RAJAMANICKA CHETTIAR Vs. AMANICKAM CHETTIAR (DIED)

JUDGEMENT

(1.) The decision of this case turns upon the construction to be put upon Ex. A, the will of one Munirathna Chetty. The question is whether the will confers upon the legatees an absolute estate or only a life-estate. The District Munsif held that the interest conveyed by the will was an absolute one, but the learned District Judge has come to the conclusion that it conferred only a life-estate. The legatees are no doubt Hindu women, but I have already held in Chidambaratha Goundan v. Sellappa (1919) 10 LW 620 that the fact that the legatee is a Hindu woman does not raise any presumption that the estate given to her is only a life-estate. We have to decide the question on the language of the will as to whether only a limited estate was meant to be given or not. The language of the will in this case is no doubt somewhat peculiar. It says : The following are the particulars as to how each of the legatees should enjoy after my life-time." It then sets out the list of the properties which the testator desires his elder sister, Papathy Ammal, should enjoy and then of the properties which he desires his adopted sisters, Pachai Ammal and Visalakshi Ammal, and her daughter, Sundaram, should enjoy. It was contended before us that as the testator made an arrangement only for the enjoyment of these properties we must hold that the will intended to give only a life-estate. I am unable to accept the argument for I do not think the word "enjoy" is conclusive of the meaning at all. The learned District Judge thought that the word "enjoy" meant " keep possession pf and take the income." But the word "enjoy" might very well be used with reference to properties which are given absolutely and I consider that this word " enjoy " as in the case just referred to in Chidambaratha Goundan V/s. Sellappa (1919) 10 L.W. 620 means "to enjoy the benefit of the ownership of property " and not merely the income of the property. Taking the will, as a whole, the natural meaning seems to be that the testator decided to divide the whole of his properties among the legatees. He made no provision whatsoever for any gift over or any remainder passing to any one. He himself had an admittedly absolute estate, and when a person who has got an absolute estate makes a disposition of his properties, unless there is something to indicate that he was limiting the estate given by him in some manner, it is right to take it that he passes the whole of his estate by his gift. That principle is recognised in Section 8 of the Transfer of Property Act. In this will there are no words whatsoever to restrict the scope of the estate to a life-estate. It may also be pointed out that the testator uses the word " enjoy" with reference to his own rights in the property for, in describing the properties, he speaks of them as " enjoyed " by himself. There is, I think, no reason to give a restricted meaning to the word " enjoy" in this case. It is true that there are no special words authorising the legatees to alienate the property, but those words are quite unnecessary to support an absolute estate. Their absence does not necessarily indicate a limited estate. I agree, therefore, with my learned brother in holding that taking the will as a whole, it clearly gives whatever rights the testator had in the properties to the legatees and that is an absolute estate. I agree that the appeal should be allowed and the order of the District Judge set aside and the decree of the District Munsif restored with costs in this and in the lower appellate Court. Odgers, J.

(2.) The only point raised in this appeal is the quantum of interest taken by certain legatees by Exhibit A, the will of one Munirathna Chetty. The testator gave some properties first to his elder sister separately and secondly certain properties to Pachai Ammal and Visalakshi Ammal, his sisters by adoption. The word used in both cases is " enjoy" as to the first legacy, "these shall be enjoyed by the said individuals," and with regard to the second, " description of the properties to be enjoyed" by these two ladies. The learned District Munsif came to the conclusion that the interest conveyed by the will was in each case absolute. The learned District Judge, to whom appeal was taken, came to the conclusion that the words meant no more than "keep possession of and take the income," so that the effect of the will was to give a life-interest only to each of the legatees. Now it seems to me to be well settled by the recent decisions of this Court that the fact that a legatee is a Hindu woman does not now raise any presumption against her taking an absolute estate. In Chidambaratha Goundan V/s. Sellappa (1919) 10 LW 620. my learned brother <JGN>Krishnan</JGN> , J. held that the rule that when a Hindu gave property to a Hindu woman and more particularly to a Hindu widow there is a presumption that the estate meant to be given is only a life-estate has been held in recent cases not to apply now in this presidency. I had occasion to consider this matter very recently in A.A. O. No. 311 of 1922 when I came to the same conclusion. Therefore, the sole question to be considered is whether the words used are in the language of the Privy Council in Ramachandra Rao V/s. Ramachandra Rao (1922) ILR 45 M. 320 : 43 MLJ 78 (P.C.) of "sufficient amplitude to convey in the terms of the gift itself absolute rights of ownership. It is objected that, in the present case, we have no words conferring on the legatee a right to alienate, etc. It is said that the word "enjoyment" must be construed in a strictly limited sense. This is deduced from the fact that in enumerating the properties the testator describes each as " in enjoyment, having been purchased from, " so and so. This to my mind only shows the way in which he became entitled to those properties. It is not probable that a testator should say, "shall enjoy having received under this my will," or something of that sort which would be strictly analogous to the expressions used by the testator in this will with reference to himself. I think, therefore, that nothing really turns on that argument. It is not disputed that the testator had full power to dispose of these properties as he pleased. He had not any near male relations since the construction of the will is now contested by a reversioner. There is no disposal in remainder of the testator's admittedly absolute interest unless it is disposed of to these legatees. There is to my mind a presumption that a man means to give all that he has got, unless by expressions he has used and other surrounding circumstances, a different intention can be inferred. I do not see any ground for drawing such an inference here. The words are somewhat similar to those occurring in A.A.O. No. 311 of 1922 already referred to and in which I held that the word "enjoy" was capable of conferring an absolute estate. The case most strongly relied on by the respondent is that reported in Charlapathi Chunna Cunniah V/s. Cota Nammalwariah (1909) ILR 33 M. 91. In considering that case, it is very important to bear in mind the observations of Ramesam, J. in Kanakammal V/s. Baktavatsulu Naidu (1922) 44 MLJ 23 that the case in Charlapathi Chunna Cunniah V/s. Cota Nammalwariah (1909) ILR 33 M. 91 was decided at a time when the trend of Madras decisions above referred to against limiting estates to females was not well established. This is clearly seen from the judgment itself.

(3.) In Charlapathi Chunna Cunniah V/s. Cota Nammalwariah (1909) ILR 33 M. 91 the learned Judges said that " although the circumstances of the legatee being a widow, the absence of words of inheritance or words authorising alienation are not in themselves sufficient to restrict the estate : those circumstances may be taken into consideration in construing the other provisions of the will". This, in my view, led the learned Judges in Charlapathi Chunna Cunniah V/s. Cota Nammalwaraiah (1909) ILR 33 M. 91 to construe the word "enjoy" in a limited sense. It may be added that the learned Judges themselves do not seem to be very confident as to the correctness of their decision. I am of opinion that there is no ground here to restrict the meaning of the word "enjoy" to a life-estate and adhering to my decision in A.A.O. No. 311 of 1922. I would construe the terms of this will as an intention- to confer an absolute estate on all the legatees. In this view, the decision of the learned Judge is wrong and the appeal must succeed and the decree of the District Judge set aside and that of the District Munsif restored with costs here and in the Lower Appellate Court.