T RAJU Vs. NAGAMMAL

JUDGEMENT

(1.) The facts of this case may be briefly stated as follows : One Kothandarama Aiyar of Poongavoor (Tanjore District) died on 25 April, 1905, leaving two daughters (1) Nagammal, 1 defendant, who is a widow, and (2) Gnanambal, his adoptive mother Valambal, and his widow Parvathi Ammal. Prior to his death he had executed a will, dated 20 September, 1902, Ex. XIII, (2) a will, dated 8 September, 1903, of which we have no record, (3) a will, dated 29 October, 1903, cancelling the previous will (Ex. VI), and (4) a last will, dated 13th March, 1905 (Ex. A) in which all previous wills were cancelled. Along with the will of September, 1903, he executed a deed of settlement, dated 3 September, 1903; but it was never registered and therefore never came into operation. Under his last will, Ex. A, he gave power to his widow to adopt either a son of his daughter Gnanambai provided she begets a son before January 1908, or a son of any one of his nephews, T. Subramania Aiyar or T. Venkata-rama Aiyar. He made certain dispositions to come into effect in the event of either contingency. At the time of his death Gnanambal had no son. The widow Parvathi Ammal resolved upon adoption immediately after his death. Necessarily she had therefore to adopt a son of one of the testator's nephews named in the will. She resolved to adopt the son of Subramania Aiyar and an agreement was executed settling the terms on which adoption was to be effected. This is Ex. I, dated 26 April, 1905. The boy was adopted on the same date but the deed of adoption evidencing it (Ex. II) was executed on 2nd May. The present. suit is filed by the adopted son T. Raju praying for a declaration of his title to the suit lands, namely, the lands of the village of Nallathakudi which formed part of the property of the deceased Kothandarama Aiyar. Parvathi Ammal died on 2nd July, 1918 and Valambal died on 10 June, 1917. The present suit was filed on 30 August, 1919. The Subordinate Judge who tried the suit dismissed it on the ground that the adopted son was not entitled to the suit properties relying on the terms of Ex. I. The plaintiff appeals.

(2.) Two points have been argued before us in appeal : (1) What are the terms of the deed of settlement, dated 3 September, 1903 bearing on the suit lands, and (2) How far does Ex. 1 bind the plaintiff. The first question becomes necessary to decide because the terms of the deed of settlement were incorporated into Ex. I by reference to it, and though the deed of settlement itself was not registered, we have yet to ascertain its contents. The document itself is not forthcoming having been filed for refund of stamp duty and never taken back. D.W. 1 is the other nephew of the testator, namely, Venkata-rama Aiyar and he gives evidence that one of the terms of the settlement was that a. half of the suit lands should be enjoyed by Valambal for life and that Parvathi Ammal the widow, should have absolute interest in the remainder of that half and in the other half. He proceeds to add further terms cutting down the absolute estate of Parvathi Ammal in the event of her dying without alienating the property. It is extremely doubtful if the latter portion of the evidence can be accepted. Though at the time of the adoption, he co-operated in bringing about the adoption, for we find him to be an attestor of Ex. I, he has now taken an attitude adverse to the plaintiff. The reason for this is obvious. At the time of the adoption one of the matters contemplated by all the parties was that Alamelu, daughter of the 1 defendant Nagammal, should be given in marriage to Krishnamurthi, son of this witness, and that Alamelu should get an absolute right in the lands of Kothankudi. Thus it was contemplated that Kothankudi lands should go by means of this marriage to the family of Venkatarama Aiyar just as the family of his brother Subramania gets a portion of the testator's property by means of the adoption. But unfortunately this marriage never took place and Venkatarama Aiyar's family did not benefit. Though, therefore, it is not safe to rely upon the evidence of this witness, still, as I will presently show, the first portion of his evidence appears to be true. D.W. 2 never saw the settlement deed as his cross- examination shows and his evidence about its contents is useless. D.W. 3 is the 1 defendant. She never read the settlement deed but heard when the terms were dictated by her father. Assuming this is good evidence, it is doubtful if we can rely upon such evidence for ascertaining the terms of the settlement. I am not willing to rest my conclusion as to the terms of the settlement on the evidence of D.W. 1 and D.W. 3 only as the Subordinate Judge does. We have got Ex. VI which refers to the terms of the settlement deed and which in my opinion seems to be conclusive as to what they were. Reading Ex. VI, it is clear that the scheme of the testator in September and October, 1903, was first, to-make provisions in favour of his daughters, mother and wife by means of a deed of settlement, leaving certain properties, and these he intended to deal with by a will in favour of the adopted son. Accordingly he executed a deed of settlement, dated 3 September, and will of 8 September. He cancelled the will and executed another will on 29 October, namely, Ex. VI. In para. 2 of Ex. VI he says that under the deed of settlement, dated 3 September, he made suitable provisions for his daughters, mother and wife. In para. 3 he gives authority to his wife to make the adoption. In para. 4 he says that the adopted son should have an absolute interest in the properties which remain after excluding those which I have distributed under the deed of settlement referred to above, that is, the nanja, punja, etc., lands, buildings, houses, sites, trees, etc., which belong to me in Kokkur village, together with the shares in all the samudayams belonging to me.

(3.) This clause shows that the properties now dealt with by the deed of settlement comprised only the lands in the Kokkur village. Mr. Varadachariar, the learned vakil for the appellant, who argued the case with his usual fairness and ability, contended that this Clause (4) does not necessarily show that the whole of the interest in the suit lands had been disposed of by the settlement. He contends that the clause is consistent with making a gift of an interest for life in the suit lands to Parvathi Ammal and the remainder remaining outstanding to the adopted son, and the reference to the lands in Kokkur village only was made because the life- interest in the suit lands had been disposed of. We cannot agree with this contention. If only the life-interest had been given to Parvathi Ammal in the suit lands, there is a vested remainder undisposed of and such undisposed of interest must have been necessarily referred to along with the lands in the Kokkur village. The parties belong to a very intelligent class of people, namely, Tanjore Brahmins, who are almost as well versed in legal ideas about remainders as trained lawyers, and anyhow they are assisted by a High Court Vakil, Mr. T. Natesa Aiyar, who was an attestor of Ex. I. He is a brother of Subramania Aiyar and Venkatarama Aiyar already referred to. In Ex. I the sentence The adopted son Raju himself is, as mentioned in the deed of settlement, to get all the properties in Kokkur village and enjoy the same with absolute rights shows that the adopted son had no vested remainder in the suit lands. This can be only because the suit lands were completely disposed of by the settlement in favour of the wife. Whether we look at the terms of Ex. I or Ex. VI it seems to be clear that the suit lands were given away to Parvathi Ammal absolutely after life- interest in half of the lands of her mother-in-law, Valambal. It is because of the light thrown by these two documents that I am inclined to believe the first half of the evidence of D.W. 1 and not the later portion when he speaks of further dispositions in case Parvathi Ammal died without alienating. The motive for this further addition is clear. He wants to ensure that the property will not reach the adopted son in any event. In the ordinary course, after Parvathi Animal's death (intestate) the daughters succeed to a Hindu daughter's interest in the suit lands and, as this is not an absolute interest, there is a further chance of the adopted son getting these properties if the daughters die without male issue or daughter's sons. The witness's object was to cut off this chance also. But, as a matter of fact, Parvathi Ammal left a will which was in dispute at the time when the witness deposed, but we are informed it has since been found to be genuine. The contingency contemplated by the witness did not in fact arise. I am not prepared to believe that portion of the evidence, but there is no reason why we should not believe the evidence in so far as it shows that Parvathi Ammal got absolute interest in the suit lands.