Madras High Court
Achammal vs Narayanaswami Naicken (Dead) And Ors. on 11 May, 1921
Equivalent citations: (1921)41MLJ429, AIR 1921 MADRAS 619
JUDGMENT
1. The Second Appeal raises a question as to the construction of the will of the deceased Krishnappa Naicken, The learned Subordinate Judge has considered a great many cases which do not appear to us to have very much bearing on this will. On the other hand, he has not considered as closely as he might have done what was the meaning of the testator as expressed in the will.
2. The testator had two wives and one of them had a daughter Mangammal. The will provides that after his death his two wives ought to take respectively the properties set out in Schedules I and II and enjoy them without alienating them. Then it goes on to say, "After the death of these two wives, my daughter Mangammal shall take the abovenamed entire properties with all rights and enjoy the same." One view of this will is that the properties in Schedule I were left to one widow for her life and the properties in schedule II to the other widow and that on the death of either of them the properties left to her should go to the daughter. That is not what the will says. The will says that it is after the death of the wives the daughter is to come in. These wills of Hindus should be read with reference to the ordinary notions of the Hindus. Under the ordinary Hindu Law when there are two widows, they take jointly and one succeeds to the other by survivorship. Very often, for the purpose of convenience, they partition the lands and enjoy them separately. What seems to us that the testator really meant Was to provide himself for such a partition during the life-time of the two widows instead of leaving them to the risk of quarrels that usually arise. There is no reason for supposing that he intended to depart from the ordinary rule of Hindu Law by which the surviving widow takes the whole estate for her life time. On the contrary, the statement that the daughter is to take after the death of the wives shows that that was exactly what he meant.
3. We think that the learned Subordinate Judge was wrong in construing this will and that under it the plaintiff.is; entitled to the properties in both the schedules for her life.
4. Another question was raised as to the form of the suit. The plaintiff did not sue for possession but simply for a declaration and injunction. But before the District Munsif she offered to amend the pLalnt but the Munsif did not think it necessary. The subordinate Judge has held that on this ground also the suit ought to be dismissed on his finding that the plaintiff was out of possession at the date of the suit. We think that the proper order to make is to give the plaintiff leave to amend the pLalnt within a week after the reopening and to direct that, on the amendment being made, the appeal be allowed, the decree of the lower courts reversed and the suit decreed with costs throughout.