1. The defendant in O. S. No. 11/1965 on the file of the Court of the Subordinate Judge, Eluru, is the appellant herein. The suit was filed by the two plaintiffs, the respondents herein, for declaration of their title to the plain-schedule property and for recovery of possession of the same together with future mesne profits.
2. The plaintiff's case is that the defendant is the husband of their sister, Indukuri Ramaseethayamma, that they were married in the year 1947, that on 2-2-1951 under Ex. A-1, the plaintiffs and their father Narayana Raju, executed a registered settlement deed in favour of Ramaseethayamma giving her Ac. 2-00 in Survey No. 89/1 of Vadluru village with a right to enjoy the income from the said land during her lifetime, and that after her death, her children were to enjoy the same with absolute rights. Ramaseethayamma died on 7-9-1964 issueless. The plaintiff's therefore contended that they are entitled to the suit lands.
3. The defendant contested the suit stating that the settlement deed Ex. A-1 dated 2-2-1951 was executed in favour of his wife giving her absolute rights in the suit properties, that at the time of his marriage with Ramaseethayamma, her father announced a gift of the suit lands in her favour towards 'Pasupkunkuma', that pursuant to the aforesaid announcement, he settled the property on his daughter, and that even as per the terms of the settlement deed, the donors did not intend that the property should revert back to them in case the donee died issueless. He also set up a settlement deed Ex. B-1 alleged to have been executed by Ramaseethayamma in her being the husband of Ramaseethayamma. is the legal heir to the suit property after her death, and that he also perfected title to the suit lands by adverse possession.
4. The trial Court framed the relevant issues and held that the case of the defendant that the suit lands were given to Ramaseethayamma towards 'pasupukunkum' was not established by the evidence on record, the under the settlement deed Ex. A-1, Ramaseethayamma acquired only a life estate that after her death, the property would revert to the plaintiffs, that the settlement-deed Ex. B-1 executed by Ramaseethayamma in favour of the defendant. even if true, was not valid and binding on the plaintiffs and that Ramaseethayamma did not acquire title to the suit properties by adverse possession. In this view, the trial court decreed the suit as prayed for.
5. On appeal, an additional plea was raised that Ramaseethayamma acquired an absolute estate in the suit properties under Section 14(1) of the Hindu Succession Act (hereinafter called the Act). A finding was called for by the lower appellate Court from the learned Subordinate Judge, who submitted a finding that Ramaseethayamma did not acquire an absolute right in the suit properties under Section 14(1) of the Act., and accepting this finding, the lower appellate Court dismissed the appeal.
6. The only point urged before me is whether late Ramaseethayamma acquired in absolute estate in the suit properties under Section 14(1) of the Act. This against turns upon a decision of the question as to what interest late Ramaseethayamma acquired in the suit properties under the settlement deed Ex. A-1. If the said document confers an absolute estate, then Ramaseethayamma, would acquire an absolute estate under Section 14(1) of the Act. On the other hand if it is only a limited estate that is conferred by Ex. A-1, the case would be governed by Section 14(1) of the Act and the properties would revert to the plaintiffs So the only question for consideration in this appeal is as to whether Ramaseethayamma, acquired an absolute estate in the suit properties under Ex. A-1. This question turns upon mainly the interpretation of the terms of the settlement deed Ex. A-1. The said document is in telugu and the translation of it as given in paragraph 12 of the lower appellate Court's judgment, reads as follows:
'You are the daughter of Narayanaraju among us and sister of Krishnamaraju and Purushothamaraju. Out of affection we have for you. we have now delivered to you the zeroyathi dry land as per the schedule hereunder. In the said property, rights have been created now. So we have executed and given to you freely without taking any consideration. So during your life time without doing any acts of damage to the property, you enjoy the usufruct only from it. After your lifetime, your children shall enjoy the property with full rights of gift,. sale etc. We shall settle at our expense all disputes etc, from gnatis etc., and see that the settlement is carried out. We have executed this document assuring you that we have not executed and document in respect of this property previously. You shall pay the taxes to Govt. fasli 1361. We shall file agreements for mutating in your name. From today we or our representatives have n concern at all with this property. You shall given us a bodi to our remaining land along the southern side of this land if necessity arises.'
7. Shri P. Ramachandra Reddy, the learned Advocate-General appearing for the appellant contended that under the document, it must be held that an absolute estate or at least a heritable estate was conferred on late Ramaseethayamma. It is contended by the learned counsel for the respondents that only an estate limited to the life of late Ramaseethayamma, was conferred and not an absolute or a heritable estate. The expressions in the deed, 'we have now delivered to you the Zeoryathi dry land as per the schedule hereunder, and in the said property, rights have been created now. So we have executed and given to you freely without taking any consideration.' show that the rights in present were created in favour of late Ramaseethayamma on the date of execution of the document. Further there is no condition or restriction imposed by the document with regard to the alienation by way of sale or gift by the donee. The usual words. 'the donee should not alienate by sale or gift'. do not occur in this document. The expression employed in this document is, 'So during your life time without doing any acts of damage to the property, you enjoy the usufruct only from it.' The expression 'without doing any acts of damage' cannot in my opinion be taken to mean in the context as implying a restriction on the alienation by the donee. At best it is only an advice or a wish of the donors, that the donee should during her life time be in possession and enjoyment of the property without wasting the same so that the estate may ultimately descend to her heirs. Towards the end of the document, it was further stated that 'from today we or our representatives have no concern at all with this property.' This means that the donors completely divested themselves of their rights in the suit property and that they never intended that the property should revert back to themselves and that it should only go to Ramaseethayamma and descend to her heirs after her death. The clause that after the life time of Ramaseethayamma, her offsprings should enjoy the property absolutely with rights of alienation and gift, also strengthens the view that it was herital estate that was conferred on Ramaseethayamma, thought not an absolute estate.
8. Shri J. V. Suryanarayana Rao, the learned Counsel for the respondents sought to contend that the expressions that 'Ramaseethayamma should enjoy the usufruct for her life time, that she should not do any acts of damage and that after her life time, it should devolve upon her children,' is indicative that what was conferred was only a life estate. He submits that the document should be construed as conferring a life estate on Ramaseethayamma and gifting over in favour of her children, and that the presence of the gift over clearly is indicative of cutting down the estate conferred on Ramaseethayamma to that of a life estate. I am unable to agree with this submission. In arriving at the intention of the donors and to find out the nature of the estate conferred by the said document, the whole of the document should be read together and not the words employed in portions of the said document. Apart from the recitals in the document. even the surrounding circumstances show that the donors must have intended to confer a heritable estate on Ramaseethayamma. Ramaseethayamma was the only daughter of her father, the family was owing large movable and immovable properties and was in affluent circumstances. The status and customs of the family also show that normally gifts of lands are given to daughters at the time of their marriages. The second plaintiff examined as P. W. 1 and their witness P. W. 2 admitted that at the time of the marriage of the second plaintiff, his wife was given Ac. 2-00 of land towards her 'Pasupukunkuma.' No doubt there is no evidence on record that the suit lands were given to Ramaseethayamma towards her 'Pasupukunkuma' but this by itself would not lead to the conclusion that the suit lands were not intended to be given to Ramaseethayamma with heritable or absolute estate.
9. In Subramania Chetti v. Mahalakshmi Ammal, (AIR 1933 Mad 659), the document that fell for consideration read as follows:
'As you are helpless and because of affection as you are my son I have made settlement 'gift' to you of the under mentioned properties. You are to enjoy its income during your lifetime and after your lifetime your male santhathi or adopted santhathi will take (it). Even if there be no male santhathi but only female santhathi such female santhathi will take (it). During your lifetime you have no right whatever to sell or to mortgage the above properties.'
Constructing the aforesaid document, Pandalai, J. held that the donor did not contemplate the property coming back to him, that he disposed of his entire interest in the property by authorising the donee to take the income during his lifetime and after him his heirs, that the restraint on alienation was only of sale or mortgage during the lifetime of the donee, and it was not absolute and the language of the clause restraining the alienation showed that the donee was to have, subject to that restraint, an interest not merely in the income but in the properties. The learned Judge on a consideration of the whole document, came to the conclusion that the donee took a heritable estate namely the right to take the produce in his lifetime and during the lifetime of his descendants under a disposition which was described as a settlement to the donee, that the donee was not a life tenant and that the he took a heritable, if not, an absolute estate. The learned Judge referred tot he observations of their Lordships of the Privy Council in Basanthakumari Debi v. Kamikshya Kumari Debi, (1906) ILR 33 Cal 23 where a deed of gift of immovable property made by a Hindu in favour of his sister fell for interpretation. The deed read as follows:
'You shall pay the annual Government revenue and get your name registered and enjoy possession during your lifetime. On your death your husband, sons, grandson and other heirs in succession will continue to enjoy and possess. The power to dispose of by gift or sale will successively vest in your husband, sons, grandsons and others.'
It was noticed that the document did not confer any power on the donee to make a gift or sale; still their Lordships of the Privy Council observed that the donee took a heritable estate. In this case also, the intention of the donors was that the donee should take the properties and enjoy the same during her lifetime and also during the lifetime of her offspring and that after her death, they should devolve upon her children. This shows that what was conferred was a heritable estate and not a life estate.
10 .Sri J. V. Suryanarayana Rao, the learned counsel for the respondents relies upon a decision of the Madras High Court, reported in Narayanaswamy v. Gopalaswamy, AIR 1938 Mad 6. But the actual document that fell for consideration has not been set out and on a construction of the terms of the gift deed which fell for consideration there, the learned Judge came to the conclusion that what was conferred was only a life estate and not an absolute estate. The decision in my opinion does not support the contention of the learned counsel for the respondents.
11. As I have come to the conclusion that Ramaseethayamma had acquired a heritable estate under the settlement deed Ex. A-1 it follows that she had acquired an absolute estate under Section 14(1) of the Hindu Succession Act that the appellant-defendant being the husband, is the legal heir to the said property that the property would not revert back to the plaintiffs and that they are not entitled to a declaration of title to the said property or to recover possession of the same.
12. In the result, the second appeal is allowed and the judgments and decrees of both the courts below are set aside and the suit O. S. 11/65 is dismissed with costs throughout. No leave.
13. Appeal allowed.