(1) This appeal is directed against the decree and judgment of the learned Subordinate Judge of Tiruchirapalli in Original Suit No. 96 of 1953.
(2) The facts are short: One Appavu alias Chidambaram Pillai who died in 1939 made a will on 9-6-1933. This Appavu had three sons by name Palaniappa, Chinnaswami and Arumugham. His wife, Chinnammal, was also alive. The father and the sons were not getting on well. Therefore, when Appavu made his last will and testament, disposing of his self-acquired properties, he cut off his sons from the will and conferred a life estate upon his wife, Chinnammal, and provided that after the lifetime of his wife, the heirs (warisu) of the aforesaid three sons should take all the properties absolutely. This Chinnammal died on 1-1-1951.
(3) The suit was filed by one of the daughters of one of the sons for partitions and mesne profits. The learned Subordinate Judge decreed the suit for the plaintiff's one-third share and gave a preliminary decree and directed that she might file a separate petition for the determination of mesne profits, past and future.
(4) the two points which arise for determination in this appeal are, whether Appavu conferred a life estate or absolute estate on his wife, Chinnammal; and, secondly, whether the grand-children of this Appavu, alive on the date of the death of Chinnammal, took the properties per capita or per stirpes.
(5) In regard to the first point, a mere reading of the will shows that the deceased Appavu conferred on his wife, Chinnammal, a life estate. He mentions how this Chinnammal was to enjoy the immoveable properties and carry on her livelihood from the income thereof and pay kist, and that she should pay off the debts and purchase other lands, if possible. There is no mention that Chinnammal was entitled to alienate the properties. Then the testator mentions that after the lifetime of Chinnammal, the grand-children alive then, were to take all the properties absolutely. These recitals clearly show that what was conferred on Chinnammal was a life estate.
(6) Turning to the second point, there can really be no dispute that the grand-children of Appavu, alive on the date of the death of Chinnammal, would take the properties per capita. the principle is that when all the objects of the testator's bounty belong to the same class and bear the same degree of relationship to the testator, it should be presumed that unless the testator makes any distinction between them, they are to share the gift equally between them. In this case if really Appavu had wanted his grand-children to take the properties per stirpes, he would have clearly mentioned that Palaniappa's, Chinnaswami's and Arumugam's children would take them per stirpes. There was no impediment from his doing so and the fact that he has not made any differentiation shows that he had intended all his grand children to take his properties per capita. This point is also covered by authority (see Jiban Krishna Das v. Jitendra Nath Das .
(7) The net result of this analysis is that the decree and judgment of the lower court will be varied to the extent that the eight grand-children, alive on the date of the death of Chinnammal, excluding defendants 3 and 4 with whom wed are not concerned here and who have not appealed from the decree and judgment of the lower court, would take the properties in the share of one-eight each.
(8) It is found that the learned Subordinate Judge in this partition suit has given a decree only for the plaintiff. But, as a matter of fact, he should have considered the shares of all the heirs on whom the properties devolved on the death of Chinnammal and given a preliminary decree to that effect. In a suit for partition it is not the array of parties that is relevant but the fact that all the members entitled to shares are on record and found entitled to reliefs. So the preliminary decree will be varied also to the extent that in the final decree the shares of the eight heirs will be worked out and the properties divided by metes and bounds. This can be done by adding the grand-daughters as parties in the final decree proceedings. This will obviate their being driven to a futile fresh suit.
(9) This appeal is allowed to the above extent and the parties will bear their own costs here.
(10) Appeal partly allowed.