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1970 DIGILAW 30 (KER)

Saraswathi Ammal Alias C Kamala Bai v. Arjuna Pai Sreenivasa Pai

1970-01-28

POKYARATHU UNNIKRISHNA KURUP, T.C.RAGHAVAN

body1970
JUDGMENT T.C. Raghavan, J. 1. This litigation had a chequered career and it had been pending for the last about 18 years. The case came up to this Court once in A. S. No. 297 of 1959; and this Court set aside the dismissal of the suit and remanded the case allowing the plaintiff - appellant to amend her plaint on payment of costs and directing the lower court to dispose of the case afresh. The amendment was, probably, not strictly and absolutely necessary, because even the original plaint averred that Padmavathi Ammal, after whose death the dispute arose, had only a life interest -- a limited estate -- in the properties, though it was not specifically averred in the plaint that Sreenivasa Pai, the son on Padmavathi Ammal and the husband of the appellant, had a vested remainder in the properties. However, the case was remanded; and after the remand, the plaint was amended adding a specific recital that Padmavathi Ammal had only a limited estate and that Sreenivasa Pai had the vested remainder. The suit then went to trial; and the District Judge dismissed the suit holding that Padmavathi Ammal had absolute right in the properties and, Sreenivasa Pai having predeceased Padmavathi Ammal and the properties, after the death of Padmavathi Ammal, being her streedhana properties, devolved on the second defendant, the second respondent, the daughter of Padmavathi Ammal and the wife of the first defendant, the first respondent. It is against this decision of the lower court that the appeal has been filed. 2. We may now state the facts of the case. The properties included in schedule A to the plaint and other properties belonged to a Vasudeva Pai, the husband of Padmavathi Ammal. Vasudeva Pai was a businessman; and his son inlaw, the first respondent, was also associated in the business. Vasudeva Pai was adjudged insolvent and all his properties including the properties in schedule A were sold by the Official Receiver to a third party. The first respondent started a business of his own and acquired fairly considerable properties. And he purchased the properties of Vasudeva Pai sold by the Official Receiver to the third party. From out of those properties he settled under Ext. A the properties in schedule A on 12th December 1932 on Padmavathi Ammal after the death of Vasudeva Pai. The first respondent started a business of his own and acquired fairly considerable properties. And he purchased the properties of Vasudeva Pai sold by the Official Receiver to the third party. From out of those properties he settled under Ext. A the properties in schedule A on 12th December 1932 on Padmavathi Ammal after the death of Vasudeva Pai. Padmavathi Animal had then her son Sreenivasa Pai living and also a daughter, the second respondent. Sreenivasa Pai died subsequently leaving his widow, the appellant, and a daughter just a baby at the time of his death. After the death of Sreenivasa Pai, Padmavathi Ammal also died; and after her death the properties left by her were taken possession by the first and the second respondents. Before the death of Padmavathi Ammal, from the income of the properties in schedule A, she purchased other properties shown in schedule B to the plaint. The appellant brought the suit which has given rise to the appeal claiming that the properties left by Padmavathi Ammal vested in her husband Sreenivasa Pai, so that after his death -- whether he predeceased Padmavathi Ammal or not -- the appellant was entitled to the properties by succession. She also claimed that even the purchase by the first respondent was benami for the family of Vasudeva Pai with funds advanced by Vasudeva Pai. Yet another contention urged by the appellant in her plaint was that the settlement under Ext. A was with the intention that the properties should constitute joint family properties. Respondents 1 and 2 denied these allegations; and according to them, what was conferred on Padmavathi Ammal was the absolute estate in the properties, so that, after her death, the properties devolved on her daughter, the second respondent, the properties being streedhana properties of Padmavathi Ammal. In the alternative, another contention was also raised by respondents 1 and 2 -- that what was created under Ext. A was a series of life estates, even in favour of unborn children of Sreenivasa Pai, so that the absolute estate remained with the first respondent and the properties reverted to him after the life estate of Padmavathi Ammal. It was further pleaded by them that the properties left by Padmavathi Ammal were taken possession only by the second respondent and that the first respondent was not in possession of the properties. 3. It was further pleaded by them that the properties left by Padmavathi Ammal were taken possession only by the second respondent and that the first respondent was not in possession of the properties. 3. The lower court found against all the contentions raised by the appellant in her plaint. More particularly, the lower court held that the properties vested absolutely in Padmavathi Ammal and after her death the properties devolved on the second respondent as streedhana properties of Padmavathi Ammal. 4. Mr. T. M. Mahalinga Iyer, the counsel of the appellant, did not seriously canvass the correctness of the findings of the lower court on the question of benami and on the question whether Ext. A intended that the settled properties should be enjoyed as joint family properties. The main argument of Mr. Mahalinga Iyer converged on the interpretation of Ext. A, the counsel contending that the document conferred only a life estate on Padmavathi Ammal with the vested remainder going to her son Sreenivasa Pai with the result that though Sreenivasa Pai predeceased Padmavathi Ammal the vested remainder was to be taken by his widow, the appellant, by succession. 5. The District Judge seems to think that "the rule of construction of a settlement deed is not exactly the same as the rule of construction in the case of a will". He does not give any authority for this proposition. Evidently, he is in error, because the purpose of interpretation of any document is to make out the intention of the executant of the document, whether it he a will or any other document. This has to be done from the language of the document and the circumstances surrounding its execution; and if the intention so gathered does not go against any principle of law like the law relating to perpetuity, the law against restraint of alienation, etc., then the intention must be given effect to. We do not think that any authority is required for this proposition. At any rate, we refer to two decisions brought to our notice by Mr. Mahalinga Iyer. The first decision is Ramaswami Chettiar v. Venkatammal AIR 1965 Mad. 193 by the Madras High Court, where a Division Bench has observed that there is no distinction in the matter of construction between a partition deed and other documents inter vivos or by way of testamentary disposition. Mahalinga Iyer. The first decision is Ramaswami Chettiar v. Venkatammal AIR 1965 Mad. 193 by the Madras High Court, where a Division Bench has observed that there is no distinction in the matter of construction between a partition deed and other documents inter vivos or by way of testamentary disposition. The Division Bench has observed further that in both the cases the extent of rights obtained by a party should be determined on a true construction of the document. The other decision brought to our notice is again by the Madras High Court in Chinnammal v. Sri Kannika Parameswari Deity AIR 1964 Mad. 80 , where Anantanarayanan J. has observed that though S.97 of the Succession Act enacts a principle of interpretation which, in terms is applicable to testamentary disposition and not to gifts or settlements, still, the principle is one which relates to the law of Real Property in general. The learned Judge has referred to some decisions in support of this proposition including the decision of the Privy Council in Dadabhoy Pramji Cama v. Cowasji Dorabji Panday, AIR 1925 PC 306 . Therefore, Ext. A has to be interpreted in the same manner as any other document, say a will. 6. Then Mr. Mahalinga Iyer draws our attention to the decision of the Supreme Court in Ramachandra Shenoy v. Mrs. Hilda Brite AIR 1964 SC 1323 , where Ayyangar J. spoke for the Court. His Lordship observed: "It is one of the cardinal principles of construction of wills that 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 ever) testamentary intention contained in the will. 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 ever) testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate use interest created in favour of B " 7. Bearing this principle in mind, we shall examine the provisions of Ext. A. In the preamble portion of the document it is recited that whereas the executant, the first respondent, wanted to give some properties to Padmavathi Ammal "to be enjoyed by you, and after your life, by Sreenivasa Pai, the son born of you to Vasudeva Pai, from generation to generation, paramparaya, for all time", etc. The further recital in this part is that the executant felt that the income of the properties proposed to be settled would be sufficient for "your family life". Then we come to the dispositive portion of the document, wherein is found the following recital. The recital is to the effect that the executant released all his rights and gave possession "to be enjoyed by you, and after you, your son, and his descendants from generation to generation". The further recital to be noted in this part of the document states that from the date of the document "you may keep possession, enjoy, obtain mutation, pay government assessment and municipal tax and collect the rent of the shops'. These are the relevant recitals in the document on which the effect of the document turns. 8. The way the District Judge has interpreted the document is that the words occurring "after you" or "after your life" in the expressions extracted above are only words of limitation and not words of purchase. We do not think that the District Judge is correct in this. 8. The way the District Judge has interpreted the document is that the words occurring "after you" or "after your life" in the expressions extracted above are only words of limitation and not words of purchase. We do not think that the District Judge is correct in this. By the dispositive words "you, and after you, your son, and his descendants from generation to generation", evidently, an interest or estate was created in favour of Padmavathi Animal and also in favour of her son Sreenivasa Pai. The expression extracted from the preamble portion of the document ("to be enjoyed by you, and after your life, by Sreenivasa Pai," etc.) is also in tune with this interpretation. The contention of respondents land 2 that what was conferred on Padmavathi Ammal was an absolute estate will create difficulty in holding that anything was conferred on Sreenivasa Pai. This, in effect, will mean that every disposition in the document is not given effect to. As indicated by the Supreme Court, when interpreting a document, the court must try to give effect to all provisions in the document unless two provisions therein are so repugnant, one to the other, that both cannot exist together. The Supreme Court has said that "where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or 'at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B." In the teeth of this observation, even if the disposition was absolute both in favour of Padmavathi Ammal, and after her death, in favour of Sreenivasa Pai, the earlier absolute disposition is only apparently absolute and the same has to be cut down so as to accommodate the subsequent absolute disposition in favour of Sreenivasa Pai. If that is how the document is to be interpreted, then the necessity to hold the subsequent disposition repugnant to the earlier disposition is also avoided. In our opinion, the language of Ext. A is easily capable of this interpretation (we venture even to state that the language is capable only of this interpretation; land we also point out that the language of Ext. In our opinion, the language of Ext. A is easily capable of this interpretation (we venture even to state that the language is capable only of this interpretation; land we also point out that the language of Ext. A is more amenable to this interpretation than even the language of the document before the Supreme Court in Ramachandra Shenoy's case. 9. The circumstances existing at the time of Ext. A will only strengthen this view. Padmavathi Ammal was a widow; Sreenivasa Pai, her son, was alive; the properties covered by Ext. A were properties originally belonging to Vasudeva Pai, the father of Sreenivasa Pai; and the language used in Ext. A showed that the disposition was made for the family enjoyment of Padmavathi Ammal. These circumstances are more consonant with the intention to create a life estate in favour of the widow and an absolute remainder in favor of the son than with the intention to confer an absolute estate on the widow with no gift over to the son. 10. In the view we have taken, it is evident that the alternate plea, that Ext. A created a series of life estates even in favour of unborn children of Sreenivasa Pai, has no substance. The language of Ext. A and the principles of interpretation of documents like Ext. A do not support this contention. 11. But a distinction has to be drawn between the properties covered by schedule A and the properties covered by schedule B. We have now found that Padmavathi Animal had only a life estate in Schedule A. The income of the life estate was the absolute property of the life estate holder; and, if she purchased properties with the said income, they must evidently be her self acquisition. If so, they were her streedhana properties and would, after her death in 1951, devolve according to Hindu law only on her daughter, mere so in view of the fact that the son had predeceased her. Therefore, the appellant is not entitled to claim the properties in schedule B to the plaint. 12. At this stage, the counsel of respondents 1 and 2 has brought to our notice that the mesne profits of the properties covered by schedules A and B are not separately assessed. Therefore, the appellant is not entitled to claim the properties in schedule B to the plaint. 12. At this stage, the counsel of respondents 1 and 2 has brought to our notice that the mesne profits of the properties covered by schedules A and B are not separately assessed. Since we have now to pass a decree for possession regarding the properties in schedule A alone, separate assessment of the mesne profits of the properties in the two schedules has become necessary. This we leave to be done at the time "of execution. We also make it clear that the second respondent alone is liable for mesne profits, since it was she who claimed to have taken possession of the properties and the first respondent disclaimed possession. 13. The appeal is consequently allowed in part, and a decree as prayed for in the plaint for recovery of possession with mesne profits, etc. is passed regarding the properties in schedule A to the plaint. Regarding the properties covered by schedule B, the appeal and the suit are dismissed. The appellant will be entitled to proportionate costs throughout from respondents 1 and 2, which we fix at three fourths of the entire costs. And the respondents will suffer their costs throughout.