A. Varadarajan, J.
1. The plaintiffs in Original Suit No. 879 of 1967 on the file of the District Munsif's Court, Kulitalai, who succeeded before the trial Court but lost before the lower appellate Court in the appeal filed by the second defendant- second respondent, are the appellants. The first respondent is the first defendant. The suit was filed against the first respondent, the husband of the first appellant and father of the other minor appellants, and the second respondent for a declaration that the sale of the suit property by the first respondent in favour of the second respondent was not binding on the appellants beyond the life time of the first respondent on the ground that the first respondent was entitled only to a life interest in the property by reason of the terms of the partition deed Exhibit A-2, dated 30th December, 1959 entered into between the first respondent and his two brothers and their father Manickam Pillai. The defence of the second respondent who alone contested the suit was that the first respondent got an absolute right in the property and was entitled to alienate the property to him by the sale deed Exhibit B-l. The second respondent's case was that under the first clause in the partition deed, the first respondent got an absolute estate in the property and that it cannot be curtailed into a mere life interest by the later clause in the document.
2. The trial Court decreed the suit holding that the first respondent got only a life estate in the property under the partition deed Exhibit A-2 and that the sale of the property by the first respondent in favour of the second respondent under Exhibit B-l was not valid beyond his lifetime. But, on appeal it was held by the learned II Additional Subordinate Judge, Tiruchirapalli, that the earlier clause in the partition deed gave an absolute estate and that the later clause curtailing it was not valid. In that view, the learned II Additional Subordinate Judge upheld the sale of the property by the first respondent in favour of the second respondent under Exhibit B-l and allowed the appeal and dismissed the suit.
3. The only point for consideration is whether the first respondent got an absolute estate or only a life estate in the property under the partition deed Exhibit A-2 and the sale by the first respondent in favour of the second respondent under Exhibit B-l was not valid beyond his life-time.
4. The first respondent got under the partition deed Exhibit A-2 for his share the properties described in Schedule B. The sale deed Exhibit B-l has been executed in respect of item 1 of those properties. The recital in the partition deed Exhibit A-2 regarding the interest which the first respondent took in the B schedule property is this:
The later portion of the partition deed contains the further recitals:
Thus, according to the partition deed only item 6 of the B, C and D schedule properties could be alienated by way of sale or encumbered by way of mortgage for discharging the debts, and the sons who are parties 2, 3 and 4 to the partition deed have no right to alienate any of the other properties and those properties should go after their lifetime to their male and female heirs absolutely. The question is whether the earlier clause in the partition deed that the first respondent should take the B schedule properties absolutely should prevail and the later clause that he had a right to alienate only item 6 of those properties for discharging the debts, that he had no right to alienate any of the other properties and that those properties should go to his male and female heirs after his death, is repugnant and invalid in law. Reliance was placed on certain decisions, which will be referred to presently, by the learned Counsel for the appellants and the second respondent in support of their respective contentions.
5. Section 88 of the Indian Succession Act provides that:
Where two clauses or gifts in a will are irreconcilable so that they cannot possibly stand together, the last shall prevail.
We are not concerned with any gift in a will in the present case. We are concerned only with the partition deed Exhibit A-2. Section 10 of the Transfer of Property Act lays down:
Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.
But, Section 5 of the Transfer of Property Act says:
In the following sections 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living person and 'to transfer property' is to perform such act.
In Sarin v. Paplai : 1SCR349 , Gajendragadkar, C.J., has observed that:
the true effect of partition is that each co-parcener gets a specific property in lieu of his undivided right in respect of the totality of the property of the family.
Therefore, it would appear that no transfer of property is involved in cases where properties belonging to two or more persons jointly as family properties are partitioned as amongst them.
6. The learned Counsel for the second respondent relied upon three decisions in support of his contention that the later clause in the partition deed is repugnant to the earlier clause and is therefore invalid in law. The first of those decisions is of a Special Bench of this Court in Trichinopoly Varthaga Sangam Ltd. v. T.N. Shanmughasundaram : AIR1939Mad769 . In that case, a partition deed among the father and his sons provided that a certain house which had been used as the family residence should be held by them as tenants-in-common. The deed restrained the sons during as well as after the lifetime of the father from alienating their share to any stranger to the family but gave a right to sell within the family at a maximum which was for below the real value of the share of each son, with no obligation on any to buy at that price. The learned Judges held that the restriction on alienation amounted to an absolute restriction and therefore was void under Section 10 of the Transfer of Property Act. This decision would not apply to the facts of the present case where there is no such restriction without any corresponding obligation on any other party to the document.
7. The second decision relied upon by the learned Counsel for the second respondent is of a Bench of this Court in Pugalumperumal Pillai v. Thangathammal : (1949)1MLJ389 . In that case, the mother executed a gift in favour of her daughter saying:
As I have given away to you the property in the schedule herein 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 issue the aforesaid property shall revert to me and to my male heir, shall till my lifetime reside jointly with you in the thatched house mentioned in the schedule.
It has been held that the daughter took the property absolute and not a mere life estate. The learned Judges have observed in their judgment thus:
As observed by their Lordships of the Privy Council in Lalit Mohun Singh Roy v. Chukkun Lal Roy I.L.R. (1897) Cal. 834, 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 to 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. Applying the principle mentioned above to the document in question, we do not feel any difficulty in holding that the intention of the donor was that her daughter should take an absolute estate.
This decision also will not apply to the facts of the present case where we do not find the terms of art such as those used in the document involved in that case, namely that the donee shall enjoy the property hereditarily and from son to grandson and so on as long as the sun and moon last.
8. The third decision relied on by the learned Counsel for the first respondent is of Ganapatia Pillai, J., in P.V. Subbayyan Chettiar v. Rajaram : (1958)1MLJ335 . The gift deed in that case read as follows:
At the request of the settlor, the mother and brother of the bride-to-be had agreed to give the bride, Balammai, in marriage to the settlor on condition that the settlor made a gift of the property (now in question) to Balammai; and the settlor, having agreed to this request, was making a settlement deed to effectuate the gift which he intended to make.
After this sentence in Tamil, followed another sentence which read thus:
The property should be enjoyed by the settlee and by the male heirs born to her by the settlor from generation to generation.' 'This subsequent sentence cannot in any sense control the full import or effect of the operative sentence which precedes it and by which the settlor had conferred an absolute estate in the property on his bride-to-be. It is settled law that such subsequent clauses detailing the mode of enjoyment or the devolution of the properties from generation to generation do not curtail the full effect of the operative clause, by which the settlor had already expressed his intention to confer an absolute estate on the settlee. It is well established that such a clause as 'to be enjoyed from generation to generation' indicates only a heritable estate.
In my view, this decision also will not apply to the facts of the present case, for the words of art such as those found in that document, namely, the settlee should enjoy the property from generation to generation, are not found in the document in question here.
9. The learned Counsel for the appellants relied upon the following two decisions of the Supreme Court. The first decision is the one in Ramkishore Lal v. Kamal Narain : AIR1963SC890 . There, the learned Judges have observed:
The golden, rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used.... Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of a such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mod. Kamgar Shah v. Jagish Chandra Deo Dhabal Deo : 3SCR604 ). It is clear, however, that an attempt should always be made to read the two parts of the document, harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title given (is) in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.
10. In the other decision of the Supreme Court in Ramachandra Shenoy and another v. Mrs. Hilda Brite and Ors. : 2SCR722 , the testatrix who died in February, 1946 had stated in Clause 3(c) of her will dated 25th July, 1907, that 'all kinds of movable properties that shall be in my possession and authority at the time of my death i.e., all kinds of movable properties inclusive of the amounts that shall be got from others and the cash all these my eldest daughter Severina Sobina Coelho, shall, after my death, enjoy and after her lifetime, her male children shall enjoy permanently and with absolute right'. It has been held that the only reasonable construction of Clause 3(c) was that the interest created in favour of Severina was merely a life interest and the remainder in absolute was conferred on her male children. The learned Judges have observed at page 735 thus:
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 the will. 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 B absolutely 'on' or 'after' or 'at' A's death, A is prima facie held to take a life interest and B an interest in remainer, the apparently absolute interest of A being out 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 Severina the question is whether effect can or cannot be given to it. If the interest of Severina were 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 Severina 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.
11. In the light of the aforesaid decision of the Supreme Court relied upon for the appellants, an attempt has to be made to read the document as a whole and an effort must be made to avoid repugnancy so that effect could be given to every clause of the document, if possible. If that is done, it will be clear that even though it will apparently appear from the first cause that the first respondent got an absolute interest in the entire B Schedule properties, a combined reading of that clause with the later clause will show that what the parties to the document intended was that he should have an absolute interest only in item 6 of the properties allotted to his share and that he shall not have the power of disposition by way of mortgage or sale over the other properties. Those properties should after his lifetime belong absolutely only to his male and female heirs. If such a construction is not given to the document, effect could not be given to the later clause in the document. It could not be stated that the father and the three sons who were the parties to the partition deed did not intend that the first respondent should have only a life estate in the B schedule properties other than item 6 therein and those properties shall after his lifetime go absolutely only to his male and female heirs. Under these circumstances, it is not possible to uphold the judgment of the learned II Additional Subordinate Judge that the later clause is repugnant and that the first respondent had an absolute interest in the properties. I find that he had only a life estate in the suit properties.
12. The second appeal is accordingly allowed, but in the circumstances of the case, without costs.