1. The plaintiff is the appellant. The suit is in respect of certain property which originally belonged to one Pichaiyammal. She executed a deed of gift on 8th May, 1905, in favour of Veeraperumal Ammal, her daughter, and the decision of this second appeal depends mainly on a construction of the terms of this deed. Veeraperumal 'Ammal had three daughters, Badrakali, Pechi Ammal and Thangathammal, the plaintiff. She died in 1940. The plaintiff instituted the suit out of which this second appeal arises for recovery of property included in the deed of gift of 1905 on the ground that under that deed her mother- Veeraperumal Ammal obtained an absolute interest in the properties covered by that deed including the suit property and on her death she was entitled to the property as she happened to be unmarried on the date of the suit while her two sisters were. married. The defendant-respondent is an alienee of the suit property from Pechi Ammal, the plaintiff's sister.
2. The defendant raised several pleas but it is sufficient to mention two of them. He pleaded that under the deed of gift of 1905, Veeraperumal Ammal got only an estate for her life and her daughters were entitled to a remainder after her life. As the daughters were entitled to the properties as donees under the document of 1905, the defendant contended the rule of inheritance relied upon by the plaintiff would not apply and the plaintiff cannot claim to exclude her sisters. Another plea was that there was a family settlement in accordance with which there was an oral gift of the suit property to his vendor Pechi Ammal. The learned District Munsiff of Tuticorin granted a decree in favour of the plaintiff. He held that Veeraperumal Ammal took an absolute estate under Ex. 7, the gift deed, executed by her mother and the plaintiff being an unmarried daughter was entitled to the suit property as her stridhana heir. No doubt in recording the finding the learned District Munsiff used the word ' absolutely,' but I believe what he meant was that the plaintiff took to the exclusion of her two sisters. He would be obviously wrong if he meant to say that the plaintiff was entitled to an absolute estate. The learned District Munsiff refused to believe the story of the family arrangement set up by the defendant.
3. On appeal by the defendant, the learned Subordinate Judge of Tuticorin reversed this decision of the District Munsiff and dismissed the suit. He held that under the document of 1905 Veeraperumal Ammal acquired only a limited estate. He thought it therefore unnecessary to consider the question whether the family arrangement set up by the defendant was true and binding on the plaintiff. There was some dispute on the question of possession in the lower Courts and the learned Subordinate Judge without recording a definite finding as to possession contended himself with remarking that the evidence had not been properly appreciated by the lower Court.
4. The second appeal filed by the plaintiff against the decision of the Subordinate Judge originally came on for hearing before my learned brother Kuppuswami Aiyar, J., who considered that the appeal could not be disposed of satisfactorily without definite findings on two questions, viz., (I) whether the plaintiff was in possession within 12 years prior to suit? and (2) whether the family settlement pleaded was true and valid He therefore called upon the lower appellate Court to submit findings on these two questions. The learned Subordinate Judge has now found that the plea of family arrangement set up by the defendant was not established. On the question of possession he found that the plaintiff was in pos- session within 12 years before suit. It appears that the learned advocates on both sides agreed that the question of possession was not material for a determination of the case.
5. Mr. Krishna Rao attacks the finding of the learned Subordinate Judge on the construction of Ex. P-7, the deed of gift, dated 8th May, 1905, executed by Veeraperumal Ammal's mother in her favour. The material portion of this deed may be set out hereunder:
As I have given away to you the property in the schedule herein worth Rs. 1,500 as stridhanam gift, you shall hold and enjoy the aforesaid property hereditarily and from son to grandson and so on as long as the Sun and Moon last. After your lifetime your issues if there are any shall get the aforesaid property. If you have no male or female issues, the aforesaid property shall revert to me and to my male heirs. I shall, till my lifetime, reside -jointly with you in the thatched house men- tioned in the schedule.
Mr. Krishna Rao for the appellant contended that under this document Veeraperumal Ammal became entitled to an absolute estate by virtue of the dispositive words which occur at the beginning, viz., 'as stridhanam gift,' 'hereditarily' and 'from son to grandson and so on as long as the Sun and Moon last.' The subsequent clauses should not be so construed as to destroy the effect of the absolute gift. If however, they are construed as being in the nature of a defeasance provision, then in this case the defeasance did not come into operation because Veeraperumal Ammal did leave issue.
6. On the other hand Mr. K.R. Rama Aiyar 'learned advocate for the respondent contended that on a proper construction of the terms of the deed taken in their entirety, Veeraperumal Ammal took only a life estate and her children, whether they were male or female, took the remainder and if Veeraperumal Ammal died issueless the property would revert to the donor and her male heirs. Both counsel relied upon several decisions of the Privy Council and of Courts in India, but as has often been pointed out the ultimate decision must depend upon the peculiar terms of the document in question. The learned Subordinate Judge also relied upon the observations of the Judicial Committee in Radha Prosad Mullick v. Ranimoni Dassi viz.;
in construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property It may be assumed that a Hindu generally desires that an estate especially an ancestral estate, shall be retained in his family ; and it may be assumed that as a general rule at all events, women do not take absolute estates of inheritance, which they are enabled to alienate.
7. While all this may be true, and to a certain extent useful when construing some documents, so far as the present case is concerned it must remembered that we have here a document executed by a woman who no doubt does not take an absolute estate of inheritance but who was absolutely entitled to the property which she was transferring by the deed. it is therefore not permissible to presume that a woman who herself was possessing the property absolute would not have intended that her daughter should take likewise an absolute estate. it is far more probable that she wanted her daughter to have such interest the terms of this she herself had. In any event I think it very unsafe to construe the terms of this document applying the general principles laid down in construing wills and transfers of a Hindu male and in particular when disposing of family property.
8. Before referring to some of the cases cited on either side it may be useful to refer to the terms of the document in question. Undoubtedly the language used by the donor in the first part of the deed is of sufficient amplitude to confer an absolute estate on Veeraperumal Ammal. The donor says that she has given away the property to her daughter as stridhana gift. Now, even if there had not been any other words, I would not have hesitated in holding that a gift in such terms would be a gift absolutely. But there are further words. The donor goes on to say
You shall hold and enjoy the aforesaid property hereditarily and from son to grandson and so on as long as the sun and moon last.
9. I fail to see what more words could have been used by any donor to confer an undoubted absolute estate on the donee than the words used by the donor in this deed. But Mr Rama Aiyar contends that we should read the document as a whole meaning thereby the subsequent claused also and when the entire document is so read, the only conclusion one should come to logically is that the donor intended only to confer an estate for life on her daughter. There daughter two such clauses. The first one provid that after the lifetime of the daughter her issues, if any, shall get the aforesaid property. The second clause is that if she had neither male nor female issue then the property would revert to the donor and her male heirs. Mr. Rama Aiyar would take these two claused separately and rely upon each as detracting from the absolute nature of the gift in the prior clause. According to him, the first of these clauses implies that after the lifetime of Veeraperumal Ammal, 'the property would be taken by her issue, male and female, and this would no be so if Veeraperumal Ammal had acquired an absolute estate because in that case her daughters would have excluded her sons. The next clause, viz., the clause providint for reverter to the donor, he say, is also indicative of. a limited estate having been conferred on Veeraperumal Ammal. in my opinion the proper course is to read these clauses together and along with the clause preceding them. It may be assumed that the donor is here showing an intention that no other heirs of Veeraperumal Animal should take the property except her issues. It is this intention that she is making manifest by these two clauses which really read in antithesis. The donor says that if Veeraperumal Ammal has issues, they will get the property ; but if she has no issue, the property would revert to herself and her male heirs. The real emphasis is upon the pro- vision for reverter. I do not agree with Mr. Rama Aiyar that there is any direct and express gift in favour of the issues of Veeraperumal Ammal. I have also a considerable doubt if there can be a gift simpliciter in favour of a person not existing. I am aware of the Hindu Transfers and Bequests Act, 1914, but I am not certain that the Act has the effect of abrogating the general rule that there cannot be a direct gift in favour of a person not existing though there may be a transfer for the benefit of a person not in existence on the date of the transfer. The language of Section 3 of the Hindu Transfers and Bequests Act, 1914, also suggests this. That section says that:
no disposition of property by a Hindu, whether by transfer inter vivo or by will, shall be in valid by reason only that any person for whose benefit it may have been made was not born at the date of such disposition.
To take an obvious instance it cannot be contended for a moment that there can be a gift by 'A ' to the sons that may be born to him. However it is not necessary for me to decide this point because in my opinion it is clear that there is no direct gift in favour of Veeraperumal Ammal's issues.
10. It is certainly arguable that there is a defeasance clause, viz., that on failure of issue, the property should revert to the donor. In the present case, however, the defeasance clause never came into operation because Veeraperumal Ammal did leave behind her issue. The result would therefore be that she would acquire an absolute estate under the terms of the document. The Judicial Committee in Lalit Mohan Singh Roy v. Chukkan Lal Roy pointed out that the presence of such a defeasance clause would not limit the absolute nature of the estate conferred by the document. In Bhoobun Mohini Debia v. Hurrish Chunder Chowdhury their Lordships say as follows dealing with a grant containing a provision for defeasance:
Upon the best consideration which their Lordships have been able to give to the meaning of these negative words, it appears to them that... their effect is to make the absolute estate before given, defeasible in the event of a failure of issue living at the time of her death, in which event the estate was to revert to the donor and his heirs. That there is nothing in such a condition repug- nant to Hindu law appears from the decision of this tribunal as to an executory devise in the case of Soorjeemoney Dissee v. Denobundoo Mullick (1862) 9 M.I.A. 123 as explained, in the Tagore case (1872) 9 Bom. L. R. 377.
Their Lordships held in that case that the donee took the whole estate defeasible on the happening of an event which did not occur because she did leave issue and that she had therefore an estate which she could dispose of by will.
11. Mr. Rama Aiyar placed considerable reliance upon three decisions. The first one is that of the Privy Council in Radha Prosad Mullick v. Ranimoni Dassee to which I have already referred. In that case a Hindu directed by his will that his executors should, after the death of his wife,
make over and divide the whole of my estate both real and personal unto and between my daughters in equal shares to whom and their respective sons I give, devise and bequeath the same, but should either of my said daughters die without leaving any male issue surviving, but leaving my other daughter surviving, then in such case the surviving daughter and her sons shall be entitled to the share of the deceased daughter, or in case of the death of either daughter leaving sons, the share of such daughter is to be paid to such of her son or sons, share and share alike.
Their Lordships in construing the will first take into consideration the fact that a Hindu generally desires an estate, especially an ancestral estate, shall be retained, in the family and that women do not take absolute estates of inheritance. Their Lordships base their conclusion on the gift to the respective sons of the daughters which implied that the testator wanted to exclude the daughters' daughters from. succession to which they would have been entitled under the ordinary Hindu law if their mothers' estate had been absolute. They even give a reason, namely, that the sons of the daughters would be competent to offer funeral oblations, which in their Lordships' opinion was the strongest of all possible arguments to an orthodox Hindu. Mr. Rama Aiyar seeks the assistance of this ruling by referring to the clause in the deed in suit which provides that after Veeraperumal Ammal's life- time her issues if there are any shall get the aforesaid property. His contention is that as the word issues is used it would mean that both male and female issues would become entitled to the property, whereas according to the ordinary rule of stridhana succession the male issue would be excluded by the female issue. But I do not agree with him that so much can be read into that clause. There is nothing in that clause to suggest that all the issues should share equally or an implication to that effect. As already pointed out the clause is really in antithesis to the next clause which provides for the contingency of Veeraperumal Ammal dying without any issue, male or female. It must be remembered that in the preceding clause the donor describes the gift which she is making in favour of her daughter as a stridhana gift. There is no indication that the property should be taken in a way different from that provided by the general law. Secondly, the consideration which appealed so much to their Lordships of the Judicial Committee, viz., the capacity to make funeral oblations, is completely absent from the present case. Learned advocate also relied upon the decision of a Bench of this Court in Ammannamma v. Kodanda Rao : AIR1940Mad210 but I do not think it necessary to advert at any length to what was said in this decision having regard to the terms of the document which had to be construed in that case. The operative portion of the will in that case was as follows:
My self-acquired properties...shall, on my death, be enjoyed by my wife till her death and after her death, they shall pass to my daughter. Thereafter they shall pass to my grandsons through my daughter.
There were no words in that case describing the bequest in favour of the daughter in language such as has been used in the gift deed in the present case. Nanda Gopal v. Pareshmoni Debi (1910) 6 I.C. 354 is a decision of the Calcutta High Court. The terms of the gift deed which are to be construed were as follows:
You do remain in possession of the land held by myself, down to your sons, sons' sons and so on in succession (putra poutradi krame) ; you shall not give up any land in favour of anybody and your sons and heirs in succession will have a right to own and possess the property, your husband and husband's heirs or any member of another family being excluded.
In construing the document the learned Judges desired to give effect to what is known to be the usual intention of a Hindu in disposing of his property, viz., to keep the property in the family so that it may pass to persons who may be able to confer spiritual benefits on the donor and therefore in that case the intention of the donor was to create a life estate in favour of the donee with a remainder over to her sons or sons' sons in succession and that under the gift no heritable right passed to the daughter of the donee. The learned Judges also referred to Mahomed Shamsool Hoda v. Shewakram which at one time was supposed to have laid down a presumption that a transfer in favour of a female was limited in extent. The observations on page 356 make it clear that the decision which they reached was mainly influenced by these presumptions and in particular the conferment of spiritual benefit. I am unable to receive any assistance from this decision in construing the terms of the deed in question.
11. Having given my best consideration to the contentions on either side, I am of opinion that Veeraperumal Ammal took the properties absolutely under the gift deed, dated 8th May, 1905.
12. I have no hesitation in accepting the finding of the learned Subordinate Judge as regards, the family arrangement set up by the defendant. The arrangement is in the vaguest terms possible and the learned Judge points out that there is no evidence about this arrangement. The arrangement must have been made at a time both the plaintiff and another sister, the defendant's vendor, were minors. There is no evidence as to who represented the interests of the minor daughters in the alleged family arrangement. No one has been examined who has personal knowledge of the alleged settlement. Such evidence as there is on the side of the defendant seems only to support a case of an oral gift of certain properties to the defendant's vendor at the time of her marriage but unfortunately a registered document was not executed to perfect the gift as was done in the case of the elder sister Badrakali Ammal in whose favour there is a registered deed, dated 2nd March, 1930.
13. The decree and judgment of the learned Subordinate Judge are set aside and the decree of the learned District Munsiff is restored. The appellant will be entitled to her costs here and in the lower appellate Court.
(Leave to appeal is granted.)