S. Ramachandra Iyer, C.J.
1. This Appeal arises out of a suit for partition instituted by the first respondent, Valli Ammal, the only question involved in it being the true construction of Exhibit A-I, a deed of settlement. Before referring to the facts that have led up to this litigation, we shall set out the genealogical tree of the settlor's family, as that would facilitate a due appreciation of the contents of the document,
Tambaram alia Muthuswami
Rajoo (died 1952) Minakshisundaram
m. Sudalai Ammal (deft. 2) (died 1919)
m. Valhammal (plff.)
Bakiam (deft. 1) |
(adopted by Rajoo) Muthuswami (died 1920)
Alagayee executed the settlement deed on 17th September, 1910. Under that document, she declared that she should, during her lifetime enjoy the properties settled, that thereafter her son, Tambaram, and his wife should enjoy them without any powers of alienation, that on the termination of their life, Raju and his younger brother, Minakshisundaram, the graondsons of the settlor, should enjoy the income from the properties without alienating the corpus, and that, after their lifetime, the remainder should be taken absolutely by the regular issue of Raju and Minakshisundaram.
2. The settlement deed took effect immediately after execution. The settlor, and after her, her son and daughter-in-law enjoyed the properties in accordance with the terms thereof. So too, the grandsons. But, of the two grandsons, viz., Raju and Minakshisundaram, the latter predeceased the former. That was in the year 1919. He left behind him his widow, Valli Ammal (the first respondent to this appeal) and a son, Muthuswami, through her. The son, however, did not live long. He died about a year after his father's death leaving behind his mother, Valliammal, as his heir. Raju died in 1952, having, during his lifetime, taken in adoption Bakiam, (the appellant herein).
3. Valliammal claimed that she, as the heir to her son, was entitled to one-half of the settled properties and instituted the suit (out of which this appeal arises) for partition and separate possession of her share. Her claim was contested by the first respondent and the other respondents. The learned Subordinate Judge held that Mirlakshisundaram, on his birth, acquired a vested interest in one-half of the settled properties, which, on his death, passed on to the appellant; he granted a decree for partition in her favour. That decree was affirmed in this Court by Anantanarayanan, J. The appellant has filed this appeal under Clause 15 of the Letters Patent from the judgment of the learned Judge.
4. Mr. N. Suryanarayana, appearing for the appellant, in the course of an able and interesting argument, contended that, under the deed of settlement, Raju and Minakshisundaram obtained no interest in the corpus of the property, but what they obtained was only an interest for life in the usufruct, the corpus being reserved for their children who were to take it as a class when the time for distribution came, which, under the document, was fixed to be the time of the death of the survivor amongst the two grandsons; and, as at that time there was no one living answering the de scription as regular issue, of Raju and Minakshisundaram except the appellant, he alone would be entitled to the properties under the settlement.
5. To ascertain whether the settlement would bear the interpretation contended for, it is necessary to set out the following relevant portion of it, whereunder the settlor says:
I shall enjoy the properties set out herein till my lifetime as I have been doing before, and, after my lifetime, my son, Muthuswami, and his wife Papammal, shall enjoy the income derived from the properties till their lifetime without alienating the properties in any manner. And after their lifetime, these two persons, namely, the said Raju Pillai and his younger brother, Minakshisundaram, shall enjoy the income derived from the properties set out till their lifetime without alienating the same. After their lifetime, the legitimate heirs born to them shall be put in possession of the immovable properties set out herein free of encumbrance and they and their heirs shall hold and enjoy the same hereditarily with powers of alienation such as gift, exchange and sale, etc.
6. The terms of the settlement deed set out above unmistakably reveal a scheme, namely, that the property was to be enjoyed without powers of alienation for three generations and an absolute right should vest in the children of the settlor's grandsons. There can be little doubt that Alagayee and her son were to take a life-estate in the corpus of the property and not merely receive the usufruct for their lives for while, referring to her own future enjoyment, the settlor says that she would enjoy as she had been doing till then. The preamble to the document shows that the settlor intended the gift for the benefit of her grandsons and the issue born to them. That would mean that Raju and Minakshisundaram too should have an interest in the corpus of the property, limited as it was in regard to the extent of power as in the case of their own predecessors. There is no distinction between the nature of the estate given to Alagayee and her son and that given to her grandsons. The document says that Raju and Minakshisundaram would not have any power to alienate the property, and, even if they were to so alienate, such alienation was not to be binding on their issues, as they were to receive the same unencumbered. If really Raju and Minakshisundaram were not to have any interest in the corpus of the property, there was no need to prohibit alienation as if they had such interest. We cannot therefore accept the contention of Mr. Suryanarayana that the grandsons were not given any interest in the property as such, but that they were given only an income for their lives out of the property. In our opinion, the terms of the document make it clear that they had an interest for life in the property. Once it is held that Raju and Minakshisundaram had an interest in the property, it follows that they took it as co-tenants : for. it is a general rule, of construction of documents in this country, that, unless there is some indication in the document itself to show that the bequest or grant thereunder is a joint one, the donees take it as tenants-in-common vide Krishnoswami v. Avayambal A.I.R. 1933 Mad. 205 and Muthammal v. Chandrahasa Udayar (1950) 1 M.L.J. 554. In the present case, the document does not show that Raju and Minakshisundaram arc to take a joint estate with a right of survivorship inter se. Nor is there anything therein to show that the property should be taken by the great grandsons only after the lifetime of the survivor among the grandsons. It is very unlikely that the settlor, whose intention was to benefit her great grandsons with an absolute interest in the property would have ever intended that there should be no provision for her great grandson if his father were to die before his brother and there should be an intestacy in regard to one-half share in the properties given to each of the grandsons for the duration of the lifetime, of the other. Once it is found that the interests of Raju and Minakshisundaram are that of co-tenants and that a benefit is intended to their sons it is but pr6per to conclude that the remainder in the interest which each of them had should vest in his issue. Indeed, there being an interest created in favour of the great grandsons, the rule as to the presumption against intestacy and of early vesting require that each of the great grandsons should acquire an interest in the property on his birth. There is nothing in the document to postpone the acquisition of such interest till after the lifetime of the survivor among the settlor's grandsons. Minakshisundaram's son was therefore entitled to possession of what his father enjoyed immediately after the death of the latter. Likewise, the appellant after his father's death.
7. Learned Counsel for the appellant placed considerable reliance on the decision in Stevenson v. Gullam 104 Revised Reports 538 where a question arose as to the true construction of a bequest. The testatrix in that case bequeathed the interest to be received from a certain investment of hers to her brother for life and after his decease, to his widow at 30 per annum. It was provided that, after the latter the interest that accrued from time to time in respect of the fund should be paid to her nephew and niece for their lives, and, after their decease, the principal sum was to vest in the surviving children of those two persons. The Master of the Rolls observed in the course of his Judgment:
Where the income of a fund is given to tenants for life and there is a gift over after their deaths to children or a class of persons surviving, it is a gift to those only who are then surviving.
But, the case was one where there was no gift of the properties to the life-tenants. According to the terms of the disposition, what was to be paid to them was only the interest on the fund. The corpus remained undisposed of and the gift of that was in terms made to a class of persons.
8. The nature and incidents of a gift to a class is considered in Jibban Krishna v. Jitendranath where the distinction between a gift to a class and a gift to individuals has been pointed out. Shortly stated, the beneficiaries under a gift to a class will be those that constitute the class and they will exclude all others. But, in the case of a gift to individuals described, the intention would be to benefit the individual. Mukherjee, J., pointing out the legal consequences that flow from the distinction, observes:
Ordinarily, a class gift means gift to a class of persons who are included and comprehended under some general description and bear a certain relation to the testator. The true test, however, is the intention of the testator and the gift would rank as a class gift, if the testator intended that the donees should take as a class.
In the present case, the ultimate bequest is not to the great grandsons of the settlor as a class, but to the issue of the grandsons, Raju and Minakshisundaram. That should be read in the light of the context distributively, so as to carry the share of each of the donees, namely, Raju and Minakshisundaram, to their respective issue. This view is supported by authority. In Theobald on Wills (nth edition) at page ago, the rule is stated in the form of propositions, the relevant portion of which alone we will set out herein:
When the gift is to several for life and then to their children, the cases are not easily reconcilable. (1) If there is no gift to the children till after the death of the survivor of the lifet-tenants, and the intention is that the property shall then go over in one mass, then, on the death of each tenant for life, the survivors will take the whole income. (2) Under the so called rule in In re Hutchinson's Trusts (1882) L.R. 21 Ch.D. 811 a gift to A and B as tenants-in-common for their lives and then at their death or at or after their deaths or at the death of A and B to their children goes upon the death of each tenant for life to his children.
The case referred to above namely In re Hutchinson's Trusts3, is instructive. The testatrix in that case declared that the capital stock owned by her should be given to F. Synge and R. Synge... share and share alike, and, after the decease of the said F. Synge and his brother R. Synge the above-mentioned money was bequeathed in different stocks to their children, 'share and share alike, and to their heirs for ever.' It was held that the bequest should be construed as a gift after the respective deaths of F. Synge and R. Synge to their respective children and that there having been an absolute gift to each of them in the first instance only cut down in favour of his children in the events which happened, the fund was divisible in moieties between the representatives of F. Synge and R. Synge.
9. The settlement deed in the case before us is even clearer; the settlor intends to confer an interest on her great grandsons. That interest is a present one, namely, a vested remainder in the property over which a series of life-estates are created. Early vesting of such an interest would require that the great grandson should obtain on birth that interest, that is, over the property given to his father, though the extent of his own interest might be diminished by the birth of other children to his father, The son of Minakshisundaram had therefore an interest in half the settled properties, which, on his death, was inherited by the first respondent. We therefore agree with Anantanarayanan, J., that the first respondent was entitled to a partition of one-half share in the properties settled.
10. The appeal fails and is dismissed with costs.