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Gomathi Ammal Vs. Kupputhayi Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1904)14MLJ175
AppellantGomathi Ammal
RespondentKupputhayi Ammal
Cases Referred and Muthiwaduganatha Tevar v. Dorasinga Tevar I.L.R.
Excerpt:
- .....daughters who are parties to a partition amongst themselves of their father's estate, have the right of survivorship in the sense that those who survive the others would take the share of the deceased in preference to those who take the deceased's stridhanam, but as pointed out in ramakkal v. ramasami naickan i.l.r. 22 m. 522 it is open to persons in the position of these daughters, while effecting the partition by apt words to renounce such right of survivorship. whether that was done in the present case is a question to be decided with reference to the construction of exhibit b and the surrounding circumstances. the instrument itself does not proceed on the footing that the daughters had the limited estate which the law gave to them and does not expressly or by implication purport.....
Judgment:

1. The question in this appeal relates to a 0-7-3 share and a 0-7-1 share in the property which originally belonged to one Venkataraya. After his death his 3 daughters, Kupputhayamnal, the plaintiff, Avadayammal and Subbammal succeeded to his property. In 1857 they divided the properties and at that partition a 0-7-8 share was assigned to Avadayammal, the other daughters taking a 0-8-0 share each and in consideration of Avadayammal performing the nuptials of Subbammal and the ceremonies connected with their deceased father and carrying on litigation, if any in connection with the property of their father, an extra share of 0-7-1 was assigned to her. In other words, the estate was divided into four shares, two being assigned to Avadayammal and one share to each of the others. Avadayammal being dead, the question is whether the plaintiff, the sole surviving daughter, is not entitled to what had been taken by Avadayammal, Undoubtedly the daughters had only a limited estate and the partition entered into by them would of course not affect the reversionary right of Venkataraya's heirs. Ordinarily daughters who are parties to a partition amongst themselves of their father's estate, have the right of survivorship in the sense that those who survive the others would take the share of the deceased in preference to those who take the deceased's stridhanam, but as pointed out in Ramakkal v. Ramasami Naickan I.L.R. 22 M. 522 it is open to persons in the position of these daughters, while effecting the partition by apt words to renounce such right of survivorship. Whether that was done in the present case is a question to be decided with reference to the construction of Exhibit B and the surrounding circumstances. The instrument itself does not proceed on the footing that the daughters had the limited estate which the law gave to them and does not expressly or by implication purport to part with any right which may accrue to one on the death of the others. On the contrary it proceeds on the footing that the right of the parties was absolute and such as involved no idea of survivorship. This view is emphasized by the fact that Exhibit B purports to be a partition between three males, the husbands of the three daughters of Venkataroya, not as agents acting on behalf of the daughters, but as if those males were themselves the owners of the property-Nor is it surprising that the real parties to the transaction thought that they were absolutely entitled, for though according to decisions rendered long after 1857, the estate which a daughter takes by inheritance from her father must be taken to have always been a limited and qualified estate, yet it was generally assumed in this Presidency about the time Exhibit B was executed and for some years later that the estate taken by a daughter was her absolute property. See for example Strange's Manual of Hindu Law, 2nd edition, 145. As regards the provision contained in Exhibit B that any party to the instrument finding it necessary to sell her share should give the other parties the option of purchasing it, that also, in our opinion, goes to strengthen the view that the parties supposed the interest taken by them prior to the partition was absolute. The expression 'finding it necessary' in the clause, on which stress was laid in the argument, obviously means nothing more than 'having occasion to alienate' and the manifest object of the provision was to give the other parties to the instrument a right of pre-emption. And this is rendered as plain as possible by the express reference made to a sale to strangers in the event of the other parties to the partition not being disposed to avail themselves of the right of pre-emption so given. It is impossible to see how such a provision can, as contended for the appellants, be construed as referring to a transfer with the consent of all and only for purposes which would render a transfer by qualified owners binding upon all the reversioners. Had such been the intention, the terms of the instrument would have been utterly different and the parties could have had no difficulty in finding language capable of conveying their meaning. This being in our view the proper construction to be put on the document, it is impossible for us to hold that the parties to the instrument intended to renounce and did renounce the right of each to take as the father's heir, the share of any deceased daughter on the footing that the estate taken by all the daughters was only a qualified estate. Such right of survivorship must be taken not to have been within the contemplation of the parties when they entered into the partition, they having, as stated above, proceeded on the erroneous view that they had, not a qualified but an absolute estate which carried with it no right of survivorship. The general words in the instrument that thereafter the connection between the parties was to be that of blood only could not be construed as embracing a right of survivorship which ex hypotkesi. was not in the contemplation of the parties and involving the renunciation thereof. (Compare Soobramania Telaver v. Gokka Telaver 5 M.H.C. 437; Subbien Pillay v. Arunachela Tiruvengadu Pillay Ibid 444 (Per Scotland and Holloway, JJ., at p. 450) and Muthiwaduganatha Tevar v. Dorasinga Tevar I.L.R. 3 M. 290 (Per Innes, J. at p. 320 and Per Muthuswami Iyer, J., at p. 339).

2. It remains to add that the 0-7-1 share assigned to Avadayammal does not stand on a footing different from the assignment of the 0-7-3 share. The reasons for the assignment of the former were merely those for giving her an extra share, Such assignment, did not, as contended for the appellants, operate in effect as a sale thereof under circumstances which would make it bind ing on all the reversioners in the view that the daughters took only a qualified estate. In our opinion, therefore, on the death of Avadayammal the plaintiff as the then sole surviving daughter of Venkataroya succeeded. The second appeal fails and is dismissed with costs.


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