1. The second appeal is instituted by the defendants in the suit, against the preliminary decree for partition of the suit property into two shares, and for allotment of the western moiety to the plaintiff-temple (respondent). There are only three grounds involved in the appeal, of which the first ground alone need detain us at any length. The facts relating to that ground are as follows.
2. The original owner, Angammal, conveyed this property under Ex. A-4, dated 19-9-1938, which is styled as a settlement deed, and which, according to the learned counsel for the appellants, can by no means be characterised as a testamentary disposition. In the relevant Part of this deed, the settlor stipulates the following terms. I am making a free translation here of the Tamil text, which is quoted both by the trial Court and the first appellate Court:
'Venkataswami Naidu (my son) and his male heirs are to take and attain one half (moiety) of the property. Chinnasami Naidu (my other son) and his male heirs are to similarly take and attain one half (moiety) of the property.'
It is not in dispute that the plaintiff temple obtained the fights of Chinnaswami Naidu in the property under a sale Ex. A-3 in its favour. Both the Courts below have applied the principle of Section 97 of the Indian Succession Act (Act XXXIX of 1925) to the interpretation of this settlement deed, and held, following the principle, that the words 'male heirs' were not words of limitation, and that venkataswami Naidu took a moiety in absolute right, as chinnaswami Naidu similarly did. The result of this would be, of course, that the plaintiff-temple (respondent) is enuaeu to a moiety.
3. Per contra, it is contended by learned counsel for the defendants (appellants), the alienees from the sons of Chinnaswami Naidu as well as from Venkataswami Naidu, that technical rule of interpretation with regard to Hindu Wills ought not to be applied to other dispositions by Hindus, such as deeds of settlement, particularly in the mofussil. The further argument is that the intentions or the settlor ought to be taken into account, and that an elderly lady like Angammal would not, normally, disinherit her grandsons in that manner, by conveying an absolute interest to her sons. Since she might not be conversant with such technical rules of interpretation of documents, the Courts ought to give effect to her intentions; it is also argued that the Tamil test might support an interpretation that Chinnaswami and his male heirs should simultaneously take equal shares in the property devised to them.
4. I have carefully considered these arguments, and I find them to be wholly lacking in substance. It is no doubt true that Section 97 of the Indian Succession Act enacts a principle of interpretation which, in terms, is applicable to testamentary dispositions, and not to gifts or settlements. But, actually, the principle is one which relates to the law of Real Property in general, and this is very clear from the following authorities. In Dadabhoy Framji Cama v. Cowasji Dorabji Panday, , the Judicial Committee held that the use of the words 'male heirs' in a settlement did not import any limitation. That would be so, even in a view most favourable to any alternative interpretation, unless there was some indication of a contrary intention. In Dadhabhai Framji Cama v. Cowasji Dorabji Panday, : AIR1923Bom177 Shah Ag. CJ. and Marten J. had earlier expressed the same view, This Court has held in Kotta Pullayya v. Grandhi veeraraghavamma, 1954 MWN 713 : AIR 1954 AP 2 that Section 97 of the Indian Succession Act lays down a general principle of interpretation of wills, which could equally be applied to a Will by a Hindu, unless there was some clear indication of a contrary intention.
The two decisions cited by the learned counsel for the appellants do not impinge upon the crux of the controversy here. In Karuppannan Ambalam v. Tirumalai Ambalam, : AIR1962Mad500 Ganapatia Piliai and Venkataraman J.I. have made some observations with regard to the application of the cypres doctrine to a gift inter vivos, in the context of a gift to charity made by a deed inter vivos. The remarks are only of remote relevance in the present context, to the extent that they indicate that technical rules of interpretation may have to be applied with care, to dispositions in this country. The observations of the Supreme Court in Kasturi v. Ponnammai, : 3SCR955 again, have very little direct relevance to the present situation. 1 have considered the Tamil text With care, and it seems to me to be obvious that the phraseology totally excludes the interpretation that there was a simultaneous bequest to either of the sons and the sons of either son taken together. In my view, the courts below were perfectly justified in interpreting the terms of the settlement deed in the light of the principle of Section 97 of the Indian Succession Act, though the section itself may not strictly apply. This contention raised on behalf of the appellant would, therefore, have to fail.
5. The other two contentions may be very briefly dealt with. The second contention involves a question of fact with regard to the mention of the boundary wall. The argument here is that the learned District Munsif gave a particular reason, namely, the alleged shifting of the wan, as one of the grounds on which he came to the conclusion that the true boundary was along A-23 to A-28. The learned District Judge, in first appeal, has not confirmed this. Nevertheless, he observes that, on the physical features noted by the Commissioner, the boundary was conclusively established, according to the plan. This Court cannot, in second appeal, interfere upon findings relating exclusively to questions of fact, and no sufficient justification has been shown either for a different view. This argument also has to fail.
6. Finally, an equity is pleaded on behalf of the defendants (appellants) that they may be permitted to ask for remedies Under Section 4 of the Partition Act, with regard to the western moiety now allotted to the respondent temple, in the interests of justice, and having in mina the history of the property. The argument is not very convincing. The appellants no more represent the original donees than the respondent. Both are alienees from their respective predessors-in-interest. However, the appellants may certainly move the Court, prior to the passing of the final decree, by means of a separate application Under Section 4 of the Partition Act, which may be dealt with on the merits. With these observations, the second appeal is dismissed. The parties will bear, their own costs here. No leave.