N R AUDIPURANAM PILLAI Vs. NAPPUSUNDRAM PILLAI

JUDGEMENT

(1.) THIS is a suit by the plaintiff as heir of his father Ramalinga to establish his right to a one- third share of two houses which were bequeathed under the will, Exhibit A of one Sooboo Pillai, probate of which was granted on 21 June 1875. Under this will the two houses which were the self-acquired property of the testator were devised to Ramalinga and Veerasawmi brothers of the testator's wife and Cundasami the testator's son in terms the effect of which will have to be considered later. The defendant succeeded to Cundasami's share on the death of his widow in 1880. Ramalinga died in 1895 leaving the plaintiff as his heir, and Veerasawmi died in 1896 leaving his share to his son Dorasawmi, which share was subsequently acquired by the defendant by purchase at Court auction. On the part of the defendant, it is contended that the plaintiff's suit is barred by limitation, as there is no satisfactory evidence that his father Ramalinga ever got possession of his share and, if not, he became barred in 12 years as devisee under article 140 of the Limitation Act. Ramalinga for some reason seems to have lived in a separate house of his own and evidence of his participation in the profits of the devised houses is very slight : but it is admitted that Cundasawmi and Veerasawmi lived in a part of the devised premises until their respective deaths in 1880 and 1896, and whether they be taken as tenants-in-common or joint tenants, the entry of one would be entry on behalf of the rest, unless there were clear evidence of an intention to hold adversely. (Freeman on Co- Tenancy Act 166). Here there is absolutely no evidence of any intention on the part of Cundasawmi or Veerasawmi to hold adversely to Ramalinga. Veerasawmi and Ramalinga were executors under Sooboo Pillai's will and acted in harmony throughout. I must, therefore, hold that Ramalinga was in possession through the other devisees until his death. Consequently article 140 will not apply and it is not contended that the plaintiff's suit is barred under any other article. I, therefore, find the third issue in the plaintiff's favour. The more important question in the case is, whether the will conferred upon the three devisees a known estate of inheritance, or whether the limitations, contained in it were void at any rate beyond the life- time of the three devisees so that on the death of the last survivor the defendant who is the heir of Sooboo Pillai would be entitled to succeed as on an intestacy. As pointed out in the Tagore Case: "The true mode of construing a will is to consider it as expressing in all its parts whether consistent with law or not the intention of the testator and to determine on a consideration of the whole will whether assuming the limitation therein mentioned to take effect, an interest claimed under it was intended under the circumstances to be conferred." For this purpose it is necessary to get as accurate a translation as possible of the Tamil original and with the assistance of the Interpreter and both sides, the material passage may be translated as follows, preserving the precise collocation of words in the original. My self- acquired property the aforesaid houses (describing them) by the three devisees (naming them) from generation to generation (or in lineal succession) unitedly (or jointly) the survivors surviving without power of gift, & c., or sale shall be enjoyed." The chief controversy between the parties has been as to the meaning of the words "Vamsa Paramparai" and "Egopithu." The former words being translated literally means line of succession as "in lineal succession," and it has been argued that those words shew an intention to create a succession of life-estate which are not allowed by law. Following the decision as to similar words in other Hindu wills, I should be prepared, if these words stood alone, to hold that they merely show an intention to create an estate of inheritance and do not create a line of descent unknown to law. They have, however to be read with the words that follow immediately The next word is "Egopitha" which was rendered in the Court translation unanimously." The literal translation is said to be acting as one" or together" and it is said for the defendant, to be used in promissory notes executed by several persons as meaning jointly as opposed to severally. For the plaintiff, it is contended, that the word "Egopithu" merely means harmoniously or unitedly and is not to be taken as a word of limitation. Beading this word not only with the words in lineal succession which immediately precede but also with the words "the survivors surviving without power of gift, &c., or sale" which immediately follow, I am unable to accept the suggestion that no effect should be given to the word "Egopithu" in construing the disposition as a whole. So construing it I cannot find that, as suggested for the plaintiff, it was the intention of the testator to pass the estate to the three devisees named and their respective heirs as tenants- in-common. The testator's intention was in my opinion not to pass any such estate to the three devisees but to provide that the estate should be enjoyed by the three devisees and their descendants as long as any of them existed and this is in effect to estabish a line of descent unknown to law.

(2.) THE fact that the testator does not expressly say that it is his intention to create a succession of life estates as in the Tagore case. Jatindra Mohan Togore V/s. Ganendra Mohan Tagore Sup. Vol. I.A. 47 : 9 B.L.R. 377 : 18 W.R. 359 is immaterial. Tarokessur Hoy V/s. Soshi Shikhuressur Roy 9 C. 952 : 10 I.A. 51 : 13 C.L.R. 62 as observed by the Privy Council in Norendro Nath Sircar V/s. Kamalbasini Dasi 23 C. 563 : 23 I.A. 18. To construe one will by reference to expressions of more or less doubtful import to be found in other wills is for the most an unprofitable exercise. What the Court has to do in the words of Lord Halsbury in Garringe V/s. Mahlsteal (1907) A.C. 226 is "to construe the will which is before us itself and give the natural meaning to the words and the sentences therein contained." So construing the present will I find it impossible to hold that the intention was to confer upon the three devisees and the respective heirs estates of inheritance as tenants-in-common : and if I am to refer to other cases I think this case falls with in the principle of Shookmoy Chandra, Das v. Monohari Dassi 11 C. 684 : 12 I.A. 103. I am, therefore, of opinion that on the death of Veerasawmi the defendant was entitled to succeed to the devised premises as heir of Sooboo Pillai, and this disposes of the 1 issue. As regards the 2nd issue, I fail to see any reasons why the defendants should be estopped from so claiming to succeed. I find the 2nd issue, therefore, so far as it arises in favour of the defendant. THE 4 issue must be answered in the negative. THEre is no evidence in support of the contention raised in the 5 issue which must be found for the plaintiff. In the result the plaintiff's suit is dismissed with costs.