Chandra Reddi, J.
1. This second appeal is brought from the judgment of the Subordinate Judge of Tuticorin setting aside the decree of the trial Court giving the relief to the plaintiffs as prayed for. The material facts of the case are these:
2. One Sankaralinga had two sons, Ramaswami and Arunachala, and three daughters, the plaintiffs in the present suit. His two sons were demented. He was anxious that his sons should get married in spite of their being insane. Arunachala was first married to one Pulamadi and as she died Sankaralinga wanted to get Arunachala married a second time. For that purpose, he approached the parents of one Sivanananji. The latter was not willing to give Sivanananji in marriage to Arunachala unless some properties were settled upon the girl before marriage. Accordingly Sankaralinga executed a settlement deed conveying the suit properties to Sivanananji. It is this document that falls to be considered in this second appeal.
3. Sankaralinga died early in 1930. During his lifetime he made a gift of several items of property to his daughters, the present plaintiffs, and after his death, Ramaswami by his wife as his guardian, instituted a suit for partition of the family properties ignoring the gifts in favour of the present plaintiffs. In that suit the present suit properties were not included. Ultimately the suit ended in a compromise and under the terms of the compromise the title of the plaintiffs to the suit properties was recognised and affirmed.
4. Neither Ramaswami nor Arunachala had any issue. Ramaswami died in the year 1931 and Arunachala in 1935. Subsequent to the death of Arunachala, Sivanananji alienated the properties in favour of the various defendants in the suit. The present suit is filed challenging the alienations on the ground that Sivanananji was given only a life estate under the settlement deed Ex. B. 11 of her father-in-law and therefore these alienations are void beyond the lifetime of Sivanananji who died in January 1945.
5. The main defence to the suit was that Sivanananji was given an absolute estate under Ex. B. 11 and that in any event since the absolute right of their predecessors-in-interest to the suit properties was recognised by way of family arrangement in the earlier suit by these plaintiffs, it is not open to the plaintiffs to question the validity of the, sales in their favour.
6. The trial Court decreed the suit holding that under the settlement deed in question Sivanananji got only a life estate with the result the defendants did not acquire any right to these properties by virtue of the sales in their favour. It was also of opinion that the compromise decree in the earlier suit did not recognise the absolute title of Sivanananji to the suit properties.
7. On appeal, the Subordinate Judge took a different view of the nature of the estate conferred upon Sivanananji by her father-in-law and dismissed the suit, while agreeing with the District Munsif on the question of the family arrangement. The plaintiffs aggrieved by this decision have preferred this second appeal.
8. Mr. Rama Aiyar in support of the appeal urged that the view of the Subordinate Judge that an absolute estata was conferred upon Sivanananji is unsound and opposed to the tenor of the document. The question for decision in this second appeal depends upon the construction to be placed on Ex. B. 11. It therefore becomes necessary to set out in extenso Ex. B. 11:
'Whereas Pulamadi Ammal alias Sudalal Muthu Ammal had already been married to my junior son Arunachalam Pillai, a person of unsound mind as his first wife, whereas she is dead, whereas I requested these five individuals viz., your mother Pechiammal Ammal and your brothers Sankaralingam Pillai, Kanthimathinatha Pillai, Thangiah Pillai and Subbiah Pillai to give you in marriage to my said son Arunachalam Pillai of unsound mind as his second wife; whereas they agreed to the same and whereas I have on this day in accordance with their request conveyed to you under this settlement the properties of the value of Rs. 1000 mentioned in the schedule herein, you yourself shall for ever and ever from now onwards hold and enjoy the same with rights under the settlement. Should there be male heirs to you, the said male heirs shall take the said properties after your lifetime; should there be no male heirs to you but only female heirs, your female heirs shall take the said properties after your lifetime.'
The other relevant portion of the document is to the effect:
'You alone will enjoy the abovementioned properties for all times.'
9. Mr. Rama Aiyar invites me to construe this document as giving Sivanananji Ammal only a life estate. His reasons are that while there is nothing suggestive of an absolute estate conferred on the donee in the documents, the provisions regarding the devolution of the property on the death of the settlee indicate an intention to bestow only a life estate. What he urges is that if really the intention of the settlor was to convey an absolute estate to the settlee under the document, he would not have directed the male heirs of the settlee to inherit the properties in preference to the female heirs, who would succeed to her stridhana property. According to learned counsel this is a clear indication that the settlor intended to give only a life estate to the settlee. He proceeds to argue that if an absolute estate was meant to be given, the settlor would not have tried to alter the course of the devolution.
(10) In support of the plea that this clause (denotes that only a life estate was contemplated by the settlor so far as the settlee is concerned he relies on a recent decision of a Bench of this Court in -- 'Radhakrishnayya v. Sakuntala : (1950)2MLJ239 . There the terms of a settlement that were considered by the learned Judges was in the following words:
'It is settled that you, three individuals (daughters) shall take the property, subject to the terms mentioned below, with equal rights in three shares and shall pass on hereditarily from your sons to grandsons and so on i.e., unlike Stridhanam (property), if you should each separately have male issue and female issue, the share of each of you shall pass to her sons or if there should be no male children to her daughters.'
This clause was construed by the learned Judges as denoting the intention of the settlor to bestow only a limited estate in favour of his daughters and that the ultimate destination of the estate was to the male grandchildren in preference to his grand-daughters. I do not think this decision is of any material assistance to the appellants. The dispositive words of that settlement deed can leave no doubt that the settlor intended to bestow only a life estate. Under that document the settlees were given the properties subject to the terms mentioned therein, viz., that on the death of any one of them the property should pass on to her sons to the exclusion of the female issue. So that case cannot be a guide in ascertaining the intention of the settlor from the words of the document before me.
11. Mr. Rama Aiyar next relied on --'Skinner v. Naunihal Singh', 35 All 211 (B). The material clause of the will which was considered to confer only a life estate upon the son of the testator is in the following terms:
'In the event of my eldest son Thomas Browa Skinner dying without lawful male children, the abovementioned private zamindari etc., shall descend to my next male heir, and should all my sons die without lawful male children, the zamindari etc., shall descend to my female children, or, in the event of their death, to the female children born in wedlock of my sons in succession.'
Reading the will as a whole, their Lordships came to the conclusion that his son Thomas Brown Skinner was given only a life estate.
The observations of their Lordships at page 224 are pertinent:
'So looking at this settlement, their Lordships do not find themselves able to affirm that Thomas Skinner meant his son Thomas Brown Skinner to have an absolute ownership of these villages. So to conclude would be to affirm that the former a month before his death set forth an elaborate scheme of destinations over, while all the time he was really meaning that the boy of fourteen was to take the absolute ownership if he survived him. If the son was to be a tenant for life merely, then the detailed regulations for successive enjoyment and descent were entirely in place; they were natural and necessary.'
Their Lordships then pointed out that the various provisions in the Will showed that the testator meant to regulate the succession after the death of his son. I fail to see how this case can afford any assistance in ascertaining the intention of the settlor in this case.
12. Reliance was placed on a number of decisions in which it was held that only a life estate was conferred on the persons named in the documents construed in those cases. It looks to me that no assistance can be got from these decisions as the construction of those documents depended upon the words used therein and it is futile to attempt to construe a document in the light of authorities interpreting the terms of the documents in other cases. Those decisions may serve as a useful guide if they contain general rules of construction. I do not therefore propose to refer to them. The construction of a document depends upon the language employed therein and so one has to turn to the terms of the document to gather its import.
13. The intention of the settlor has to be ascertained by a reading of the document as a whole and if there is any ambiguity we can look to the circumstances under which the document came to be executed and also, if necessary, to the subsequent conduct of the parties which might throw some light on the intention of the settlor.
14. Now going back to the clauses relating to devolution of property on the death of the settlee I do not think they show that the settlor intended to bestow on the settlee only a life estate. On the other hand the indications in the earlier and the concluding portions of the document are that the settlor intended to give her an absolute estate. The document recites that the settlor was conveying the properties to the settlee by way of settlement for the reasons mentioned therein and that she should enjoy the properties for ever and ever. The other clause which is relevant in the context is that the settlee should enjoy the property described in the schedule exclusively and for all times.
15. Then Mr. Rama Aiyar contended that having regard to the notions of Hindu society, any gift to a woman should not be regarded as an absolute one unless there are clear indications that the settlor or the testator conveyed the whole interest in the property. I do not think there is any basis for this view. There does not seem to be any justification for departing from the general principles recognised in Section 8, Transfer of property Act. In my opinion a gift or bequest in favour of a woman should be construed in the same spirit as a gift in favour of a male. In fact, the proposition as stated by Mr. Rama Aiyar was rejected by the Supreme Court in -- 'Ramgopal v. Nandalal', : 1SCR766 (C). At p. 141 of the report the following observations are made:
'It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an jmmoveable property is made to a Hindu female she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.'
16. This passage is sufficient to answer the contention of Mr. Rama Aiyar.
17. Mr. Rama Aiyar maintains that the terms of the documents are not suggestive of the conferment of an absolute estate on the settlee. He urges that the use of the words 'for ever and ever' does not show that an absolute estate was conveyed to the settlee, and that these expressions are consistent with a life estate being given to the settlee and if this view is accepted the recitals regarding the devolution of property help his contention that only a life estate was given to the settlee. As substantiating his argument, he relied on decisions of the Privy Council in -- 'Muhamad Abdul Majid v. Mt. Fatima Bibi', 8 All 39 (D) and -- 'Azizunnissa v. Tasaduq Hussain', 23 All 324 (E). Neither of these cases carries the appellant very far. No doubt their Lordships observed in the former case that the expression 'always' and 'for ever' do not per se extend the interest beyond the life of the person who is named. But those observations must be understood in the context of that case. There the management of certain properties was directed to rest always and for ever in the hands of one of the parties and the Privy Council remarked that these expressions did not show that the management was intended to be heritable. But in the present case the expression 'for ever and ever' is with reference to immoveable property and the considerations that govern the vesting of management of property are not applicable to a case like the present.
18. Similarly, the latter case is distinguishable. There, under an award which came up-to the Court one of the parties was to pay always to the other a sum of money mentioned therein, the expression used being 'hamesha'. Their Lordships adhering to the views expressed in -- 8 All 39 (D)', stated that the use of this expression was consistent with limiting the interest given to the life of the grantee.
19. The situation is different when immoveable properties are conveyed to a person. In such a case unless there are any words of limitation or restriction, the transferee gets the whole interest therein. In my opinion, those decisions do not govern the similar expression in a document conveying immoveable property. In this context, a reference to Section 8 of the Transfer of Property Act is useful:
'Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing to the property, and in the legal incidents thereof.'
It is manifest from this section that the settlee gets an absolute estate in the property unless there is an intention express or implied of the settlor to limit this interest. On a reading of the document as a whole, bearing in mind the above provisions, it appears to my mind that the settlor intended to bestow an absolute estate on the settlee.
20. No doubt words conferring powers of alienation are not employed in the document but in my opinion that does not make any difference as there are words of sufficient amplitude to confer an absolute estate on the settlee.
21. This reading of the document gains a support from the surrounding circumstances. The circumstances in which the settlement came to be executed are of some assistance in gathering the import of the document. The settlor approached the parents of Sivanananji for giving her in marriage to his son who was insane and the parents were not willing to do so unless some properties were settled upon her. It is only in pursuance of the desire of the parents that this settlement deed was executed.
Another circumstance to be considered in this context is that the property conveyed to the settlee bears a very small proportion to the properties owned at that time by the family of Sankaralinga, and it is not unlikely that he would have conveyed an absolute estate to the settlee. Nor is it likely that the parents would have agreed to give their daughter in marriage to an insane person merely in consideration of a life esate in small properties on their daughter.
22. Furthermore, the compromise in the earlier suit puts beyond doubt what the intention of the settlor in executing Ex. B. 11 was. This throws light on the nature of the, estate given to Savanananji. It is categorically stated in that document that the settlor conveyed property by way of gift to the settlee at the time of the latter's marriage and that the present plaintiffs had absolutely nothing to do with the property thereby meaning that absolute title to the property inhered in the settlee. The various considerations set out above together with the employment of language that the settlee should enjoy the property exclusively for ever and for all time leave no doubt in my mind that the settlor desired to confer upon the settlee an absolute estate.
23. The next question is whether the, recitals in the settlement deed that on Sivananaji's death the property should pass to her male issue if she has any male issue and should there be no male issue the property should pass to her female issue, would in any way suggest that the settlor was giving a life estate to the settlee and gift over to her male issue. In my opinion they do not show that the settlor contemplated that the ultimate destination of the property should be to the male issues of the settlee. I think that the provision for devolution was not meant in any way to limit the character of the estate. It is more an indication that the settlor intended to impress upon the property a descendable quality.
24. A Bench of the Patna High Court in --'Nand Kishore Lal v. Pasupati Nath Sahu', : AIR1928Pat348 (F) had to construe a similar provision in a will to the following effect: 'After the death of me, the executant, my grand daughter shall be the absolute proprietor like me of all the properties moveable and immoveable, now in my possession and those which will be acquired by me in future and shall remain as such......After the death of my grand daughter, male issue born of her Womb shall be the absolute owners and shall enjoy the income thereof.'
25. Dealing with the last clause providing for the devolution it was observed that the testator intended to assure still further the devolution of the property through the grand daughter.
26. In a case reported in -- 'Ratnasami Pillai v. Kathia Bivi Ammal', 63 Mad L W 963 (G) Somasundaram J. held that the recital that 'my daughter Kathiya shall get these properties after my lifetime with absolute rights and that after her lifetime her grandson Ratnaswami shall get the properties' was not meant to cut down the estate conferred upon the daughter but at the best could only be a provision for devolution of property after the death, of the daughter.
27. In my judgment these recitals are not suggestive of the intention of the settlor to limit the estate given to the settlee and to make a gift over to the male issues of the settlee. When it was recited that the property should! pass on to the male heirs after the death of the settlee only the settlor was evidently mentioning the heirs of the settlee in a wrong order. Unless it is shown that he had knowledge of the devolution of stridhanam property, the recital that the male issues should inherit the property on her death does not in any way disclose the intention of the settlor that he meant to make an independent gift to the male issue.
28. Even assuming that the settlor intended to make an independent gift to the male issues, this would not take effect as it is repugnant to the absolute estate given to the settlee in the earlier portion of the document, and is in the nature of a defeasance clause. Such a defeasance clause cannot be operative so as to curtail the absolute estate given to the settlee in the earlier portion of the document.
29. In these circumstances I hold that Sivananandaji Ammal took an absolute estate under the settlement of her father-in-law Ex. B. 11 and the alienations in favour of the defendants are valid and cannot be questioned by the plaintiffs. Even granting that Ex. B. 11 did not convey an absolute interest in the property to Sivananji, the predecessor in interest of the defendants, having regard to the fact that in a subsequent family arrangement amongst the members of the family in which the absolute title of Sivanananji to the properties in dispute was recognised and affirmed it does not lie with the plaintiffs who were parties to that arrangement to challenge the validity of the alienations. It follows that Sivanananji acquired a saleable interest in the properties in dispute under the settlement deed Ex. B. 11 dated 2-2-1925 and the alienations in favour of the defendants cannot be questioned in the suit. Hence the decision of the lower appellate court is correct and should be confirmed. In the result the second appeal is dismissed with costs of respondents 3 to 7.
30. A Memorandum of cross objections has been filed by the first defendant who did not file an appeal against the judgment of the trial court decreeing the suit against her. For the first time she has filed a memorandum of cross objections here which, in effect, is only an appeal against the decree of the; trial court invoking Order 41, Rule 33, Civil P. C. I do not think: that provision is meant to be exercised in favour of a party who did not choose to file an appeal against the judgment of the trial court and allowed it to become final. Therefore Order 41, Rule 33, Civil P. C. does not avail him. Even otherwise this is not a case in which this court would exercise its discretion under Order 41, Rule 33, Civil P. C. In the result the memorandum, of cross objections is dismissed with costs.
31. Leave to appeal is refused.