1. The plaintiff appeals from a decree of the learned District Judge of South Arcot confirming a decree of the Additional Subordinate Judge of Cuddalore dismissing a suit for the recovery from the respondents of three items of property, a house, a shop and a godown the subject-matter of a settlement dated 9th June 1904, by one Muthuswamy Chetty, who died in 1916, in favour of his son by the first wife Somasundara Chetty who died in 1922, whereby the father Muthuswami Chetti settled the said properties on Somasundara Chetti, the son, according to the terms of that deed Ex. B. The appellant is Muthuswami Chetti's son by the second wife. Defendant 1 is a concubine who had been kept by Somasundara Chetti and defendants 4 to 7 are the song of Somasundara by defendant l,and defendants 3 and 8 to 11 are his daughters by the same person. Defendant 2 is the eldest son of defendant 1 who was born in the lifetime of her married husband and defendant 12 is her mother. The appellant's case in the first Court was that by the terms of the settlement Somasundara Chetti took only a life estate in the properties and that though, if Somasundaram had legitimate children they might have been entitled to the properties, defendants 4 to 7 being only illegitimate children do not take under the deed. Various other contentions were raised which it is unnecessary now to notice. The defence on the points mentioned above was: (1) that Somasundara Chetti took under Ex. B a heritable, if not, an absolute estate and not a mere life estate; and (2) that defendants 4 to 7 are within the meaning of santhathi of Somasundara to whom a direct gift is made under the deed.
2. The Subordinate Judge delivered a judgment of portentous length covering 28 pages of printed foolscap and 190 paragraphs. He had some grounds because before him frivolous contentions, which were subsequently given up, as to the paternity of the defendants, and into which therefore he had to go, were raised. Making full allowance for this, the judgment of the first Court remains of such length as to cause inconvenience, if not, embarrassment to the appellate Court which had to deal with it. In appeal the learned District Judge dealt with the matter in a much more business like manner. He held that the settlement Ex. B was in favour of not merely Somasundara Chetti but also of his santhathi which the learned Judge construed as meaning descendants or heirs general thereby including illegitimate sons in the case of the present parties whom the learned Judge after an examination of their customs found to be Sudras, although they themselves claimed to be Vaisyas. On this ground he dismissed the appeal merely remarking on the other point that he found that the terms of Ex. B read as a whole make it quite clear that Somasundara got only a life estate under Ex. B.
3. In this appeal the learned advocate for the appellant addressed me on the question decided against him by the lower appellate Court whether on a right construction of Ex. B the illegitimate sons are included in the word 'santhathi.' It is an attractive line of investigation, if it should become necessary to decide it, whether, in view of the recent decisions of the Privy Council, notably Vellaiyappa Chetti v. Natarajan , when a Sudra Hindu executes a deed or a will using the word 'santhathi,' he must be understood as including the illegitimate as well as the legitimate offspring or heirs. Such a question has not hitherto arisen. For the appellant it is argued that whatever the status to which the illegitimate sons have been now elevated by reference to the Mitakshara and the ancient law books, the question is not one of legal status but one of construction of a deed which depends upon the modern meaning of the language of modern men and that when a Hindu, be he a Brahmin or a Sudra, speaks of his santhathi, there is no more reason for imputing to one an intention to include illegitimate children than in the case of the other, no more indeed in the case of either than in the case of an Englishman. The respect for marriage and the social position of legitimate children is no less among Hindu Sudras than among Brahmins and Englishmen. As a mere question of construction, I should hesitate to say that a share of the inheritance being awarded to illegitimate children of Sudras in certain cases is necessarily conclusive of the meaning of a Sudra donor of property or testator as to what he means when he talks of his santhathi. As the matter is however of general importance, and as I am sitting alone, 1 am not inclined to express any deliberate opinion on the matter in this case.
4. There is however another point on which the case seems capable of decision without much doubt. That is the point which the learned District Judge held against the appellant and which the respondents have hero raised as they were entitled to, namely, that Somasundara took under Ex. B, not an estate limited for his life but a heritable estate, if not an absolute one. It is enough for the respondents to show that Somaaundara had a heritable estate. If he had, as undoubtedly defendants 4 to 7 are his illegitimate sons by a continuously kept concubine, they would inherit whatever he possessed and the plaintiff would be out of Court. On this point, I am unable to agree with the learned District Judge. The circumstances under which Ex. B came into existence are these: Muthuswamy Chetti was a prosperous trader at Cuddalore. His son Somasundara was apparently sowing wild oats. So, it became necessary for Muthuawamy Chetty to cut off Somasundara and he did so by paying him Rs. 5,000 in instalments and securing from him a release deed, Ex. A, dated 16th November 1903, which declares explicitly the receipt of the consideration and that Somasundara had no more any rights to the properties mentioned in the schedule, be they ancestral or self-acquired. There is some evidence that at or before that time Somasundara's married wife had left him and that he was taking to another man's wife, the present defendant 1, the wife of one Krishnaswamy Rao, who himself died in or about September 1904, by which time defendant 2 had been born some five months. Somasundara had reduced himself by his life practically to destitution and again approached his father for help and it was to help him that the father gave him the property and executed the deed, Ex. B.
5. The question is what is the interest taken by Somasundara in the properties concerned in Ex. B. They are properties comparatively speaking of little value, that is, compared to the position and resources of Muthuswami Chetti, consisting, as I have already said, of a house, a godown and a shop said to be in all worth Rs. 3,000. The interest taken under the deed depends upon the language of it. The material part, leaving out the preamble which recites the circumstances, is as follows:
As you are helpless and because of affection as you are my son, I have made settlement 'gift' to you of the undermentioned properties. You are to enjoy its income during your lifetime and after your time your male santhathi or adopted santhathi will take (it). Even if there be no male santhathi but only female santhathi such female santhathi will take (it). During your lifetime you have no right whatever to sell or to mortgage the above properties.
6. It is quite clear that Muthuswami Chetti did not contemplate the property coming back to him unless on failure of all santhathis of the donee male or female, natural or adopted. Undoubtedly he disposed of his entire interest in the property by authorizing Somasundara to take the income during his lifetime and after him his santhathi or heirs general, to adopt a convenient and short expression. He also stipulated that Somasundara was not to be reduced to a position to make another request of the same kind and he therefore forbade his son to sell or mortgage the property in his lifetime. Subject to that, the property was to be Somasundara's for his own enjoyment and that of his heirs for ever and ever. The question is, what is the interest taken by Somasundara in such a disposition? The restraint on alienation is only of sale and mortgage during the lifetime of Somasundara and it was not absolute and the language of the clause restraining alienation shows that Somaeundara was to have, subject to that restraint, an interest not merely in the income but in the properties. What interest could that be, if that were not a heritable interest? I am asked to say that the words of disposition do not convey any interest in the property to Somasundara but only the right to take the income for his life. I do not so read the deed. It begins with the sentence: 'I have made settlement of the undermentioned properties to you.' The word 'settlement' is an English word for which the nearest equivalent in the Tamil language, if a Tamil grantor like Muthuswami Chetti had been asked to choose a Tamil word, would be gift. Obviously, it was not a sale; it was not a mortgage; and it really was a gift and nothing else.
7. A settlement in the English language has a technical sense under the Settled Land Acts where more than one successive interest is carved out of ownership. I cannot think that a Tamil merchant of Cuddalore intended to mean that, but he meant only that speaking in a general way he was giving his property. It is not that the gift is not to be subject to the terms of the deed. But the character of the disposition was undoubtedly a gift. It seems to me therefore that we start with the idea that Muthuswami Chetti was making a gift of certain property to his son Somasundara and the conditions that follow are the conditions of that gift. Those conditions are, to express them compendiously, that the donee was to enjoy the properties during his lifetime but must not sell or mortgage them and that after him his heirs generally would take the income with no doubt all rights of the owner. I have therefore come to the conclusion that on the language of Ex. B Somasundara took a heritable estate, namely the right to take the produce in his lifetime and during the lifetime of his descendants under a disposition which is described as settlement to Somasundara. Taking these together, the only conclusion possible is that Somasundara was not a life tenant, but he took a heritable, if not, an absolute estate. Cases on construction of deeds and wills are not of much use as authority in other cases because the language used in deeds and wills differs so much from each other. But of the several cases cited, I will refer only to one, that is Basantakumari Debi v. Kamikshya Kumari Debi (1906) 33 Cal 23, a decision of the Privy Council where a deed of gift of immovable property made by a Hindu in favour of his sister contained the following language:
You shall pay the annual Government revenue and get your name registered... and enjoy possession during your lifetime. On your death your husband, sons, grandsons and other heirs in succession will continue to enjoy and possess. The power to dispose of by gift or sale will successively vest in your husband, sons, grandsons and others.
8. The last clause excluded the donee, the sister, from the power to make a gift or sale. The Privy Council confirming the decision of the High Court of Calcutta said:
They are of opinion that Soondari Debi took an heritable estate. The words 'on your death your husband, sons, grandsons and other heirs in succession will continue to enjoy and possess' are sufficient to show that the heirs were to succeed as such, notwithstanding that those who would take as heirs are named in wrong order or (in other words) there is an inaccurate enumeration of them.
9. That is exactly the situation here. On the donee's death his santhathi, whether that expression includes illegitimate children or not, are to enjoy the property and those words are sufficient to show that the santhathi took as heirs and that Somasundara took an heritable estate. On this ground the decision of the learned District Judge was right and the appeal must be dismissed with costs.