G. Ramanujam, J.
1. The plaintiff in O.S. No. 122 of 1972 on the file of the District Munsif of Ami who suceeded before the trial Court, but failed before the lower appellate Court is the appellant herein. She filed the suit against her mother for a declaration of her title to the suit property and for recovery of possession of the same or in the alternative for an injunction restraining the defendant from in any way dealing with the property prejudicially to her interest during her life time. The circumstances under which the plaintiff filed the suit may briefly be stated.
2. The plaintiff's father one Abboy Naidu married the plaintiff's mother, the defendant as his third wife and with a view to induce her to marry him, he executed a settlement deed Exhibit A-1 in respect of certain properties which he valued at Rs. 300. The plaintiff was born of that marriage. Subsequently the defendant began to live separately from the husband in view of alleged ill-treatment by the husband, Abboy Naidu. As a result of this separation, Abboy Naidu filed a suit in O.S. No. 274 of 1949 for setting aside the settlement deed Exhibit A-1 as sham and nominal. That suit was dismissed. Later, the defendant filed O.S. No. 578 of 1950 against her husband for a declaration of her title to the suit property and for recovery of possession of the same from the husband. That suit ended in her favour and as a result of the decree obtained in her favour, she got possession of the suit property.
3. Thereafter the plaintiff filed the present suit claiming that as her mother was unchaste and has not been living with her father, the defendant has lost all her interest in the suit property and the plaintiff has become absolutely entitled to the properties covered by the settlement deed. The suit was resisted by the defendant on the ground (1) that the settlement deed Exhibit A-1 conferred on her an absolute estate and the plaintiff could not claim any interest in the suit property, (2) that the decree passed in O.S. No. 578 of 1950 on the file of the District Munsif's Court, Arni against her husband for declaring her title to the suit property and for recovery of possession on the strength of the settlement deed, is binding on the plaintiff and that even otherwise, it will operate as res judicata to the claim put forward by the plaintiff in this suit and (3) that since the defendant has been in continuous adverse possession of the suit property as against the plaintiff from 1951, she should be taken to have perfected title to the suit property by adverse possession.
4. The trial Court on a consideration of the evidence held that the suit was not barred by the principle of res judicata in view of the decision in O.S. No. 578 of 1950 and that the defendant had not perfected title to the suit property by adverse possession. It however gave a finding that the defendant having become unchaste cannot claim any valid title or cause of action against the plaintiff or against Exhibit A-1 settlement deed. In this view, the trial Court decreed the plaintiff's suit as prayed for as it was of the view that under Exhibit A-1, if the defendant goes out of the picture, the plaintiff can succeed to the property. On appeal, however, the lower appellate Court took a contrary view. It held that under Exhibit A-1 the defendant has got an absolute estate and therefore the plaintiff cannot claim any right therein on the basis of Exhibit A-l. On the question of res judicata, the lower appellate Court held that the decision rendered in O.S. No. 578 of 1950 will not constitute res judicata for the claim made by the plaintiff in this suit as she was not a party to the earlier suit. The lower appellate Court also held that the plaintiff's suit is barred by limitation as it has been filed beyond three years of the date of the plaintiff's attaining majority in 1965. The said two grounds on which the lower appellate Court dismissed the plaintiff's suit have been challenged in this second appeal.
5. It is submitted that Exhibit A-1 cannot be taken to confer an absolute title on the defendant and that the lower appellate Court is in error in construing the document as conferring an absolute interest on the defendant. It is pointed out that the language used in Exhibit A-1 would clearly indicate that a life interest alone is created in favour of the defendant and that after her lifetime the property has been left to her heirs and in the absence of her heirs, it will be taken by the settlor's heirs. Similarly, the finding of the lower appellate Court that the suit is barred by time is also canvassed before me. After a detailed consideration of the matter and after hearing the counsel on either side with reference to their rival contentions, I am of the view that the lower appellate Court is in error in holding that Exhibit A-1 confers an absolute estate on the defendant and that the suit is in any event barred by limitation. The finding that the suit is barred by limitation is based on the plaintiff's claim that an absolute interest vested in the plaintiff as soon as she was born and that the defendant should be taken to be in management of the suit property on her behalf. But the question as to whether the suit is barred by time or not cannot be decided with reference to the claim put forward by the parties. That question has to be decided mainly with reference to the interest which the plaintiff gets under the settlement deed Exhibit A-l. Therefore, I may straightway proceed to consider the terms of Exhibit A-1 to find out as to what is the respective interest of the parties in the suit property as per Exhibit A-1.
Exhibit A-1 is in vernacular and the relevant portion runs thus:
According to the learned Counsel for the respondent, the expression could only mean the conferment of an absolute estate. This contention has been accepted by the lower appellate Court. I do not see how the expression will mean the conferment of an absolute estate. The word is preceded by the expression
6. Having regard to the context in which that expression is used, it will mean that the property has been dealt with by means of the settlement. I cannot therefore construe the expression as indicating the conferment of an absolute estate on the defendant. If the settlor meant to give the property absolutely to the defendant, the further clauses stating that the property will go to her santhathis (heirs) and in their absence, it will go to the settlor's heirs will be meaningless or purposeless. The fact that the settlor has chosen to provide for devolution of interest after the defendant's lifetime would indicate that the testator intended to confer only a limited interest on the defendant leaving the absolute interest to be taken by the heirs of the defendant or the settlor.
7. Learned Counsel for the respondent would submit that if the word is construed as conferring absolute interest on the defendant, then the subsequent clauses providing for the devolution of interest after the death of the defendant will become invalid and that the subsequent clauses cannot curtail the operation of the absolute interest conferred on the defendant by the earlier clause. Learned Counsel referred to the decision in Anantha sayana Naidu v. Kondappa Naidu : AIR1940Mad479 , wherein it is pointed out as follows:
It is settled law that if an absolute estate is given to a donee, a gift over, on the termination of the life of the donee, of the property remaining undisposed of by the donee is invalid, the principle being that once the property is given absolutely to another, the donor cannot dispose of another man's property.
No exception could be taken to the principle of law enunciated in the said decision. In this case, however, the inference of a conferment of an absolute estate is sought to be drawn from the use of the word As already pointed out, that expression cannot at all indicate as to the nature of interest conferred by the settlor on the defendant,. Apart from the expression there are no words in the document which would indicate that absolute interest was intended to be conferred on the defendant, On the other hand, the subsequent clauses in the document will indicate that the testator intended to provide for her heirs in the event of the defendant's death. Therefore the document can be construed only as conferring interest on the defendant limited to her life and not absolutely.
8. This view of mine based on the wording of Exhibit A-1 is fortified by the decision of the Supreme Court in Navneet Lal v. Gokul : 2SCR924 . In that case, a testator under his will conferred certain interest on his wife and thereafter to his foster son. The testator stated in the will that after his death, his wife shall be the owner of his entire estate and shall : have all proprietary powers. The question arose as to whether the expressions 'shall be the owner' and 'shall have all the proprietary powers' meant an absolute interest in favour of the wife. The Supreme Court took note of the subsequent clauses in the will which conferred a right on the foster-son after the lifetime of his mother and expressed the view that the true intention of the testator 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 and that in construing a document, whether in English or in vernacular, 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. In that case, the Supreme Court considered the language used by the testator for conferment of interest in the property in favour of the wife and found that the testator had made a definite distinction between mere ownership of property and ownership of the same coupled with powers of transfer. One of the significant factors which was taken into account by the Supreme Court for holding that the words 'as owner' and 'with proprietary powers' will not connote an absolute interest is that the will in addition to the conferment of an interest in favour of his wife, proceeded to make a further devise that the property will be taken by his foster son after the death of the wife. This direction of the testator runs counter to the theory of an absolute estate in favour of the wife. The said decision of the Supreme Court squarely applies to the facts in this case. As pointed out in that case, the intention of the testator would best be achieved by holding that there was a devise of a life estate to his wife and an absolute estate thereafter to her heirs. I therefore hold that in this case Exhibit A-1 confers only a life interest in favour of the defendant and not an absolute interest, and that after her lifetime the property will have to be taken by her heirs who are alive on the date of her death.
9. Now that it has been held that the plaintiff has claimed interest in the property only after the life of the defendant, her cause of action will arise only on the death of the defendant. Therefore, the suit filed by the plaintiff now when the defendant is alive cannot be held to be barred by limitation.
10. Therefore, the decree and judgment of the lower appellate Court are set aside and there will be a decree declaring that the suit property will be inherited by the defendant's heirs born of Abboy Naidu who are alive on the date of the death of the defendant and that the property is not the absolute property of the defendant. Since the defendant is entitled to be in possession of the property as life-interest-holder, there is no question of any delivery of property at this stage as sought for by the plaintiff. The suit is therefore partly decreed as indicated above. There will be no order as to costs.