1. This is an originating summons in regard to the construction of a settlement deed dated 4-7-1931 and for alternative reliefs.
2. The facts are: The house bearing door No. 2/19, Krishnappa Chetti Street, Chintadripet, Madras, belonged absolutely to Deivasigamani Mudaliar and Lakshmi Animal. This couple had an only son by name Veeraraghava Mudaliar and they asked for the hand of Nagarathnammal, the applicant before me, for marriage as the second wife of the said Veerararaghava Mudaliar. The parents of that Nagarathnammal insisted upon a pre-nuptial settlement. Therefore, Deivasigamani Mudaliar and his wife executed a settlement deed on 4-7-1931.
3. The relevant portion of the said settlement deed runs as follows:
'Whereas we had asked you Nagarathnammal aforesaid to be given in marriage as his second wife to our only son Veeraraghava Mudaliar and whereas your father said that he would give you in marriage if a house was given to you under a document, as whereas we have agreed thereto and whereas we have, this day, hereby wholeheartedly given to you as a gift the aforesaid house and ground of the present value of Rs. 2500, you shall hereafter marry our son Veeraraghava Mudaliar and you shall yourself personally hold and enjoy the aforesaid house and ground from son to grandson and so on in succession. If you have no issue, you shall collect the rental income from the aforesaid house and pay the taxes and effect the repairs and enjoy the balance yourself personally. You shall Have no right to alienate by way of mortgage or sale etc. Even if you make any such alienations it shall not be valid. The issue, male or female, born of your womb, shall hold and enjoy the said house and ground with powers of gift, sale etc. In case you die without any issue, my issue shall take the aforesaid house and ground after your lifetime. We have herewith handed over to you all the title deeds. To this effect is the deed of gift in respect of the house and ground written and given by us with our consent and of our own accord.'
4. In regard to this settlement deed this Originating Summons has been taken for the construction that this settlement deed conferred an absolute estate from Nagarathnammal and secondly, in the alternative, if this Court does not agree with that construction to permit this applicant to raise a loan of Rs. 5000 on a mortgage of the said property for the marriage of the second respondent Gnanasundaram, aged about 18. I may complete the information by pointing out that the first respondent is the husband of this Nagarathnammal and the 3rd, 4th and 5th respondents are her minor children.
5. The two points for determination are: i. What is the scope of an originating summons and whether the relief asked for by the petitioner can be granted?
ii. What is the true construction to be placed upon the estate conferred upon Nagarathnammal under this gift deed
6. Point l: The scope of an originating sum-mons is regulated by Order 45 of the Original Side Rules of the High Court and the provisions are:
'I. The executor or administrators of a deceased person, or any of them, and the trustees under any deed or instrument or any of them, and any person claiming to be Interested in the relief sought as creditor, devisee, legatee, heir, or legal representative, or as 'cestui que trust' under the trusts of any deed or instrument, and claiming by assignment or otherwise, under any such creditor or other person as aforesaid, may take out, as of course, an originating summons, returnable before the Judge sitting in Chambers for such relief of the nature or kind following, as may by the summons be specified and the circumstances of the case may require (that is to say) the determination, without an administration of the estate or trust, of any of the following questions or matters.
(a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or legal representative, or 'cestui que trust';
(b) the ascertainment of any class of creditors, devisees, legatees, legal representatives or others;
(c) the furnishing of any particular accounts by the executors, administrators, or trustees, and the vouching (when necessary) of such accounts;
(d) the payment into Court of any moneys in the hands of the executors, administrators or trustees;
(e) directing the executors, administrators, or trustees to do or abstain from doing any particular act in their character as such executors, administrators or trustees;
(f) the approval of any sale, purchase, compromise or other transaction; and
(g) the determination of any question arising in the administration of the estate or trust.'
7. This rule corresponds with some variations to Order 55, Rule 3 of the English rules of the Supreme Court. Therefore, the scope of the corresponding rule has been subject to judicial scrutiny in England. The relevant decisions are: -- 'In re, William Davies; Davies v. Davies', (1888) 38 Ch D 210 (A) (North J.); -- 'In re Ellis; Kelson v. Ellis', (1888) 59 LT 924 (B) (Kay J.); -- 'Dowse v. Gorton', 1891 AC 190 (C) (Lord Macnaghten); -- 'In re Giles; Real & Personal Advance Co. v. Mitchell', (1890) 43 Ch D 391 (D) (Cotton L. J.);-- 'Nutter v. Holland', (1894) 3 Ch 408 (E) (Lopes L. J) and (Davey L. J.); -- 'In re, Dartnall; Sawyer v. Goddard', (1895) 3 Ch 474 (P) (Lord Halsbury); and -- 'Lewis v. Green', (1905) 2 Ch 340 (G) (Warrington J.).
8. The corresponding rule in Order 46 has been construed in the following decisions of this Court: -- 'Rajan v. Pankajammal', AIR 1941 Mad 194 (H) (Leach C. J. and Horwill J.); -- 'Venugopala v. Embaru', AIR 1941 Mad 851 (I) (Leach C. J. and Chandrasekhara Aiyar J.); -- 'Sriranga Na-charamma v. Nadamuni Chetti', 60 Mad LW 612(J) (Gentle C. J. and Govindarajachari J.); --'Gnanambal v. Meenambai', AIR 1949 Mad 167 (K) (Horwill and Govindarajachari JJ.).
9. From a study of these cases the following propositions have been deduced by Subba Rao J. in -- 'Roy Erwin Medcalf Chambers v. Mr. Ida L. Chambers', C. S. No. 311 of 1950 (Mad) (L), with which I respectfully agree:
'(1) Before Order 45 of the Original Side Rules was framed, none of the reliefs mentioned therein could have been obtained except by filing a suit for the administration of the estate or trust. To avoid the crying evil of unnecessary expense and long delay in the administration of estates, the rules were framed to enable the parties to obtain the reliefs specified therein in an originating summons.
(2) The Originating Summons, therefore, can be directed only for the reliefs specified in Order 45, Rule 1. It is a summary remedy in specific circumstances and not an alternative remedy to an administrative action.
(3) Even in cases falling under the clauses of that Order involving examination of witnesses, the Court in exercise of discretion may not dispose of complicated questions of law or fact for the procedure was conceived and intended to be of summary nature. No doubt a Court will in exercise of discretion decide a question raised on the originating summons if it is satisfied that the defence raised is frivolous and designedly intended to drive the parties to a suit.
(4) The Court also will not decide a question on an originating summons if the decision of the question whichever way it goes, will not settle the litigation between the parties.'
10. Bearing these principles in mind if we examine the facts, I think, I can both construe the settlement deed and also grant the alternative relief asked for.
11. In this settlement deed the absolute estate of the first taker is cut down to a life estate by what is contained in the other parts of the settlement deed and here are the three reasons.
12. First of all, in construing these gifts deeds it should be the endeavour of the Court to ascertain the real intention of the settlors. The intention means the intention which the document itself by express words or by implication declares and the primary duty of the Court is to ascertain from the language of the entire instrument what the intentions of the settlors were. The tendency of modern decisions is to read the different clauses in the instrument referentially to each other unless they are clearly independent and absolutely irreconsilable when the latter part must prevail. In the attainment of the object the local order of the limitation is disregarded, if it be possible by the transposition of them, to deduce a consistent disposition from the entire instrument: -- 'Ford v. Ford', (1848) 6 Hare 486 (M); -- 'Lan-gham v. Sanford', (1816) 19 Ves Jun 641 (N); -- 'Mary Wilson v. George Oakes', 31 Mad 283 (O); -- 'Jatindra Mohan Tagore v. Ganendra Mohan Tagore', 9 Beng LR 377 (PC) (P).
The meaning to be adopted to the actual words used may certainly be affected by surrounding circumstances and in interpreting the language, the Court has got to bear in mind other matters than the mere words used. As observed by their Lordships of the Judicial Committee, -- 'Venkata-narasimha Apparao v. Parthasarathi Apparao', 41 Ind App 51 (PC) (Q), in regard to the construction of a Will which apply with equal force here the Court must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summoned up in the somewhat picturesque figure 'The Court is entitled to put itself into the maker's armchair.'
Among such surrounding circumstances, the Court in construing the document of a Hindu is competent to take into consideration are what are known to be the ordinary notions and wishes of a Hindu with respect to devolution of property and the settlor must be presumed to have made the bequest with these ideas in his mind. These surrounding circumstances are relevant however for the purpose of putting a right interpretation upon the actual words used by the maker of the document and it is from these words alone that the intention of the settlor has got to be gathered.
In this case the document is a pre-nuptial settlement. The intention of the settlors was to make a provision for one who was being given as a second wife to their son so that in the event of the death of the son the girl may not be left destitute but had a property to fall back upon. In making the settlement, naturally the settlors would give it with a benediction, viz., that the marriage would be longlived and fruitful and the girl would enjoy the property from generation to generation. But at the same time in accordance with the well-known Hindu notions such settlors would not like their property to go out of the family and to which they cling very fast. Therefore, the settlors have made further provisions as to how the property was to devolve if the marriage proved childless and if the marriage proved fruitful. Therefore, this. intention makes it clear that the addition of gift. over was to confer no more than limited interest1 on the first taker: -- 'Manumallswami v. Nara-yanaswami', AIR 1932 Mad 489 (R); -- 'Sriram v. Md. Abdul Rahim', AIR 1938 Oudh 69 (S); -- 'Swamidayal v. Ramadhar', (T); -- 'Khajesh Habibullah v. Ananga Mohan Roy' : AIR1942Cal571 'Subba Amma v. Rama Naidu', AIR 1937 Mad 476 (V); -- 'Sudhansu v. Hareshchandra', : AIR1940Pat194 (W); -- 'Anan-tha v. Kondappa', AIR 1940 Mad 479 (X); --'Radhakrishna Chettiar v. Narayanaswami', AIR 1937 Mad 153 (Y); -- 'Harendra Chandra v. Basanta Kumar', AIR 1918 Cal 102 (Z); -- 'Gul-baji Ajisigi & Co. v. Rustomji Kharsadji', : AIR1925Bom282 (Z1).
13. Secondly, an absolute estate is cut down to a life interest where successive absolute estates are given and the dominant intention of the testator was to benefit each taker as in this case.
Thirdly another test to see whether an absolute estate is cut down to a life interest is to see if along with the absolute grant of estate, there is a restraint on alienation coupled with a gift over as in this case. Thus, an absolute gift as 'Malik' in the earlier clause coupled with restraint on alienation and a gift over in the later clause was construed as conferring only a life estate on the devisee: -- 'Mt. Ram Rakhi v. People's Bank of Northern India Ltd.', AIR 1942 Lah 42 (Z2); --'Ananda Sundari v. Ratan Ram' : AIR1934Cal370 'Sansar Chand v. Mt. Durgadasi' : AIR1934All93 .
14. Therefore the construction sought to be placed upon the settlement deed by the applicant cannot be countenanced and the settlement deed confers upon her nothing more than a life-interest in the property in question.
15. Point 2: The prayer for permitting thislife interest holder to raise a loan on mortgageof Rs. 5000 to marry off the first daughter who willget one-fourth of the property on the death ofthe mother if in the meanwhile the mother hadnot added to the family, would appear to be reasonable on the footing of the valuation given bythe applicant that the property is now worthRs. 20,000. This cannot foe decided by me offhand. Proof of valuation will have to be adducedand if the representation of the applicant is foundto be correct the alternative prayer will standgranted.