1. These Letters Patent appeal have been preferred against the judgment of N. S. Ramaswami J. in A. A. O. 177 of 1975 and 183 of 1975 respectively.
2. The appeals before the learned Judge were filed by the decree-holder Viswanathan-A. A. O. 177 of 1975 against the order of the Subordinate Judge Coimbatore, allowing E. A. No. 1486 of 1974 which had been filed by the fourth defendant (the appellant in L. P. A. 39 of 1976) under Section 47 C. P. C. against the attachment of a portion of the house property in execution of a decree as an asset of his father Kunne Gounder in his hands, and A. A. O. No. 183 of 1975 against the order of the Subordinate Judge of Coimbatore dismissing E. P. 304 of 1972 in which the respondent had attached certain shares in Lakshmi Mills as an asset of Kunne Gounder in the hands of defendants 7 to 9, the daughters of Kunne Gounder and the appellants, in L. P. A. 40 of 1976.
3. Kunne Gounder, that father of the appellants, who died on 27-8-1967, appears to have been appointed as a trustee along with one Lingayi Gounder in the will executed in 1925 by one K. Nanjappa Gounder, the father of the respondent's adoptive father K. N. K. Nangappa Gounder. The respondent's case was that Kunne Gounder and Lingai Gounder had been appointed as trustees to manage the properties bequeathed to Nanjappa in the will a direction that they should hand over the properties to Nanjappa on his attaining majority. The will contained a provision that Kunne Gounder and his male heirs should take the properties absolutely in case the legatee Nanjappa died without a male issue. The respondent's case is that on the legatee Nanjappa attaining majority, Kunne Gounder surrendered possession of only a part of the estate but not the shares in two nidhies. Kunne Gounder filed O. S. No. 22 of 1961 in the Sub Court, Coimbatore, questioning the respondent's adoption by Nanjappa, but failed in that suit as well as in the appeal No. 207 of 1963 which he had filed in this court. After the dismissal of the appeal, holding that the respondent had been validly adopted by Nanjappa and was entitled to the properties mentioned in the will, including the shares in the two nidhies, the respondent filed O. S. No. 915 of 1970 against the sons and daughters of Kunne Gounder subsequent to his death for recovery of the monies due under the shares and obtained a decree.
4. During the pendency of the said appeal No. 207 of 1963, Kunne Gounder and his sons and daughters for their properties divided by a registered partition deed Ex. A.1 dated 7-4-1965. In that partition Kunne Gounder got for his share the properties mentioned in Sch. A to the partition deed. These properties consisted of some shares in a textile company called Lakshmi Mills and a small house forming a part of door No. 16/86 Okkiliyar St., Coimbatore, besides cash of Rs. 5000. According to the appellants, a major portion of the house property fell to the share of Chikkaraj, the appellant in L. P. A. 39 of 1976, and his three brothers in specific shares, and the portion allotted to the appellant was comparatively smaller than the portions allotted to each of his brothers. Therefore, it was agreed that the portion of the house allotted to the share of the father should belong absolutely to the appellant in L. P. A. 39 of 1976, after the death of his father. This intention was clearly expressed in the partition deed. Similarly, the shares in Lakshmi Mills, allotted to the share of the father, were to be taken absolutely by his daughters, the appellants in L. P. A. 40 of 1976, after his death. This intention is clearly expressed in the partition deed, and as per the arrangement, the father got only a limited right in the portion of the house and all the shares in Lakshmi Mills allotted to his share in the partition in accordance with the common intention of all concerned. The appellants in LPA 39 of 1976 became absolutely entitled to the portion of the house and the appellants in the order appeal became absolutely entitled to all the shares in Lakshmi Mills allotted to the share of their father on his death on 27-8-1967. The decree obtained by the respondent on 5-12-1972, in O. S. 915 of 1970 provides for recovery of the amount only from the assets of Kunne Gounder in the hands of the appellant and his brothers and sisters.
5. The respondent got the portion of the house and all the shares in Lakshmi Mills allotted to the share of the father Kunne Gounder in the partition attached in execution of the decree in E. P. 96 of 1974 and E. P. 304 of 1973 respectively as the assets of the father Kunne Gounder in the hands of the appellants. The appellants in LPA 39 of 1976 therefore filed E. A. 486 of 1974 under S. 47 C. P. C. praying for raising the attachment on the ground that the property was not asset of Kunne Gounder in his hands but was his absolute property. The appellant in LPA. 40 of 1976 contended in E. P. 304 of 1973 that the shares in Lakshmi Mills, which the respondent got attached as an asset of Kunne Gounder in the hands of the appellants in LPA. 40 of 1976, were not Kunne Gounder's assets in their hands but were their absolute properties and therefore the attachment was not valid. The contention of the respondent in the objection filed in E. A. 1486 of 1974 and in his E. P. 304 of 1973 was that during the pendency of the appeal No. 207 of 1963 in this court Kunne Gounder and his sons and daughters effected a partition of the ancestral properties of the family and the self-acquired properties of Kunne Gounder fraudulently without making sufficient provision for meeting the debts of the family, including the debt due to him for which he obtained a decree in O. S. No. 915 of 1970, with the object of defeating and delaying creditors and that the properties were the assets of Kunne Gounder in the hands of the appellants and the attachments are therefore valid.
6. The Subordinate Judge, Coimbatore, who heard E. A. No. 1486 of 1974 found that the properties divided under the partition deed, Ex. A.1 were joint family properties and that Kunne Gounder, to whose share the properties described in Schedule A in the partition deed had been allotted, had only a life interest in those properties and the absolute interest in a portion of the house was to go to the appellant in L. P. A. 39 of 1976 on the death of Kunne Gounder. He further found that the appellant in L. P. A. 39 of 1976 had acquired a vested interest in that portion of the house under S. 19 of the T. P. Act and, therefore, the property was not an asset of Kunne Gounder in his hands. In that view, the Subordinate Judge allowed E. A. 1486 of 1974, and raised the attachment. Another Subordinate Judge, who heard E. A. 304 of 1973 came to the same conclusion and he dismissed E. P. 304 of 1973 holding that the shares were not the asset of Kunne Gounder in the hands for the appellants in L. P. A. 40 of 1976.
7. The decree-holder filed A. A. O. 177 and 183 of 1975 against the order allowing E. A. 1486 of 1974 and dismissing E. P. 304 of 1973. The contention urged on behalf of the appellants herein before N. S. Ramaswami J. who heard both the appeals, was that Kunne Gounder had only a life estate in the properties mentioned in Schedule-A to the partition deed Ex. A-1, and that the appellants herein became absolute owners of those properties on his death and were not in possession of any of his assets and, therefore, the attachments were not valid. In the partition deed the A Schedule properties had been allotted to the father Kunne Gounder while the E Schedule properties had been allotted to the appellant in L. P. A. 39 of 1976 and the properties mentioned in Schs. J, K and L had been allotted to the shared of the appellants in the other appeal. N. S. Ramaswami J, found that as per the body of the partition deed. Ex.. A.1, the A Schedule properties are to be taken by Kunne Gounder absolutely with powers of alienation and that in the B. Sch. allotted to the share of the appellant in L. P. A. 39 of 1976, it is stated that he should take the portion of the house property mentioned in A Sch. To the partition deed absolutely after the death of Kunne Gounder and that there is a similar provision in regard to the shares in Lakshmi Mills allotted to Kunne Gounder in the A. Sch. of the partition deed in the J, K and L schedules, viz. That the daughters should take these shares absolutely on the death of Kunne Gounder. The learned Judge held that Kunne Gounder took an absolute estate in the properties in question and that the gifts over to the appellants herein were inconsistent with a absolute estate and therefore void. In coming to this conclusion the learned Judge relied upon the decision of the Privy Council in Raghunath Prasad Singh v. Deputy Commr. Partabgarh 58 Mad LJ 1 : (AIR 1929 PC 283). The learned Judge allowed both the appeals observing that :-
"I am of the view that under the partition deed Kunne Gounder took an absolute estate in respect of the A Schedule property but indicated in the same document regarding the manner in which they are to the distributed if these properties are available on his death, amongst his children. Otherwise, the latter clause in the document would be repugnant to the former."
Before we construe the partition deed, Ex. A.1 in the light of the decisions placed before us by the learned counsel for the parties, we would like to refer to some portions of the judgment of the learned Judge. The learned Judge has observed in a portion of his judgment thus :-
" I do not believe that the parties intended that Kunne Gounder should have only life estate in the property. It is not possible to hold that the subsequent clause is a defeasance."
The body of the document Ex. A.1, which is, in Tamil, no doubt, stated that the shares should take the respective shares absolutely and enjoy them from generation to generation with absolute powers of alienation. The A Sch. in the partition deed includes the shares in Lakshmi Mills and a portion of the house bearing door No. 16/86 Okkiliar St., Coimbatore. But it is stated in the A Schedule itself that the appellant in L. P. A. 39 1976 should take the share in the house absolutely after the death of Kunne Gounder. There is a similar provision in the A Sch. itself in regard to the shares in Lakshmi Mills and it is stated that those shares should belong absolutely to the appellants in L. P. A. 40 of 1976 after the death of Kunne Gounder. In the Schedule E where the properties allotted to the share of the appellant in L. P. A. 39 of 1976 are mentioned, the share in the house allotted to Kunne Gounder also is included and it is stated that the appellant in L. P. A. 39 of 1976 should take that share absolutely after the lifetime of Kunne Gounder. The shares in Lakshmi Mills allotted to the share of Kunne Gounder in Schedule A to the partition deed has been put in Schs. J, K, and L also and it is stated there that the appellants in L. P. A. 40 of 1976 should take those shares after the lifetime of Kunne Gounder. The intention of the parties appears to be that if Kunne Gounder had not alienated the properties allotted to his share in the partition under Ex. A.1, during his lifetime, they should be taken absolutely by the appellants as indicated in the document. Therefore, it is not possible to agree with N. S. Ramaswami J. that it is not possible to believe that the parties intended that Kunne Gounder should have only a life estate in the properties, for, it is clear that the parties appear to have intended that he should have a life estate in the properties with also a power of absolute disposition over the properties.
8. N. S. Ramaswami J. has observed in his judgment thus :-
"It is not in dispute that the debt for which the appellant had obtained a decree is a pre-partition debt. Therefore, even if the properties dealt with under the partition deed are the joint family properties of Kunne Gounder and his sons, so long as the debt is not tainted with illegality or immorality, even the shares allotted to the sons would be answerable to the debt, unless it is shown by the sons that the partition is a bona fide one. That being so, if it has to be construed that the intention of the parties in this case was to confer only a life estate of Kunne Gounder in respect of the properties allotted to his share, it would not be a bona fide arrangement."
It is not possible to agree with this observation of the learned Judge, for the respondent has not proceeded in the suit filed by him on the basis that the debt was a pre-partition debt for which even the sons of Kunne Gounder would be liable so long as they do not establish that it is tainted with immorality or illegality, for the respondent himself has sought for a decree in the suit only against the assets of Kunne Gounder in the hands of his legal representatives and, therefore, it is not open to the respondent to proceed against the interest of Kunne Gounder's sons in the joint family properties. It is not possible to hold that the partition under Ex. A.1, is not bona fide merely because the appellants have been given an absolute right in the properties allotted to the share of Kunne Gounder in case those properties remained unalienated by him during his lifetime, for, under the terms of the partition deed it was open to any creditor of Kunne Gounder to proceed against the properties allotted to his share in the partition and recover any debt due from him in his lifetime.
9. As mentioned already, a portion of the house property and the shares in Lakshmi Mills have been put in schedule A to the partition deed, Ex. A.1, and allotted to the share of Kunne Gounder. The portion of the house allotted to the share of Kunne Gounder has been put even in schedule E in which the properties allotted to the share of the appellant in L. P. A. 39 of 1976 are mentioned, and it is stated that he should take that portion of the house absolutely on the death of Kunne Gounder. Similarly, the shares in Lakshmi Mills allotted to Kunne Gounder have been put even in the Schedules J, K, L in which the properties allotted to the share of Kunne Gounder's daughters, the appellants in L. P. A. 40 of 1976 are mentioned and it is stated there that they should take their shares on the death of Kunne Gounder. In the body of the document it is stated that the properties allotted to each of the parties to the document have been taken by each of them and they have been allotted to each of then to be enjoyed by them absolutely from generation to generation without any claim from any other party to the document. The contention of the learned counsel for the appellants is that all the terms of the document should be read together and an attempt should be made to give effect to every part of the document, if possible, and that if such a course is adopted, what would emerge is that Kunne Gounder had only a life estate in the properties with an option to exercise the power of disposal over the properties during his lifetime and that if he did not exercise that option and had left the properties intact at the time of his death, those properties should be taken absolutely by the appellants in accordance with the terms of the document. The contention is that the appellants have acquired a vested right in the properties on the date of the document and that their right to enjoy the properties in the event of those properties remaining unalienated by Kunne Gounder had been postponed till after the death of Kunne Gounder and therefore, the properties could not be attached in the hands of the appellants as the assets of Kunne Gounder.
10. The learned counsel for the respondent does not contend that the gift over to the appellants should not be upheld. But his contention is that the appellants got the properties only on the death of their father Kunne Gounder and that they are, therefore, assets of Kunne Gounder in their hands liable to be proceeded in execution of the decree. Thus it is contended that there is no vesting of the properties on the appellants in the lifetime of Kunne Gounder. In this connection it is necessary to bear in mind the provisions of S. 19 of the Transfer of Property Act which reads :-
"Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen. such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession;
Explanation :-An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment hereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular even shall happen the interest shall pass to another person."
11. It is also necessary to bear in mind the principles governing the construction of documents. The Supreme Court has observed in Navaneetlal v. Gokul, thus (at p. 797);-
"In construing a document whether in English or in Verancular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed..... the true intention of the test at or has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory."
The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative..........Where apparently conflicting dispositions can be reconciled by giving full effect to every words used in a document. such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator........... It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect, but a court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the will."
12. In a much earlier decision in Kumaran v. Mattom, a Bench of the Kerala High Court has observed (at p. 121) :-
"The principle has been well settled that the meaning of any particular clause in gifts or wills is to be collected from the entire instrument and all its parts are to be construed with reference to each other. And before a provision is disregarded on the ground of repugnancy to the main provision, every attempt must be made to reconcile, if possible, the two provisions to see whether the main object of the transfer was to make an absolute transfer or only a restricted transfer."
13. In the earlier decision in Krishna Iyer v. Swaminatha Iyer 8 Mad LW 140 : (AIR 1919 Mad 768), decided by a Bench of this court, one Kuppuswami Iyer, the last male owner of the properties in suit and other properties executed a will under which his mother, widow and natural brother were the legatees. Subsequently, there was a compromise decree which secured to two persons rights in certain properties dependent on the death of the testator's mother Seshiammal. One of those two persons alone was alive and Seshiammal died subsequently. The other person contended that as he alone was alive at the time of Seshiammal's death, the heirs of the other person were not entitled to any rights. The learned Judges repelled the contention that the two persons did not take a vested interest in the property and held that the compromise which secured rights to the two persons dependent upon the death Seshiammal created a vested right and that vested interest under the Indian Law does not pass by survivorship but is inheritable and divisible between the two donees. In Govindaraja Pillai v. Mangalam Pillai 36 Mad LW 733 : (AIR 1933 Mad 80), a Hindu husband settled certain properties on his wife, saying in the settlement deed that the wife should hold and enjoy them 'with all rights' and that if she was do die without issue, her brothers should take the properties. Subsequently, in a compromise in a suit between the husband and wife, some of those properties were allotted to the husband absolutely and the rest to the wife. On the death of the wife issueless, her brothers claimed the properties allotted to the wife in the compromise. But the husband, who had adopted a son after the death of his wife, resisted the claim of his wife's brotheRs. It has been held by Sundaram Chetti J. that the moment the wife died without any issue either natural or adopted, the properties devolved on her brothers by reasons of the defeasance clause and the gift over to them and that the properties having vested on her brothers on her death, could not be divested by reason of the subsequent adoption made by the husband. In Swarnamoyee v. Probodh Chandra AIR 1933 Cal 253, one Mondal executed a will in 1868 giving certain Government promissory notes to his wife B, on her death to his daughter D, who had two sons K and J, of whom K predeceased both B and D, B dying before D. It was contended before the Bench of the Calcutta High Court in that case that the whole object of the will was to keep these Government promissory notes away from the brother of the testator and his line and that nothing else was done by the will than to leave them to his wife and then to his daughter and thereafter to his daughter's son as it would be in the case of intestacy. The learned Judges repelled that contention, observing :-
" We think it was his intention to make gifts in prasenti in their favour, only postponing the enjoyment thereof in the case of the daughter till on the death of the widow, and in the case of the grandsons till the lives of the widow and the daughter were over. We have been asked to construe the words used in their natural meaning; it is true that it is not expressly stated in the will that the we estate to the widow was for her life, or that the estate to the daughter was for her life, and it is also true that so far as the widow and the daughter are concerned, the devise apparently is no more restricted in its character than in the case of the grandsons. But taking the whole of the bequest together and giving the words their natural meaning we are driven to the conclusion that what was meant was that it would go to the widow for her life, then to the daughter for her life and thereafter to the grandsons absolutely. In other words, the intention was to create and absolute estate in the grandsons with the two life estates intervening a thing not unknown or repugnant to Hindu Law. The will, having regard to its date, is not governed by the Succession Act, but even if the principles of that Act are applied to it, the same result is reached because the interests created are no 'contingent' but 'vested'. The expression 'on her death' must be taken to indicate merely the time when the gift over is to be reduced to possession and not the time when the right to such possession vests. (See Hallifax v Wilson (1809) 16 Ves Jun 168). The principle underlying this rule is that no contingency is imported by the fact that the legacy is given after a life estate in the property bequeathed. As nothing is more certain than that every person who lives must die, the death of a life tenant is an event not contingent but certain."
We see the following passage in a decision of the Patna High Court in Kaliprasad v. Ramgolam, AIR 1937 Pat 163 :-
"The existence of a power of appointment would not prevent the vesting of the remainder, because where estates are subjected to a general power of appointment in the first taker with remainder over in default of such appointment, the power does not suspend the remainder from vesting".
In Lakshmiammal v. Allaudin, one Subbiah Pillai
executed a Will in 1931 (Ex. A-1) and died soon afterwards leaving his widow Lakshmiammal and two daughters Amirthammal and Ammakutti. The will purported to deal with two items of properties and it gave them to the widow with absolute rights and also provided that after her lifetime item 1 should go to Amirthammal and item 2 to Ammakutti. Amirthammal and Lakshmiammal died in 1941 and 1948 respectively. The question for consideration before Ramkrishnan J., who decided that case, was whether Lakshmiammal got an absolute estate or only a limited estate with the vested remainder in the two daughteRs. The trial court had found that the first part of the will granted an absolute estate to the widow and the gift over to the daughter was a repugnant clause and therefore invalid, as has been held in the present case by N. S. Ramaswami J. But the lower appellate Court however decided that the will has to be construed as a whole and if so construed, the subsequent clause had the effect of reducing the interest of Lakshmiammal to a life estate. Ramakrishnan J. agreed with the lower appellate court and held that the widow Lakshmiammal had only a life estate. A similar case came up for consideration before Ganesan J. inRamaseenivasa Iyengar v. Padmasani Ammal, (1973) 86 Mad LW 456. In that case the terms of the will were that the property should be taken by the daughters of the testator, C and F in equal shares with absolute rights, but the share of the lady without issue shall, after her death, be taken by the lady with issues along with her children. Ganesan J. has observed in that decision :-
"In deciding the question, the court has to take into consideration not only the terms of the earlier devise but also other subsequent provisions inconsistent with an absolute gift such as a restriction on alienation or gift over on the donee disposing or failing to dispose of the property............ On a fair construction of the terms of the will in this case and taking the document as a whole, I am clear that the testator intended by the earlier clause that the two daughters including Chellammal should take only a life estate if they had no issue and that on the death of the lady without issues the property should be taken absolutely by the surviving daughter with issues."
14. A clause in a partition arrangement in Tamil came up for interpretation before Ramachandra Iyer C. J. and Venkatadri J. in Ramaswami Chetti v. Venkatammal, , in a Letters Patent Appeal which arose from the judgment of Veeraswami J. as he then was, and when freely translated read thus (at p. 194) :-
"We have agreed that the properties set out in schedule A hereto, worth Rs. 3500 should be enjoyed by No. 1 (Alagarsami Chettiar), with a right to create mortgage, of this and waram leases but with no power of sale or gift; that if; beyond creating mortgages, of this and waram leases, party No. 1 (Alagarsami Chettiar) were to execute sales or gifts, such sales or gifts will not be valid. If No. 1 were to marry again and by that marriage he gets other heirs, those heirs alone shall take the A schedule properties after his lifetime and after performing his obsequies; the heirs born of the second wife shall discharge the debts contracted by No. 1 of us and enjoy the properties absolutely. If No. 1 of us were to marry again but does not get a male heir, the second of us, that is, Subbiah, shall, after the lifetime of the first perform his obsequies and he shall take the A schedule properties with absolute rights. If No. 1 were to borrow, the second of us shall discharge those debts.'
It was contended before the learned Judges that on the terms of the document (Ex. A-1 in that case) an absolute estate on Alagarsami Chettiar must be implied and that what remained with Alagarsami must be regarded as his absolute property and the restrictions placed upon it should not be held to be binding upon him. The learned Judges observed (at pp. 195, 196, 197):-
"We are, however, unable to agree that there will be a distinction in the matter of construction between a partition deed and other documents inter vivos or by way of a testamentary disposition. In both the cases the extent of rights obtained by a party should be determined on a true construction of the document. It is true that in an ordinary partition deed, there would be no occasion for providing for the destination of the property after the lifetime of the sharers. But a partition deed, sometimes may take the form of a family arrangement. Whereunder benefits might be conferred not merely on the immediate parties to the partition, but on other persons as well. In the instant case having regard to the surrounding circumstances and the express language employed in the document, the arrangement that was entered into between Alagarsami Chettiar and his son was of a twofold character, namely, a partition and a settlement. Alagarsami Chettiar was old, and it was, perhaps, though that it would be wiser, even at the time of the partition to provide for the devolution of the properties in accordance with the arrangement thereby conferring benefit on any son that Alagarsami Chettiar might have through the contemplated second marriage. The gift over to the second wife's son, and failing him to Subbiah, does indicate that Alagarsami Chettiar was to take only a life estate. The further provision denying him the power of sale or gift, confirms this interpretation. Except the fact that a power to raise a loan on mortgage or to grant leases, has been given, there is no other indication in the document to show that Alagarsami Chettiar was to have an absolute estate in the property. At one stage of the arguments, learned counsel contended that the provision for the destination of the remainder, should be regarded as invalid, being repugnant to the absolute estate inhering in Alagarsami Chettiar. It is an accepted rule of construction that a document should be read as a whole and an effort should be made to give effect to every part of it. Applying that principle, Ex. A-1 can be read as conferring nothing more than a life estate with certain powers on Alagarsami Chettiar, the remainder being given to the male issues of the second wife and failing them to Subbiah............. We are of opinion that the nature of the estate granted to Subbiah had to be decided on a consideration of all the clauses in the partition document and not merely by the sequence of the dispositions............... the construction of the partition deed can be made in one of the three following ways-(i) whether it intends a present gift of the remainder in the property allotted to Alagarsami, to Subbiah merely postponing the enjoyment till after his lifetime, (ii) or the present gift of that remainder is made to Subbiah, the right to enjoy which being postponed after the lifetime of his father and which gift is liable to be defeated on a son being born out of the contemplated second marriage; or (iii) whether there is no present gift of the remainder at all in favour of Subbiah, the gift of the remainder only taking place after it is found that there could be no son by the second marriage ?
It is a cardinal rule of interpretation of documents that effect should be given to the expressed intentions of the testator, which have to be gathered on a reading of the entire document. It can also be stated as a well-recognised principle that even when the bequest is dependent upon a contingency, it will not necessarily prevent vesting of the estate till that contingency happens......... Applying that principle, we are of opinion that it would not have been the intention of the parties to the partition deed to impose a condition for the vesting of the remainder, the non-performance of which should work a forfeiture of the property. It is a prevalent idea, in the community to which the parties belong, that the person who takes the property of a deceased will have the duty of performing his obsequies. The performance of the ceremonies, must, therefore, have been regarded as incidental to the taking of the property and not as a condition precedent to it. There being therefore, no condition for the vesting of the property in Subbiah, the interest obtained by him should be regarded as one which vested in him the moment the partition deed was executed, and such interest could be inherited by his mother Venkatammal on his death."
The terms of the will (Ex. A-1) which came up for consideration before Ramamurti J. in Jabamalai Mariammal v. Madalaimuthu Thevar. (1966) 79 Mad LW 141, provided that after the lifetime of the testatrix the properties were bequeathed to her husband A who should take it as absolute owner and enjoy with full rights of alienation by gift or otherwise. And after A's death, their son B shall become the absolute owner etc. The question for consideration was whether the will should be construed as creating an absolute estate in favour of A following a repugnant clause which should be held to be void, or whether on a construction of all the clauses together, it should be held that there is no life estate in favour of A and the later bequest in favour of B is not a repugnant provision but is an independent bequest to take effect on the death of A. Ramamurti J. has observed :-
"As the judicial decisions reveal, difficulty has been frequently experienced by Courts in determining the effect of the latter and subsequent clauses of the will, engrafting an executory device or a 'gift over', in favour of other persons on happening of a contingency. i.e., whether the latter clause should be ignored as void, being repugnant to the former clause, being an attempt to lay down a rule of devolution, when the property has already been taken absolutely by someone else, or whether the latter clause should be construed as one by way of defeasance falling under the recognised clauses or whether the later clause on a proper interpretation, must be held to cut down the absolute estate conferred under the former clause, with a view that the intentions of the testator clearly manifested in the will could be effectuated. The problem always has been to decide which side of the border line the later clause should fall."
15. Ramamurti J. extracted in his judgment the following observation of Supreme Court in its judgment in Ramachandra v. Hilda Brito, :-
"It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to D absolutely 'on' or 'after' or 'at' A's death, A is prima facie held to take life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case, if as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Saverima the question is whether effect can or cannot be given to it. If the interest of Saverima were to be held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Saverima was not intended to be absolute but was limited to her life only it would be proper for the court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words 'after her lifetime' occurring in clause 3 (c) assume crucial importance."
Ramamurti J. has observed in his judgment :-
"I am unable to consider this decision and regard these observations of the Supreme Court as an authority for the proposition in an unqualified form that in every case in which an absolute estate is followed by a bequest on or after or at death of the prior legatee the latter bequest would have the effect of cutting down the former absolute estate into a life estate without powers of alienation. There is nothing in the decision which supports the view that where the first legate is conferred in express unambiguous language, powers of alienation, the alienation could be declared to be invalid by reason of a latter clause either by way of defeasance or by way of a gift over. As observed earlier, cases of that kind stand on an entirely different footing governed by different principles altogether. The decision of the Supreme Court turned upon the particular language and features of the will in question.......... I am therefore of opinion that this decision does not support the extreme contention put forward by learned counsel for the respondent. Reading all the clauses of the will in Ex. A-3, I am of the opinion that the intention of the testatrix is to maintain the absolute estate in favour of her husband. The words 'with all powers of alienation' (Tamil omitted) are words of widest amplitude. The subsequent bequest in favour of the son would take effect only if the husband died without alienating the property. But if he had alienated, the validity of the alienation must be upheld in view of the express terms of the Will as otherwise the intention of the testatrix would be frustrated......... I am inclined to take the view that this provision of the gift over in favour of the son has been made by the testatrix not with a view to cut down the absolute estate but merely as a contingent provision that in case the husband should die without alienating the property it should be taken by the son".
16. It would follow from the decisions referred to above that the partition deed, Ex. A.1, in this case has to be read as a whole to gather the intention of the parties.
17. The clause conferring an absolute interest on Kunne Gounder in respect of the properties allotted to his share in the partition should not be read in isolation and the clause in the deed which provides for the appellants taking the house portion and the shares in Lakshmi Mills as the case may be, on the death of Kunne Gounder should not be regarded as repugnant and void. An attempt must be made to reconcile every part of the document and if such a course is adopted, it would be clear that Kunne Gounder had no doubt absolute right in the properties allotted to his share in the partition deed and could dispose of those properties during his lifetime and that if those properties remained unalienated by him during his lifetime, the appellant in L. P. A. 39 of 1976 should take the portion of the house allotted to the share of his father absolutely and the appellants in L. P. A. 40 of 1976 should take absolutely the shares in Lakshmi Mills allotted to the share of their father in the partition deed. If such a construction is not attempted, there would be the consequence of ignoring the clear intention of the parties as expressed by them by putting these properties in Schedule A and saying clearly that those properties shall, on the death of Kunne Gounder, be taken by the appellant s herein, and also by putting those properties in Schedule A, J. K and L, and saying in those Schedules that the appellants herein shall take those properties on the death of Kunne Gounder. The rights which the appellants acquired by the aforesaid clauses in the partition deed are vested rights and not contingent rights, as the death of Kunne Gounder was an event which was certain to happen, whereupon the appellants herein became entitled to actual possession of the properties.
18. The learned counsel for the respondent relied upon a decision of a Bench of this court inPugalumperumal Pillai v. Thangathammal 62 Mad LW 260 : (AIR 1949 Mad 690) where the learned Judges have observed :-
"As observed by their Lordships of the Privy Council in Lalit Mohan Singh Roy v. Chukkun Lal Roy (1897) ILR 24 Cal 834 (PC), there are two, cardinal principles in the construction of Wills, deeds and other documents. The first is that clear and unambiguous dispositive words are not of be controlled or qualified by any general expression of intention. The second is that technical words, or words of known legal import must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words, are of such a nature as to make it perfectly clear that the testator did not use the technical terms in their proper sense............. Relying upon the decision in Subbamma v. Ramanaidu, 45 Mad LW 153 : (AIR 1937 Mad 476) it is argued that there is a donation in this case to Veeraperumal Ammal with a gift over to her issue and such being the case the whole document should be given effect to which can be done only by construing the gift as a life estate. No doubt, Varadachariar J. in construing the will, the subject matter of the dispute in that case, was of opinion that in order to avoid the possibility of not giving effect to certain portions of the Will, the proper rule of construction has been to take the will as a whole, and the proper rule of construction has been to take the will as a whole, and the presence of a gift over, which is not a mere gift by way of defeasance, was held to be an indication that the prior gift was only a limited estate. Special circumstances which were present in that Will, also led the learned Judge to come to that conclusion. Having considered that case carefully, we are of opinion that the observations therein do not afford much assistance for the construction of Ex. P. 7 where, as stated already, there are clear and unambiguous words denoting the grant of an absolute estate in favour of Veeraperumal Ammal."
The learned Judges thus agreed with Rajamannar J. as he then was, whose judgment they were considering in a Letters Patent appeal. The observations made in that decision have to be held to be applicable to the facts of the particular case and the nature of the gift deed which came up for the learned Judges' consideration in that case, read thus :-
"As I have given away to you the property in the Schedule herein worth Rs. 1500 as stridhanam gift, you shall hold and enjoy the aforesaid property hereditarily and from son to grandson and so on as long as the sun and moon last. After your lifetime your issues if there are any, shall get the aforesaid property. If you have no male or female issues, the aforesaid property shall revert to me and to my male heirs. I shall till my lifetime, reside jointly with you in the thatched house mentioned in the Schedule.?
The other decision relied upon by the learned counsel for the respondent is of Somasundaram J. inRatnasami Pillai v. Kathija Biviammal (1950) 63 Mad LW 963. There a Hindu testator bequeathed his properties to daughter stating that 'my daughter shall get these properties after my lifetime with absolute rights' and she shall not alienate the property except for the discharge of debts and after her lifetime her grandsons should get the properties. Following the aforesaid decision inPugalumperumal Pillai v. Thangathammal. 62 Mad LW 260 : (AIR 1949 Mad 690), it has been held by Somasundaram J. that the subsequent restrictive clause is repugnant and therefore invalid, and it is at best a provision for devolution of the property after her death and it is not intended to limit the character of the estate given by the earlier bequest in favour of the daughter. This decision will not, in our opinion, apply to the facts of the present case where the properties concerned have been put in Schedule A relating to Kunne Gounder with a clause that on his death the house portion shall be taken absolutely by the appellants in L.P.A 39 of 1976 and the shares in Lakshmi Mills shall be taken absolutely by the appellants in L.P.A 40 of 1976 and those properties have been put accordingly even in Schedules E. J. K and L with a recital that appellants shall take those properties absolutely on the death of Kunne Gounder.
19. On a careful consideration of the terms of the partition deed in this case and the principles laid down in the decisions referred to above, We are of the opinion that the entire document Ex. A.1 has to be read as a whole and attempt should be made to reconcile every part of the document with what is stated in other parts of the document and that, if such a course is adopted, what would follow is that Kunne Gounder had a life estate in the properties with full power of alienation over the properties during his lifetime and in the event of Kunne Gounder not exercising that power of alienation, as it turned out to be, those properties were to be taken on his death absolutely by the appellants in these two appeals and the right which the appellants got under the documents was a vested right and not a contingent one, and therefore, the properties were not the assets of Kunne Gounder in the hands of the appellants and could not be attached in the execution of the decree which the respondent has obtained against the assets, if any, of Kunne Gounder in the hands of this children. With respect, we are unable to agree with N. S. Ramaswami. J. that the clause in the partition deed that the appellants should take the properties absolutely on the death of Kunne Gounder is repugnant and void.
20. The result is that the appellants succeed and these Letters Patent Appeals are allowed with costs throughout. Advocate's fee one set.
21. Appeals allowed.