KRISHNASWAMI IYER Vs. APPAVIER

JUDGEMENT

(1.) The question in this case arises on the construction of Ex. A, a document drawn by unprofessional hands, and is whether under it the widow of one Srinivasa Aiyar, the vendor of plaintiff--appellant acquired any interest, which she could convey to him, The argument before the Lower Appellate Court was apparently based on a translation of Ex. A, which like that made here is inaccurate. It was conducted with reference mainly to the meaning of the expression " with absolute right," not to the general principles affecting the dispositions made. In the application of those principles to what actually occured there was a mistake as to the content of one phrase used. Here the argument proceeded on different lines.

(2.) By Ex. A Nanu Iyer and his sons, 1st defendant and Srinivasa Aiyar, husband of plaintiff s vendor effected a partition ; but we are concerned only with one portion of the settlement then agreed to, that relating to the property, of which half is claimed under Ex. A, which was left in the enjoyment of Nanu Iyer and Annapurniammal, his wife. The terms on which they were to enjoy it and it was to devolve, are according to the translation given in the District Munsif s judgment which with the consent of the parties we adopt except as to one point to be separately referred to as follows:--"(1) the properties shown in list I are to be enjoyed by Nanu Aiyar and Annapurniammal for their lifetime without any right of alienation. (2) Srinivasa Aiyar and 1st defendant (Appavier) shall pay the kist of the said properties epually. (3) After spending (for funeral expenses) at the death of each of the two parents. (4) Srinvasa Aiyar and 1st defendant shall divide equally a 1/16 pangu (a moiety of the whole) at the death of each of the two parents. (5) If the two do not agree and spend either for the payment of the kist of the said lands or for the funeral expenses, the survivor of the two, that is Nanu Aiyar and Annapurniammal, shall take the 7/8 pangu of lands (the whole of the land in list I) absolutely. (6) If the two do not agree and pay for the funeral expenses of the survivor and the kist of the lands, he who spends shall take absolutely the 1/16th pangu, which was in possession of the survivor.

(3.) The figures in this extract have been inserted for convenience of reference ; and, observing that no attempt was made here to dispute the Lower Appellate Court s interpretation of the words "with absolute right" as conferring the full estate, I give in legal language the result as it appears to me, with reference to each clause. Under (1) and (4) there is a creation of a life-interest in favour of Nanu Aiyar and Annapurniammal in a moiety of the property each with remainder as regards each moiety to their sons. There are then conditions for the defeasance of these estates in remainder, the sons obligation to pay the kist on the property throughout and to pay the funeral expenses on the death of each parent being stated generally in Clauses (2) and (3) and the defeasance in case of default of the defaulting sons estate in either moiety being provided for later. If the default occurs during the lifetime of both parents that case is not provided for and it is fortunate that it has not arisen. If default occurs during the lifetime of the surviving parent, under Clause (5) such parent shall take an absolute interest in the whole property. If it occurs later after the death of the surviving parent the non-defaulting son shall take the moiety which is in his or her possession. What is expressed and what I must therefore take to have been contemplated is a life estate of each moiety in each of the parents (we have already decided to that effect in C.M.A. No. 310 of 1915) with remainder as regards each moiety to the sons, subject to the conditions for defeasance on each of two different dates, those of the deaths of the two parents, at the one of both moieties in favour of the surviving parent, at the other of the moiety still in that parent s possession in favour of the non-defaulting son.