GOVINDARAJA PILLAI Vs. MANGALAM PILLAI

JUDGEMENT

(1.) This second appeal arises out of a suit brought by plaintiffs 1 and 2 to recover possession of the plaint mentioned properties, alleging that they became entitled to the same on the death of their sister Madurambal in 1924 without any issue. The 1 defendant is the husband of Madurambal. When he married her, he was a man of advanced age, and at the instance of the parents of the girl he executed a registered settlement deed, Ex. A, on 2nd June, 1916, in favour of the girl. The material portion of Ex. A runs thus: I have accordingly given you the undermentioned properties valued at Rs. 1,000 and you shall yourself from this day hold and enjoy the same with all rights. Should any issue be born to us, that issue shall get the properties after our death. If there is no issue, after your death, your brothers (plaintiffs 1 and 2) should take the properties.

(2.) The plaintiffs case is that their sister Madurambal having died without any issue the properties covered by Ex. A devolved on them and therefore they are entitled to recover possession of the sameThe first Court was of opinion that the intention of the donor (1st defendant) was to confer only a life estate on Madurambal and the gift over in favour of plaintiffs 1 and 2 became operative on the happening of the specified contingency, namely, the death of Madurambal without any issue. But the lower appellate Court came to a different conclusion as regards the construction of Ex. A. In its view, Madurambal was given an absolute estate in the properties, and the gift over in favour of plaintiffs 1 and 2 on the happening of a contingency is void as a repugnant provision and such a clause could not be deemed to be a defeasance provision. The plaintiffs suit was therefore dismissed.

(3.) In this second appeal, it is contended on behalf of the appellants (plaintiffs 2 to 4, the 1st plaintiff having died during the pendency of the suit and plaintiffs 3 and 4 having been added as his legal representatives) that on a proper construction of Ex. A it should be held that either a life estate in favour of Madurambal with a remainder over in favour of plaintiffs 1 and 2 or an absolute estate in her favour subject to defeasance in the event of her failing to have any issue at the time of her death was really conferred on her. Having regard to the terms of the earlier portion of the deed which are to the effect, that the donee should enjoy the properties absolutely or with all rights, it cannot be reasonably contended that what was conferred upon her was primarily a life estate alone. The Tamil word clearly Indicates an absolute estate. The more difficult question is whether the subsequent clause should be deemed to be a mere repugnant condition imposed on the estate so created or makes the absolute estate primarily granted subject to defeasance in the event of the contemplated contingency. The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative.