VEERAKKAL Vs. THIRUMAKKAL

JUDGEMENT

(1.) BY a document described as a deed of settlement and dated 8th of March 1904, one Mathakkal, who was a Hindu widow in possession of her husband s property and entitled to a life-estate in it, purported to hand over certain properties in two shares, one share to her daughter Attakkal and her son, and the second share to her younger daughter Veerakkal and her children. And the document goes on in these words: You. shall, therefore, enjoy in future the respective properties got by you by various rights" relating to the lands "separately and with power to alienate the same by gift, sale, etc...I shall relinquish the patta in my name and have the same transferred to your names. Till my death individuals Nos. 1 and 2 (that is, the daughters) shall pay"-certain provisions for her maintenance are specified. It is contended for the respondents- and that construction has found favour with the lower Court-that this document was, and must be taken to be, an out and out gift of the whole interest in the property to the donees, and that, whether or no it was a valid gift which could bind the reversioners a question which does not arise here-at any rate it was a valid gift binding on Veerakkal as a consenting party, she being the person who now seeks to say that this document has exhausted its force, because since its execution both Mathakkal and Attcakkal, the other daughter, have died. In support of that proposition reliance is placed upon the case of Ramadhin v. Mathura Singh 10 A. 407 : A.W.N. (1888) 79 : 13 Ind. Jur. 232, where a widow executed a deed of gift in favour of her grandson with the express consent of her daughter. The fact of that consent was recited in the deed. The Court there held that the consent of the daughter validated the gift, at any rate, during the life not merely of the donor but of the consenting daughter. The authority of that case has more than once been questioned but we do not think it necessary to decide in this case as to whether that decision is good law or not; because we are content to rest our decision on the construction of this document as being a gift not purporting to extend to the whole interest in the property but confined to what Mathakkal could properly dispose of, namely, her own life-interest. It is said that there are words in the deed which are quite inconsistent with such a construction and particular reliance was placed on the words "with power to alienate by gift, sale, etc." It seems to me to be a sufficient answer to that to say that as Mathakkal was able to give or sell her own life-interest, she has only conferred upon her donees the same power that she had herself. And it seems to me that those words are not in the least inconsistent with the construction of this gift as a gift only of her life-interest. I entertain no doubt that the onus is upon those who seek to prove that the widow was purporting to convey more than she legally could convey. That seems to me to be in accordance with settled principles of legal construction and nothing further need be invoked than the maxim nemo plus juris in alium transferre potest, quam ipse habet. We are asked to leave that aside and say that, whatever may be the construction of the document on the face of it, when the facts are looked at on the finding of the learned Judge, the conclusion must be that all these three, the mother and the two daughters, met together and agreed to enter into this deed on the footing that it was to be an absolute disposition of the whole interest in the property. All I can say is that, if the learned Judge guided himself in the construction of the document by listening to what the parties said they meant, he misdirected himself and his finding is bad in law. It is perfectly true that you are entitled to look at the surrounding circumstances to see how the parties were placed and to find out the matters with reference to which they were contracting or writing deeds or making Wills, as the case may be : you are entitled to look at the circumstances to, see what they must have meant, but you are not entitled to listen to their words or the negotiatory letters or similar matters to see what they said they meant. You may just as well look at the first draft of an Act to construe the Statute. In my opinion the learned Judge ought not to have allowed the evidence of what the parties subsequently did to influence his construction of the document any more than their evidence as to what they intended to do. On this short ground I think the appeal must succeed, as the document of the 8th March 1904 exhausted its effect by the death of the donor Mathakkal. The appeal will be allowed and the judgment of the Judge set aside and the Munsif s decree restored. Subject to this the appeal will be dismissed as regards item No. 7 and the mesne profits. Parties to pay and receive proportionate costs here and below. Seshagiri Aiyar, J.

(2.) I agree. After listening to the full arguments of Mr. Ramadoss I am not able to change my view that Exhibit II conveys only the life-interest of Mathakkal. There are a number of circumstances which have guided me in coming to this conclusion. In the first place the document, Exhibit II, says that Mathakkal was old and unable to manage the properties and consequently she surrendered the estate to her two daughters. It is well settled that under the Hindu Law it is competent for a life- estate owner to surrender possession of the estate to the immediate rever-sioner. Then there is a provision for maintenance in this document, which makes it clear that the estate is to enure only during the life-time of the grantor. There is another circumstance which has been pointed out by Mr, Ananthakrishna Aiyar and that is, there are no words in this document to the effect that the estate is to be enjoyed from son to grandson. That again is an indication that what Mathakkal was parting with was only her interest in the property. Moreover, ordinarily a grantor must be presumed to have given only what he or she is competent to dispose of, although there may be circumstances which may show that the grantor parted with not only what he or she was possessed of, but also of an estate which he or she was capable of transferring under certain conditions or for certain purposes. Much stress was laid by Mr. Ramadoss upon the fact that there is a provision in the document that the donees are competent to alienate by sale, gift, etc. It is now settled law that a life-estate owner is competent to dispose of her interest by sale, gift, or otherwise. Consequently when she inserted this provision in the document she was only granting to the donees the power which she herself was capable of exercising. For all these reasons I am clear that Exhibit II is only a conveyance of the life-interest which Mathakkal possessed in the property and is not an alienation of the whole property with the consent of the nearest reversioner. If I had accepted Mr. Ramadoss contention, I should have required further argument to convince me that the decision in Ramadhin v. Mathura Singh 10 A. 407 : A.W.N. (1888) 79 : 13 Ind. Jur. 232 is sound law, especially having regard to the observations of the learned Judges in Pilu v. Babaji 4 Ind. Cas. 584 : 34 B. 165 : 11 Bom. L.R. 1291. I should have liked to have heard fuller arguments on the question as to whether the principle of Hindu Law that an alienation by a widow can be validated by the consent of the reversioners, can be applied to gifts by life-estate owners. As I have come to the conclusion that Exhibit II only conveys a life-estate, this other question does not arise. I agree in the order proposed by my learned colleague.