Frederick William Gentle, C.J.
1. This appeal arises out of an Originating Summons, taken out by the respondents under the provisions of Order XLV of the Rules of the Original Side of this Court, for the construction of the terms of one bequest in the will dated the 12th November, 1881, of the late Alathoor Thiruvengadathan Chetty. He died shortly after the will was executed ; probate of the will was obtained in 1882 by the executors and executrix therein named. The testator was survived by his wife Amirthavalli Thayar and by three sons of his deceased elder brother, Narayana Chetty, Namberumal Chetty and Ramanujam Chetty; he left no issue surviving him. The widow and the three nephews of the testator are now dead. The two respondents, plaintiffs in the Originating Summons, are the survivors of the four sons of Namberumal ; the defendant-appellant is the only daughter of Ramanujam, who left no male issue ; and Narayana died without issue. The will is in Telugu, the English translation of the provision sought to be construed reads as follows:
House bearing door No. 16, Cope Venkatachalla Iyer Street, Peddunaickenpet, Madras ; my wife shall after my death use and enjoy this house during her lifetime keeping my elder brother's son, Ramanujam Chetty and his wife and children, with her without possessing the right to sell, give as gift or dispose of the same in any other manner and with the income therefrom, repair, pay quit rent and assessment charges. After my wife's death, my eldest brother's sons, Narayana Chetty, Namberumal Chetty and Ramanujam Chetty and their male issues shall take it.
The testator's widow enjoyed the property until her death, in 1895. In 1896, Narayana purported to mortgage one-third share in the property to Ramanujam, who died intestate in 1910 leaving a widow Perun Devi. She died in 1944 survived by the daughter, the defendant-appellant.
2. The respondent's contention was that the will conferred upon the three nephews of the testator a life interest and after the death of the nephews the respondents took the property absolutely. The appellant contended that the nephews took an absolute interest as tenants in common.
3. The learned Judge held that upon a proper construction of the will the property passed to the nephews and to their sons absolutely as tenants in common, and the appellant has now become entitled to her father's share in the property.
4. Against the learned Judge's judgment the appellant instituted this appeal and the respondents filed cross-objections.
5. Learned counsel for the respondents abandoned the contention that the nephews were given a life estate in the property, which was urged in the plaint and before Kunhi Raman, J.
6. Learned counsel for the appellant raised objection to the maintainability of the Originating Summons. He argued that construction of the will would not determine all disputes between the parties and, hence, it should have been dismissed and the parties relegated to a suit. In this connection, he pointed out that, in the written statement, it is alleged that, since the testator's death, the respondents have acted on the footing that the nephews took an absolute estate as tenants in common; further, that for some 34 years the appellant's mother was in possession of the whole property and accounted to the sons of Namberumal for one-third only of the rent derived there from and that, thereby, she acquired a prescriptive title against the respondents by adverse possession in respect of two-thirds of the property. These allegations, it was argued, raise questions upon which oral evidence is required to ascertain the facts which evidence cannot be given in proceedings by way of an Originating Summons. Further, it was pointed out, the appellant has been in possession of the property ever since her mother's death, and, in the event of the will being construed against her contentions so as to give the respondents right to possession, they could not obtain it in these proceedings. Thus, other litigation would be necessary in order to determine finally all questions and disputes between the parties.
7. In support of this contention reference was made to Rajan v. Pankajammal : AIR1941Mad194 and to a decision of the English Courts, Lewis v. Green (1905) 2 Ch. 340. In Rajan's case : AIR1941Mad194 the matter sought to be decided by an Originating Summons, issued under Order XLV of this Court's Rules, was whether the executors named in a will had forfeited the legacies bequeathed to them by renouncing their executorships ; the question whether the executors had renounced was in dispute ; the summons was directed to be dismissed and, at page 189 of the report, reference with approval is made to the observations, hereinafter quoted, of Warrington, J., in Lewis's case (1905) 2 Ch. 340. regarding Order LIV-A of the Rules of the Supreme Court, which corresponds to Order XLV of our Rules. In Lewis's case construction of some deeds was sought by an Originating Summons ; questions of fact also required decision, in the light of the contentions raised by the defendant. At page 344 of the report, Warrington, J., observed that ' It seems to me that where one finds circumstances such as I find here, the procedure under Order LIV-A is improper. It is only intended to enable the Court to decide questions of construction when the decision of these questions, whichever way it may go, will settle the litigation between the parties.' The Summons was dismissed.
8. In the present instance there are questions of fact which can be decided only by evidence, which cannot be adduced in an Originating Summons. Further, the defendant is in possession of the whole, or at least of two-thirds, of the property. The construction of the provisions in the Will, will not terminate the litigation between the parties ; their rights to the property, in the event of the Will being construed in the respondent's favour, will not be determined finally but, in addition, will depend upon the decision on the question arising regarding the assertion of a title by adverse possession against the plaintiffs. Further, if the respondents are entitled to the property, or to a portion of it, which is in the appellant's possession, they cannot obtain it in these proceedings. Construction of the Will in this Originating Summons may not be the termination, but the commencement, of litigation. Rule 9 of Order XLV of the Rules of this Court, corresponding to Rule 4 of Order LIV-A of the Rules of the Supreme Court, provides that a Judge hearing an Originating Summons may, if it appears to him, that the matters in respect of which relief is sought cannot be disposed of in a summary manner, refuse to pass an order on the Summons and refer the parties to a suit in the ordinary course. In the circumstances of this case, the learned Judge, in my opinion, should have followed the above rule and should not have construed the Will, but have dismissed the Summons and relegated the parties to a suit.
9. The appeal should be allowed and the order appealed from set aside. I desire, however, to observe that it does not follow in every case that, when a defendant raises some factual contention in an Originating Summons, it must of necessity be dismissed ; if that were so, then it would always be possible to obtain postponement of a decision which properly could be given in such proceedings, by raising some controversial matter which is groundless and, indeed, fabricated ; thus the benefit accorded by the Originating Summons procedure would be defeated. Each case must be dealt with in regard to its own peculiar circumstances.
10. I think the proper order for costs is that in this appeal each party should respectively bear her and their own and the costs incurred before Kunhi Raman, J., abide the result of the suit in which all questions, including the construction of the will, between the parties will be in issue.
11. I agree.