Madras High Court
Hamsaveni Ammal And Ors. vs S. Rajagopal Chettiar on 13 July, 1976
Equivalent citations: (1977)1MLJ207
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT V. Ramaswami, J.
1. The plaintiff's are the appellants. The suit was filed for partition and separate possession. They claimed the right on the basis of a will dated 22nd June, 1924 executed by one Padmanabha Chettiar. The testator's wife was one Dhanalakshmi Ammal and they had a daughter by name Rajalakshmi Ammal. There was a bequest in favour of Rajalaksmi Ammal and after her in favour of her male children. It is the const ruction of the will that is in question in this second appeal. If Rajalakshmi Ammal had a life estate under the will then there is no dispute that the plaintiffs would be entitled as the children of one of the sons of Rajalakshmi Ammal to one half of the suit propertes. If Rajalaksmi Ammal had absolute estate under the will, then since she purported to execute a bequeathing those properties in favour of the defendant, the plaintiffs will not be entitled to any share. The relevant clause in the will reads as follows:
It was the case of the plaintiff's that Rajalakshmi Ammal had only a life estate and after her, her male children had to inherit the properties absolutely. On the other hand, the learned Counsel for the defendant contends that there is an absolute grant in favour of Rajalakshmi Ammal and the gift over in favour of her male children beomes ineffective and invalid as it would cut down the absolute grant already made in favour of Rajalakshmi Ammal.
3. In Ramachandra v. Hilda Brite . the Supreme Court had to construe a similar document. The relevant clause in that document read as follows:
All these (properties) shall after me be enjoyed by my eldest daughter Severina Sabina and after her lifetime by her male children too as permanent and absolute hukdars.
The Supreme Court held that since the dominant intention of the testatrix was to confer a permanent and absolute remainder on the male issue of her daughter after the lifetime of the first donee, the daughter got only a life estate and not an absolute interest. The Supreme Court also pointed out that the expressions after the lifetime' and 'after the death' were words understood by the draftsman of the will to indicate that the interest referred to was a terminable one, namely, a life-interest.
4. The decision in Lallu v. Jagamohan (1898) I.L.R. 22 Bom. 409. had also taken a similar view. In that case it was held that the testator's wife took only a life estate under the will with remainder over to her daughter after her death. These decisions were considered and followed in another case by this Court in Papammal v. Kuppuswamy .
5. The learned Counsel for the respondent relied or the decision in Subramaniaswami Temple v. Ramaswami (1950) 1 M.L.J. 300 : 63 L.W. 193 : A.I.R. 1950 P.C. 32. The relevant clauses in the will which were considered in the case read as follows:
...I have bequeathed to my son P the right to all my properties and moneys, etc., and he shall solely enjoy them. If he or his son has no child, the said properties shall pass to "Subramaniaswami" at Tiruchendur".
Having regard to the wording usedand the bequest being to a male who is the son of the testator, the Privy Council held that the bequest in favour of the son was absolute and the gift-over in default of children to Subramaniaswami Temple was invalid and ineffective. That decision in my opinion, does not help the argument of the learned Counsel for the respondent.
6. In the result therefore Rajalakshmi Ammal should be deemed to have held only a life-estate in the properties and after her death her male children got the properties absolutely. The plaintiffs are therefore entitled to the decree for partition and separate possession as prayed for in the suit. The judgment and decree of the lower appellate Court are therefore set aside and the judgment. antidecree of the trial Court are restored. The parties will bear their respective costs throughout.
7. No leave.