S RAMAMURTHY NAIDU Vs. JAYARAMAN

JUDGEMENT

(1.) BOTH the above Second Appeals arise out of a common judgment rendered in A.S. Nos. 43 and 44 of 1983 on the file of the learned Subordinate Judge, Periyakulam. The said two appeals arose out of a judgment in O.S. Nos. 127 and 586 of 1978 on the file of the District Munsif, Periyakulam. The present Second Appeal is filed by the plaintiff in O.S. No. 127 of 1978 and the first defendant in O.S. No. 586 of 1978.

(2.) THE suit in O.S. No. 127 of 1978 was filed by the plaintiff claiming declaration of his title over the suit property and for an injunction. According to him the suit property originally belonged to one Muthusamy Naidu who had executed a settlement in favour of his second wife Govindammal on 10.12.1936 giving a limited interest over the suit property with a direction that the property should be enjoyed by her till her life time and after her death the property should be devolved upon her male issue, if any was to be born and if no male issue was born to her, the suit property would devolve upon himself and his heirs. He also states that Muthusamy Naidu died without any issue in 1974 and Govindammal also died during the year 1977. THE plaintiff being the brother's son of Muthusamy Naidu, was entitled to inherit the suit property as per the recitals in the said Settlement deed. He also alleged that the defendants had created documents as against his interest and the defendants were also attempting to trespass into the suit property.

(3.) HOWEVER, Mr. R. Sundararajan, learned counsel for the appellant would strenuously urge that Section 14(1) of the Act will not apply having regard to the various circumstances pertaining to the execution of the settlement deed in favour of Govindammal. Firstly he would contend that the condition that the settlement deed was executed as a result of her demand and her own-asking would show that it was not for the purpose of maintenance. I am not able to agree with the point so raised by learned counsel. In fact, no person can demand something over which he or she has no right. A demand for partition can be visualised. Similarly, a demand for maintenance can also be visualised. But it is not possible to visualise a demand for gratuitous gift. Therefore, the very circumstance of the settlee making a demand for the settlement would show that the demand was really pursuant to her right of maintenance which she had against the settlor. Secondly, learned counsel contends that the intention of the parties is most relevant in interpreting such document and the intention of the settlor being to the effect that the property should be ultimately inherited by a male heir, the document cannot be held to have been executed merely for the purpose of granting maintenance to Govindammal. In this context learned counsel would rely on a decision of the Supreme Court in 1994 (2) L.W. 1 (Bhura and others v. Kashiram). Reliance is placed on the observation that construction of the Will, which would advance the intention of the testator has to be preferred and as far as possible, effect is required to be given to every disposition contained in the Will. In this context it is to be borne in mind that the Supreme Court was dealing with a case of a Will which takes effect only on the death of the testator, which cannot be compared to a case of settlement which takes effect immediately. In fact, in the very same judgment it has also been pointed out that the construction which would advance the intention of the testator shall not be given effect to if the law prevents such effect being given to it. Mr. Sundararajan has referred to various other decisions pertaining to the effect of Section 14(1) and 14(2) of the Hindu Succession Act, anissue which has been subject matter of interesting discussion by several judgments which continues even now in very many recently reported judgments. In fairness, he has also cited judgments which run contra to his submissions. Reference is made to the judgment of the Supreme Court reported in (1994) 2 S.C.C. 511 (Gumpha v. Jaibai). That is a case of a right of maintenance under a Will and the Supreme Court held that it will be covered only by Sub-Section (2) of Section 14 of the Hindu Succession "Act as it was not in the context of any pre-existing right. This decision was not acceptable however in a subsequent judgment of the Supreme Court reported in (1996) 8 S.C.C. 525 = 1996-2-L.W. 63) (C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil). That was also a case of Will granting the right of maintenance to a Hindu female and the Supreme Court held that even where the property was acquired or possessed under a Will executed prior to the commencement of the Act and if the acquisition or possession was in recognition of a pre-existing right of a female Hindu, such as right of maintenance, Sub-Section (1) will operate irrespective of whether the testator died before or after the commencement of the Act. It was held that the limited estate will blossom into full ownership under Section 14(1) and Section 14(2) of the Act will not apply.