SHANMUGHAM Vs. SARASWATHI

JUDGEMENT

(1.) The second appeal is by defendants 1 to 3 in the suit. Conveniently the properties involved in the suit can be classified into three groups. The first group comprises items 1 to 37, second group items 38 to 44 and the third group items 45 to 57. While the trial Court dismissed the suit in entirety, the appellate Court has granted a decree in favour of the plaintiffs for items 1 to37 entirely and for one half share in items 45 to 57. As regards those items a, preliminary decree has been passed. As regards items 38 to 44 dismissal of the suit has been confirmed by the appellate Judge. The plaintiffs have filed memorandum of cross-objections in so far as those items are concerned.

(2.) One Muruga Pandaram had three wives Poongavanam, Pachaiammal and Nagarammal. In this case we are not concerned with Poongavanam. He executed a will marked as Ex.A-1 dated 1-7 1922. Under the will he dealt with certain properties in paragraph 1 which were bequeathed to his second wife Pachaiammal after his lifetime to be enjoyed by her further life. It is stated in para I that after her lifetime the sons of both the wives Pachaiammal and Nagarammal shall divide the property. In paragraph 2 some other items are given for life to Nagarammal and again there is a clause that after her lifetime the sons of both the wives shall divide the property. In paragraph 3 certain properties are given to Kullammal and Dhanabagyam his daughters to be enjoyed for life and after their lifetime to be taken by their sons absolutely with powers to alienate. In paragraph 4 certain properties are given to his another daughter to be enjoyed by her for her life and to be taken after her lifetime by her sons absolutely with powers to alienate. The most important and relevant paragraph for the purpose of this case is paragraph 5. He has mentioned several items of properties in that paragraph and bequeathed the same to both the wives Pachaiammal and Nagarammal after his lifetime for their enjoyment for life and after further their lifetime, their sons shall divide equally and enjoy the same. After the lifetime of the sons, their children shall take it absolutely with powers to alienate. The Tamil expressions used in clause 5 are, when he referred to his sons (vernacular matter omitted) and when he referred to his sons' issues (vernacular matter omitted). The question is, what exactly is the meaning of the word (vernacular matter omitted) (pillaigal) used by the testator in the Will. Normally (vernacular matter omitted) (pillaigal) indicates male children. But in several parts of the State the word (vernacular matter omitted) (pillai) is also used when female child is referred to. In fact the expression is used in several parts or the State to indicate all the children including males and females.

(3.) The contention of the respondent is that a distinction has been made by the testator between the expressions (vernacular matter omitted) and (vernacular matter omitted). According to him, whenever he wanted to give any item to his sons, he referred to them as (vernacular matter omitted) and when he expressly referred to the issues of his sons, he used the expression (vernacular matter omitted). That itself according to learned counsel for the respondents shows that he wanted all the female and male issues of his sons to take the property. That interpretation put forward by learned counsel for the respondents herein has been accepted by the lower appellate Court, while the contrary interpretation put forward by the appellant's counsel was accepted by the trial Court. The question before me is whether the lower appellate Court is in error in accepting the interpretation put forvard by respondents counsel.