VENKATESWARA PRABHU Vs. GESPARI

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiffs for setting aside a sale deed, Ext. D, dated 4th Edavam 1116 M. E. executed by their mother Martha and their father Silvestor in favour of the 1st defendant -- appellant. According to the plaintiffs, the property sold belonged to Martha and to the plaintiffs, as tenants-in-common, under the terms of Ext. A of the year 1084 M. E. executed by Anna who was Martha's aunt, on the eve of the latter's marriage with Silvester, but according to the 1st defendant, it belonged absolutely to Martha. The first court upheld the defence and dismissed the suit, but the learned District Judge on appeal held otherwise, and decreed the suit; hence this second appeal.

(2.) The question falls to be decided primarily on the interpretation of the terms of Ext. A. The preamble to Ext. A declared, that the property shall belong to Martha and her "Santhanam", and in a later part, it provided, that Martha, her husband, and "santhanam" shall enjoy the property absolutely. The learned counsel for the 1st defendant contended that the word "santhanam" is a word of limitation and relied on the rule of construction in S.97 of the Indian Succession Act, 1925, which reads :

(3.) It was agreed by both counsel that Ext. A may be deemed to be a will and that if the words of the disposition were simply to Martha and 'santhanam,' Martha would take an absolute interest. But the argument of the plaintiffs' counsel was, that the disposition in favour of Martha's husband, introduced a vital change, so as to create an interest not only in favour of Martha, but also of all her children It was also common ground, that under Ext. A, Martha's husband took no interest whatever; indeed, the plaintiffs' case was, that they and Martha were entitled to the properties in equal shares. Silvester himself had agreed in Ext. B, the impugned sale deed, that the property belonged absolutely to Martha. It has therefore to be taken that Silvester did not obtain any interest under Ext. A, notwithstanding the words of disposition in it, adverted to earlier. But the learned counsel for the plaintiffs had another argument to advance, that so long as the words which follow the disposition to Martha, that is, to her husband and 'santhanam' do not, when taken together, describe a class of persons as the word 'santhanam' would, within the meaning of S.97, the rule of construction in that section would not be attracted. The argument does not appeal to me for more reasons than one. Even apart from the rule in S.97, the primary question is one of intention and the words to Martha and 'santhanam' by themselves would be of no avail to convey an interest to 'santhanam' either subject to a life-interest in favour of Martha, or concurrently with her as tenants-in-common, and on the plaintiffs' own showing Silvester take no interest. So we come back to S.97. It was then urged, that the reference to Martha's husband in the words of disposition was only a trick or expedient in conveyancing employed in order to get over the rule of presumption in S.97, and to ensure that the children do take an interest as direct objects of a distinct and independent gift. For this purpose no such step indeed was necessary, and it is inconceivable, that either Anna or her draftsman would have thought of it. Viewed as a proposition of law too, it has no basis; as I understand S.97, when there is a bequest in favour of A and B and their issue, the reasonable meaning is, that both A and B take an absolute interest, the reference to the issue being to describe a class of persons without denoting that they are the direct objects of the bequest and useful only to specify absolute nature of the interest taken by A and B. Therefore the bequest to Martha, her husband and santhanam would ordinarily mean, that it enures to Martha and her husband in equal shares, and the word 'santhanam' conveying the meaning that they take their interests absolutely. In the present case, no question of Martha's husband taking an interest arises for the reason adverted to earlier. I therefore come to the conclusion, that under Ext. A notwithstanding the reference to Martha's husband and 'santhanam', Martha took an absolute interest and that the plaintiffs have no right. This conclusion is also fortified, not only by the admission of Silvester in Ext. B, but also by the recital in an earlier mortgage deed, Ext. I, as to Martha's absolute interest, in which not only Martha had her husband, but also plaintiffs 1 and 2 had participated.