1. This is an appeal by the defendants from the decree and judgment of the Additional Judge of the City Civil Court in O.S. No. 861 of 1937. The question in the appeal relates solely to the construction of a deed of settlement. The deed relates to house property in Madras and was executed on 2nd November, 1916, by one Rangamma and one Dharaneepathi Naidu in favour of Rangamma's son-in-law, Deenadayalu. After reciting that Deenadayalu had paid Dharaneepathi Naidu a sum of Rs. 1,750 for his interest in the property the deed makes the following provisions:
Deducting out of the rents of the house and ground, the rates, taxes, and expenses of repairs, the balance you (that is, Deenadayalu) shall enjoy during your lifetime (and) after you your daughters namely, (1) Tirumalamma and (2) Devakamma shall enjoy during their lifetime (and) after them, issue of both shall take in equal shares.
2. The above is the translation made by the learned Additional Judge who has set beside it in his judgment the original Telugu. He has also set out a genealogical table which is essential for a comprehension; of the questions which arise in the case. It is this:
Rangamma (died) : Rajagopala Naidu
(predeceased his wife)
Daughter = Deenadayalu (died 10-3-1926)
Thirumalamma= (plaintiff) Devakamma D-I=D-8
alias Pattammal (died 3-2-1919) |
Lilavathi born 27-1-1919, died | | | | | |
21-10-1931 (unmarried). D-2 D-3 D-4 D-5 D-6 D-7
3. The suit out of which this appeal arises was brought by Tirumalamma's husband, Lilavathi's father, for a declaration of title to, and recovery of possession of, a half of the properties on the footing that Lilavathi acquired on her birth a vested and absolute interest in one half of the properties which on 'her death devolved on him as her heir. The whole of the properties since the death of Deenadayalu have been in the possession of Devakamma, and the defendants contended that she was entitled to continue in possession of the whole during her lifetime because that was the effect of the deed of settlement and because Leelavathi, owing to the death of her mother before the succession to the life estate opened, obtained no interest in the properties under the deed.
4. Now if the deed of settlement is construed with reference only to the language used and without reference to the intention of the settlor, there is little doubt that the most natural construction would be this, namely, that on the death of one sister her interest in the property would devolve on the other sister to be enjoyed by her until her death because the words used are ' enjoy the same during their lifetime,' and not ' their respective lifetime 'and' after their death ' and not ' their respective death,' and because the words are also '' the children of both ' and not ' their respective children ' while the provision that the children of both shall take in ' equal shares ' appears to indicate that the division among the children was to be per capita and not per stirpes, a mode of distribution which could only be achieved after the death of both daughters.
5. The learned Additional Judge accepted the construction propounded for the plaintiff, in spite of the wording of the deed, mainly for two reasons, (i) because, following the observations of the Privy Council in Jogeswar Narain v. Ramchandra Dutt (1896) 6 M.L.J. 75 : L.R. 33 IndAp 37 : I.L.R. 23 Cal. 670 (P.C.) he was of opinion that the daughters took under the deed not as joint tenants but as tenants-in-common and (ii) because, in his opinion, it cannot have been the intention of the settlor that the issue of the sister who predeceased the other sister should, after the death of their mother, remain unprovided for until the death of the other sister.
6. It is argued for the defendants with regard to the question of intention that it can be said with even greater force that it cannot have been the intention of the settlor that the property should go out of her family altogether and devolve on the husband of one of her daughters. I do not think, however, that the fact that this happened can affect the question of her intention in making the settlement. She provided in the deed for her daughters and she provided for their issue; arid she provided as the sentence which immediately follows the clause already extracted,
If the said both individuals die without issue, you and your heirs shall take the said house and site with absolute rights.
7. shows, for the contingency of the death of her daughters without issue. The issue of her daughter however took their share of the estate absolutely, and what thereafter happened to the estate whether by gift, inheritance, or otherwise cannot reasonably be supposed to have influenced the mind of the settlor in making the settlement. She was providing for her daughters, their issue, and the eventuality that they might die, without issue. It might have displeased her, had she been alive, to see a moiety of the property pass to the husband of one of her daughters nut that was a contingency with which the settlement deed was not concerned. I think therefore, that the learned Additional Judge was right in his vlew that Rangamma could not have intended that the issue of the sister who died first should be without provision during the period between the death of their mother and the death of her sister. This is very important since the want of provision for one branch for some period of time was not a remote contingency' but substantially a certainty. It could not have been contemplated that both sisters would, die on the same day. Moreover, the sisters were not taking a joint estate as the stridhanam heirs of Deenadayalu but under the deed; and, unless the deed clearly provided otherwise, they must take under the general law as tenants-in-common. Nor do I think that Rangamma could not have contemplated that they should take as tenants-in-common. On the contrary, she would have known that, as her daughters either had married or must marry into different families, the property could not conveniently be enjoyed by them as a joint estate.
8. I have been referred by earned Counsel for the appellant to a number of decisions, Indian and English. But he has not been able to indicate any case which is directly in point, or, in my opinion, any trend in the decisions which supports his argument. He points out that Jogeswar Narain v. Ramchandra Dutt (1896) 6 M.L.J. 75 : L.R. 231. IndAp 37 : I.L.R. 23 Cal. 670 (P.C.) and Gordhandas v. Ramcoover I.L.R.(1901) 26 Bom. 449 Mst. Baku Rani v. Rajendra Baksh Singh (1933) 64 M.L.J. 555 : 1933 L.R. 60 IndAp 95 : I.L.R. 8 Luck 121 (P.C.) and Gopi v. Mst. Jaldhara I.L.R.(1910) All. 41 in which the principle enunciated by the Privy Council in Jogeswar Narain v. Ramchandra Dutt (1896) 6 M.L.J. 75 : 1896 L.R. 231. IndAp 37 : I.L.R. 23 Cal. 670 (P.C.) was applied were all cases in which the gifts in question were absolute gifts in the first instance. This is true but it does not follow, in my judgment, as is argued, that in the case of life estates it is a matter of indifference whether the estate is. taken by the donees as a joint estate or as tenants-in-common. In Bhushan Saha v. Fulkumari Dasi : AIR1937Cal1 there was a gift of a life estate to seven sons with remainder to the grandsons. On a suit by the widow of one of the sons, it was held, applying the ruling of the Privy Council in Jogeswar Narain v. Ramchandra Dutt (1896) 6 M.L.J. 75 : L.R. 231. IndAp 37 : I.L.R. 23 Cal. 670 (P.C.) that in the absence of issue to her husband she got his share, and it did not go to the other, sons during their lives for the reason that they were tenants-in-common and not joint tenants. In Achammal v. Narayanaswami Naiken : AIR1921Mad619 , no doubt, where there was a gift of a life estate to two widows with remainder absolutely to a daughter after their deaths, it was held that on the death of one widow the other took her share for her life. In the case of widows, however, different considerations arise since on the death of one widow the other would have succeeded to her share by survivorship under the ordinary rule of Hindu Law. Moreover, the gift over was to a single daughter specified by name and there was no question of drawing an inference of the donor's intention from the circumstance that he would not have contemplated that one branch should remain without provision or that daughters would enjoy the property jointly. In Periyanayaki Ammal v. Ratnavelu Mudaliar : AIR1925Mad80 , where a Hindu gave a life estate to his daughters and after these to their issue, it was held that no estate vested in a son of one of the daughters who did not survive his mother. The decision, however, was founded on the wording of the deed of gift and does not support the contention for the appellant that there can be no vested remainder in the case of a life estate. On the contrary, Ramesam, J., points out -that in a previews case when construing a will made in somewhat different circumstances but in-which the language used was slightly different he had held that a son, who predeceased: his mother, took a vested interest immediately after his birth.
9. I have also been referred to a number of English cases, but the application of the rules laid down in these cases, as the learned Additional Judge has said, must be treated with caution as they have grown up in a different social system with a different law of property. In any case, they do not seem to me to assist the appellant. It is 22nd October,; 1943. argoued that in the English cases a gift in remainder of the fund or some such expression as 'on the decease of the tenants in common for life' has been construed distri-butively so as to carry the share of each tenant for life on his death only in cases where there has been an absolute gift cut down only in favour of their children if they had any. This seems to me to make too clear a line of demarcation between the English cases. It is true that in Maddocks v. Andrews (1916) 2 Ch.D. 50 Sargant, J., distinguished In re Hutchinson's Trusts (1916) 2 Ch.D. 50 on this ground, but in London v. Btowne (1915) 1 Ch. D. 690 he pronounced for a distributive Construction, although there was no question in that case of the gift of an absolute estate cut down only in favour of children if any; and in referring to In re Hutchinson's Trusts (1882) 21 Ch.D. 811 and cases in the same category, he stated the common element in them to be that the donees in remainder were the children:of the respective tenants for life, a circumstance which aided the contention that the share of each tenant for life on his death went to his respective children. The observations of Sargant, J., in Landon v. Browne (1915) 1 Ch. D. 690 certainly do not tell against the con-struction put on the deed of gift by the learned Additional Judge; and in Wills v. Wills (1875) 20 Eq. Cas. 342 again the fact that the donees in remainder5 were the children of the respective tenants for life influenced the construction of the deed. In that case there was a bequest of the residue, the income to be paid to C and J equally for their lives, and ' at their death ' ' the principal to be divided between the children of C and J.' Sir George Jessel, M.R., held that 'at their death' meant 'at their respective deaths 'among other reasons for the reason that it was 'very-unlikely that he intended that there should be no provision for one branch until the head of the other branch should be dead.
10. In my opinion, therefore, the learned Additional Judge has put the best construction possible on the deed. It is not a deed that has been drawn with art, and it has been construed in a manner which gives effect to what may reasonably be supposed to have been the intention of the settlor by applying rules of interpretation which, in my opinion, are sanctioned rather than precluded by authority.
11. The appeal is, therefore, dismissed In the circumstances of the case, I think that the costs of both parties throughout should fee paid out of the estate.