(1) One Doraiswami Mudaliar married Balamani Anni in 1921. On 14-4-1921, he executed a registered settlement deed gifting items 1 and 2 of the suit properties to her absolutely but with a restraint on her powers of alienation only during his lifetime. A short while before his death in 1940 he had purchased items 3 and 4 and a suit for recovery of possession of these items was pending when he died. Even prior to this purchase he had executed a Will in 1938, bequeathing certain properties to some charities of which he had constituted the first defendant, who is the appellant, as the manager. In the suit relating to items 3 and 4 the first defendant applied to the court to be brought on record as the legal representative.
The first plaintiff in the suit who is a son of a divided brother the Doraiswami, made a similar application. The latter was rejected and the first defendant was brought on record as the legal representative. The first plaintiff set up title claiming rights under another Will of Doraiswami which he propounded, but that was found against in certain other proceedings. Balamani died in 1956. Claiming that succession to the estate of Doraiswami opened on the occurrence of her death, the plaintiffs, the sons and daughter of a divided brother of Doraiswami, brought the suit. They attacked the charity and the trust said to have been created by the Will of Doraiswami as illusory. They also claimed that items 3 and 4 continued to be enjoyed by Balamani who also dealt with those items of properties by way of mortgage and lease. With regard to items 1 and 2 Balamani was claimed to the absolute owner. It appears that in the Will of the year 1938, Doraiswami had purported to deal with items 1 and 2 as well. The plaintiffs alleged that such a devise in respect of these items could not be effective as Balamani was the absolute owner of these properties and they were not properties of the testator which he could validly dispose of. The plaintiffs accordingly sought a declaration of their title to items 1 to 4. Possession was not however, asked for, as defendants 2 and 3 were entitled to be in possession as cultivating tenants.
(2) In addition to this relief, certain jewels belonging to Balamani had been entrusted with a friend of the family, one Ramaswami Padayachi. This person is said to have deposited them in the Tanjore Permanent Bank. The legal representatives of Ramaswami Padayachi were impleaded as well as the Bank for the recovery of these jewels.
(3) The first defendant who is the contesting defendant and whose pleas have been rejected both by the trial and the lower appellate Courts, alleged that the settlement executed in 1921 by Doraswami in favour of Balamani was ineffective as Balamani was on that date a minor and incapable of making or accepting a contract. It was also alleged that Doraiswami was dealing with the properties as his own, and in fact, he made a disposition of these items of properties items 1 and 2 as well under his Will, thereunder he granted Balamani the right of enjoyment till her lifetime. The properties were thereafter to pass to the first defendant. It was also claimed by the first defendant. It was also claimed by the first defendant that items 3 and 4 were also covered by the Will, if being the intention of Doraswami that all of these properties should comprise the estate set apart for charity.
It was further alleged that the first defendant had been in possession of the properties all along and that Balamani was not in exclusive possession as claimed. With regard to the jewels, the first defendant again asserted that the jewels were gifted to him by Balamani and that for that reason he alone is entitled to the jewels.
(4) The principal issues which the trial court had to decide were: Whether the settlement of the year 1921 was valid; Whether items 3 and 4 were also covered by the Will; Whether the first defendant had perfected his title by adverse possession in respect of these items; Whether Balamani was bound by the disposition of items 1 and 2 and lastly. Whether the alleged gift and the claim of the first defendant in the regard were true.
(5) Upon all these issues, the trial court found against the first defendant. The first defendant canvassed this decision in appeal and the very same questions were set down for consideration by the lower appellate court. The lower appellate Court took note of the circumstances and concluded that the evidence established that Balamani was a major on the date of the gift and after the execution of the settlement deed, Doraiswami ceased to be the owner, of items 1 and 2.
The lower appellate court also took the view that the properties purported to be covered by the Will having been set out in detail in the schedule thereto, and items 3 and 4 not having been specifically dealt with by the Will (sic) could not be regarded as having disposed of these properties in any manner. It was also noticed that at the time of execution of the Will Doraiswami had not even acquired the properties in question. There was no clause in the Will which purported to deal with his after-acquisitions. The lower appellate court thus rejected the contention of the first defendant that the Will was of sufficient amplitude to include a devise of these properties as well.
(6) The contention that Balamani acquiesced in the provisions of the Will, which purported to deal with her absolute estate in items 1 and 2 and to cut it down to a mere life estate and that as she was given certain other properties under the Will which she took, she cannot be permitted to object to this provision was also rejected; that is to say, that argument thought Doraiswami having purported to deal with the properties of Balamani, when Balamani too certain properties devised to her under the Will, she must be deemed to have elected to stand by the provisions of the Will and cannot put forward the claim that her absolute interest in the estate in these items could not have been dealt with by the Will was not accepted.
Balamani having died. there were only circumstances which would give any clue to the intention of Balamani, whether she elected to abide by the Will, or not. That being so the lower appellate court examined the evidence in this record and was satisfied that there was nothing to show that Balamani accepted the Will. The doctrine of election, therefore, did not come into play. The plea of adverse possession set up by the first defendant was also negatived, as it was undeniably established that in the subsequent transaction in respect of items 3 and 4, Balamani took part and was not excluded by the first defendant, who claimed to be in possession. Lastly, the plea of gift was also negatived. The appeal failed on all the points.
(7) The first defendant has preferred this second appeal and the same questions are canvassed over again. Another point raised by the appellant is that the suit itself was bad, for possession was not asked but only a declaration was sought.
(8) I shall deal first with the question whether the Will contains any term or any indication that items 3 and 4 were also intended to be dealt with. The Will was executed in June 1938. Items 3 and 4 were purchased by Doraiswami Mudaliar in 1939, long after the Will. At the time of the execution of the Will, therefore, he did not except that any subsequent acquisitions would be made by him. He was on that date 68 years of age and executed the Will in anticipation of near demise.
He stated in the Will that he had become old and that he did not except to live much longer. her had no issue and no exception of any issue. Nor were there any persons whom he was willing to take in adoption. Thereafter, he proceeded to say that the properties belonging to him were set out in. A and B schedules and they were disposed of in the following manner. He then stated that the properties in the A schedule which included items 1 and 2 in the suit, were to be enjoyed by Balamani, his wife, without powers of alienation during her lifetime and after her lifetime, should become part of the charity estate provided in the Will. He than dealt with the B schedule which he constituted as the charity estate and appointed the first defendant as the hereditary trustee and manager thereof. The usual clause that generally finds place in a Will which provides for the devise of properties acquired after the date of the Will by the testator is absent in the case.
It is principally on this circumstance and in view of the express statement of the test for that he was dealing with A and B schedules only that the courts below took the view that items 3 and 4 were not covered by the Will in any manner whatsoever. The opening paragraph of the Will, the substance of which had been extracted above, clearly indicates that at that time the testator had no intention of acquiring any further properties and any consciousness of making a disposition in respect of such properties could not have been present in his mind at all. It is true that intestacy should not be lightly inferred but in the peculiar circumstances, of the case, I am unable to see how the concurrent view expressed by the courts below that items 3 and 4 were not covered by any terms of the Will or by any manner of interpretation of the clauses of the Will can be said to be incorrect.
Mr. Gopalaswami Aiyangar learned counsel for the appellant has referred to Pearey Lal v. Rameshwards, . Their Lordships say that in construing a Will, the Will should be read as a whole in order to get at the intention of the tester. If there is a conflict in the terms of the Will such construction as would give effect even to a conflicting expression rather than such construction as would render the expression inoperative should be given. There Lordships also say that all parts of a Will should be construed in relation to each other and it is a well recognised rule of construction that the Court will look at the circumstances under which the testator makes the Will, such as the state of his property, of his family and the like. In another part of the judgment, they also say:
"Further, where one of the two reasonable construction would lead to the intestacy, that would be disregarded in favour of a construction which does not create any such hiatus."
Mr. Gopalaswami Aiyangar relies on these observations and argues that the intention of the testator was to create of charity estate, for he had no one to provide for except his wife, and, therefore, in so far as the properties which were self-acquired and which were not in terms disposed of under the Will are not in terms disposed of under the Will are concerned, it must be taken that they should form part of the trust estate. I am unable to accept that that result flows even on an application of this decision. What is of vital importance in the construction of a Will is to give effect to the intention of the testator. When their Lordships say that intestacy should not be inferred, they dealt with it as a question of the construction of the terms of the Will. But where the terms of the Will are so clear that it is not by reason of any construction of those terms that intestacy is inferred in respect of some of the properties, the decision cannot apply.
If any one fact is clear than another, it is that the testator had no intention at the time of executing the Will of acquiring any further properties and he only wanted the properties that he was possessed of to be devoted to charity. As I have pointed out, there is no residuary clause in the Will which could be relied upon in support of the intention expressed in clear or ambiguous language terms as it may be, in favour of any devise of any after-acquisition. There is no doubt about the intention of the testator, and I must emphasis that it is not on a construction of the terms of the Will that intestacy in respect of items 3 and 4 arose. It arose as a fact by reason of the express recitals in the Will. I am accordingly satisfied that items 3 and 4 are not covered by the Will and the first defendant can claim no right thereto as legatee under the Will.
(9) It was somewhat vaguely argued that the first defendant is constituted a residuary legatee, and that as a residuary legatee, he is entitled to these items Reliance is placed on para 3 of the Will-
"Excluding the properties set out for my with out of the A schedule, the balance which belongs to me and the B schedule properties are decided for charity."
On behalf of the appellant, it is urged that the expression balance refers to the balance of the properties not expressly disposed of by the Will and that should taken in items 3 and 4 In the context, however. I am not prepared to accept this argument. The testator was only referring to the properties in the A schedule other than those bequeathed to his wife. The balance in the context does not refer to the balance of the properties remained after all the dispositions had been given effect to. Nor is there any term in the Will which expressly constitutes the first defendant as the residuary legatee. This contention has accordingly to be rejected.
(10) The next question relates to items 1 and 2. The contentions of the appellant in this regard are twofold. Firstly, it is urged that there was no valid settlement at all in 1921 and that, therefore, Balamani did not acquire an absolute estate, in these items. It is contended that even assuming that she had an absolute estate she was a consenting party to the mode of disposition contained in the Will so that it may be validly assured that there was a revocation of the settlement by mutual consent. Secondly, it is claimed that Balamani elected to take the benefits conferred under the Will and she cannot, therefore, be permitted to deny the binding nature of the Will.
(11) On the question whether the settlement was operative or not, Balamani's age on the date of the settlement came in for examination. The learned District Munsif dealt with the several documents in which Balamani's age has been given, more or less approximately it might be. Now. Balamani was the third wife of Doraiswami, who had married her when he was somewhat advanced in years. it is not, therefore, unlikely that he executed a settlement in her favour.
The document does not show that at the time of settlement she was represented by any guardian. The learned District Munsif though the Doraiswami Mudaliar could not have been unaware that if Balamani was a minor she should have been property represented by a guardian in order to make that settlement effective. It was certainly not his intention at that point of time to make a spurious settlement. The evidence on behalf of the first defendant did not purport to establish the age of Balamani at the relevant time. It was only vaguely stated that the conversations 0that look place at the time of the settlement indicated that Balamani was 16 years of age. The age of Balamani as given in the record of her depositions in certain other proceedings and in an affidavit and lastly in the Will itself was considered by the learned District Munsif, who observed:
"Far from being any proof that Balamani was a minor at the time of the settlement there are indications to the contrary on the basis of the age given in the registered Will which is admitted to be correct".
This view was accepted by the lower appellate court as well. It seems to me that this is a finding of fact which cannot be further canvassed in this second appeal.
(12) Nor am I impressed with the argument that there should have been a revocation of this settlement by mutual consent. Balamani was alive for a considerable number of years after her husband's death, and thought she seems to have admitted that she was aware of the execution of the Will, at no time was there any admission proceeding from her that she obtained the properties only under the Will. Though Doraiswami must have been aware that he had executed the settlement in her favour, he did not expressly refer to the rights created thereunder in the Will. Had anything been stated in the Will in that regard and it was shown that Balamani was a consenting party to the disposition of these properties, one could perhaps give some measure of credence of this contention. It was only in connection with the suit seeking to recover items 3 and 4, when the first defendant put forward his claims to be brought on record as the legal representative of Doraiswami that any question relevant to the will arose, and Balamani appears to have sided with the first defendant at the time. In her deposition in that suit and the connected proceedings, she stated that her husband executed the Will after consulting her and other friends. The trial court noticed that even then she maintained that the properties had been settled on her absolutely and that she was in possession and for these reasons he declined to accept the contention that she gave up her rights under the settlement deed.
(13) I am not disposed to disagree with this evaluation of the evidence. Where a person had certain rights in properties and that person is no longer alive to say what rights she claimed, on inference of such a far-reaching nature that that person gave up the rights should not be lightly made. Apart from the effect which the doctrine of election may have and independently of it. I am not disposed to agree with the contentions on behalf of the appellant that Balamani voluntarily gave up her rights.
(14) On the question of election no specific plea was taken by the first defendant. The suit is by the plaintiff's who claimed as the reversioners to the estate of Doraiswami, succession to which opened on the death of Balamani. Doraswami died in 1940 and the Will came into effect on his death. Balamani died in 1956 or thereabouts. Now, any question of election is a mixed question of fact and law when the possession of the properties by Balamani during all these years is not inconsistent with her possession as the absolute owner or even with her possession as a limited owner under the terms of the Will, no inference that she made any election, can be made.
Under the Will, Doraswami purported to grant her a life estate in items 1 and 2 as well as a house. Even apart from the terms of the Will, Balamani would have been entitled to the house, for if it had not been devised differently, no other person would have claimed it. Her possession and enjoyment of items 1 and 2 and the house are equally consistent with her possession and enjoyment as the heir of her husband.
Mr. Gopalaswami Aiyangar argues that if Balamani took the house under the terms of the Will, she must equally be bound by the other terms of the Will, which cut down her absolute right in items 1 and 2 to a limited estate. But, as far as I can see, Balamani's possession of the house is not necessarily referable to the Will. Unless one can postulate that if was a benefit conferred by the Will and Balamani took it as such benefit, the doctrine of election cannot be invoked against her to prevent her from insisting upon her absolute rights in items 1 and 2. Learned counsel for the respondents plaintiff's points out that there is no evidence to show in what manner the house was enjoyed, whether Balamani took the house under the terms of the Will or otherwise. There is in fact no plea and no plea in that regard. All of these questions are now raised long after Balamani's death and unless the first defendant can establish that Balamani consciously stood by the terms of the Will and accepted the benefits conferred thereunder, the first defendant appellant cannot plead the doctrine of election.
(15) On the plea of adverse possession, there is a concurrent finding of both the courts. It is not denied, that after the death of Doraiswami the first defendant brought himself on record in the connected suit and obtained possession of the property items 3 and 4 through court as representing Doraiswami, the contention put forward by him is that he had been in adverse possession of these properties, but this plea stands negatived by the admitted circumstances that in 1943, these properties were mortgaged for discharging the debts of Doraiswami and Balamani was a joint executant of that document. If the plea of the appellant that these properties had been devised for the trust estate is true, it is doubtful if he would have agreed to execute mortgage for discharging the debt of Doraiswami. Whatever remedy the creditors might have had against that estate is beside the point. It is even more doubtful if he would have permitted Balamani to join in the execution of the mortgage. That mortgage was discharged only in 1958. Till that date, therefore, the first defendant cannot be said to have put forward any hostile claims against Balamani, and if that should be so, I can hardly see how the plea of adverse possession can be maintained. On the question of the jewels, the finding is that the alleged gift has not been established. I am unable to interfere with that finding in second appeal.
(16) All the contentions material to the defence of the first defendant fail.
(17) Lastly, it was urged that a suit for mere declaration is not maintainable. It has been established by the evidence that there are tenants in possession who are entitled to be there under the Cultivating Tenants Protection Act ant that, therefore, the plaintiffs cannot ask for possession. In Rathnasabapathi Pillai v. Ramaswami Aiyar, (1910) ILR 33 Mad 452, it was held that when a trustee of a temple, who had been ousted from possession by his co-trustees sued for a declaration that his dismissal was invalid and for an injunction to restrain the co-trustees from interfering with his rights, the suit was held not maintainable, in these absence of prayer for consequential relief. But that decision clearly proceeded on the footing that he having been in possession of the properties as co-trustee and having been ousted therefrom, ought to have sought for possession and not for mere declaration.
In Kandaswami v. Vagheesam, ILR 1942 Mad 13 = (AIR 1941 Mad 822) (FB) a suit for a declaration of the plaintiff's title to the office of Mahant of a Mutt, but without a prayer for possession of the properties was held to be bad, when it was not alleged that the plaintiff was in possession and that was reason why no decree for possession was sought. But these are case where possession could have been obtained by the suitor. But in these cases were there is a statute law which prevents actual possession being taken, the tenants being entitled to continue in possession, it seems to me that the suit as framed cannot be held to be not maintainable. Such a question arose in the Punjab High Court in Gangaram v. Shivlal, ILR (1964) Punj 555 = (AIR 1964 Punj 260) (FB). The learned Judges observed that at page 569-
"The defendant has protection of his status as a tenant under Section 6 of Punjab Act X of 1953 in spite of the transfer of title under the pre-emotion decree in favour of the plaintiff. Of course, that protection is subject to the terms of Section 6 of that Act, but that is a matter which obviously cannot be in controversy in a civil court because it is a matter that will arise when eviction of the defendant as tenant is sought. Now, eviction of the defendant as a tenant can only be obtained under the provisions of Punjab Act X of 1953 and not in a civil court...... This the plaintiff cannot claim possession of the property as against the defendant as tenant in a civil court..... It follows that there is no consequential relief that the plaintiff could claim in the civil court and so this consideration he cannot be denied declaration he seeks".
(18) A similar view has been expressed in Seshu Reddi v. Rama Raghavareddi, , where the learned Judge observed thus:
"A suit such as the present is certainly maintainable where the only relief prayed for is granting a declamatory decree, because the consequential relief to which he may be entitled to viz, recovery of possession of the property, is not one which a civil court...... can grant."
The plea that the suit as brought is not maintainable accordingly fails.
(19) The result is the second appeal fails and is dismissed with costs. Leave granted.
(20) Appeal dismissed.