MUNUSAMI MUDALIAR DIED Vs. THANIKAJALAM

JUDGEMENT

(1.) The first defendant in four suits on the file of the Subordinate Judge of Vellore was the original appellant in these four second appeals. He died and his legal representatives were brought on record. One of the legal representatives also died and his legal representatives have been brought on record. The respondents in all the second appeals, except S.A.No.414 of 1980, where the fourth respondent is stated to be subsequent purchaser, were the plaintiffs in the four suits. Certain facts need recapitulation. There were four brothers, Shanmuga Mudaliar, Kanga Mudaliar, Poonuswami Mudaliar and Thanda-varaya Mudaliar. Shanmuga Mudaliar died in 1961. He left a Will marked in the case as Ex.A-2 on 21.11.1960. I shall presently refer to the relevant recitals in the said will since the controversy in the second appeals centres only around the said recitals. Suffice it to state at this stage that the suit properties are relatable to schedule A in the said Will and the suit properties were given to be enjoyed for life to the daughter of Shanmuga Mudaliar, one Kuppammal who died in 1972. The husband of Kuppammal was the first defendant. Kanga Mudaliar had a son by name Rajagopal Mudaliar, the deceased original plaintiff in O.S.No.264 of 1973, out of which S.A.No.416 of 1980 has arisen and the widow of Rajagopal Mudaliar had been recorded as his legal representative in that suit. Ponnuswami Mudaliar left three sons, Loganatha Mudaliar, Arjuna Mudaliar and Thirunavukarasu Mudaliar. Loganatha Mudaliar died in 1962, and his sons are the plaintiffs in O.S.No.10 of 1976, out of which S.A.No.414 of 1980 has arisen. Thirunavukarasu Mudaliar was the plaintiff in O.S.No.36 of 1976, out of which S.A.No.415 of 1980 has arisen. Thandavaraya Mudaliar died in 1967, and his son Annamalai Mudaliar and his widow were plaintiffs 1 and 2 respectively in O.S.No.328 of 1973, out of which S.A.No. 417 of 1980 has arisen. The plaintiffs claimed that as per the recitals in the Will, since Kuppammal had no issue, the suit properties must be taken by them in effectuation of the recitals in the Will. The contest of the first defendant mainly centred around the truth and validity of the Will, and the nature of interest that should devolve on the legatees. The Will recited that if Kuppammal should leave issues, the suit properties should be taken by them absolutely and if she should leave no issue, the suit properties should be taken by six named legatees absolutely. Rajagopal Mudaliar, the original plaintiff in O.S.No.264 of 1973 Loganatha Mudaliar, father of the plaintiffs in O.S.No.10 of 1976, Arjuna Mudaliar, Thirunavukkarasu Mudaliar, the plaintiff in O.S.No.36 of 1976 Annamalai Mudaliar, the first plaintiff in O.S.No.328 of 1973 and Thandavaraya Mudaliar, the father of plaintiffs I and 3 to 7 and husband of the second plaintiff in O.S.No.328 of 1973, were the six named legatees under the Will, the recitals relating to which have given rise to the controversy as to what was the nature of the interest the plaintiffs could claim under the Will. Both the courts below have upheld the truth and validity of the Will. The first court however opined that right given to the six named legatees under the Will was only a contingent one and hence such of the legatees who predeceased Kuppammal, namely Loganatha Mudaliar and Thandavaraya Mudaliar, could not acquire any right. As a result, O.S.No.264 of 1973 and O.S.No.36 of 1976 were decreed O.S.No.328 of 1973 was decreed in part and O.S.No.10 of 1976 was dismissed. All the aggrieved filed appeals. It is the finding of the lower appellate Court that the six named legatees acquired the vested remainder and not a contingent right under the Will. As a result, all the plaintiffs have succeeded before the lower appellate Court. These four second appeals are directed against the common judgment and decrees of the lower appellate Court.

(2.) Mr.M.S. Subramanian, learned Counsel for the appellants, would first submit that on a proper construction of the relevant recitals in the Will, it must be held that what was given to the six named legatees was only a contingent right and not a vested remainder and since two of the six named legatees, namely, Loganatha Mudaliar and Thandavaraya Mudaliar, predeceased Kuppammal, the claims of the concerned plaintiffs - respondents in S.A.Nos. 414 of 1980 and 417 of 1980 cannot be countenanced. This obliges me to advert to the concerned recitals in the Will Ex.A-2 and they stand extracted in the Annexure to this judgment. Learned Counsel for the appellants would submit that the said recitals do indicate only the vesting of a contingent right. But I find that in dealing with similar recitals, two Benches of this Court have held that the interest could only be a vested one. In Nagaraja Iyer v. Seethalakshmi Ammal, (1962)2 M.L.J. 25: I.L.R. (1962) Mad.578: 75 L.W. 67: A.I.R. 1962 Mad.369, there was a gift to one S for life and then to the male santhathi of S absolutely in the absence of such male santhathi to the female santhathi of S absolutely, and if there be no such santhathi at all, to the mother of S absolutely. A Bench of this court, consisting of S. Ramachandra Iyer, C.J. and Sadasivam, J. held that the estate granted to the mother was a vested one, liable to be defeated if there was any santhathi of S living as her death, Ramaswami v. Venkatammal, I.L.R. (1965)1 Mad. 41- 77 L.W. 691: A.I.R. 1965 Mad. 193 dealt with a case of partition deed executed by a Hindu father A and his son B, where it was provided that a certain portion of the property should be enjoyed by A with a right to create mortgages and leases but with no power of sale or gift, that if beyond creating mortgages and leases, A were to execute sales or gift, such sales or gift would not be valid and if A were to marry again and get heirs by the second marriage, those heirs alone were to take As share after his lifetime after performing his obsequies and that if A were to marry but have no male heir by that marriage, B should, after As lifetime, perform his obsequies and take over As share of property. B died followed by A, A had not married again.

(3.) After referring to the earlier Bench decision cited above, as well as the other authorities relating to interpretation of documents, the Bench consisting of S.Rama-chandra Iyer, C.J. and Venkatadri, J. opined as follows: �