K DHANAPALA CHETTY Vs. INANANTHA CHETTY

JUDGEMENT

(1.) The first plea relied upon by the 1st defendant in this case is that the claim is res judicata by reason of the judgment in a suit of 1893, which was heard on the Original Side of this Court and came before the Appellate Court in Original Suit Appeal No. 7 of 1895. The learned Judge has held that the question is not res judicata and I think he was right. The suit of 1893 was brought by one Tulukkanan Chetty, who was the grandfather of the present plaintiff, his two sons also being the plaintiffs in the suit of 1893. The suit was brought about a Will and a codicil which were executed early in 1893, by one Dhanakoti who was the brother of this Tulukkanan. In this Will, the testator purported to deal with certain property, including the property in dispute in the present case, as self-acquired property, and the plaintiffs in the suit of 1893 asked for a declaration that the family was undivided and the properties which Dhanakoti purported to dispose of by Will were the properties of the undivided family. In the course of that suit, a document was put in by the plaintiff, dated 20th May 1865, which has been referred to as Exhibit C. This document recognised the right of the widow of another brother of Tulukkanan (one Subhapathy) and of Dhanakoti s wife and we are told that when the document was executed, Dhanakoti, although he afterwards recovered, was in extremis; this document recognised the right of these two ladies to enjoy, or at any rate to remain in possession of, the house in question until the death of the survivor, and also recognised the rights of Dhanakoti and Tulukkanan as reversioners, on the death of the two ladies, to the property in question. There was some argument at the Bar as to whether this document of 1865 was more consistent with the status of the family being divided or with the status of the family being undivided at the time the document was executed. We need not discuss this, One thing is clear beyond all question, and that is, that when the document was put in evidence by the plaintiff in the suit of 1893, it was put in evidence for the purpose of supporting the case put forward by the plaintiffs in that suit, viz., the case that the family was undivided and that, because the family was undivided and because Dhanakoti, the testator in 1893, purported to deal by way of Will with undivided family property, the Will was ineffective. The Judge, in dealing with this question of res judicata, holds that whereas the earlier suit was filed by the plaintiff s grandfather and his father and uncle on the footing that they were members of an undivided family and was dismissed on the ground that there was a division between the plaintiff s grandfather and Dhanakoti Chetty, the present suit is based on the plaintiff s title on the agreement dated the 20th May 1865 and as reversioner: and on those grounds holds that the question in the present suit is not res judicata. I do not feel altogether clear that the learned Judge is right in holding that the present suit is based on the plaintiff s title on the document of 1865, because it seems to me that his present suit really is based on his claim as reversioner, if he can show that the widow who conveyed to the 1st defendant had no estate of inheritance to convey, he succeeds as reversioner, apart altogether from any question as to the effect of the agreement of 1865. However, Mr. Thirunarayanachariar, on behalf of the appellant, availed himself of the observation of the learned Judge and based upon that observation an ingenious argument in support of his plea of res judicata. He says, in, so far as the plaintiff s claim in the present suit is based on the agreement of 1865, it must be taken to be a claim which is inconsistent with the claim which he made in the suit of 1893, that suit being based upon the footing that the family was undivided. Mr. Thirunarayanachariar says that the plaintiff is now seeking to set up an alternative claim which is inconsistent with the claim as set up in the suit of 1893; and that being so under Section 13 of the old Code and the corresponding enactment of the present Code, it was a ground of attack which he ought to have put forward in the earlier suit and not having put it forward in the earlier suit, he is precluded from putting it forward in this suit. For the purpose of this argument, he assumes that the claim is alternative and inconsistent. On authority, it would seem that in order to avoid the objection of res judicata, it is not necessary for a plaintiff to put forward a claim and also alternative inconsistent claim on which he relies. I think that, generally speaking, may be said to be the effect of the decision in Ramasawmy Iyer v. Vythinanatha Iyer 26 M. 760 which was cited with approval in the case of Thrikaikat Madathil Raman v. Thiruthiyil Krishnan Nair 29 M. 153; 16 M.L.J. 48 (F.B.). Now, as I have said, the suit of 1893 proceeded on the footing that the family was divided; and the only question was "could Dhanakoti dispose of the property, which he purported to dispose of by Will?" There was certainly no adjudication in that suit on the question as to what was the nature of the estate which the two ladies took under the Will of Dhanakoti. That question is not referred to in the pleadings. It is not raised in that issue. It does not, so far as I can see, appear to have been ever discussed in the suit of 1893. So far as I know, the only passage in the judgment of the Court of Appeal, which can be referred to as supporting Mr. Tirunarayanachariar s contention that this question was adjudicated upon in the suit of 1893, is the last sentence of the judgment of the Court of Appeal. The learned Judge there says: "It may be that in 1865, he (i.e., the testator Dhanakoti) was willing that his brother (i.e., Thulukkanan) should have the reversion of the old family house (i.e., the house in question) but after partition was denied in 1886, he seems to have been on bad terms with his brother and had made Wills which defeat the reversion. If divided, he had a legal right to do this and we must hold on the evidence that the decision is established." Mr. Tirunarayanachariar asks us to read that as an adjudication on the question which is now before us, viz., as to the effect of the clause in the Will which conveyed an estate or interest to the widows in the house in question. The language is quite general, "had made Wills which defeat, the reversion" and I do not think that the learned Judges when they made that observation intended to hold that, as a matter of construction, the effect of the Will of 1893 was to pass to the two ladies an estate of inheritance so as to give them full powers of alienation which would have the effect of defeating reversionary rights in the plaintiffs in that suit. The question which was before the Judges was the question whether the property was undivided family property or divided family property and I think that that general observation must be taken to have been made with reference to the question which they had to determine.

(2.) Assuming that that is not the right view and that the learned Judges did purport to deal with this question of the effect of the words of the Will with reference to this house and the interest which these two ladies were to take in the house, that, to my mind, is clearly not the question which was before them. If the learned Judges did adjudicate on this question, it seems to me that it was wholly unnecessary for the purposes of the case before them, and on that view, I should hold that the matter is not res judicata. So much then for the plea of res judicata.

(3.) Then the further question is as to the construction of the Will. The Will and codicil were executed by Dhanakoti shortly before his death in 1893 and the question is, did an estate of inheritance pass to the two ladies under the Will or codicil? It is admitted that Section 82 of the Indian Succession Act, by virtue of the provisions of the Hindu Wills Act, applies to the Will in question. That section says: "Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him." Therefore, we have to consider by the light of that section what was the intention of the testator in the Will in question. Paragraph 3 of the Will refers to a house described as No. 6. That house was under mortgage and the testator by express words makes a bequest of that house to a man named Murugappa. The words of the Will are "neither I nor my heirs shall have any interest whatever in respect of the house." The house in question in this suit No. 23, was also under mortgage. The testator makes no express bequest of this house but in dealing with the two houses together Nos. 6 and 23, he says in paragraph 4: "The documents of No. 6 and the documents of No. 23 shall be taken by Murugappa and by the two ladies respectively." When he wanted to make over the full ownership of the house to Murugappa, he uses apt words. So far as the ladies are concerned, there is no express bequest and all he says is that they shall have the documents." We are entitled, for the purpose of ascertaining the intention, to read this Will by the light of surrounding circumstances. One circumstance was that these two ladies had been residing in the house for nearly 30 years, apparently consistently with, if not under, the terms of the agreement, Exhibit C, which gave them the right to be there for their life-time. Then there is another provision which says, "that debts due to the testator should be collected and taken by the two ladies;" he also described the ladies, as he does his executor, the 1st defendant in the present suit, as heirs. Then we have the codicil; and I think it is clear from this codicil that the predominant motive in the testator s mind was to make it clear that the property with which he was dealing was self-acquired property and, therefore, property with which he was entitled to deal by Will. I very much doubt if there was present to his mind the nature of the estate which the Will passed to the two ladies. Paragraph 7 of the codicil, I think, makes it clear that what he was particularly anxious to do was to avoid litigation after his death with reference to the question as to whether he had power to dispose of this property by Will. Can we possibly hold, reading the instruments as a whole, that the words "the documents of the house shall be taken by the two ladies" passed an estate of inheritance to them? There must be some words indicating an absolute gift either expressly or by implication; I am unable to draw the inference from the words used that the testator intended to make an absolute gift of this property. If he had so intended, it is difficult to see why he should not use similar words to those which he used with regard to Murugappa when he devised another house to him. I do not propose to discuss the authorities. I will refer to only one case of Carlapatti Chinna Cunniah v. Oota Wammalivariah 33 M. 91; 3 Ind. Cas. 475. That is also a case to which Section 32 of the Succession Act applied. Now what are the words there? There were certain bequests and then the testator made the gift in these words: "I give all the remaining properties of every sort which fell to my share to my wife, Andalu. Therefore, my aforesaid wife, Andalu, herself should enjoy all the remaining property." And the learned Judges in discussing these words say: "The circumstances that she is a widow, that there are no words of inheritance, or words authorising her to alienate, are not, in themselves, sufficient to show that the widow takes only a restricted estate, as in such cases there is no presumption to be raised under Section 82, the words themselves showing that she took an absolute estate." But we may take the circumstances into consideration in construing the other provisions of the Will. The recital in the Will that his wife should "enjoy" the property is important to indicate the intention of the testator; and they go on--"We are inclined, therefore, to think he did not intend that his widow should have the power to alienate the estate," and the effect of that decision, is that an estate of inheritance did not pass. There we have a case where notwithstanding the words "enjoy" and the general words, "I give all the remaining properties of every sort which fell to my share to my wife," the Court held that an estate of inheritance did not pass. It seems to me that even assuming that there is a bequest of the house to the widows, we cannot hold that under these words an estate of inheritance passed under the Will. On this question, also, I, therefore, take the learned Judge s view.