if one is to hold that Pankajakshy Pillai gets an absolute estate in respect of A schedule property, then some of the other provisions in the Will become redundant, a contingency, which as far as possible should be avoided. Learned counsel went on to point out that as far as possible the various bequests made mention of in the Will should be attempted to be given effect to and the exercise of excluding some of the dispositions shall be done only in compelling circumstances. In support of his contentions, learned counsel relied on the decisions reported in Kadavath Choyi v. V at , y v,. mar.ar V .
S.A.142/997. 24 Gokul (AIR 1976 SC 794) and ((2006) 8 SCC 75.
25. One may now notice the recitals in the Will, namely, Ext.A6 which have been extracted already. In the opening portion of the document, it is stated that the testator is executing the Will in favour of Pankajakshy Pillai. It makes mention of a fact that the testator had extended considerable financial assistance to his eldest son Ramakrishnan Nair, but he has squandered it away and he is in dire circumstances. In page 4 of the document, it is stated that the testator feels that after his life time the property should devolve on the persons made mention of in the Will, however, in order to avoid disputes or conflicts between them, he wishes to execute the Will. In page 5, it is stated that there are three schedules to the Will, namely A, B and C. A schedule is set apart to Pankajakshy Pillai, B schedule to Thankamma and C schedule to Ramakrishnan Nair. Thankamma is the daughter of the testator. It is also mentioned that Saraswathi Amma, Sarada Amma, Gopinathan Nair, Lalithambika Devi, Vijayachandran Nair, S.A.142/997. 25 Chandrasekharan Nair and M.S. Kumar may either enjoy the A schedule jointly or they may divide themselves in equal shares after death of Pankajakshy Pillai. It is also stipulated that the other two children, Thankamma and Ramakrishnan Nair, will not have any right over A schedule properties. The above recitals show that during the life time of Pankajakshy Pillai, she can enjoy A schedule properties with absolute freedom and only after her death the other children will get the properties. It is also made very clear that Thankamma and Ramakrishnan Nair will not have any manner of right over A schedule properties to Ext.A6 Will. It is also stipulated in the Will that if it so happened that the marriage of the testator's other daughters except Thankamma, who is already married, have to be conducted, then Pankajakshy Pillai, his wife is given the authority to sell the properties in A schedule. The further bequest as contained in Ext.A6 is regarding a press, which the testator owned was being run at Trivandrum and a Book Depot attached to the same too are devolve on Pankajakshy Pillai S.A.142/997. 26 with absolute rights. Of course there is also a recital that the properties will continue to remain with the testator until his death and the Will will take effect only on his death. Finally it is stated that if any estate is found to have been omitted from the Will, that will devolve solely on Pankajakshy Pillai. It is the above recitals, which have come up for consideration in the suit, and core issue is to ascertain if Pankajakshy Pillai derives an absolute right on the death of the testator in respect of A schedule properties or she gets only a life estate.
26. Learned counsel appearing for the appellant pointed out that it is very evident and clear from the recital contained in pages 2, 5 and 6 of the Will, which have been already referred to that consequent on the death of the testator, A schedule properties are to devolve absolutely on Pankajakshy Pillai, Reference was made to the fact that the right which is given to Pankajakshy Pillai is identical to the rights given to Thankamma as regards B schedule and Ramakrishnan Nair as regards C schedule and therefore it S.A.142/997. 27 must be deemed to be an absolute estate. Reference was also made to the fact that the recitals in the will indicate that each of the legatees is to take the respective schedule of properties after the death of the testator, effect mutation and enjoy the same absolutely and permanently. Emphasize was laid on the fact that Pankajakshy Pillai is given absolute right of enjoyment and also the right of alienation. There is no vestige of right left to be given to the children of the testator in respect of the property, which is to devolve on Pankajakshy Pillai consequent on the death of Madhevan Pillai. Learned counsel emphasized that the gift given in favour of Pankajakshy Pillai is an absolute one and the gift over thereafter in favour of the children other than Thankamma and Ramakrishnan Nair cannot be considered as valid and it can have no legal effect. Learned counsel pointed out that merely because it is stated in the Will that after the death of Pankajakshy Pillai, the children other than Thankamma and Ramakrishnan Nair are to enjoy A schedule properties jointly or to divide the properties in equal shares S.A.142/997. 28 cannot cut down the rights of Pankajakshy Pillai or dilute the rights of Pankajakshy Pillai or reduce the rights of Pankajakshy Pillai in respect of A schedule properties. Emphasizing on the fact that the absolute estate has been given to Pankajakshy Pillai with liberty to enjoy the properties as her own and with the power of alienation, it leaves one in no doubt that what Pankajakshy Pillai gets an absolute estate over the properties in A schedule.
27. Per contra, learned counsel appearing for the respondents pointed out that the fact that even though it may apparently appear as if Pankajakshy Pillai is given an absolute estate, the subsequent recitals will clearly show that the intention of the testator was not to confer absolute estate on Pankajakshy Pillai, but only to confer a life estate on her. That would be clear from the recital in the Will which would indicate that after the death of Pankajakshy Pillai, the properties are to be jointly enjoyed by the children of the testator other than Thankamma and Ramakrishnan Nair jointly or in equal shares. Strength is S.A.142/997. 29 drawn to support the arguments from the recitals regarding the press, where it is stated that the press is given absolutely to Pankajakshy Pillai and it is stated that none else will have any manner of right over the same. Such a prohibitory clause is not seen mentioned in respect of plaint A schedule properties.
28. It is significant to notice, according to the learned counsel, that the testator had the intention to give properties to all of his children. Even though the testator had stated that his eldest son Ramakrishnan Nair had squandered away amounts given by the testator and was leading a waivered life, in the Will the testator chose to allot plaint C schedule to Ext.A6 document to him absolutely. The eldest daughter, namely, Thankamma, was given B schedule. According to learned counsel, the recital regarding A schedule properties will have to be viewed in the light of these facts and then it will be quite evident that the intention of the testator was only that Pankajakshy Pillai, during her life time will have absolute right of enjoyment S.A.142/997. 30 over A schedule to Ext.A6 and it was never intended that she should be the absolute owner. There is nothing in the Will, namely, Ext.A6, according to learned counsel, which would indicate that the testator intended to disinherit any of his children.
29. Well there is much to be said on either side. One has to ascertain as to what exactly was the intention of the testator. It is true that the rights over A schedule to Ext.A6 Will given to Pankajakshy Pillai is on parity with the rights given to Thankamma and Ramakrishnan Nair in respect of B and C schedule properties. It is this aspect which enables the appellant to contend for the position that if Thankamma and Ramakrishnan Nair are to take absolute estate, so is the case of Pankajakshy Pillai. Apparently the recitals in pages 5 and 6 regarding A schedule to Ext.A6 would indicate that Pankajakshy Pillai is to derive an absolute estate over A schedule property. However, one cannot omit to note the word (but) occurring in page 6 of Ext.A6, which would tend to indicate that the bequeath S.A.142/997. 31 in favour of Pankajakshy Pillai was not an absolute one. The word has come up for consideration in the decision reported in Veeravunni Haji v. Koyammu (1957 K.L.T. 550), wherein it was held as follows:
"The word 'ennal' with which the clause relating to agreement for resale begins, is in this juxtaposition a word of great significance. This is a detraction or subtraction from the absoluteness of the sale previously in the document stated to have been made. The transaction is not an outright sale with a condition of repurchase but a mortgage by conditional sale."
But, how far that can be decisive is to be ascertained. As rightly pointed out by the learned counsel for the appellants absolute right of enjoyment with power of alienation is conferred on Pankajakshy Pillai in respect of A schedule properties to Ext.A6 document. It would prima facie appear that there is no vestige of right left in respect of A schedule to Ext.A6, which is to devolve on Pankajakshy Pillai S.A.142/997. 32 consequent on the death of testator, to be given to the children of the testator other than Thankakka and Ramakrishnan Nair.
30. One may now refer to the decisions cited by counsel on either side. In the decision reported in Mauleshwar Mani (supra) the facts read thus:
One Jamuna Prasad had two wives, Smt. Suraja Devi and Smt. Sona Devi. Jamuna Prasad married Smt. Sona Devi after the death of his first wife Smt. Suraja Devi. Jamuna Prasad had no male issues. He had three daughters from his first wife, namely, Smt. Mishara, Smt. Pratapa and Smt.Dulari. Jamuna Prasad had three daughters from the second wife Smt. Sona Devi, namely, Smt. Gunjan Devi, Smt.Ram Sanwari and Smt.Dhupa. Smt. Mishra had a son Chandrakant. Smt. Pratap had three sons, Ram Sureman, Ram Ujagar and Ram Millan. Smt. Dulari had to sons, Sesh Chandra and Ram Chandra. Smt. Gunjan Devi had a son, Blbhaddar and Smt. Ram Sanwari had a son Ram Kirpal and Smt. Dhupa had a son Bindhabasni. On. 3.7.1956 Jamuna S.A.142/997. 33 Prasad executed a Will bequeathing his entire properties in favour of his second wife Smt. Sona Devi and after her death subsequent bequeath was in favour of his daughters' son from both the wifes. Jamuna Prasad died in 1961, whereas Sona Devi died in 1964. Thereafter the dispute seems to have arisen between grand children. One of the questions that arose for consideration is whether the Will of Jamuna Prasad bequeathing absolute estate in favour of his second wife Sona Devi was a restricted right in view of the fact that the will recited that consequent on her death the properties are to devolve on his daughters and sons from both wives.
31. The Apex Court observed that normal rule of construction is that Will should be read as whole and every effort should be made to see that no party is excluded or portion is rendered redundant, and it is the duty of the court to reconcile if there is any apparent inconsistency in a will.
32. The particular clause that came up for consideration in the said case reads as follows: S.A.142/997. 34
"The testator's wife whose name is Smt. Sona Devi, would be entitled to the entire assets and properties with the right of transfer and after death of Sona Devi.........."
33. The Apex Court noticed that there are two parts to the Will. The first part was that after the death of the testator, his wife, namely, Sona Devi would be entitled to the entire assets and properties of Jamuna Prasad with right of transfer. The second part of the Will was that after the death of Sona Devi, nine sons of the daughters would inherit the property. Two words occurring in the Will, which meant that entitlement of properties, with the right of transfer were considered very relevant in the context. The Apex Court observed that from a reading of the above clause it was very evident that the testator had conferred absolute estate to the wife with a right of alienation. It was observed as follows:
S.A.142/997. 35
".....Where the property has been given by a testator to the devisee with a right of alienation such bequeath is a conferment of an absolute estate. Thus the first devisee was to get the property with a right of transfer under the will and under subsequent clause the very same property was to go to the nine sons of the daughters after the death of the first devisee. The will, therefore, gave in the express term inheritable estate with power of alienation to Smt. Sona Devi. We are, therefore, very clear in our mind that what was given to Smt. Sona Devi was an unlimited and an absolute estate."
34. Thereafter, the Apex Court went on to consider the effect of the second part of the Will which stated that after the death of Sona Devi, the property is to devolve on his daughters' sons. It is observed as follows:
"In Ramkishorelal v. Kamalnarayan it was held that in a disposition of properties, if there is a clear conflict between what is said in one part of the document and in another where in an earlier part of the document some property is given absolutely to one person but later on, other S.A.142/997. 36 directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, in such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should disregarded. In Radha sundar Dutta v. Mohd. Jahadur Rahim it was held where there is conflict between the earlier clause and the latter clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the latter clauses and not vice versa. In Rameshwar Baksh Singh v. Balraj Kaur it was laid down that where an absolute estate is created by a will in favour of devisee, the clauses in the will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.
From the decisions referred to above, the legal principle that emerges, inter alia, are :
(1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and S.A.142/997. 37 (2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will.
in view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid."
35. In the decision reported in Sadaram suryanarayana 's case (supra) an identical question was considered. The appellants in the said case were sons of late Smt. Sadaram Appalanarasamma, while the respondents S.A.142/997. 38 were her daughter and son in law. The property involved in the proceedings originally belonged to one Smt. Kalla Jaggayyamma. She died on 5.7.1981 leaving behind four sons and two daughters, namely, Smt. Sadaram Appalanarasamma and Smt. Sadrad Ramanamma. Smt. Kalla Jaggayyamma had executed a Will dated 4.9.1976, by which the properties mentioned as item 2 in paragraph 6 of the Will was bequeathed in favour of her two daughters mentioned above with a stipulation that the same shall after their death devolve upon their female offsprings. Smt. Sadaram Appalanarasamma, the mother of the first plaintiff and defendants 1 to 6 died intestate on 11.1.1990. Defendants 1 to 6, sons of late Appalanarasamma, took possession of the properties comprised in item No.2 of the Will which was devolved upon plaintiff No.1 in her capcityas daughter of late Appalanarasamma and the stipulation contained in the Will executed by Smt. Kalla Jagayyamma. The defendants contested the suit taking the plea that as per the Will Smt. Sadaram Appalanarasamma had acquired S.A.142/997. 39 an absolute estate over the properties under the Will executed in her favour and that in terms of the Will dated 5.1.1981 she had bequeathed the properties in question to the defendants.
36. The clause, which came up for consideration in the above decision is contained in paragraph 5 of the decision, which reads as follows:
"6) 2nd item Tiled house situated in New colony out of which Eastern wing 2 rooms shall devolves to my 2nd daughter Chandram Appalanarasamma and the Western wing 2 rooms shall devolve upon my elder daughter Chandaram Ramanamma with absolute rights of Sale, Gift, Mortgage etc., and this will come into force after my demise. After demise of my daughters the retained and remaining property shall devolve upon their female children only."
37. It was observed by the Apex Court that on a plain reading of the above clause it is evident that the testatrix had bequeathed in absolute terms the properties S.A.142/997. 40 mentioned e-in-'tA7 nh ar.caen.n4&cIm haewdaena4i in favour of C-clause 7Smtf a S-"m7 tcm A(6) A o Chandaram Appalanarasamma menrmto.-""74m7-s.
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"absolute rights of sale, gift, mortgage etc." employed by the Testatrix make the intention of the Testatrix abundantly clear. Learned counsel for the plaintiffs-respondents herein also did not have any quarrel with the proposition that the Testatrix had in no uncertain terms made an absolute bequest so made could be treated as a life estate not because the testament stated so but because unless it is so construed the second part of clause 6 by which the female offsprings of the legatees would get the property cannot take effect. It was on that premise contended that the absolute estate of Smt. Sadaram Appalanarasamma ought to be treated only as a life estate. The contention though attractive on first blush, does not stand closer scrutiny. We say so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor in the present case the Testatrix. We are not here dealing with a case where the Testatrix has in one part of the Will bequeathed the property to 'A' while the same property has been bequeathed to 'B' in another part. Had there been such a conflict, it may have been possible for the plaintiff- S.A.142/997. 42 respondent to argue that the latter bequest ought to take effect in preference to the former. We are on the contrary dealing with a case where the intention of the Testatrix to make an absolute bequest in favour of her daughters is unequivocal. Secondly, the expression "after demise of my daughters the retain and remaining properties shall devolve on their female children only" does not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the Testatrix. The expression extracted above does not detract from the absolute nature of the bequest in favour of the daughters. All that the Testatrix intended to achieve by the latter part of clause 6 was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Seen thus, there is no real conflict between the absolute bequest which the first part of clause 6 of the Will makes and the second part S.A.142/997. 43 of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc, and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the Testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. All told the stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them wold devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the Testatrix."
S.A.142/997. 44
38. Learned counsel appearing for the appellant also referred to the decision reported in K. Subhadramma v. P. Sakuntallamma (AIR 1964 Orissa 158), wherein it was held as follows:
"Where a Hindu testator had made it absolutely clear that he bequeathed his estate to his wife's brother as owner, with right of alienation and absolute enjoyment and limited the line of succession to the male heirs of the legatee, the clause restricting the succession is invalid. After the death of the legatee the line of succession laid down by Hindu Law to a male, must be allowed."
39. One now needs to refer to the decisions relied on by the learned for the respondents. In the decision oD 1sN.3 421oDth reported in Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703) the clause that came up for consideration is made mention of and it reads 7 FE00hi ihgs"
S.A.142/997. 45
part thereof. Ext.P1 is the will executed by him on February 8, 1897. After the usual preamble that appears in wills, the testator proceeds to state-
"Further, I have reached the age of nearly 50 years and with my consent Nathi Mal a boy of 7 years has been adopted and an agreement has been got written from his father Bega Mal. Now my wife Mst. Kishen Dei daughter of Bega Mal is living and I have got one storeyed house situated in the City of Delhi, Bazar Khari Baoli, inside Gali Batashan and some goods; and my belongings are in my possession without partnership with anybody else. As long as I the testate am alive, I shall remain malik the of entire movable and immovable property and am entitled to do whatever I wish to do. When I die then Mst. Kishen Dei, my wife, and after the death of the said Mussammat, my adopted son Nathi Mal, will become Malik of all my movable and immovable property without partnership with anybody. The said Mst. Kishen Dei should live in this house and said Nathi Mal will get all the proprietary rights just like the testator. An no relation of mine has and will have any kind of claim to my movable and immovable property left by me."
S.A.142/997. 46
40. The Apex Court noticed that there was some conflict of ideas in the document. There also it was emphasized that the court should ascertain the intention of the testator by reading the will as a whole. The court observed that if possible, such construction as would give every expression some effect rather than that which would tender any of the expression inoperative be adopted. It is also pointed out that all parts of the Will should be considered with reference to Section 84 of the Indian Succession Act. The court is empowered to take note of the circumstances under which the testator made his will. However, it was pointed out that the circumstances under which the Will was executed must be gathered from the will itself. The debate in the case centered around the term 'Malik'. Referring to the decision reported in Sasiman Chowdhurain v. Shiv Narain (AIR 1922 PC 23) the Apex Court observed that when the term 'Malik' is used in a will or other documents, it is descriptive of the position which a S.A.142/997. 47 devisee or donee is intended to hold and has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such proprietary rights were not intended to be conferred. The principle in the said decision was followed in the decision reported in Ram Gopal v. Nand Lal (AIR 1951 SC 139) also. Taking note of the recitals in the Will, ultimately it was held as follows:
"Where apparently conflicting disposition can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. if the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would be intestacy after the death of the wife. If the S.A.142/997. 48 construction suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also clear from the fact that he mentioned in the will that no other relation except his wife and son should take him property and also from the fact that though he lived for about a quarter of a century after the execution of the will, he never thought of changing the will, though his son had predeceased his wife."
41. In the decision reported in Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323) the clause which came up for consideration reads as follows:
"3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death, i.e.. all kinds of movable properties inclusive of the amounts that shall be got from others and the cash; all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right..............."
S.A.142/997. 49
42. The question that arose for decision was whether the clause extracted above, the interest which the eldest daughter Severina took under the bequest was absolute or whether she had merely a life interest with the absolute remainder vesting in her male issues. The point was answered thus:
"We however see no distinction between the phrase "enjoy up to her death" and a provision which directs an enjoyment by a legatee by a clause which proceeds to make a gift over of the absolute interest "after the death" of the first legatee. Nor do we consider that the emphasis contained in the prohibition against alienation in cl.4 as of any decisive importance in undertaking the phraseology employed by the testatrix in this will. For when one turns to cl.5 we find there is what without doubt is a life interest in favour of her grand daughter-Julia- created by the use of the words "enjoy the property upto her death"
without the addition of the prohibition against alienation which is found in cl.4. It is therefore manifest that expressions 'after the lifetime' and S.A.142/997. 50 'after the death' were words understood by the draftsman of the will to indicate that the interest referred to was a terminable one- a life interest- and we have these words 'after her lifetime' in cl.3
(c).
There is also one other consideration which supports the above construction. It was common ground that under cl.3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on A's death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles construction of wills that to the extent S.A.142/997. 51 that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable S.A.142/997. 52 construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words 'after her lifetime' occurring in cl.3(c) assume crucial importance. These words do indicate that the persons designated by the words that follow were to take an interest after her, .e., in succession and not jointly with her. An unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct." S.A.142/997. 53
43. The next decision relied on by the learned counsel for the respondents is the decision reported in Navneet Lal v. Gokul (AIR 1976 SC 794). In paragraph 8 of the said judgment, the principle regarding the interpretation of a will is laid down. The clause which came up for consideration in the said case reads as follows:
"After my death Mst. Jarian, the wedded wife of me, the executant, shall be the owner (malik) of my entire estate, movable and immovable, and of the income from Birt Jijmani and shall have all the proprietary powers (aur usko jamiya akhtiyarat malikana hasil honge). After the death of Mst.Jarian, Gokul, aforesaid shall be the owner of the entire estate left by me (malik kemil juidad matruka merika hoga), and he shall have all the proprietary powers and the power of making transfer of all sorts (aur usko jamiya akshtiyarat malikana wa intekalat har qism hasil honge). If per chance, Mst. Jarian dies in my life time, then Gokul aforesaid will be the absolute owner (malik kamil) of the estate left by me (matruka meri) and he shall have power of making all sorts of transfers (aur usko har qism ke akhtiyarat S.A.142/997. 54 inteqalat hasil honge). Gokul aforesaidshould go to Jijmans and should continue to give to Mst.Jarian during her life time the charitable gifts (daan dakshina) which he brings from there."
It was also held as follows:
"Reading the present will as a whole and if every disposition has to be rationally harmonised, we find that the testator intended a life estate for his wife so long as she lived. This is consistent with his description of Gokul as "my heir (wards)"
after his death. It is further consistent with the recital that "if per chance, Mst.jarian dies in my life time, then Gokul aforesaid will be the absolute owner (malik kamil) of the estate left by me (matruka meri) and he shall have power of making all sorts of transfers (aur usko her qism ke akhtiyarat inteqalat hasi honge)." In obvious contrast even though Smt. Jarian was made the malik of his entire estate after his death "having all the proprietary rights" nothing is stated about her "power of making all sorts of transfers" which power is expressly mentioned as belonging to him and also exclusively conferred upon Gokul after Smt. Jarian's death. While describing his S.A.142/997. 55 own "proprietary powers" the testator made reference to his "power of making transfers of all sorts." This power of transfer which was prominent in the mind of the testator at the time of execution of the will is conspicuous by total omission in relation to Smt.Jarian's enjoyment of the property."
44. Learned counsel then brought to the attention of this court the decision in Raghbir Singh v. Budh Singh (AIR 1978 Delhi 86) wherein the clause that came up for consideration reads as follows:
"So long as I, the testator, am alive I shall continue to be the absolute owner of my entire moveable and immovable property. After my death my wife Shrimati Bakhtawari aforesaid, shall become the absolute owner of my entire moveable and immovable property. She will have the right to transfer the aforesaid property in the manner she likes. No one shall have any objection thereto. My son Budh Singh aforesaid, and his S.A.142/997. 56 children, my daughters and their children shall have no concern with my moveable and immovable property."
Construing the clauses in the will, it was held as follows:
"The central rule of construction of will is that the intention of the testator should be carried out. With that central object in view, the different parts of the will should be construed harmoniously. It is this reason which prevents the Court of construction from rejecting any part of the will as being a surplusage. For, the testator could not have intended to make any bequest in the will as an exercise in futility. It is also this central rule which enables the court of construction to read down the language of a part of the will if giving full effect to the general words of that part of the will would result in making the other part of the will defeasible. Ample authority has been given above to explain why the apparently wide language conferring an absolute estate on the widow in the present case has to be read in a restricted sense to prevent the second part of the will from being defeated and to prevent Budh S.A.142/997. 57 Singh and the daughters of the testator from becoming eligible to share in the estate of the testator."
45. Then reliance was placed on the decision reported in Sadhu Singh v. Gurdwara Sahib Narike ((2006) 8 SCC 75). In the said decision, the clause that came up for consideration is seen mentioned in paragraphs 17 and 18 of the judgment. Construing the terms of the will it was held as follows:
"Learned counsel further contended that there is no absolute rule that all properties demised to a female Hindu were necessarily in recognition of or in lieu of her right to maintenance. It was possible, even after the Act came into force, to create a limited estate by reason of a gift or will. Such a situation would fall within the ambit of sub-section (2) of Section 14 of the Act as long as it was not in recognition of or in lie of right of maintenance under the Shastric Hindu law or under a statute. Learned Senior Counsel relied on Section 30 of the Act, which recognises the right of a Hindu to dispose of self S.A.142/997. 58 acquired property by will. Mr. Gupta relied on the judgment of this Court in Bhura v. Kashi Ram which was also a case of limited estate conferred on a female Hindu by a will. This Court held that, upon a proper construction of the will, the bequeathal in favour of the female Hindu was clearly indicative of "the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of ...... (the female Hindu) only for her lifetime and not an absolute estate".
Thus, in view of the fact that there were no indications, either in the will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fell within the ambit of sub-section (2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate. Learned counsel for the respondents relied strongly on this judgment and contended that there was no S.A.142/997. 59 proposition of law that all dispositions of property made to a female Hindu were necessarily in recognition of her right to maintenance whether under the Shastric Hindu law or under the statutory law. Unless the said fact was independently established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a transfer, gift or testamentary disposition. Learned counsel also distinguished the three cases cited by the learned counsel for the appellant that in each, the circumstances clearly indicated that the testamentary disposition was in lieu of the right of maintenance of the female Hindu. We think this contention is well merited and needs to be upheld."
46. Learned counsel for the respondents also relied on the decision reported in Kadavath Choyi v. Kadavath Peravankutty (1995(2) K.L.J. 656), wherein it was held as follows:
"It is clear that the court will proceed to the farthest extent to avoid repugnancy in a will so that effect could be given as far as possible to S.A.142/997. 60 every testamentary intention contained in the will and it is for this reason that where there is a bequest even though it be in terms apparently absolute followed by a gift of the same absolutely to another on or after the death of the first, the first is prima facie held to take a life interest and the second an interest in remainder, thus the apparent absolute interest of the first being cut down to accommodate the interest created in favour of the second. In construing the will attempt must to be reconcile the various dispositions and not to search for repugnancies."
47. Then it was contended that the principle laid down in the above decisions will clearly show that if one goes through the recitals in Ext.A6, there can be no manner of doubt that Pankajakshy Pillai gets only a life estate.
48. One has now to construe the will. The will says that it is being executed in favour of Pankajakshy Pillai. Late Mathevan Pillai and Pankajakshy Pillai had nine children. Four of them were daughters and the other five, sons. Among the daughters, the eldest daughter, Thankamma, alone was married at the relevant time. The other S.A.142/997. 61 daughters were yet to be married. The will therefore provides that in case if it happens that their marriage has to take place after the lifetime of the testator, that obligation is cast on Pankajakshy Pillai and she has to meet the expenses for the marriage by assigning or encumbering the properties in A schedule to the will. The clause that is available in page 5 would indicate that A schedule is set apart to Pankajakshy Pillai and the further recital in page 6 would indicate that the respective legatees, to whom A, B and C schedule properties were allotted, have to effect mutation and to enjoy the properties absolutely. The bequest in favour of Pankajakshy Pillai, Thankamma and Ramakrishnan Nair is worded similarly. The word, (full and complete freedom) used in the clause would indicate that absolute right has been conferred on the legatees. It is thereafter the clause comes that A schedule shall vest with Pankajakshy Pillai, but after her lifetime, the seven other children may either enjoy it jointly or may divide it equally. It is this clause which is relied on S.A.142/997. 62 by the learned counsel for the respondents to contend for the position that even though the absolute estate is seen to have been given to Pankajakshy Pillai by subsequent clause, it is evident that it is only a life estate that was intended and after her life time the properties are to devolve on seven other children of Madhevan Pillai.
49. Learned counsel for the appellants on the other hand pointed out that in the cases relied on by the learned counsel for the respondents, the wording was such that the recital creates an absolute estate in favour of person was immediately followed by a recital that another person had to inherit after the lifetime of the former person. It was in that context it was held that absolute estate is cut down by the rest of the portion of the same clause and that the principal legatee does not get an absolute estate.
50. As already noticed, the attempt should be to give effect to all the clauses in the will unless it is not possible to do so. A harmonious construction is called for in cases where it would appear that there are inconsistent S.A.142/997. 63 clauses. The document has to be read as a whole and the intention the testator ha to be gathered from the recitals contained in the will. Help of attending circumstances and other factors can be taken note of only if the wording is either ambiguous or uncertain. Section 82 of the Indian Succession Act make this position clear. It indicates that the meaning of any clause in the will be gathered by a reading of the instrument and each part has to be construed with reference to the other. Section 84 of the Indian Succession Act says that when a clause is susceptible of two meanings, according to one of which it has some effect, and according to the other of which it can have none, the former shall be given effect to. Section 85 of the Act cautions the court that unless it is impossible to give a meaning to a particular portion of the will, it shall not be avoided or in other words if it is possible to put a reasonable construction by the reading of a clause, that should not be rejected on other considerations. Section 87 of the Act contains the paramount principle that as far as possible the intention of S.A.142/997. 64 the testator is to be effect to and Section 88 says that two clauses of gifts in a will are irreconcileable, the last shall prevail.
51. In all the decisions relied on by the learned counsel for the respondents it would appear that the main clause itself contained an indication that the absolute estate that was intended to be given to one person was not so since the subsequent narration diluting the rigour of the first portion is contained in the same clause itself showing that the first bequest is intended to be only a life estate.
52. Learned counsel for the respondents then pointed out that if there are two clauses, one giving absolute estate initially and second giving a right to the children to succeed after the lifetime of Pankajakshy Pillai, the latter clause has to prevail.
53. If the first clause is considered as an absolute estate, then, the argument advanced by the learned counsel for the respondents may not be capable of acceptance. But before going further, one may try to ascertain if it possible S.A.142/997. 65 to construe the various portions of the will and try to give effect to the various clauses in the document. It cannot be disputed that by a reading of the will an absolute estate with all rights and freedom to deal with the property in any manner is given to Pankajakshy Pillai in respect of A scheule properties with a right of alienation, encumbering the property etc. It is in the subsequent portion that it is stated after the lifetime of Pankajakshy Pillai the seven other children will get it in equal shares. Learned counsel for the respondents pointed out that right of alienation is a restricted one, namely, to meet the marriage expenses of the female children. It may be so. But it would appear that she could sell almost all the items for that purpose. No restriction is seen imposed regarding the power of alienation and for encumbering the properties mentioned in A schedule of the will. It is true that by Ext.A6 will two children, namely, Thankamma and Ramakrishnan Nair have been given properties as B and C schedule properties respectively. This is taken aid of by the learned counsel for the respondents to S.A.142/997. 66 contend for the position that it is therefore very evident that the testator did not intend to disinherit any of his children and therefore it was mentioned that after the lifetime of Pankajakshy Pillai, the property should devolve on the seven other children.
54. One cannot say that the above contention is without basis. But, however, the terms of the will are such that it would appear that an absolute estate has been given to Pankajakshy Pillai.
55. Indeed there is some confusion created by the wordings of the will. Of course one can easily say that Pankajakshy Pillai has only a life estate and the vested interest vested with the seven children of Pankajakshy Pillai. Question is it possible in the light of the specific wording of the will giving absolute estate to Pankajakshy Pillai? It is interesting to note that in 1972 Pankajakshy Pillai and the seven other children entered into Ext.A2 partition deed as if they are co-owners of the properties. Ext.A2 partition deed is silent regarding the various clauses in Ext.A6 will. S.A.142/997. 67
56. The question that arises is as to whether when there are two inconsistent clauses, how are they to be construed. Going by Section 88, of course the latter clause will prevail. But in this case, it is a case where an absolute estate is created in favour of a person, thereafter there cannot be a gift over of the same property to another person. In such cases, the latter gift over fails. In Halsbury's Laws of England, 4th Edn., Vol.50, paragraph 666 it is seen stated as follows:
"666. Clear absolute gift in the first instance. Where there is a clear absolute gift followed by words purporting to confer a power of disposition with a gift over if the power is not exercised, the absolute gift takes effect, and the gift over is inconsistent with it and is void.
Thus where personal estate is given to a named donee in terms which confer an absolute estate, and then further interests are given merely after or on the termination of that donee's interest, and not in defeasance of it, his absolute interest is not reduced and the further interests S.A.142/997. 68 fail. An absolute interest is not cut down by precatory words unless those words create an imperative obligation........."
57. In Jarman on Wills 8th Edn., Vol.II at page 1168 it was observed as follows:
"...........It is in the determination of the question whether the gift to the primary legatee is absolute or qualified that the real difficulty of these cases generally lies. The test to be applied has been expressed as follows: (s): "If you find a clear gift followed by words which affect to divest it, and the limitations over are in operation, then the Court will uphold the gift, striking out the limitations which cannot have any legal effect. But if the words of the original gift are coupled with the whole series of limitations over, so as to form one system of trusts, then all that can be done is to give effect to so much of the limitations as may be consistent with law." The intention is, of course, to be collected from the whole will. Suppose, for instance, that after the gift to the primary legatee, there are gifts over in alternative contingencies exhausting every possible event: S.A.142/997. 69
this is wholly inconsistent with an intention that there should, in any event, be an absolute gift to the primary legatee. But the point can only be material when the first expressions are ambiguous, for if there is a distinct positive gift, and the intention is express, nothing that afterwards follows can affect the construction of the positive gift; but where the first gift is capable of two constructions, other parts of the will are to be looked at to see what the intention was; and no doubt a disposition of the whole property, under all circumstances that can arise, is an important consideration in putting a construction on ambiguous expressions. It does not seem possible that the two intentions could exist together : if they are both found in the same will, the court may have to decide which is to prevail; but if the first is ambiguous and the other is not, the unambiguous expression must have great effect in controlling that which is ambiguous."
58. The author also makes mention of a situation where absolute estate may be cut down in the subsequent recitals in the will. It is observed as follows: S.A.142/997. 70
"(i) Absolute Gift may be cut down.- A bequest of personal property to A without more, gives him an absolute interest. But it may appear from the context, or from other provisions in the will, that the testator intended to give A a limited interest, such as a life interest, with or without a power of appointment. As a general rule, an absolute interest cannot be cut down except by clear words. And even clear words will not cut down an absolute gift if the intended restriction or gift is repugnant, or mere surplusage. As where there is a gift to A absolutely, with a direction to apply the income in a certain way for his benefit during life (i); or a gift to A with a superadded power to dispose of the property, or where property is given to A absolutely, with a gift over in the event of his not disposing of it. So if a restriction or gift over is void for remoteness, or otherwise fails, the result may be that the original gift becomes absolute."
59. In Law of Wills by Mantha Ramamurti, 7th Edn., Vol.I, at page 460 it is observed as follows: S.A.142/997. 71
"So also, where the testator in granting an absolute estate imposed the condition that the legatee should pay annually a certain amount out of the income of the property to a certain institution, the clause was held to be void as it created repugnant conditions on the estate and that it could not create a charge on the estate and that the absolute interest was not cut down.
So also where a testator directed his daughter-in-law to become proprietor (malik) and possessor of the entire talukdari estate but yet created limitations on the powers of alienation, the absolute estate was held not cut down. In the preamble of this will a testator stated that he was making disposition of the entire estate. In para. 1 he stated that after his death, all his properties would vest in his wife, but in the later portion of the same paragraph gave her authority to sell in respect of half the property and prohibited alienation of the other half except in case of urgent necessity when he authorised sale of any mahal, as a whole. There was no express provision in the will for the devolution of the said half share after her death. Paragraph 2 gave her full authority to devise to anybody she liked the S.A.142/997. 72 property left by him. It was held that the absolute estate in respect of the entire property was not cut down.
Where in the earlier portion of a clause in a will the testator gave properties to his daughter in law with power to make gift, sale, mortgage, etc., and in the later portion of the same clause stated that any transfer by her should be made with the consent of her husband and the other sons of the testator and his grandson. It was held that the absolute estate was not cut down and the restrictions were repugnant to the gift. Where words of amplitude sufficient to confer an absolute estate on the widow of the testator are used, the absolute estate so taken by her is not cut down by the grant of an authority to adopt."
60. When one goes through the decisions relied on by the learned counsel for the respondents, as rightly pointed out by the learned counsel for the appellants, all those are cases where the principal clause itself indicated that the testator did not intend to give absolute estate initially. The estate that was enjoyed by the legatee immediately after his death was confined to a life estate and S.A.142/997. 73 the vested interest came to vest with another person. When one compares the recital in Ext.A6 with the wills that were construed in the decisions reported in Sadaram Suryanarayana's case (supra) and Mauleshwar Mani's case (supra), then one is left with no doubt that in the case on hand also an absolute estate is created in favour of Pankajakshy Pillai.
61. It is true that there are recitals akin to the clauses considered in the decisions referred to by the learned counsel for the respondents. But as rightly pointed out by the learned counsel for the appellants, those clauses which cut down the estate or which created a limitation in the enjoyment of the estate or the so-called defeasance clause, co-existed with the clause which creates an absolute estate by the earlier part of the same clause. However when one construes Ext.A6, it is significant to notice that the initial bequest is couched in a language, S.A.142/997. 74 which would appear to be absolute. At the risk of repetition one may notice that there is a power of alienation granted along the following words:
".......h5UV" .?aJHaMU_:nm 5CAa" I?_ 5x"
D`VJa xX`Da" gIx_WAbG_ gI^AaUxUa f:On_:nm IG_5d5N"
IGO9{a" I_?_:na" XVUn Xb^DLcN^Oa" V^VbDN^Oa"
U^]mKaf5^gUIDa" &5aKa."
(to effect mutation, to pay tax and full and complete freedom to enjoy the property for ever). It is thereafter the clause which gives the right to seven other children arises. In the context in which the latter clause occurs, it cannot be construed as cutting down the estate that is bequeathed to Pankajakshy Pillai as contended by the learned counsel for the respondents.
62. If that be so, then the finding of the lower appellate court that Pankajakshy Pillai gets only a limited estate cannot be sustained. Necessarily, the judgment of the lower appellate court has to be set aside and that of the trial court restored.
S.A.142/997. 75
63. Though the above finding would have been sufficient to dispose of this appeal, I shall also consider whether any change would occur to the fate of this case assuming that Pankajakshy Pillai had only a life estate.
64. It is not in dispute that Pankajakshy Pillai had instituted a suit for as O.S. 203 of 1970 against the very same defendants. The defendants in that suit had raised the contention that they are entitled to fixity of tenure under the Kerala Land Reforms Act. The issue was raised by the trial court and the matter was referred to the decision of the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The Tribunal returned a finding that the defendants in the suit are entitled to fixity of tenure. Accepting that finding, the trial court dismissed the suit and that had become final.
65. The contention taken by the learned counsel for the appellants that even assuming that Pankajakshi Pillai had only a life estate the said decision is binding on the plaintiff also because at the relevant time Pankajakshy Pillai S.A.142/997. 76 was having absolute rights over the property and was in possession and enjoyment of the same and represented the estate for an c.o c1doc dapy thbs7amam pe teh me 7 c c S.A.142/997. 77 even going by the terms of Ext.A6, followed by Ext.A2, it would be very evident that the right which was agitated in the earlier suit, O.S. 203 of 1970 was one which was common to all the persons, who are to inherit the estate and it would be deemed to have been a representative suit. It is not necessary, according to learned counsel, that the plaint should disclose that the person suing is doing so in a representative capacity, but it is sufficient if it is shown that the interest that was agitated was common to the plaintiff as well as others who are subsequently to inherit the same estate. If that be so, according to learned counsel the decision in the earlier suit is binding on the plaintiff also and the suit should fail on that count too.
66. Meeting the above contention, learned counsel for the respondents pointed out that none of the ingredients necessary to attract the provisions relied on by the learned counsel for the appellant is available in this case. There is nothing to indicate, according to learned counsel, that the earlier suit was in a representative S.A.142/997. 78 capacity and that in the said suit the right which came to vest in all the persons covered by Ext.A6 was being agitated. In the said suit Pankajakshy Pillai was agitating the claim on her own right and did not represent the interest of others. Unless it is shown that there is a clear indication that it was a representative suit, going by the pleadings and the judgment it could not be said that the plaintiff is bound by the judgment and decree in the said suit. The said suit can only be in the individual capacity of Pankajakshy Pillai and the decision in the suit cannot be extended to the plaintiff, so says the counsel. Further it is contended that the pleadings namely, plaint, written statement and the issues in the earlier suit have not been produced in the present suit and therefore it could not be said that the present suit is barred by res judicata. In support of his contention, learned counsel relied on the decisions reported in Mohan Kishan v. Ram Prasad (AIR 1949 Allahabad 761), Jitendra Singh v. Alliance Bank, Simla (AIR 1942 Oudh 199), Kumaravelu v. Ramaswami (AIR 1933 PC 183) and 1965 S.A.142/997. 79 SC 945, certain passages from Code of Civil Procedure by Mulla and AIR Manual Volume relating to CPC.
67. The question therefore arises for consideration is whether Pankajakshy Pillai in the earlier suit, which too was one for redemption could be treated to be in her individual status or did she represent the estate thereby representing the interest of the plaintiff and similarly situated persons.
68. It is true that the plaint, written statement and the issues raised in the earlier suit have not been produced in the present suit. But the defendants have produced the judgment and decree in the earlier, which are marked as Exts.B1 and B2 respectively. Before going further, I shall refer to the decisions relied on by either side.
69. In the decision reported in Nagamma Shedthi's case (supra) the question that was considered was whether the decree obtained against the karanavan of a Malabar tarwad or karta of an Aliyasanthana family was not binding on the junior members on the ground of gross S.A.142/997. 80 negligence or breach of duty on the part of the karanavan. Considering the issue and the principles governing Section 11 Explanation 6, it was held as follows:
"The principle governing the situation is, in our opinion, to be found in Explanation VI to S.11, Civil P.C., which, so far as material for the present purpose provides that:
"where persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
The Explanation attracts the doctrine of res judicata to all cases falling within its terms, subject of course to the fulfilment of the other requirements of the section. As may be seen from the language of the Explanation, the test prescribed by it is that the former party must have litigated the common private right bona fide. Bona fide means in good faith and that raised the question whether good faith could be predicated or postulated in respect of a situation characterised by want of due diligence or by gross S.A.142/997. 81 negligence. for the purpose of of the Limitation Act, we have in S.2 thereof the definition of good faith which enacts that, unless there is anything repugnant in the subject or context, nothing shall be deemed to be done in good faith which is not done with due care and attention. Similarly, the Madras General Clauses Act I of 1891 provides in and by S.3 c;/11 thereof that in this Act (Madras General Clauses Act I of 1891) and in every Madras Act made after the commencement of this Act (Madras General Clauses Act 1 of 1891), unless there be something repugnant in the subject or context, nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. But barring all cases governed by special enactments of the kind just referred to, we have for all other cases generally the definition in S.3, cl.20, General Clauses Act X of 1897 which provides that, "In this Act (Indian General Clauses Act X of 1897) and in all Central Acts and Regulations, made after the commencement of this Act (Indian General Clauses Act of 1897) unless there is anything repugnant in the subject or context- S.A.142/997. 82
A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not".
The effect of the last mentioned provision which is the material provision for the present discussion, is that a person must be deemed to have litigated in good faith or bona fide within the meaning of Expln.VI to S.11, Civil P.C., if he did litigate honestly, whether he did so negligently or not. the onus of proving want of bona fides in respect of the previous litigation is on the party seeking to avoid the previous decision and proof of negligence is not sufficient to establish such want of bona fides. for, as ruled b the Privy Council in Venkata Seshayya v. Kotisararao .I.L.R. (1937) Mad. 263:
"the provisions of S.11 Civil P.C., are mandatory, and the ordinary litigant, who claims under one of the parties to the former suit, can only avoid its provisions by taking advantage of S.44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion, or by showing a want of bona fides in the prosecution of the former suit. It is not for the S.A.142/997. 83 court to treat negligence or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts."
Cases of infants of course do stand apart, as ruled by our High Court (differing from the view of the Bombay High Court to the contrary) in the case reported in Egappa v. Ramanatha, I.L.R. (1942) Mad. 526: apparently because the protection of minors against the negligent actings of their guardians is,as observed by the self-same Privy Council decision in Venkataseshayya v. Kotiswara Rao, I.L.R. 1937 Mad. 263 a special class of case. It may also be borne in mind in this connection that gross negligence is the same thing as negligence with the addition of a vituperative epithettc,4geaddat, ent, 7is i? ,e.
S.A.142/997. 84 defending a suit should, when not amounting to fraud or collusion, be a ground for setting aside a decree to which he was a party as representing the tarwad."
70. In the decision reported in S. Gopalakrishna Iyer's case (supra) the question that arose for consideration is contained in paragraph 4 of the said judgment. The issue was whether Parvathi,who claimed to have succeeded to the suit property as the separate property of Sambasiva Iyer should be deemed to have filed a suit on behalf of all the heirs including the plaintiff. The contention there was that Parvathi represented the entire reversioners and the other side contended that Parvathi's suit can be treated as only in her individual capacity. In the said decision, it was held as follows:
"......Explanation VI of Section 11 Civil Procedure Code is as "Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons S.A.142/997. 85 interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
The question is whether the plaintiff should be deemed to claim under Parvathi who filed the earlier suit and got an adverse decision and whether Parvathi claimed to represent the entire reversionary interst. Mayne on Hindu Law and Usages, 11th Edition at page 796, sets out the legal position thus:-
"A widow or other limited ower during her lifetime represents the whole inheritance and a decision in a suit by or against the widow as representing the estate is binding n the reversionary heir. As was observed on the Sivaganga case 'the whole estate would for the time be vested in her, absolutely for some purposes, though in some respects for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed................ It is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.' In Risal Singh v. Balwant Singh the S.A.142/997. 86 principle of law to be applied in such cases was restated:'Where the estate of a deceased Hindu has vested in a female heir, a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir'. But the decree against the female holder must have involved the decision of a question of title, and not merely a question of the widow's possession during her life. The rule of res judicata therefore applies, even if Section 11, C.P.Code with its Explanation IV is not strictly applicable."
The principle of res judicata laid down in the Sivaganga case is not limited to decrees in suits contested to the end. It is therefore, competent to the widow to enter into a compromise in the course of a suit, bona fide in the interest of the estate and not for her personal advantage and a decree passed in such compromise is binding upon the reversioners. In this case, when Parvathi filed a suit to recover the properties from defendants 1 and 2 as the separate property of her brother Sambasiva Iyer she claimed the same representing the reversionary estate and she did not merely assert her right to possession during S.A.142/997. 87 her lifetime. I am not inclined to agree with the view taken by the lower appellate court that Parvathi should be deemed to have asserted her personal right and that the plaintiff not being a party to that suit, it would not operate as res judicata. In Risal Singh v. Balwant Singh the Privy Council laid down that though the rule of res judicata as enacted in Section 11, C.P.Code might not be strictly applicable to a particular case, the principle of res judicata should be rightly applied so as to bind the reversioners by decisions in litigations fairly and honestly given for or against Hindu females representing estate."
71. In the decision reported in Amrit Sagar Gupta's case (supra) a similar issue was considered. There was a dispute between the two brothers regarding gift of property by their father. Each of them claimed that the gift was in his favour. A litigation followed and it ended in favour of one of the brothers. Later one of the sons of the other defendant, who lost the suit brought a suit for declaration claiming that the properties are joint family property of his S.A.142/997. 88 father and his brother and that he is entitled to a share. The property involved in both the suits were identical. It was held as follows:
"The properties that were in dispute in the former suit as well as in the present suit are identical properties. It cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family. It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit. That being so we fail to appreciate the conclusion of the High court that the decision in the previous suit does not operate as res judicata in the present suit.
It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager S.A.142/997. 89 or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued as representing the whole family.......
The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property.........It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is not named as such."
72. In the decision reported in Venkateswara Prabhu's case (supra) it was held as follows:
"The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit, makes any difference to the applicability of the principle of res judicata in this case. Learned counsel for the appellant submits S.A.142/997. 90 that the defendant-appellant could not come within the ambit of explanation VI of S.11, Civil Procedure Code which provides as follows:
"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
On the other hand, learned counsel for the respondent submits that the case of the respondents is fully covered by this explanation and relies on Kumaravelu Chettiar v. Ramaswamy Ayyar, where it was held:
"Explanation 6 is not confined to cases covered by O.1 R.8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves."
We think that the submission made by the learned counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit S.A.142/997. 91 and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others/"
Each of them can be deemed, by reason of explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here."
73. The decision reported in Velayudhan Pillai's case (supra) dealt with a case of redemption. A suit was brought for redemption of mortgage by some of the legal heirs of the deceased m matD "7-ttdAA7aTa cs .g'h de f4 S.A.142/997. 92 the latter suit was barred by the principle of res judicata going by Section 11 Explanation VI. In the said decision, it was held as follows:
"The persons impleaded in the absence of fraud or collusion represent the estate of the deceased and all persons interested in the estate are also bound by the decision in the suit. The plaintiff here has no case of any fraud or collusion in the conduct of the earlier suit nor does he have a special case apart from the case for redemption pleaded in the prior suit. The question of bona fide enquiry does not arises in a case like this where the plaintiffs in the earlier suit sued as legal heirs of the deceased mortgagor. Explanation VI enacts presumption that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of the section be deemed to claim under the persons so litigating. A co-owner of the equity of redemption obtaining possession of the property on redemption of the mortgage should hold the same for benefit also of the other co-owners, vide S.90 of the Indian Trust S.A.142/997. 93 Act. If the suit for redemption prosecuted bona fide ends in failure, there is no reason why the decree will not be binding on the other co-owners. Explanation VI to S.11 CPC, provides for such a contingency if it is shown that the plaintiff was bona fide litigating in respect of a right common in himself and to the other co-owners. The previous suit need not be representative suit in order to attract Explanation VI to S.11 CPC. The dismissal of an earlier suit for redemption of a mortgage does not bar a second suit for redemption, unless the earlier decree extinguishes the right to redeem. In the present case, the earlier suit was dismissed on the finding that the suit transaction is a lease and not a mortgage. This decision is binding on the parties, actual and constructive and they will be precluded from setting up a claim for redemption of a transaction found to be a lease and not a mortgage."
74. In the decision reported in Surayya Begum's case (supra) the same issue was considered and it was held as follows:
S.A.142/997. 94
"In the civil appeal arising out of S.L.P.15021 of 1990 Shri Shiv Kumar Sharma, who was a tenant in possession of the shop under dispute, died in 1982 leaving behind his widow, three sons and four daughters as his heirs and legal representatives. Thereafter, the respondent- landlord commenced an eviction proceeding in 1985, out of which the present matter arises, and impleaded only the wife and the sons of the deceased. Two of the four daughters were married and the remaining two daughters, appellants in the present appeal, were staying in the house but not joined as parties. The suit was contested by the mother and the brothers of the appellant but, ultimately a decree for eviction was passed. In execution, the unmarried daughters filed an objection inter alia contending that they have independent title in the tenancy and the decree obtained against the other members of the family would not bind them. Reliance has been placed upon the decision in the aforementioned Textile Association Case read with Section 16(b) of the Hindu Succession Act.
S.A.142/997. 95
The learned advocates representing the decree holders in these two appeals have argued that when the tenancy rights devolve on the heirs of a tenant on his death, the incidence of tenancy remains the same as earlier enjoyed by the original tenant and it is a single tenancy which devolved on them. There is no division of the premises or of the rent payable, and the position as between the landlord and the tenant continues unaltered. Relying on Kanji Manji v. Trustees of the Port of Bombay and borrowing from the judment in H.C. Pandey Case it was urged that the heirs succeed to the tenancy as joint tenants. The learned counsel for the appellants have replied by pointing out that as the aforesaid two decisions were distinguished by this court in the latter case of Textile Association, it was not open to the landlords to support the impugned judgments by relying upon the earlier two cases.
So far as Section 19 of the Hindu Succession act is concerned, when it directs that the heirs of a Hindu dying intestate shall take his property as tenants-in-common, it is dealing with the rights of the heirs inter se amongst them, and not with their relationship with a stranger having a superior S.A.142/997. 96 or distinctly separate right therein. The relationship between the stranger and the heirs of a deceased tenant is not the subject mater of the section. Similar is the situation when the tenant is a Mohammedan. However, it is not necessary for us to elaborate this aspect in the present appeals. The main dispute between the parties, as it appears from their respective stands in the courts below, is whether the heirs of the original tenants who were parties to the proceeding, represented the objector heirs also. According to the decree holder in Miss Renu Sharma's case their interest was adequately represented by their mother and brothers and they are as much bound by the decree as he named judgment debtors. In Surayya Begum's case respondent 1 has denied the appellant's claim of being one of the daughters of Khalil Raza, and has been contending that the full estate of Khalil Raza which devolved upon his heirs on his death was completely represented by respondents 2 to 9. In other words, even if the appellant is held to be a daughter of Khalil Raza the further question as to whether her interest was represented by the other members of the family will have to be answered. S.A.142/997. 97
The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding through a named party is not unknown. A karta of a Joint Hindu Family has always been recognized as a representative of the other members of the Joint Hindu family, and so has been a trustee. In cases where the provisions of Order I, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure:
"Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and S.A.142/997. 98 others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to be a representative. The issue, when it becomes relevant, has, therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty; but in other cases the issue may have to be decided with reference to relevant evidence to be led by the parties. Surayya Begum's case is of this class while Renu Sharma's appeal belongs to the first category."
S.A.142/997. 99
75. The scope and ambit of Section 11 Explanation 6 was considered in the decision reported in Singhai Lal Chand Jain's case (supra) it was held as follows:
"Procedure is the handmaid to substantive justice. The suit was laid against the Sangh represented by the Manager, Mr. Gorelal Soni, the President, Shiv Behari Srivastava, a practising advocate and also a member who is no other than a headmaster of a school. Three of them had jointly filed the written statement with the defence available to them. The trial court had proceeded on that basis. After framing the appropriate issues, the trial court had accepted the plea of the defendants and dismissed the suit. On appeal, when the correctness thereof was canvassed, the respondents defended the action. The High Court on consideration of the evidence, did not accept the plea of the Sangh and accordingly, granted a decree. The matter did not rest there. They came in appeal by way of special leave which was argued by one of the most eminent members of the Bar on behalf of the Sangh. The leave was refused by this Court. Thus it can be concluded S.A.142/997. 100 that the Sangh was properly represented by the President, the Manager who was at the relevant time in office on behalf of the Sangh and also a member of the Sangh who was no other than a headmaster and a practising advocate as President. The High Court, after hearing counsel on either side, considered the case and decreed the suit. With dismissal of the special leave petition by this court, the decree became final. Therefore, it cannot be said to be collusive suit nor a shadow of negligence is traceable so as to treat the decree a nullity. It is true that no permission of the court was taken to be sued in a representative capacity by or on behalf of the Sangh. But clause (b) or Order 1 Rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. Clause (b) clearly applies to the facts in this case. The President of the Sangh, the Manager of the Sangh and a member have duly represented the Sangh and defended the suit for the benefit of all the persons so interested in the Sangh.
S.A.142/997. 101
Having been thus defended, the question arises: whether the decree operates as a res judicata. Section 11, Code envisages principle of res judicata, i.e.. no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them, claim, litigating under the same title, in a suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation VI to Section 11 is relevant in this behalf and reads thus:
"Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
Therefore, the respondents now claim under the same title in the previous suit and thereby they are bound by the decree. The doctrine of res judicata evolved the public policy to prevent trial of an issue twice over. It clearly applies to the S.A.142/997. 102 facts of the case. Accordingly, they are precluded from raising objections on behalf of the Sangh by filing the objections."
76. One may now refer to the decisions relied on by the learned counsel for the respondents.
77. In the decision reported in Mohan Kishan's case (supra) it was held as follows:
".........It is contended on these facts that the previous judgment operated as res judicata and barred the trial of the issues now raised. We are unable to accept this contention. To begin with the previous claim was not a claim which was either in form or in substance brought in a representative capacity. We are not oblivious of the fact that the relief claimed by the objectors in that a claim was "that the said property be declared a public waqf and it be declared that it is not the property of defendants 4 and 5." This does not however lead to the conclusion that the claim was brought in a representative capacity on behalf of the Hindu public. It appears that the five persons who brought the claim did so in their S.A.142/997. 103 individual capacity. This is clear from their statements in para.1 of the claim that "the applicants are the residents of Naka Hindala, city of Lucknow, and to pujapat (worship) at the thakurdwara situate at moballa Naka Hindola, city of Lucknow, bounded as below." Para 2 of the petition mentions the facts which furnished the petitioners with a cause of action viz., the assertion by opposite parties 1 and 2 that the property in question belonged to opposite parties 4 and 5. Nor is there anything in the succeeding paragraphs which would suggest that it was suit brought in a representative capacity. that a suit is or is not brought in a representative capacity does not depend upon the relief claimed but must be gathered from the whole frame of the suit and the averments made in the petition. There must be something to indicate that the plaintiffs or the petitioners desired to represent a class of persons and instituted a suit in a representative and distinct from their individual capacity. If the relief claimed is such that n case it is granted, persons other than the petitioners or plaintiffs may benefit thereby, this would be no criterion to judge whether the suit is brought in a representative S.A.142/997. 104 capacity or not. As already shown, there was nothing in the objection petition by Sukh Ram and others to suggest that they were suing in a representative capacity."
78. In the decision reported in Sardar Jitendra Singh's case (supra) it was held as follows:
"Section 11, Expl.6 will not apply where a plaintiff claims a right for himself, though the right may be common to others also. The case of a nearest reversioner suing a Hindu widow to set aside an alienation by her is a special case, and does not affect the general principle that one person will not represent others in litigation unless it is expressly stated that he is litigating in a representative capacity. "
79. In the decision reported in Kumaravelu's case (supra) it was held as follows:
"The suit was not a representative suit but was only a suit "inter partes" and that the decision in the suit could not be res judicata under S.11, Expl.6."
S.A.142/997. 105
80. A passage from C.P.C., 7th Edn. Vol.I by Mulla relied on by the learned counsel for the respondents, is as follows:
"The conditions under which the decision in such a suit may constitute res judicata are:
(i) That there must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;
(ii) that the parties not expressly named in the suit must be interested in such right;
(iii) that the litigation must have been conducted bona fide on behalf of all parties interested; and
(iv) that if the suit is one under O.1 R.8, all the conditions of that section have been strictly complied with."
81. The question that arises is as to whether the earlier suit by Pankajakshy Pillai could be deemed to be for and on behalf of the plaintiff and others who were similarly situated. Recalling the terms of the will, assuming that S.A.142/997. 106 Pankajakshy Pillay had only a life estate, which is absolute in nature, it cannot be disputed that the plaintiff and others who are similarly situated and Pankajakshy Pillai had common proprietory interest. She could deal with the property as she wished and in that capacity she could redeem the mortgage also. That she had interest in seeking redemption cannot be disputed in the light of Section 91 of the Transfer of Property Act and infact that Pankajakshy Pillai had an interest in redeeming the mortgage was not disputed by the learned counsel for the respondents. The bone of contention is whether the earlier suit can be said to be one of representative character, the decision in which binds the plaintiffs and persons similarly situated. Apart from the decisions relied on by both sides, it will be useful to refer some of other decisions also. In the decision reported in Ramsumran v. Mt. Shyam Kmari (AIR 1922 PC 356) it was held as follows:
S.A.142/997. 107
"A compromise made bona fide for the benefit of the estate and not for the personal advantage of the limited owner will bid the reversioner quite as much as a decree on contest."
82. In the decision reported in Risal Singh v. Balwant Singh (AIR 1918 PC 87) it was held as follows:
"The widow notwithstanding the personal estoppel under which she laboured did represent the estate and the decision as to the validity of adoption would be binding on the reversioner in subsequent litigation."
83. In the decision reported in M. Narayanaswami v. Parvati Bai (AIR 1949 Madras 379) it was held as follows:
"In both the suits the child and its parents relied upon the same settlement deed as a source of their title. There were no distinct rights in the cases. On principle, the parents in the former case must be deemed to have represented not only their interest but also the interest of their children under the same deed, otherwise multiplicity of proceedings and the anomaly of S.A.142/997. 108 conflicting decisions on the effect of the same deed would arise. The second suit was therefore barred on the principle of Explanation 6 of S.11."
84. In the decision reported in Govindan Nair v. Narayanan Nair (AIR 1956 T.C. 266) it was held as follows:
"Exhibit L1 dated 21.3.1109 is the judgment of the District Court. The finding recorded in that judgment is the same as the one in the other suits. Prima facie the aforesaid adjudications would operate as res judicata and would bar the present suit. To get over the plea the plaintiff urged in the plaint that the litigations which ended in the aforesaid judgments were not properly conducted and that the adjudications therein were the result of collusion between the parties. If collusion is established the operation of the rule of res judicata under Explanation 6 to S.11 can no doubt be got over."
85. In the decision reported in Mt. Sudehaiya v. Ram Dass Pandey (AIR 1957 Allahabad 270) it was held as follows:
S.A.142/997. 109
"A decision in a previous suit is res judicata in a subsequent suit brought by the same parties or between persons who claim under parties to the previous suit litigating under the same title, vide Section 11, C.P.C. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. In the previous suit no.155 of 1933 Dudh Nath claimed the right to have the gift deed cancelled, expressly in common for himself and Ram Das, Ram Das was not impleaded probably because he was a minor and living jointly with and under the guardianship of Dudh Nath.
There is nothing whatsoever to indicate that it was not a bona fide claim made by Dudh Nath for himself and Ram Das. As the subsequent events how Mst. Sudhaiya was not a sister of Jangi and the nearest reversioners wereDudh Nath and ram Das. There was no reason for suspicion of any collusion between Dudh Nath and Mst. Deobarta and Ram Sewak against whom S.A.142/997. 110 the suit was brought. Ram Das was interested in the right to have the gift deed cancelled exactly as much as Dudh Nath was; they were equally related to Jangi. If one was the nearest reverioner, so was the other and if one was entitled to inherit his property, so was the other. Consequently Explanation VI applied and Ram Das must be deemed to be claiming under Dudh Nath, who litigated in the earlier suit, and under Section 11, the decision in the previous suit would operate as res judicata and prevent Ram Das from reagitating the same question now.
The lower appellate court relied upon Daleep Misir v. Jadunath Misir, AIR 1926 All 573, but the facts of that case are distinguishable from those of the present case. They were these. The previous suit was brought by Deva Rai and Dwarka Rai to challenge a mortgage executed by Srimati Pavitri, widow of their cousin Behari; it was dismissed on account o f the failure of Deva Rai and Dwarka Rai to prove the pedigree connecting them with Behari, it was for redemption of the mortgage. It was contested by the mortgagee on the ground that Jadunath was bound by the decision in the earlier suit that the pedigree was not proved. S.A.142/997. 111
This court held that Explanation VI did not apply because Deva Rai and Dwarka Rai were held in the earlier suit not to be reversioners and so could not be said to have represented the reversionary body. Since Jadunath claimed independently of Deva Rai and Dwarka Rai and not through them, he was held not to be barred from relying upon the same pedigree in his suit. Deva Rai and Dwarka Rai were no reversioners at all, either presumptive or contingent, Dudh Nath was a reversioner, even if contingent. Deva Rai and Dwarka Rai did not claim the right on behalf of the reverioners. Under the Hindu Law, only a next reversioner can file a suit to challenge an alienation by a Hindu widow; such a suit would bind the whole reversion.
It would not be necessary in such a suit for the plaintiff to claim that he was suing on behalf of reversioners. But it does not follow that if a suit is brought by a remoter reversioner expressly for himself and other similar reversioners, the decision arrived at in it will not bind the others on whose behalf it was expressly instituted. If Deva Rai and Dwarka Rai were the nearest reversioners, the decision in their suit would have bound the S.A.142/997. 112 entire reversion even if they did not claim to have sued on behalf of it. We do not know what the decision of this court would have been if they had claimed that they were suing on behalf of themselves and other reversioners similarly situated.
The Hindu Law permits the next reversioner to bring a suit in such a manner as to bind persons other than those not named in the plaint, but Explanation VI does not apply only when such a suit is brought. It is couched in wide language and applies whenever a person claims a right, private or public, in common to himself and others, provided he does so bona fide. Even when a suit is brought by a person who challenges an alienation made by a Hindu widow on the ground of its being without legal necessity, if the plaintiff claims the right in common to himself and others similarly situated and has filed the suit bona fide, Explanation VI applies because all its requirements are fulfilled. It makes no difference that the plaintiff derives his title to suit under Hindu Law and not under some other law. Since Dev Rai and Dwarka Rai did not claim to sue on behalf of themselves and Jadunath, Jadunath could S.A.142/997. 113 not be deemed, in the subsequent suit, to have claimed through them and would not be estopped from setting up the same pedigree.
For the applicability of the Explanation, what one has to consider is the claim actually made by the plaintiff in the previous suit. Whether a decision is res judicata or not does not depend upon its nature. If the previous suit is decided in one way, it may bind one party, but certainly it would bind the other party, if decided the other way. There is no law that a decision in the previous suit can be res judicata only if it is given one way and will not be res judicata at all if it is the other way. If the suit of Dudh Nath had been decreed, the decision would have been binding upon Mst. Deobarta and Ram Sewak, if they were subsequently sued by Ram Das or any other reversioner: if so, the decision in their favour is binding against Dudh Nath and any other person who is deemed to be claiming through him."
86. In the decision reported in Amritsagar Gupta v. Sudesh Beharilal (1969(1) SCC 810) it was held as follows:
S.A.142/997. 114
"In the earlier suit the controversy was as to whether the alleged gift was in favour of the karta of the family in his individual capacity or in his favour as the karta of his family. The karta pleaded that the suit properties had been gifted in his favour. After the suit was decreed against him and confirmed by the Supreme Court in appeal and efforts to prevent execution of it failed, one of the sons of the karta filed the present suit claiming partition in the suit properties on the allegation that the same had been gifted to his joint family."
87. In the decision reported in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (AIR 1937 Privy Council 1) it was held as follows:
"No case of fraud apart from collusion being suggested, the plaintiffs were bound to establish either that the decree in prior suit was obtained by collusion between the parties or that the litigation by the plaintiffs in prior suit was not bona fide. The plaintiffs based their case entirely on inferences to be drawn from alleged gross negligence on the part of the plaintiffs in prior suit. The finding of gross negligence by the trial S.A.142/997. 115 court was far from a finding of intentional suppression of the documents which would amount to want of bona fides or collusion on the part of the plaintiffs in prior suit. There being no evidence in the suit establishing either want of bona fides or collusion on the part of plaintiffs in prior suit, the decision in the prior suit was binding on the plaintiffs as res judicata."
88. A reading of the above decisions would show that it may not be absolutely necessary to show in the plaint that the person is suing in the representative capacity as such. It would be sufficient if he represents a common interest and he is competent to sue. It is true that as the plea of res judicata is a rule of evidence, normally the pleadings in the earlier suit will have to be produced. But in the decision reported in V.O.Vakkan and Sons v. George ( 2010(3) K.L.T. 831) it was held that the judgment produced in the earlier suit would be sufficient and cannot be ignored on the basis that the pleadings had not been produced. It cannot be disputed that the suit instituted by Pankajakshy S.A.142/997. 116 Pillai as O.S. 203 of 1970 was infact one for redemption of mortgage in relation to the same property involved in the present suit also. It is true that from the judgment produced, it does not appear that Pankajakshy Pillai had indicated that she is suing in a representative capaity. But going by the terms of the will, she had absolute rights over the estate and therefore she has represented the interests of all persons in the estate.
89. Ext.A2 partition deed entered into between the parties traces title to Ext.A6. They claim that by Ext.A6 the parties to the partition deed became co-owners. It is difficult to accept the narration in Ext.A2. At any rate it cannot be disputed that the earlier suit was in the interest of the estate and that Pankajakshy Pillai was competent to sue. Till her lifetime, the estate was to be in her absolute possession and enjoyment. If she had succeeded in redeeming the property, it would have ensured to the benefit of the plaintiff also. If that be so, when it goes against the estate, he cannot be heard to say that since he S.A.142/997. 117 is not a party to the suit, it is not binding on him. It is significant to notice that in the written statement filed in the present suit, the defendants have clearly averred about the earlier suit O.S. 203 of 1970 and had taken a specific contention that the present suit is barred by res judicata. There is no case for the plaintiff in the suit that the earlier suit was the result of fraud or collusion. Though technically speaking the plaint in the earlier suit does not show that it was a representative suit, it cannot be disputed that in the suit by Pankajakshy Pillai, actually she did represent the estate. Probably, the status of the plaintiff and others similarly situated may not strictly be that of reversioners. But it cannot be disputed that Pankajakshy Pillai as well as the plaintiffs and others similarly situated had a common interest in the estate. If that be so, Explanation 6 to Section 11 is attracted to the facts of the case. On that count too, the suit should fail. Since in the earlier suit evidenced by Exts.B1 and B2 it has been held that the defendants in the said suit are entitled to fixity of tenure the right of S.A.142/997. 118 redemption is thus lost and does not subsist. If that be so, the present suit is only to be dismissed.
In the result, this appeal is allowed, the judgment and decree of the lower appellate court is set aside and the judgment of the trial court is restored. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb