CHINNAMMAL Vs. KANNIKAPARAMESHWARI DEITY

JUDGEMENT

(1.) THE second appeal is instituted by the defendants in the suit, against the preliminary decree for partition of the suit property into two shares, and for allotment of the western moiety to the plaintiff-temple (respondent ). There are only three grounds involved in the appeal, of which the first ground alone need detain us at any length. The facts relating to that ground are as follows.

(2.) THE original owner, Angammal, conveyed this property under Ex. A-4, dated 19-9-1938, which is styled as a settlement deed, and which, according to the learned counsel for the appellants, can by no means be characterised as a testamentary disposition. In the relevant Part of this deed, the settlor stipulates the following terms. I am making a free translation here of the Tamil text, which is quoted both by the trial Court and the first appellate Court:"venkataswami Naidu (my son) and his male heirs are to take and attain one half (moiety) of the property. Chinnasami Naidu (my other son) and his male heirs are to similarly take and attain one half (moiety) of the property."It is not in dispute that the plaintiff temple obtained the fights of Chinnaswami naidu in the property under a sale Ex. A-3 in its favour. Both the Courts below have applied the principle of Section 97 of the Indian Succession Act (Act XXXIX of 1925) to the interpretation of this settlement deed, and held, following the principle, that the words 'male heirs' were not words of limitation, and that venkataswami Naidu took a moiety in absolute right, as chinnaswami Naidu similarly did. The result of this would be, of course, that the plaintiff-temple (respondent) is enuaeu to a moiety.