ISAKKI AMMAL THAYAMMAI AMMAL Vs. PAPAMMAL

JUDGEMENT

(1.) THIS second appeal by the plaintiff raises a short but not an easy question in the construction of a deed. The Courts below have differed in their views. Briefly stated the point for decision is whether a purported deed of settlement is a composite instrument being a deed of settlement in respect of specified properties and a testamentary document in relation to the remaining properties and a testamentary document in relation to the remaining properties of the settlor. The deed in question was executed by Arunachalam Pillai, a Hindu Vellala, residing at palayamkottai, Tirunelveli Dt, on 21-4-1927, as a marriage settlement on the eve of his third marriage. The preamble to the document sets out the circumstances under which the document was executed. His first wife was dead and had left a daughter Isakki who had been married away. He had taken a second wife by name meenakshi about 8 years previously; but she had no issue and it is in these circumstances he sought the hand of the present plaintiff as third wife in the hope of continuing the line. She was his uncle's daughter, then just aged 16, and the deed recited that when the marriage proposal was made, her father insisted on settlement of some properties as a condition for the marriage, in as much as the second wife was living and there was besides the daughter by the first wife. Items 1 and 2 of the plaint schedule were settled on her in the circumstances under the deed, the deed to take effect on the date of the marriage, the marriage being fixed about a fortnight ahead.

(2.) THE operative portion of the deed provides for the settlor and the settlee to enjoy the properties jointly during their lifetime the settlee living with the settlor. During the settlor's life-time the settlee cannot by herself in any way encumber or alienate the properties. Even so during the settlee's lifetime, the settlor was not entitled by himself to encumber or alienate the properties. Then comes the clauses of the deed requiring construction. Having provided for the enjoyment of the settled properties during their lives, the deed proceeds to provide for the future devolution of the properties settled. Under the first clause after his and her lifetime, if she had male heirs they were to take the scheduled properties and his other properties with absolute rights. The construction contended for is that this clause is partly a transfer in praesenti under the settlement and partly a testamentary disposition.

(3.) IT is contended that all the remaining properties of the settlor not the subject of the settlement are testamentarily disposed of by this clause. The next clause provides that if the settlee had only female heirs, the said female heirs and the settlor's first wife's daughter Isakki alias Thangathammal should partition (the properties) equally and enjoy. It is contended that these female heirs take and devide not only the properties, the subject of settlement but also the properties, the subject of settlement but also the other properties of the settlor. The third clause provides that in the event of the settlee having no heirs she would take the properties scheduled under the deed with absolute rights. Then follows a clause providing against revocation of the settlement under any circumstances.