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Showing contexts for: Vested remainder in Shanmugham And Others vs Saraswathi And Others on 9 April, 1996Matching Fragments
6. In Tamil Lexicon published by the University of Madras, Volume V at page 2712, the expression (vernacular matter omitted) is defined as "child, infant, offspring", in, this, case the appellate Court which is the final Court of fact has accepted the interpretation which is quite plausible and acceptable. Sitting in second appeal, I do not think the said judgment should be interfered with. One of the two possible interpretations have been accepted by that Court, Unless there is material on record to show that in the locality (vernacular matter omitted) would mean only male children and it cannot at all indicate female children and that the testator used only the expression (vernacular matter omitted) for referring to the male issues of his sons, I do not think it proper on the part of this Court to interfere with the interpretation accepted by the lower appellate Court. Hence, the conclusion of the lower appellate Court that items 1 to 37 among the suit properties which are dealt with in paragraphs of the Will belonged to the plaintiffs inasmuch as they are the only heirs of Saravanan the son of Muruga Pandaram through Nagarammal is correct. It should be mentioned here that the said items were allotted to the share of the said Saravanan in a suit for partition filed by him along with Chinnathambi, who died unmarried later, that is O.S.No. 46 of 1933 on the file of Sub-Court, Cuddalore against Palani and Singaravelu, the sons of Pachaiammal. As there is no other heir to Saravanan, the plaintiffs who are his daughters are entitled to the items allotted to Saravanan's share. On his death, the plaintiffs being the vested remainder holders are entitled to get those properties. Hence the decree passed by the lower appellate Court as regards items 1 to 37 is correct.
7. With reference to items 38 to 44 they are properties purchased by Saravanan in Court auction in execution of a part of the decree passed in his favour in O.S.No. 43 of 1933 for mesne profits as against Palani and Singaravelu. It cannot be disputed that what he purchased in court auction was the life estate of Palani and Singaravelu and both of them being dead before this suit, the vested remainder in those properties would naturally go only to their heirs, that is, defendants 1 to 3 and others, if any. The plaintiffs cannot claim any interest in those items as the interest purchased in Court auction was only a life estate of Palani and Singaravelu. Both the Courts have rightly negatived the claim of the plaintiffs with regard to those items. Even with regard to those items the contention of learned counsel for the respondents is that on the interpretation given for items 1 to 37 his client will be entitled to get the properties. But that is not acceptable on the face of it. If the judgment-debtor had only a life estate and the court auction purchaser Saravanan had purchased only the same, on the death of the life estate holders, the vested remainder people who are admittedly defendants 1 to 3 will get the same.
(Items 1 and 2 shall also be enjoyed according to the above clause). The contention of the appellants is that under this clause the properties which were mentioned in paragraphs 1 and 2 of the Will are directed to be enjoyed in accordance with the condition mentioned in the respective paragraphs 1 and 2. If that contention is accepted, the properties are to be taken absolutely by Saravanan and his two brothers Palani and Singaravelu and during his lifetime Sara-vanan had executed a settlement deed in favour of the mother of the appellants by name Ammakannu and, therefore, the plaintiffs cannot claim any share in the said properties. It is alternatively contended by him that if on the other hand the clause means that even the properties set out in paragraphs 1 and 2 are to be taken by the sons of the testator for their lifetime and the vested remainder going to their children after their lifetime, the suit has to fail because the plaintiffs can only claim a share and ask for partition in those items and the suit for partition cannot be maintained without all the sharers being made parties. According to learned counsel for the appellants, the appellants have two sisters by Pavunambal and Sakunihala and they have not been impleaded in the suit as parties. It is pointed out that even the lower appellate Court has granted only a preliminary decree in favour of the plaintiffs for one half share in the items 45 to 57 and such preliminary decree is not maintainable inasmuch as all the co-sharers are not made parties to the suit. On the other hand, learned counsel for the plaintiffs contends that in so far as items 45 to 57 are concerned, the same interpretation which applies to items 1 to 37 will apply and in those items also Saravanan, Palaniand Singaravelu got only a life interest. According to him, after the lifetime of Saravanan, the vested remainder goes to his two daughters Saraswathi and Lakshmi, the plaintiffs. It is further argued that the question of non-joinder of other sharers was not raised in the Courts below and it cannot be allowed to be raised for the first time in second Appeal. It is submitted that the plaintiffs have claimed only the half share belonging to Saravanan which was allotted to him in O.S. No. 453/63 on the file of District Munsif, Villupuram and the sisters of the appellants can claim a share only in the other half share which belonged to Palani and Singaravelu.