1. I regret to differ from my brother in a matter in which he has much greater experience than myself; but I came to a definite conclusion during the argument in this case, and subsequent reflection has not altered it.
2. My view is that Exhibit A was a gift to the four ladies absolutely, without the incidents of tarwad property. I do not base my opinion on the fact that there is no mention of the children of the donee in the instrument; I agree with Mr. Anantha Krishna Aiyar's argument that that consideration is irrelevant. Nor do I greatly rely on the fact that the donees in this case are not the wife, nor the wife and children of the donor, but his nieces; though I certainly think that the presumption in favour of a gift being subject to the incidents of tarwad holding is necessarily weaker when the objects of the gift are not the wife and children of the donor. I base my judgment on this; that the donor assigns to his nieces 'in full all the rights I possess in respect of the lands aforesaid'; and that it is recited that he possessed 'the right of holding with liberty to sell.' This express right of alienation seems to me to be in direct conflict with the idea of the property being held with the incidents of tarwad tenure, the chief of which I understand to be that the property is inalienable. The respondents' answer to this I understand to be that the words conferring power to alienate are merely inserted to negative the idea of a life-estate. I do not assent to this contention, which seems to me to be merely an attempt to save one artificiality by means of another. It is an inherent danger of case-law that a doctrine laid down in a i judgment is gradually expanded by succeeding decisions till the Court finds itself on the verge of a flat contradiction with the words of a Statute or the terms of an instrument. Somewhere short of that point the process must stop; and to my mind, the construction adopted by the lower Court oversteps the mark, and purports to convey an estate which is at once alienable and inalienable. I have studied with great care the judgments of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee 2 M.L.J. 226 and Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; 18 M.L.T. 255; (1915) M.W.N. 740 and I do not feel that my view of this case is in conflict with either of those decisions by which, of course, I am bound. In my opinion, the appeal should be allowed as to three-fourths of the property; but as my brother is of a different opinion, the appeal will be dismissed with costs.
Kumaraswami Sastri, J.
3. Twenty-second defendant is the appellant. The 19th and 20th defendants and their deceased sisters Patha Kutti Umma and Ayisha got the kanem right in certain properties under the deed Exhibit A, executed by Ammotti Mayan in their favour. Though the deed purports to be a deed of sale in consideration of Rs. 5,348-8 both the District Munsif and the Subordinate Judge find that it was really a deed of gift with an illusory consideration. This finding is binding upon us and the case has, therefore, to be considered on the footing that these four sisters were donees from their uncle.
2.The operative part of the deed is as follows: 'I have hereby assigned to you in full all the rights I possess in respect of the lands aforementioned, and have got the tenants to attorn to you and given the lands in possession and have herewith delivered to you in possession the kanom deed. Therefore you should hold (the same) in accordance with the provisions of the kanom deed aforesaid, pay Government assessment and enjoy (the lands)'.
3.Plaintiffs and defendants Nos. 1 to 18 are the descendants of the four donees. The 21st defendant filed a suit and obtained a decree against defendants Nos. 19 and 20 and the deceased Patha Kutti Umma, Ayisha not being a party. In execution of the decree he attached the properties and brought them to sale, and the 22nd defendant was the purchaser. The plaintiffs, who are, the heirs of Ayisha (one of the donees), put in a claim under Section 278, Civil Procedure Code, objecting to the attachment but it was dismissed. They, therefore, filed the present suit for a declaration of their title to the property.
4.The case for the plaintiffs is that the properties in dispute are the tavazhi properties of themselves and defendants Nos. 1 to 20 and cannot be attached and sold in execution of a decree in respect of the personal debts of defendants Nos. 19 and 20 and the deceased Patha Kutti Umma and that the decree, which was not passed against the tavazhi so as to affect the tavazhi properties, does not bind them. The District Munsif held that the gift to the four sisters was not a gift to their tavazhi but conveyed to each of them an exclusive right to one-fourth share in the property and that, as Ayisha was not a party to the suit in execution of which the property was sold, the plaintiffs were only entitled to a declaration that the sale of their mother's one-fourth share was invalid. In effect the District Munsif held that the 22nd defendant acquired three-fourths of the interest in the property by the Court sale and that the other one-fourth vested in the plaintiffs. Both parties preferred an appeal and the Subordinate Judge held that the property given under Exhibit A was held by the four sisters subject to the incidents of Marumakkattayam Law and that the property was not liable to be attached and sold. He passed a decree in favour of the plaintiffs, holding that the 22nd defendant acquired no title to the property by the Court sale.
5.The question for decision in this appeal is whether the donees under Exhibit A took the property as tavazhi property with all the incidents attached to tarwad property or whether each of them took an absolute and specific fourth share.
6.In considering what estate the donees took under the deed the terms of the instrument have to be first considered. Where the terms are clear and are unambiguous and expressly confer an absolute estate, there is, so far as I can see, nothing in the Marumakkattayam Law or usage to prevent the donees from taking an absolute estate like any other donee in the Madras Presidency. So far as Exhibit A is concerned, it does not in express terms convey to the donees power of alienation nor does it contain any clear indication that the donor did not intend the donees to take it as putravakasam property.
7. The presumption to be raised where the deed of gift affords no clear indication of the estate intended to be conferred has been considered in several cases, a detailed consideration of which has, since the decision in Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; 18 M.L.T. 255; (1915) M.W.N. 740, become unnecessary. Whatever doubts or difficulties might have existed before the recent Full Bench decision in Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; 18 M.L.T. 255, it may now be taken as settled law that where a person following the Marumakkattayam Law gives properties to his wife and children or to his children alone also following the same law, the presumption is that he intended the donees to take the properties with all the incidents of tarwad property. The decision follows and approves of the previous Full Bench decision in Kunhacha Umma v. Kutti Mummi Hajee 2 M.L.J. 226.
8. The mere fact that the donor states that ho had a right to sell the property and that the donees should have all his rights, or the use of the words 'with all my rights' or 'as I was enjoying,' will not take the case out of the general rule laid down in the Full Bench cases above referred to. Express words indicating that the donees wore to take the property as tenants-in-common and not under ordinary Marumakkattayam Law are necessary. In Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755 the deed of gift recited that the donees 'were to hold the same in the same way I as (the donor) was holding the property paying poruppad due to the jenmies and getting renewals in their names.' Though Sankaran Nair, J., was of opinion that the deed conferred an absolute estate, if its terms were considered, the Full Bench held that the terms of the deed did not preclude the application of the rule in Kunhacha Umma v. Kunhi Kutti Hajee 2 M.L.J. 226 as to the presumption to be raised. In Kalliani Amma v. Govinda Menon 12 Ind. Cas. 492 though the deed expressly stated that the donee and her 'santanams' should enjoy the property for ever along with the donor during his life-time and in proprium thereafter, Justices Abdur Rahim and Sundara Aiyar overruled the contention that the grant was not a putravakasam grant and held that the donee took the property with all the incidents of tarwad property. In the case of Naku Amma v. Ragava Menon 18 Ind. Cas. 1 though the donor gave 'the entire ownership' to the donee, the Court held that the grant was only a putravakasam grant. The correct principle is laid down by Sadasiva Aiyar and Tyabji, JJ., in Second Appeal No. 1415 of 1910 where they observe as follows: 'Of course if the donor (father in most cases) expressly states that he makes the gift to his children so as to be owned by them as tenants-in-common, and not under the ordinary Marumakkattayam Law, the children will own them as such tenants-in-common, But a gift simpliciter to children or wife and children will have the effect of making the gifted property to belong to the children as a tavazhi with the usual incidents of tavazhi property.'
9. It has been argued by Mr. Sundaram that the principle enunciated by the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee (i) and Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755 does not apply to cases where (1) the donor is not the father and (2) where the deed of gift is not expressly to the donee and his or her children. I find it difficult to see why any such distinction should be drawn. The decision in Kunhacha Umma v. Kutti Mammi Hajee 16 M.K 201 proceeded on the general principle enunciated by the Privy Council in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick 6 M.I.A. 526 and Mahomed Shumsool Hood v. Shewukram 22 W.R. 409 and if the ordinary notions and wishes of the donor may not improperly be taken into consideration in construing the nature of the estate intended to be conferred, there is no reason why the same test should not be applied to a gift by an uncle as to a gift by a father. The ratio decidendi of the decisions seems to be that a Hindu ordinarily intends to confer on the donee such an estate as the donee would take under the personal law governing him. The degree of propinquity is, therefore, immaterial and affords no test. The case may be different where a donor not following Marumakkattayam Law gives properties to those who do, but it is unnecessary to express any opinion in this appeal. It is sufficient for the purpose of this case to state that where a Marumakkattayam donor gives properties to the children of the same mother or to a member of a tavazhi without any express indication that an absolute alienable estate was granted, the presumption is that the donor intended to confer only an estate with all the incidents of tarwad property.
10. As regards the distinction sought to be drawn where the gift is to a person and his children and where no reference to the children is made, though it is no doubt true that in several of the cases that have come up for decision to the High Court the gift was to a person and his children or 'santanams' the decisions do not turn on the presence or absence of reference to issue in the deed but on general considerations of the nature of the estate which a Marumakkattayam donor intended to confer.
11. In Chakkara Kannan v. Kunhi Pokker 30 Ind. Cas. 755; 29 M.L.J. 481; (1915) M.W.N. 740, the Full Bench case above referred to, the terms of the deed as set out in the judgment of Sankaran Nair, J., do not refer to the children of the donee. I think it will be introducing a new element of confusion if the criterion is to be the presence or absence of reference to children or issue in considering whether the gift is to be treated as a putravakasam grant or as conveying an absolute and alienable estate. No doubt the trend of the decisions is to treat reference to children as an indication that the donor intended the gift to be putravakasam, but the converse does not follow. Where there are expressions indicating that the donee takes an absolute heritable and alienable estate, there is no reason to treat the clauses as repugnant and unenforceable simply because the gift is to the donee and his or her children or heirs.
12. Turning to the document in question, the gift was, as already pointed out, by an uncle following the Marumakkattayam Law to his nieces, children of the same mother. There is nothing in the deed to indicate that an absolute alienable estate was intended to be conferred on the donees and applying the ordinary rules of construction referred to by me, I am of opinion that the property was intended to be given as putravakasam property. The District Munsif was of opinion that (1) the omission of any reference to the children of the donees though some of them had children and (2) the course of dealing by the donees, show that a contrary intention may be inferred. I do not think any subsequent dealing by the donees can be evidence of the intention of the donor though it may, as between them, create an estoppel. In construing a deed of gift what Courts have to see is the intention of the donor as evidenced either by the deed or by the sur rounding circumstances at the time of the gift. No amount of dealing by the donees could convert a limited into an absolute grant, I have already given my reasons for coming to the conclusion that the mere omission to name children in the grant is no criterion.
13. I am of opinion that the decision of the Subordinate Judge is right and dismiss the appeal with costs.