Karnataka High Court
K.R. Ramaswami Rao And Ors. vs Premabai And Ors. on 30 April, 1987
Equivalent citations: AIR1988KANT116, ILR1987KAR1751, AIR 1988 KARNATAKA 116, ILR 1987 KANT 1751 (1987) 2 CURCC 1059, (1987) 2 CURCC 1059
JUDGMENT
Doddakale Gowda, J.
1. The nature of a bequest made by a father to his son, with reference to the claim of his grandsons raises a neat question of law in this appeal.
2. The issue arises in this form: - One Shankar Rao" the deceased husband of plaintiff defendants-2to 5 and one Narayana Rao, who has not been heard of, for many years are the sons the first defendant. A few years after her marriage, her husband Shankar Rao died issueless. Differences having arisen between the plaintiff and defendants-1 to 5, plaintiff filed O.S. No. 20/1973 on the file of the Principal Civil Judge, Mysore, for partition of her 1/6th share in Schedules-A, B and C properties alleging that schedule properties were all joint family properties, that some were ancestral and the others were acquired out of the income of joint family from trade and money sending. Subsequently, additional defendants-1 to 6 were impleaded as it was found that they were in possession of certain properties either as aliances or as mortgagees. First defendant's wife was impleaded as additional defendant No. 7 as she would also be entitled to a share at the time of partition of joint family properties as amongst the coparceners. As a consequence, the plaintiffs share in the joint family properties stood amended to 1/12th share and she also claimed past and mesne profits.
3. All the defendants disputed the existence of ancestral nucleus and asserted that the schedule properties were all the self-acquisition of the first defendant; that neither the joint family possessed any ancestral property nor was there any nucleus. The extent of moveables set out in Schedule-C was also disputed. These defendants contended that the plaintiff had secreted jewels worth Rs. 4,000/- and that should also be taken into account at the time of passing of the final decree.
4. Issues-2 and 3 which are different facets of the same single issue were to the effect "whether the plaintiff proves that the suit properties are the joint family properties of the family of defendants and herself or the defendants prove that the schedule properties are self-acquisition of first defendant? - The other issues pertain to the validity of alienations.
5. The trial court on a consideration of oral and documentary evidence held that items Nos. 1, 2, and 4 of Schedule-A properties were joint family properties and the remaining items in Schedules-A. Band C, being accretions, were also joint family properties. The trial Court declared that the plaintiff was entitled to 1/12th share in the joint family properties and has directed partition of that share by metes and bounds. It also held that Narayana Rao, one of the sons of the first defendant had not been heard of for many years and so his share was not determined.
6. Plaintiff in support of her case examined seven witnesses and marked 15 documents. Defendants examined six witnesses and marked 9 documents.
7. The trial Court rightly proceeded on the premise that there was no presumption that a family possesses joint family or coparcenary properties or that the properties standing in the name of a coparcener were joint family properties and that the burden was on the plaintiff to-establish that the schedule properties were joint family properties of her husband and defendants-1 to 5.
8. The first defendant pleaded that the schedule properties were all his self acquisitions in that items Nos. I and 2 in Schedule-A were acquired by testamentary disposition under a will, dated 5-9-1927 executed by his deceased father-Ramanna and rest of the properties were acquired out of this nucleus, which being a self-acquisition, the plaintiff had no right to claim a share in the same.
Defendants before filing their written statement, preferred I.A. 11 calling for particulars from the plaintiff to state which were ancestral properties and which were accretions to the joint family nucleus. Plaintiff, in reply, stated that Items 1, 2 and 4 of the Schedule-A were properties acquired under the Will executed by deceased Ramanna in favour of first defendant and rest of the properties were acquired out of the joint family income.
The Will under which items 1, 2 and 4 of Schedule-A properties were bequeathed in favour of the first defendant is marked as Ex. D-1. There is no controversy regarding the genuineness of this Will or the competency of deceased Rammana to bequeath the said properties in favour of his children as all those items were his self acquired properties.
9. The, trial Court, relying on para 5 at page 250 of Mulla's Hindu Law where there is a reference to the decision of Supreme Court (Arunachala Mudaliar v. Muruganath) held that properties got by the first defendant under the Will were ancestral properties in his hands so far as his sons are concerned. The trial Court having rightly formulated the point that arose for consideration i.e., whether the first defendant's father intended under the will that the properties bequeathed to his son should be held by him as separate properties or ancestral properties, relied on certain clauses of the Will, to which a reference would be made a little later in detail, and held that the properties were intended to be considered as ancestral so far as his son was concerned. As a result, the other properties acquired out of this nuclues (admittedly there Was no other source of income for the first defendant except the income from items 1, 2 and 4 of Schedule-A properties) were all found to be ancestral properties. It also held that the properties which were found to be joint, yielded sufficient income to constitute the nucleus for the acquisition of remaining properties.
10. It is also necessary to mention that after the demise of Ramanna, first defendant and his brothers had again divided or adjusted their share in the properties as per Ex. D-6. After the demise of the husband of plaintiff, there appears to be a division once as amongst defendants-1, 2 and 4 and another division as between defendants-1 and 3 in 1968 and 1969 respectively. The schedule-B properties are agricultural properties acquired by defendant No. 1. As already indicated, the extent of moveables mentioned in Schedule-C is also disputed.
11. Sri R. L Babu, learned counsel for Appellants, vehemently contended that the trial Court had not properly applied the principles enunciated by the Supreme Court in Arunachala Mudaliar's case , cited supra, to determine whether the bequeathed properties were the separate properties or ancestral properties of defendant I in so far as his sons are concerned. He also submitted that the conclusion which rested on certain phrases in the will (Ex. D. 1) is not in consonance with law.
Per contra, Sri Papanna, learned Counsel for the respondents tried to sustain the decree contending that the trial Court had applied the principles enunciated by the Supreme Court and having regard to the totality of the circumstances that prevailed as on-the date of the bequest, its conclusion cannot be said to be arbitrary.
12. Hence, the question that arises for our consideration in this appeal is - whether the properties bequeathed in favour of the first defendant under the Will, dated 5-9-1927 (Ex. D 1) were intended to be treated as his separate properties or ancestral in so far as his sons are concerned?
13. Before proceeding to determine this vexed question which does not admit of an easy solution, it is necessary to recapitulate the principles required to be followed for the construction of a Deed as also the criteria to be applied for such determination. The Supreme Court in Navneet Lal @ Rangi v. Gokul, after referring-to its earlier decisions has evolved five principles to be borne in mind to construe-a Will: -
"1. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be construed, but that is only for the purpose of finding out the intended meaning of ' the words which have actually been employed.
2. In construing the language of the will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.
3. The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its, provisions and ignoring none of them as redundant or contradictory.
4. The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his 'will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions 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.
5. To the extent 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 has also held: -
"That term 'Malik' when used in a will or other document as descriptive of the position which a devisee or donee is intended to hold has been held apt to describe as 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 full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian will Must always depend upon the setting in which it is placed the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning."
14. The various High Courts in India have expressed conflicting views on the question whether bequeathed properties constitute the separate properties of the donee or whether they could be ancestral in so far as his grandsons are Concerned?
The High Court of Madrs nagalingam V. Ramachandra (1901) ILR 24 Mad 429: Patna Bhagwat V. Mt.Kaporni). AIR 1944 pat 298 (FB) and Calcutta (lata Mukti Prakash v. Sm.Iswari, AIR 1920 Cal 746 have taken the view that it was open to the father to determine whether the property which he had bequeathed shall be ancestral or self acquired. But unless he expressed his mention that it shall be self-acquired. It should be held to be ancestral. The High Courts of Bombay (Jagmohan Das v. Mangal Das), 1986 ILR 10 Bom 528: Allahabad and Lahore (Parsotam v.Janki Bai)(1907) ILR 29 Lah 394 have taken the view that the property gifted would be the self acquistion of the donee unless there was a clear expression of intention on the part of the donor to treat it as ancestral. The Supreme Court in C.N.Arunachala Mudliar v. C.A.Muruganatha Muduar MR 1953 SC 495 has resolved this controversy. In that case, the question that was whether the properties obtained under a will of the father could be regarded as ancestral or self-acquired prosperities in the hands of his sons. The Supreme Court ruled that if the properties were ancestral the sons would become co-owners with their father and on the other hand. if bequeathed properties of the donor the plaintiff who asserts his right for partition must fail. The father of a Joint Hindu Family governed by Mitakshara Law is not only competent to sell his self acquired immoveable properties to a stranger without the concurrence of his son/s. but can make a gift of such properties to one of his own sons to the detriment of another and can make unequal distribution amongst his sons. The relevant portion of the judgment on the right of a grandson in the property of his grandfather reads thus: -
"In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father, while in the self acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same: vide Mayne's Hindu Law, 11th Edition, page 3,10. It is obvious, however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. 'The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on (he death of the grandfather or receives It, the partition, made by the grandfather himself during his lifetime. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.
But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such properly but because his father chooses to bestow a favour or him which he could have bestowed on any other person as well. The interest which he takes in property must depend upon the will of the grantor. A good deal of confusion, we think, ' has arisen by not keeping this distinction in mind. To find out whether a properly is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of the transmission also must be looked to and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendent of the original owner. The Mitakshara, we think, is fairly clear on this point. It has placed the father's gifts, under a season category altogether and in more place on one has declared them exempt from paration.
Further on at para 16 it is stated thus:
"As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either is the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its mere form.
The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was a6 integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and In his branch of the family on partition. In other words, the question would be whether he grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is strictly speaking, no presumption that he intended either the one or the other."
Considering the tern-is of the will as found in that case. it held that the bequeathed properties were the self-acquired properties of the donee.
15. It is in the light of these principles, we have to determine whether the testator intended to confer an absolute estate on his sons exclusively or is it a scheme for allotment of their due shares. Intention has to be gathered from the language of the document taken along with the surrounding circumstances. The relevant clause on which both sides harp upon to establish the claim for partition and to disprove the right for partition reads thus: -
Matter in vernacular omitted: - Ed.
Contention of Sri Papappa learned Counsel for the first respondent is that the word matter is vernacular omitted -Ed. connotes that the father had effected a partition as amongst his sons and the properties obtained at a partition as amongst the deceased Ramanna and his sons would ancestral in so far as the deceased husband of plaintiff and defendants 2 it, -5 are concerned. On the other hand, the submission of Sri R. J. Babu, learned counsel for appellants, is that it only means that whatever property Ramanna had acquired and has possessed of had been distributed under the will conferring a right on his sons to enjoy the in absolutely. His Submission is that-the next two lines Matter in vernacular omitted. --Ed.1 confer an absolute right of enjoyment as well as a right to alienate file also contended that the very fact that the first defendant and his brothers had red vided the property as per Ex. D 6 clearly establishes that their father had not effected a partition during his lifetime, as would have happened in case of intestacy and it was only by mutual consent they had readjusted the properties for their beneficial enjoyment. He also contended that the last part of the clause extracted above prohibiting them from making any alienation for generations being opposed to the rule against perpetuity is void.
16. Undisputedly, the properties bequeathed under the will dated 5-9-1927 (Exhibit D 1) were the self-acquisition of the test at or - Ramanna. The testator after reciting the reasons for execution of a Will and referring to his two earlier Wills -- (i) Registered Will dated 1-8-1909; and 00 another written a day earlier to Exhibit D 1 had stated that the present deed shall be the final Will distributing all his assets amongst It is three sons with a view to obviate future troubles; particulars of properties bequeathed to each of his sons are set out in Schedules l, 2 and 3. He had not retained a share to himself as is done in the case of partition as amongst the members of Joint Hindu Family. There is no reference to rights of female heirs, if any from a reading of the document as a whole, and the surrounding circumstances, the dominant intention of the testator is explicit i.e., it) confer an absolute right of enjoyment on his sons with unrestricted power of a alienation, This view is fortified by the absence of restrictions imposed on the enjoyment of bequeathed property or indication in the Will that bequeathed properties were to be held by the sons for their families or male issues and on the right of alienation. The word I Matter in vernacular omitted. -Ed. I means distribution/ distributed. Partition, under Hindu Law, has its own connotation. There is a world of difference between partition and distribution. Partition effected by a father as a 'patria protesta' implies equal allotment of shares, but distribution may be equal or unequal. Partition implies a that of a member of a Joint Hindu Family or of a co-owner; but distribution need not necessarily flow from an existing right. In the instant case, under Ex. D 6 readjustment of properties as amongst the legatees after the demise of the testator implies that it was not equal. Meaning of these words should be, as are understood as in common parlance and has to be collected "ex-antecedent bus et consequent bus" i.e., from what goes before and from what follows and not by reading them or ' that clause in isolation. The purport of the deed was to bequeath all his belongings in favour of his sons and it is not possible to infer that the testator wanted simply to make a division of his properties with a view to avoid disputes in future. The general rule is that if words used in an instrument are free from ambiguity in themselves and where external circumstances do not create any doubt or difficulty as to the proper application of those words to the claimants under the instrument, or to the subject matter to which the instrument relates, "such instrument is always to be construed according to the strict, plain, common meaning of t he words themselves; and that in such case evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument, is utterly inadmissible." From the rules of construction extracted above, 'words' found in the deed must be construed according to their strict and primary meaning unless from the context in which they are used, they bear different sense or meaning. Hence, we hold that testator intended to confer an absolute right over the bequeathed properties to the donees, one of whom is the appellant No. 1.
17. Then, what is the meaning to be attached to the words (Putra poutra paramparya). Two cardinal principles enunciated for the construction of a Will and adopted by the Privy Council in Lalit Mohun Singh Roy v. ChukkunLal Roy (1897) ILR24Cal834 are: The first is that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression of intention. The second is that technical words, or words of known legal import, must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not use the technical terms in their proper sense. In determining the nature of bequest with reference to the words "to become owner of all my estate and properties" and "enjoy, with son, grandson, and so on, in succession", which are almost similar to the vernacular citation found in the present Will, the Privy Council explained the implications of the words 'Putra Putrade Krame' thus: -
"The words 'become owner (malik) of all my estates and properties would, unless the context indicated a different meaning, be sufficient for that purpose even without the words' enjoy with son, grandson and so on in succession', which latter words are frequently used in Hindu Wills and have acquired the force of technical words conveying a heritable and alienable estate."
Hence, we are unable to persuade ourselves to come to the conclusion that these words restrict in any manner or abridge the absolute rights of the donees.
18. Lastly, we come to the validity of restrictions imposed against alienation found in last portion of the Will extracted in para. 15 above. We have held that the testator had conferred a heritable and alienable estate upon the donee. The restrictions imposed against the alienation is not for a limited period or for a generation, but is for perpetuity. Such a conveyance is repugnant to the provisions of S. 14 of the Transfer of, Property Act and hence void. The trial Court without understanding the several implications of the principles enunciated by the Supreme Court in Arunachala Mudaliar's case and of the Privy Council in Lalith Mohan Singh Roy's case (1897 ILR 24 Cal 834), has held that the property bequeathed to the first defence must be held to be ancestral properties.
19. In view of our conclusion that the bequeathed properties would be the absolute properties of the donee i.e., the first appellant, items Nos. 1, 2 and 4 of Schedule A properties will not form the Joint Family nucleus. Consequently, the accretions to this nucleus would remain only as the separate acquisition of the first appellant and the plaintiff would not be entitled to claim any share over it. As a result, this appeal has to be allowed.
20. Having regard to the relationship between the parties, this Court made attempts to settle the matter amicably, but the respondent showed no inclination for such settlement. Sri R. J. Babu, learned counsel for the appellants did not resile from the offer made to pay a sum of Rs. 20,000/- in lump sum to respondent No. I in full settlement of her Claim. According to his undertaking the appellants shall deposit the said sum in the court below within three months from today, which in turn shall deposit it in a Nationalised Bank so as to enable respondent. No. I to draw interest for her 'sustenance for the rest of her life. This benevolence is in token of the moral obligation of the appellants to maintain respondent No. I who is no other than the daughter-in-law of deceased first appellant and sister-in-law of appellants 2 to 4. We record this submission. A charge is created on the schedule properties for this amount, in case the appellants fail to deposit the same within three months from today and shall be enforced in accordance with law. If the deposit is made in compliance with this undertaking, the charge shall stand dissolved and the Court below shall see that this amount is invested in any Nationalised Bank in the form of Fixed Deposit or National Savings Certificate so as to enable the first respondent to draw the accrued interest and utilise the same for her maintenance.
21. Accordingly, this appeal is allowed, the judgment and decree are set aside and in substitution of the same there shall be a decree for a sum of Rs. 20,000/- only in favour of the first respondent. It is further declared that the schedule properties are not amenable partition as the joint family properties of the appellants and the first respondent.
22. Appeal allowed.