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2009 DIGILAW 4612 (MAD)

Esakkimuthu v. Manickavadivoo & Others

2009-11-01

G.M.AKBAR ALI

body2009
Judgment :- The plaintiff is the appellant. The second appeal is preferred against the judgment and decree dated 28.02.1996 in A.S. No.22 of 1994, on the file of the learned Subordinate Judge, Nagercoil, confirming the judgment and decree, dated 16. 1994 in O.S.No.779 of 1987, on the file of the learned District Munsif, Nagercoil. The suit is filed for partition and for mesne profits. 2.The brief facts of the case are as follows: The plaintiff and the defendants 2 to 4 are brothers. The first defendant is their mother. One Late, Sivasubramanian was the husband of the first defendant and the father of the plaintiff and the defendants 2 to 4. One Late. Ramalaxmi is the mother of the first defendants and the grand mother of the plaintiff and the defendants 2 to 4. The said sivasubramanian died on 26.04.1986 and the said Ramalakshmi died in the year 1964. The first item of the plaint schedule property was purchased by the said Sivasubramanian. The second schedule of the property originally belonged to one Paramartha Lingam Ariyar, who executed a settlement deed, dated 06.02.1956, in favour of the plaintiff and the defendants 1 to 4. Therefore, the second schedule property is the ancestral property. The first and second schedule property are the houses. The 3rd defendant is residing in the first schedule property and the defendants 1,2 and 4 are residing in the second schedule property. The father of the plaintiff died intestate. Therefore, according to the plaintiff, he is entitled for 1/5th share. Therefore he issued a notice dated 17.06.1987 and the defendants 1 to 3 sent a reply dated 26.06.1987. They agreed for partition in the first schedule property and refused partition in the second schedule property. 3. The 4th defendant agreed with the plaintiff and he has also sought for 1/5th share. The defendants 1 to 3 contested the suit stating that the first item of the suit schedule was alone available for partition. As far as the second schedule property is concerned, it was given to the first defendant under a settlement. She has become the absolute owner of the property and she has executed a gift deed in favour of the defendants 2 and 3. Therefore, according to the defendants, the plaintiff is not entitled to any share in the second schedule property. 4. She has become the absolute owner of the property and she has executed a gift deed in favour of the defendants 2 and 3. Therefore, according to the defendants, the plaintiff is not entitled to any share in the second schedule property. 4. Based on the above averments, the learned trial Court has framed triable issues and found that the second schedule property belonged to one Rajalaxmi and she died in 1964 leaving behind her only daughter, the first defendant, and therefore, the first defendant alone is entitled to the second schedule property. It also found that she had settled the property in favour of the defendants 2 and 3, which is valid and therefore the trial court granted preliminary decree of partition in the first schedule along and dismissed the suit in respect of second schedule property. 5. Aggrieved by the judgment and decree, the plaintiff has preferred an appeal before the Sub Court, Nagercoil. The learned Sub-Judge, Nagercoil, also concurred with the trial Court and dismissed the appeal. Against which the plaintiff has preferred the present second appeal on the following grounds:- .(i) The decision of the lower appellate Court so far as it relates to item No.2 of the plaint schedule suit property is concerned is against law, weight of evidence and probabilities of the case. .(ii) the lower appellate Court has failed to consider what was the intention of Paramarthalinga Ariyar while he executed the settlement deed Ex.AI, dated 06.02.1956. (iii) The Courts below have not properly interpreted the condition No.2 stated in the settlement deed, Ex.A1, which runs as follows:- (“in Tamil”) .(iv) The findings of the lower Courts that the 1st respondent/1st defendant alone became entitled to the suit 2nd item of the property after the death of Ramalakshmi are erroneous. .(v) The findings of the lower Courts that Paramarthalinga Ariyar had not created any interest in the suit item 2 of the property under Ex.A1 in favour of the appellant and respondents 2 to 4 (plaintiff and defendants 2 to 4) is not correct. 6. On admission, this Court has framed the following substantial questions of law, to decide the issues:- .(a) Whether the Courts below erred in law and misdirected themselves in the interpretation of condition No.2 of Exhibit A1, Settlement Deed, dated 06.02.1956 and in finding that Ramalakshmi was solely entitled to the said item? 6. On admission, this Court has framed the following substantial questions of law, to decide the issues:- .(a) Whether the Courts below erred in law and misdirected themselves in the interpretation of condition No.2 of Exhibit A1, Settlement Deed, dated 06.02.1956 and in finding that Ramalakshmi was solely entitled to the said item? .(b) Whether in terms of condition No.2 of the settlement deed, Exhibit A1, the plaintiff is legally entitled to 1/5th share in the suit item No.2, as one of the ‘pin varisugal’ ? 7. The relationship between the parties are admitted. The plaintiff has filed the suit for partition for his 1/5th share along with the defendants for the suit properties. There are two items in the suit properties. As far as the first item is concerned, the defendants have admitted that the plaintiff is entitled for 1/5th share. As far as second item is concerned, the case of the plaintiff is that it originally belonged to one Paramartha Lingam Ariyar, who executed the settlement deed, dated 06.02.1956 and thereby the plaintiff and the defendants 1 to 4 are entitled to the property and therefore, it is available for partition. 8. As far as the defendants 1 to 3 are concerned, the said Paramarthalinga Ariyar settled the property in favour of his daughter Ramalakshmi and after the death of the said Ramalakshmi, the first defendant who is her only daughter, became the owner of the property and she executed Exs.B1 and B2, settlement deed, in favour of the defendants 2 and 3 and therefore, the plaintiff is not entitled to any share in the property. 9. The learned counsel for the appellant would submit that under the settlement deed, a limited interest was given to the said Ramalaxmi and after her life time, her legal heirs are entitled to the property. The learned counsel also pointed out that the Courts below have not propertly interpreted the condition in the settlement deed. Ex.A1. 10. The learned counsel for the appellant invited the attention of this Court to the judgment of the Honourable Supreme Court in Raj Bajrang Bahadur Singh Versus Thakurain Bakhtraj Kuer reported in ( AIR 1953 SC 7 ), Wherein, in a similar facts and circumstances of the case, the Supreme Court held that the life interest will not become the absolute interest of the settlee in the property. 11.The learned counsel for the appellant, next invited the attention of this Court to the judgment of the Honourable Supreme Court in F.M. Devaru Ganapati Bhat Versus Prabhakar Ganapati Bhat reported in ( AIR 2004 SC 2665 = 2004-2-L.W.834), wherein it has been held as follows:- “6. The rule of construction is well settled that the intention of the executor of a document is to be ascertained after considering all the words in their ordinary natural sense. The document is required to be read as a whole to ascertain the intention of the executant. It is also necessary to take into account the circumstances under which any particular words may have been used. 8. Wewould now revert to the gift deed. It clearly shows the intention of the donor that if after execution of the gift deed any male children are born, the properties should be enjoyed by the appellant with them as joint holder. With reference to Property Survey No.306, the words “this property will be your and nobody else shall have right or title over it” cannot be read in isolation. These words are immediately followed by the words that “in case any male children are born to your parents, you shall enjoy the described immovable property and house with those male children as a joint holder”. No exception is made in respect of Property Survey No.306, when the donor stated that “nobody else shall have right or title over it”, she was only reiterating what was stated earlier that she had decided to gift the immovable property and house to the appellant since at the time, the appellant was the only male child of the brother of the donor. There are no such qualifying words in the gift deed to show an intention of the donor to exclude the unborn male children from the title of Property Survey No.306 which she had retained for maintenance during her livelihood. The document read as a whole clearly shows the intention of the donor that all the properties gifted shall remain in the family of her brother, being their ancestral properties and shall be enjoyed by the appellant and other male children as may be born, as joint holders. The words in the gift deed upon which reliance has been placed by the appellant cannot be seen in isolation. The words in the gift deed upon which reliance has been placed by the appellant cannot be seen in isolation. The document read as a whole does not show that the donor intended to create an absolute right in favour of the appellant. The language and tenor of the document clearly shows that the intention of Mahadevi was to make all male children of her brother joint holders of the properties without exception of any property. The gift deed has been properly constructed by the courts below.” 12. The learned counsel for the appellant also invited the attention of this Court to the judgment of the Andhra Pradesh High Court in Javvadi Venkata Satyanarayana Versus Pyboyina Manikyan and others reported in ( AIR 1983 A.P 139 ), wherein it has been held that when the transfer is made for the benefit of unborn person, life estate holder cannot defeat interest of unborn person by transferring life estate to the third person. 13. On thecontrary, the learned counsel for the respondents 2 and 3 would submit that the property was settled in favour of the said Ramalaxmi and after her death, succession opens under Section 15 (1) of the Hindu Succession Act, 1956. Therefore her only daughter, the first defendant, has become absolutely entitled to the property. The condition in the settlement deed that Ramalaxmi to enjoy the property for her life time and hereafter the property to be vested with her unborn legal heirs will not come into effect. 14. According to the learned counsel for the appellant, at the time of execution of Ex.A1 the plaintiff was born and therefore the recitals under the settlement deed has to be given effect to. 15. Under Ex.A1, the property has been bequeathed to the unborn legal heirs. As per the recitals, after the life time of the settlee, it has to go to the legal heirs for generations without the right of alienation. According to the plaintiff, the plaintiff and the defendants who are the legal heirs of the settlee, are jointly entitled to the property and the 1st defendant will not inherit the property absolutely. 16. Admittedly, Ex.A1 was executed on 06.02.1956 by Paramarthalingam Ariyar, in favour of his daughter Ramalaxmi. The recitals says….. (in Tamil) 17. According to the plaintiff, the plaintiff and the defendants who are the legal heirs of the settlee, are jointly entitled to the property and the 1st defendant will not inherit the property absolutely. 16. Admittedly, Ex.A1 was executed on 06.02.1956 by Paramarthalingam Ariyar, in favour of his daughter Ramalaxmi. The recitals says….. (in Tamil) 17. Accordingly to the plaintiff, the settlee is given the life interest and after her life time, the legal heirs are to get the property and enjoy the same without any alienation for generations after generation. 18. The transfer of interest can be created in favour of an unborn person. Section 20 permits an interest being created for the benefit of an unborn person who acquires interest upon his birth. The recitals that after the death of the settlee, her legal heirs should enjoy the property without any right of alienation for generation after generation is hit by the rule against perpetuity. 19. Section 13 of the Transfer of Property Act, 1882 deals with transfer for the benefit of unborn person. Section 14 deals with rule against perpetuity. 20. Section 15 of the Transfer of property Act, 1882 reads as follows:- If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails in regard to those persons only and not in regard to the whole class. 21.Section 16 of the Transfer of Property Act reads as follows:- “16. where, by reason of any of the rules contained in Ss 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.” 22. Therefore, under the settlement deed Ex.A1, the interest created on Ramalakshmi will not fail but the vested interest created on the unborn children who were not in existence at the date of transfer and that too without any right of alienation for generations will fail. Therefore, under the settlement deed Ex.A1, the interest created on Ramalakshmi will not fail but the vested interest created on the unborn children who were not in existence at the date of transfer and that too without any right of alienation for generations will fail. Therefore that part of the recitals namely, the legal heirs to inherit for generations is not valid and the limited interest will become absolute interest for the settlee. Since she died, after the coming into force of Hindu Succession Act, 1956, the succession opens, and under section 15(1) of the said Act, her daughter, the 1st defendant inherits. 23. Therefore, it is not correct to state that after the death of the said Ramalakshmi, the plaintiff and the defendants are entitled together to the suit property as legal heirs. The courts below are right in holding that the plaintiff is not entitled for a share in the second schedule and the substantial question of law are answered accordingly. 24. In the result, the appeal fails and the same is dismissed. However, there will be no order as to costs.