SEETHAI AMMAL Vs. MAHADEVA IYER

JUDGEMENT

(1.) The question for decision is whether Exhibit B, a settlement by the 1st defendant in favour of the 2nd defendant, his daughter, will be operative beyond the former s life-time. The answer to it depends on whether at its date the 1st defendant was able to make an absolute disposition of the property or, as the plaintiffs contend, had already disposed of all except his life-interest in it by a prior deed, Exhibit A.

(2.) Exhibit A is a deed of partition between the first defendant and his son, Nilakahtaiyar. It contains, first, dispositions regarding houses and debts, as to which there is no dispute. Next, the lands are divided, Schedule A going to the first defendant and Schedule B to Nilakantaiyar; and the difficulty arises from the fact that the balance of Schedule A, remaining in the former s hands after any alienations necessary in order to the payment of debts, is, in the words of the document, to "be enjoyed by him, as long as he is alive, without being subjected to any sort of alienation and after his time his grandsons shall receive and enjoy it paramparyamai. " There is then a provision for the enjoyment of one item, Survey No. 281), with all absolute rights of alienation. Lastly, it is provided that the share of Nilakantaiyar shall be enjoyed by him and his male heirs, though he must not place any kind of alienation on the said land." Before referring to the actual words by which the first defendant s estate is described, I observe that three indications as to their meaning are available in the rest of the document. Firstly, the portion relating to Survey No. 28.D is in sharp contrast with that relating to other items. It may be that those concerned hoped or expected that the former item would be sufficient for payment of the debts. But it is clear that they knew how to create an absolute title to it and used other words for that purpose than those used in connection with the rest of the first defendant s share.

(3.) Secondly, there is again a significant contrast between the expressions used to effect a transfer to the first defendant and those used in the case of his son. It is not disputed that the latter took an absolute estate; and then it is to be supposed that the result in the case of the former was different. Lastly, there is no reason for assuming that the intention was to create similar estate for father and sou. The former was aged--seventy-five at the time; and it is almost, if not quite as likely that he combined a future settlement with an immediate partition as that he made the latter alone.