RAMASWAMI CHETTIAR Vs. VENKATAMMAL

JUDGEMENT

(1.) THIS is an appeal under Cl. 15 Letters Patent against the judgment of veeraswami J. who set aside the judgment of the lower appellate court, which had reversed the decree for possession granted by the trial court in favour of the first respondent, Venkatammal. Her husband, Alagarsami Chettiar, and their son, subbiah Chettiar, were members of a joint Hindu family which owned some properties. The husband and wife did not pull on well together. The latter had evidently the sympathy of her son. Early in the year 1947, Alagarsami Chettiar and his son Subbiah, at the instance of certain mediators, entered into a partition arrangement. Though old, Alagarsami Chettiar appears to have entertained an idea of taking a second wife, and, perhaps, he even had hopes of children being born to that wife. The partition agreement is dated 7-4-1947 and is evidenced by ex. A. 1. Under that arrangement, Subbiah undertook the liability of maintaining his mother.

(2.) ALAGARSAMI Chettiar, however, did not marry again, either because no one was willing to marry him or because such a bigamous marriage was prohibited under the law. He took up his residence with his brother's sons who are the appellants in this appeal. On 4-11-1958 Subbiah died. Venkatammal succeeded to the properties obtained by him under the partition. About a month after Subbiah's death, Alagarsami Chettiar purported to make a settlement of his share of the properties in favour of the appellants. The settlement deed s dated 14-12-1958 and has been marked as Ex. B. 1 in evidence. Alagarsami Chettiar died on 10-51959. Venkatammal, his widow, then brought the suit, which has given rise to this appeal, claiming that her son, Subbiah had, under the terms of Ex. A 1, a vested remainder in the properties allotted to Alagarsami Chettiar and that inasmuch as she had inherited the properties left by the former, she would be entitled to those properties as well, and that the settlement deed in favour of the appellants would be invalid. Her claim was resisted by the appellants on various grounds. The trial court upheld her case. On appeal, however, that view was not accepted, the lower appellate court holding that no vested interest in the remainder was created under the partition deed in favour of Subbiah, with reference to the properties allotted to his father. Veeraswami, J. did not accept that conclusion. In the learned Judge's view, alagarsami Chettiar reserved for himself, at partition, only a life interest in the properties allotted to him, the remainder being vested in Subbiah subject to its being defeated in the event of the former marrying again and having make issue through that wife. The learned Judge, while restoring the decree of the trial court, granted leave for further appeal.

(3.) WHETHER Subbiah had a vested interest in the properties allotted to his father, at partition, is a question that has to be decided on the true construction of the partition deed. The document is in Tamil and the clause, which provides for alagarsami Chettiar's rights, can be freely translated thus: "we have agreed that the properties set out in schedule A hereto, worth rs. 3,500, should be enjoyed by No. 1 (Alagarsami Chettiar), with a right to create mortgages, this and warm leases but with no power of sale or gift; that if, beyond creating mortgages, this and warm leases, party No. 1. (Alagarsami Chettiar), were to execute sales or gifts, such sales or gifts will not be valid. If No. 1 were to marry again and by that marriage he gets other heirs, those heirs alone shall take the A schedule properties after his lifetime and after performing his obsequies; the heirs born of the second wife shall discharge the debts contracted by No. 1 of us and enjoy the properties absolutely. If No. 1 of us were to marry again but does not get a male heir, the second or us, that is, Subbiah, shall, after the lifetime of the first, perform his obsequies and he shall take the a schedule properties with absolute rights. If No. 1 were to borrow, the second of us shall discharge those debts. " on the terms set out above it appears prima facie that what Alagarsami Chettiar took under the partition arrangement was a mere life estate with power to mortgage, lease etc. Such power did not extend so as to enable him either to sell or to make a gift of the properties.