Madras High Court
/ vs / on 9 December, 2016
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved On : 30.11.2016 Pronounced On :09.12.2016 CORAM THE HON'BLE DR. JUSTICE G.JAYACHANDRAN Second Appeal No.1474 OF 2010 and M.P.No.1 of 2010 S.Balakrishnan (sole appellate declared as major and her father P.Sanminathan discharged from the guardiship vide order of Court dated 01.09.2016 made in C.M.P.No.13786 of 2016 in S.A.No.1474 of 2010) ..Appellant /vs/ 1.V.Gokilnath 2.V.Chandra Mohan ..Respondents Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree madein A.S.No.22 of 2008 dated 19.07.2010 on the file of the First Additional District Judge of Coimbatore reversing the jdugment and decree made in O.S.No.587 of 2006 dated 22.08.2007 on the file of the Court of the Sub Court, Coimbatore. For Appellant :Mr.S.V.Jayaraman Senior Counsel for Mr.S.V.Srinivasan For Respondents :Mr.T.R.Rajagopalan, Senior Counsel for R.Jayaprakash for R1 & R2 JUDGMENT
The defendant in the suit is the appellant before this Court. This Second Appeal is directed against the judgment of the first appellate Court in A.S.No.22 of 2008, dated19.07.2010, reversing the judgement of the trial Court in O.S.No.587 of 2006, dated 22.08.2007 for partition. The sole point, in this case, is about the interpretation of the settlement deed dated 27.05.1973, (Ex.A-6) executed by one Palani Gounder.
2. Palanigounder has executed the settlement deed, wherein he has reserved the right of enjoyment for life, without power to alienate (or) encumber to his wife Subbathal and after her lifetime, the property should devolve absolutely on the male decendants of his two sons by name Viswanathan and Swaminathan.
3. The sparing parties are grandsons of Palanigounder. The plaintiffs are born to Viswanathan, the eldest son of Palanigounder and the defendant is born to Swaminathan, the younger son of Palanigounder. While the parties accept that the settlement deed marked as Ex A-6 was effected and acted upon and after the demise of the life interestee Subbathal, on 20.11.2002, their right has open up, they differ on the proportion of share and they are entitled to. Thus, the begging question before the Court raised by the parties is whether they have to take the property per stripes or per capita?.
4. The trial Court has interpreted the settlement deed (Ex A-6) with the aid of the judgement of this Court reported in 2004 (3) CTC 707 (Lalji Rao and two others -vs- Jayarama Rao @ Jawarharlal Rao and others) and held that the property has to be divided per stripes. The sons of Viswanathan (plaintiffs) are entitled for one half together and the son of Swaminathan (defendant) is entitled for other half. Accordingly a preliminary was passed.
5. On appeal by the defendant, the first appellate Court reversed the trial Court judgment holding that as per the settlement deed (Ex A-6), the property should devolve upon the grandsons equally. The division must be per capita and not per stripes. The first appellate court has reversed the trial Court judgment on relying upon the Federal Court Judgment rendered by 5 Judges at the ratio of 4:1 (Hon'ble Justice Mahajan dissenting) in Jiban Krishna Das -vs Jitendra nath Das and others reported in [AIR (36) 1949 Federal Court 64] and the judgment of the Supreme Court in Veerathilingam and others -vs- Ramesh and others reported in [AIR 1990 SC 2201].
6. According to the first appellate Court, under Ex.A-6 Palanigounder has not reserved anything for his sons during their lifetime. The transfer of the property to the grandsons was immediate, after the death of the life-interest holder Subbathal. For the said reason, the division must be per capita. The plaintiffs together are entitled for 2/3 share and the defendant is entitled for 1/3 share.
7. The learned Senior Counsel appearing for the appellant submits that as per the intention of the settlee, the property has to be divided per stripes. The trial Court has rightly interpreted the document by harmonious reading of the deed in entireity. Whereas, the first appellate court by wrong application of precedent erred by holding that the property devolves per capita and not per stripes. Apart from challenging the first appellate court interpretation of Ex A-6, the appellant also placed a new plea of enlargement of limited interest given to Subbathal, by virtue of Section 14(1) of the Hindu Succession Act,1956.
8. Per contra, the learned Senior counsel for the respondents submitted that Ex A-6 is a class gift. The 'class' is all the grandsons of Palanigounder and not the sons. Therefore, the property is to be divided per capita. The first appellate Court has rightly interpreted Ex A-6 and had reversed the trial Court judgment. In so far the new plea of enlargment of life estate under Section 14(1)of the Hindu Succession Act, 1956, the learned counsel for the respondents submitted that this issue has been settled long back by the Supreme Court and followed and reiterated in latter pronouncements. If the plea is to be accepted, it will be only at the cost of repugnancy of Section 14(2) and 30 of the Hindu Succession Act, 1956.
9. Before adverting to the interpretations made by the Courts below and the judgments referred by them, it is essential to bear in mind that in construing the document(Ex.A6) executed by a person since dead, the endeavour of the Court should be to ascertain the real intention of its author. For that purpose, the primary duty of the Court is to ascertain from the language of the entire document and the meaning attached to the actual words used. In the course of such an endeavour, the Court is entitled to put itself into the armchair of the dead person.
10. In Ex A-6, Palanigounder has first stated the reason for executing the settlement deed. Next, he has traced his title and affirmed the possession. Then, he has mentioned about the transfer of life interest inpresenti to his wife Subbathal, without right of alienation or encumbrance and lastly, how the estate should devolve after the death of Subbathal to the vested remainders.
11. The reason for executing the settlement deed, as per Ex A-6 is, Subbathal has requested Palanigounder to provide some means to support her. Therefore, on her request and out of love and affection towards his wife, Palanigounder has executed the settlement deed-Ex A-6 to his wife.
12. The relevant portion of the settlement deed in vernacular is extracted below:
Rg;ghj;jhSf;F nkw;goapdhy; ,Uf;Fk; Foj;jdk; fpl';F tPL Rg;gzft[z;lh; Fkhuh; gHdpf;ft[z;lh; Mfpa ehd; vGjp itj;Jf;bfhLj;j brl;oy;bkz;l;Lg;gj;jpuk; vd;dbtd;why; eP vdf;F kidtp MdgoahYk;. cd; $Pt jpirf;F Xh; Mjut[ bra;J itf;fntz;Lbkd;fpw vz;zk; bfhz;L eP vd;idf; nfl;Lf;bfhz;lgoapdhYk; cd; nghpy; vdf;Fz;lhd md;gpdhYk; mgpkhdj;jpdhYk; mnjnghy; cd; $Pt jpirf;F xU Mjut[ bra;Jitf;fntz;Lk; vd;fpw vz;zk; vdf;F Vw;gl;ljpdhYk;.
13. The last part of the deed say that, after the life time of Subbatthal, i) the property shall devolve on the male descendants of their two sons Viswanathan and Swamathan , ii) If both do not have male descendants, then the female descendants should get the property, iii) If, any one of the son has no male heir and other have a male heir, then the share of the son, who does not have a male heir, will go to the male heir/s of the other son.
;mg;go eyd; j';fSf;F brl;oy;bkz;l;Lg;gj;jpuk; vGjpitj;jpUg;gjpy; fPH;fhZk; brhj;Jf;fis tpy;y';f ghuhjpdj;jpw;F cl;gLj;jhky; tUk;goia kl;Lk; mDgtpj;Jf; bfhz;L te;J $Pt jpirf;Fg; gpwF ek; ,Uth;fSila Mz; kf;fshfpa tp!;tehjd;. rhkpehjd; Mfpath;fSila Mz;thhpRfs; mile;J bfhs;s ntz;oaJ nk;wfz;l tp!;tehjd;. rhkpehjd; Mfpath;fSf;F Mz; thhpRfs; Vw;glhky; ngha;tpl;lhy;. mth;fSila bgz;thhpRfs; mile;J bfhs;sj;jf;fJ/ nkw;fz;l ,Uth;fspy; ahUf;fhtJ Mz; thhpRfs; ,y;yhky; ,Ue;J kw;wtUf;F Mz;thhpR ,Ue;jhy; ,y;yhjtUila ghfj;ija[k; kw;w Mz; thhpR mile;J bfhs;sj;jf;fJ/ nkw;fz;l tp!;tehjd;. rhkpehjd; Mfpath;fSila Mz; thhpRfs; jhd; rh;t Rje;jpukha[k; jhdhjp tpf ,iwa';fSf;F nahf;fpakha; rh;t Rje;jpuj;Jld; Mz;lDgtpj;Jf; bfhz;L Rfj;jpy; ,Uf;fj;jf;fnj jtpu ntW ahUf;Fk; vf;fhuzk; bfhz;Lk; ghfghj;jpa Rje;jpuKk; gpd; bjhlh;r;rpa[k;
14. As pointed out by the Full Bench of the Federal Court in 1949 SC 64 referred supra at paragraph 15, Hindus view most of the transactions from a different stand-point, and may presumably be altogether ingnorant of the technical Rules of construction adopted by the English Courts, which have grown up under a Special Law of Property and and an artificial system of convenyancing.
15. Here is a case, where the settlee has settled his property to his wife at her request, and out of love and affection to enjoy it till her life. He has also contemplated, how the property should devolve, after the life time of his wife. Though he had two sons and one daughter, who are his heirs apparent, he has desired to deviate from the General Rule of devolution. So, at the first instance, he wanted his property, should go only to his male heirs. In such circumstanace, he had visualised three different situtations and provided the way of devolution for all the three circumstances. First, both his sons may beget male issues. Second, none of them may beget male issues. Third, one may beget male issues, another may not beget male issues. In case of second situtation, the property shall reach the female issues of his sons. In case of third situation, the share of the son, who does not have male issue, will go to the male issues of the other son. (ahUf;fhtJ Mz; thhpRfs; ,y;yhky; ,Ue;J kw;wtUf;F Mz;thhpR ,Ue;jhy; ,y;yhjtUila ghfj;ija[k; kw;w Mz; thhpR mile;J bfhs;sj;jf;fJ/)/ While for the first situation, he has employed the words, male heirs shall get, (Mz; thhpR mile;J bfhs;s ntz;oaJ) for the second and third situation, he has used the words proper for the heirs to get (thhpR mile;J bfhs;sj;jf;fJ). In Tamil, the words bfhs;s ntz;oaJ and bfhs;sj;jf;fJ does not connote the same meaning. At the most they are only closely associated, if the principle of ejusdem generis is to be applied.
16. While the first situtation vis both the sons begetting male issues is probability, the other two situations are only possibilty. That is the reason why the settllee has used two different expressions for the two different situtations.
17. The first part of the deed Ex A-6 clearly shows that it is a deed recording the life interest settlement in favour of Subbathal. The later part provides the means of devolution, after the demise of Subbathal. While interpreting the deed, the first appellate Court has inferred the word 'equally' which is nowhere found in the document and also missed to see the word 'share' in the sentence, 'share of son, who does not have male issue'. These two errors had led to the wrong conclusion that, the grandsons of Palanigounder as a class will get it per capita.
18. In Veerathalingam -vs- Ramesh 1991 (1) SCC 489 at paragraph 8, the Apex Court has cautioned as follows:
It is well settled that a Court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the position of the testator, his family relationship and the probability that he used the words in a particular sense also must be taken into account. They lend a valuable aid in arriving at the correct constrution of the will. Since these considerations are changing from person to person, it is seldom profidable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases, the disputed will approximates closely. Recourse to precedents, therefore, should be confined for the purpose of general principal of construction only, which by now, are well settled. There is still another reason as to why the construction put on certain expressions in a will should not be applied to a similar expression in the will under question for, a will has tobe considered and construed as a while, and not piecemeal. It follows that a fair and reasonable construction of the same expression may vary from will to will. For these reasons it has been again and again held that in the matter of construction of a will, authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. The risk in not appreciating this wholesome Rule is demostrated at page 493 paragraph 9 onwards.
19. In Joban Krishna Das v. Nath Das and others reported in AIR (36)1949 FC 64,) at paragraph 20, it is observed as follows:
20. A gift to a 'class' as distinguished from a gift to individuals has a well-recognised meaning in law. The expression undoubtedly has its origin in English Courts, but it has been adopted in the Succession Act, and its provisions relating to it are applicable to the Hindus also. As was said by Lord Cottenham A gift to a class implies an intention to benefit those who constitute the class, and to exclude all others; but a gift to individuals described by their several names and descriptions, though they may together constitute a class implies an intention to benefit the individuals named: vide, Barber -vs- Barber (3 My. & C. 688 )....
Further the judgement say, ...ordinarily, a class gift means gift to a class of persons who are included and comprehended under some general description and bear a certain relation to the testator. The true test is however, the intention of the testator and the gift would rank as a class gift if the testator intended that the donees should take as a class. There are instances again of 'composite class' recognised in English Law such as when a gift is made to children of A and children of B:....
20. If one read Ex A-6, in the light of the above observations, it is obviously clear that, the settlement apparently excludes female heirs, except in the absence of male descendants. Since it excludes the female heirs, it becomes a class gift. By naming the sons individually and by employing the word share of the son who has no male heir, it also becomes a composite gift. So, on apply the cordinal principle of construction, through Ex A-6, by naming the sons, and by conciously employing the word share, the division is pegged at this level and partition is notionally made at their level itself. Thus, the intention of Palanigounder is to give the properties to his grandsons born through his two sons per stripe and not per capita.
21. In so far as the additional substantial question of law rasied by the appellate, claiming enlargement of life interest of Subbathal, in view of Section 14(1) of the Hindu Succession Act, 1956, on such enlargement, the later part of the settlement deed-Ex A-6 becomes redundant, it is totally unstainable, in view of the settled position of law.
22. The judgment of the Supreme Court in the case with almost similar facts is reported in [Sadhu Singh v. Gurdwara Sahib Narika and Others; 2006 (4) CTC 773] and cited by the learned counsel for the respondent. The relevant paragraph is extracted below:
14.When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the instroduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otios. It will also make redundant, the expression ' property possessed by a female Hindu' occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.
23. This Judgement has been followed by the Division Bench of Madras High Court in[Shivdev Kaur (D) by LRs. & others v. R.S.Grewal reported in 2013 (2) CTC 587 ] and summarised to the effect that, if a Hindu female has been given only a life interest through a will or gift or any other document referred to in Section 14 of the Hindu Succession Act 1956, the said rights would not stand crystallised into the absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of Section 14(1) of the Hindu Succession Act 1956, the provisions of Section 14(2) and 30 of the Hindu Succession Act 1956 would become otios.
24. In this case, Ex A-6-settlement deed is dated 27.05.1973 and much later to the codified Hindu Law came into force. As pointed earlier, the intention of the settlee is very clear and unambiguous. The above cited judgments is straight to the point and need no further clarification. Hence the plea of enlargement of life interest has no legs to stand.
25. To sum up, this Court hold that under Ex A-6, the intention of the settlee is to the divide the property into two halves notionally and to be devolved among the male heirs of the respective sons. Therefore, the Second Appeal is allowed and the judgment and decree of the first appellate Court in A.S.No.22 of 2008 dated 19.07.2010 is setaside and the judgment and decree of the trial Court in O.S.No.587 of 2006 dated 22.08.2007 is restored. The plaintiffs are together entitled to 1/2 share and the defendant is entitled to 1/2 share.
26. In the result, the second appeal is allowed. Considering the nature of the relationship, there is no order as to costs. Consequently, connected Miscellaneous Petition is also closed.
09.12.2016 ari Index:Yes/No Internet:Yes/No To
1. The First Additional District Judge of Coimbatore
2.The Sub Court, Coimbatore.
Dr. G.JAYACHANDRAN,J.
ari Judgment made in Second Appeal No.1474 of 2010 and M.P.No.1 of 2010
09..12.2016 http://www.judis.nic.in