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The Government of Madras and anr. Vs. Mangayarakarsi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1327 of 1967
Judge
Reported inAIR1971Mad456
ActsWills Act, 1837
AppellantThe Government of Madras and anr.
RespondentMangayarakarsi Ammal and ors.
Cases Referred and Holyland v. Lewin
Excerpt:
.....intermittent life interest holder and that the property should be deemed to have been given to the family by inheritance attracting section 21. and that the inheritance under the will of jagadambal came directly within section 21. this view of the authorised officer holding that section 21 applied to the facts of this case was challenged by the respondent before the land tribunal, but the tribunal had held tha the terms are properly applied only to personal property but they avail to transit real property as well as the word 'devise' which is the proper word and vice versa. the fact that the explanation to section 21 covers only gifts made in contemplation of death clearly shows that legislative intention that the gifts other than the one referred to in the explanation will not come..........intermittent life interest holder and that the property should be deemed to have been given to the family by inheritance attracting section 21. and that the inheritance under the will of jagadambal came directly within section 21. this view of the authorised officer holding that section 21 applied to the facts of this case was challenged by the respondent before the land tribunal, but the tribunal had held that neither under the settlement deeds of the year 1930 nor under the deed of 1958 there was inheritance by the members of the family nor the settlement deeds will operate as donatio mortis causa. the tribunal therefore excluded the items got by the members of the family under the settlement deeds of the years 1930 and 1958. the correctness of the decision of the tribunal excluding.....
Judgment:
ORDER

1. The Authorised Officer (Land Reforms) Tiruchirapalli fixed the ceiling area of the first respondent's family and declared 7-547 standard acres as surplus. Before the authorised officer the first respondent put forward objections regarding the inclusion of three items of properties within her holding. It was claimed that the lands obtained by virtue of two settlement deeds dated 19-1-1930 and 29-5-1958 covering an aggregate extent of 7.817 standard acres after the death of one Jagadambal on 13-12-1963 cannot be brought under Section 21 of Madras Act 58 of 1961. It was also urged that an extent of 1.474 standard acres obtained by the first respondent under the will of Jagadambal dated 19-11-1963 cannot also be brought under S. 21. The Authorised Officer took the view that the settlement deed of the year 1930 provided that the properties will have to be enjoyed by Jagadambal during her lifetime without any power of alienation and thereafter the lands would revert to the family of the settlor and that by the settlement deed of the year 1958 the properties would be taken by the minor sons of the first respondent absolutely after the lifetime of Jagadambal to whom limited interest of enjoyment during her lifetime has been given and that in both the cases the lands came to the family after the death of the intermittent life interest holder and that the property should be deemed to have been given to the family by inheritance attracting Section 21. and that the inheritance under the will of Jagadambal came directly within Section 21. This view of the Authorised Officer holding that Section 21 applied to the facts of this case was challenged by the respondent before the Land Tribunal, but the Tribunal had held that neither under the settlement deeds of the year 1930 nor under the deed of 1958 there was inheritance by the members of the family nor the settlement deeds will operate as Donatio mortis causa. The Tribunal therefore excluded the items got by the members of the family under the settlement deeds of the years 1930 and 1958. The correctness of the decision of the Tribunal excluding the items covered by the settlement deeds of 1930 and 1958 is questioned by the State in this revision.

2. It is contended on behalf of the State that Section 21 has not been properly interpreted by the Tribunal and that on a proper interpretation of that section the properties acquired by the members of the family under the two settlement deeds should be treated as having been inherited. On the other hand, the learned counsel for the respondents contends that the properties obtained by the members of the first respondent's family under the two settlement deeds cannot be said to have been inherited from the settlor nor can they be said to have been bequeathed by the settlor in favour of the donees. It is conceded on the part of the State that the explanation to Section 21 cannot be invoked in this case as the settlement deeds cannot be said to have been executed in contemplation of death and the view taken by the Tribunal on that aspect cannot be taken exception to. There is no dispute between the parties before me as to the inclusion of the properties obtained under the Will of Jagadambal in the family's holding and I find even before the tribunal the respondents herein did not question the inclusion of these properties. Hence the only question is whether the provisions of Section 21 (1) (a) applies to the facts of this case, so far as the settlement deeds are concerned. The sub-section refers to the acquisition either by inheritance or by bequest. 'Inheritance' normally means that which is inherited or derived from an ancestor and the word 'bequest' normally connotes a gift by will. Re Armstrong Marescaux v. Armstrong, (1879) 49 LJ Ch 53 says:

'The ordinary accepted meaning and interpretation of the word 'bequeathed' confines it to property derived under a testamentary instrument' and Holyland v. Lewin, (1884) 26 Ch D 266 lays down; 'The words 'devise' and 'bequeath' are terms of known use in our law, the former from Glanvilla's time and earlier. In their ordinary sense they signify the declaration of a man's will concerning the succession to his own property after his death. Such a device or bequest operates (on the subjects which either by common or by statute law, or by custom, can be so disposed of) by virtue of the will, and of that alone.......... It follows............... that the word 'devise' or 'bequest' when used in the Wills Act (1837) without any indication of an intention that they should apply to appointments under powers, ought, prima facie, to be understood in their ordinary sense, viz., as referring to a gift by will of the testator's own property and nothing else.'

In Canada, though the use of 'bequeath' was at one time less restricted, the word has been later construed in a restricted sense. and 'to leave by will' is now the only surviving sense of the word. Earl Jewitt in his Dictionary of English law states:

'To bequeath property is to leave it by will and a bequest is a gift by will: the terms are properly applied only to personal property but they avail to transit real property as well as the word 'devise' which is the proper word and vice versa.'

In this case under the two settlement deeds the property has been gifted to the members of the family absolutely after the lifetime of Jagadambal and it is only by way of a gift from the donor the property comes to the members of the family and not by any inheritance. Gift is also not one under a Will and hence the provisions in Section 21 (1) (a) cannot attract the acquisition in this case which is by a gift or settlement and not by inheritance or bequest. The fact that the explanation to Section 21 covers only gifts made in contemplation of death clearly shows that legislative intention that the gifts other than the one referred to in the explanation will not come under the main section. The Tribunal's view that Section 21 will not apply to the acquisition of properties under the two settlement deeds is, therefore, correct and has to be upheld.

3. But, whether the authorised Officer is entitled to include all the properties which are held by the members of the family within the holding of the family for the purpose of fixing the ceiling under Section 10 or under Section 12 even without invoking Section 21 is left open. Having regard to the object and policy of the Act it is possible to say that all the properties held by the members of the family can be taken for calculating the ceiling area of such family for the second or for subsequent time. However, I do not express any opinion on this matter.

4. The civil revision petition is therefore dismissed, but in the circumstance, without costs.

5. Petition dismissed.


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