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Judgment
Arnold White, C.J.—The first plea relied upon by the 1st defendant in this case is that the claim is res judicata by reason of the judgment in a
suit of 1893, which was heard on the original side of this Court in O.S. Appeal 7 of 1895. The learned judge has held that the question is not res
judicata and I think he was right. The suit of 1893 was brought by one Tulukkanam Chetti who was the grandfather of the present plaintiff, his two
sons also being the plaintiffs in the suit of 1893. The suit was brought about by a will and a codicil which were executed early in 1893, by one
Dhanakoti, who was the brother of this Tulukkanam. In this will the testator purported to deal with certain property including the property in
dispute in the present case as self-acquired property and the plaintiffs in the suit of 1893 asked for a declaration that the family was undivided and
the properties which Dhanakoti purported to dispose of by will were the properties of the undivided family. In the course of that suit a document
was put in by the plaintiffs dated 20th May 1865 which has been referred to as Exhibit C. This document recognised the right of the widow of
another brother of Tulukkanam (one Sabapathy) and of Dhanakoti''s wife and we are told that when the document was executed, Dhanakoti,
although he afterwards recovered; was in extremis this document recognised the right of these two ladies to enjoy, or at any rate to remain in
possession of the house in question until the death of the survivor and also recognised the rights of Dhanakoti and Tulukkanam as reversioners, on
the death of the two ladies, to the property in question. There was some argument at the bar as to whether this document of 1865 was more
consistent with the status of the family being divided or with the status of the family being undivided at the time the document was executed. We
need not discuss this. One thing is clear beyond all question, and that is, that when the document was put in evidence by the plaintiffs in the suit of
1893, it was put in evidence for the purpose of supporting the case put forward by the plaintiffs in that suit viz., the case that the family was
undivided and that because the family was undivided and that because Dhanakoti the testator in 1893 purported to deal by way of will with
undivided family property, the will was ineffective. The judge in deciding this question of res judicata holds that whereas the earlier suit was filed by
the plaintiff''s grandfather and his father and uncle on the footing that they were members of an undivided family and was dismissed on the ground
that there was a division between the plaintiff''s grandfather and Dhanakoti Chetti, the present suit is based on the plaintiff''s title on the agreement
dated 20th May 1865 and as reversioner, and on those grounds holds that the question in the present suit is not res judicata. I do not feel
altogether clear that the learned judge is right in holding that the present suit is based on the plaintiff''s title on the document of 1865 because it
seems to me that his present suit really is based on his claim as reversioner; if he can show that the widows who conveyed to the 1st defendant had
no estate of inheritance to convey, he succeeds as reversioner apart altogether from any question as to the effect of the agreement of 1865.
However Mr. Tirunarayanachariar on behalf of the appellant availed himself of the observation of the learned Judge and based upon that
observation an ingenious argument in support of his plea of res judicata. He says, in so far as the plaintiff''s claim in the present suit is based on the
agreement of 1865, it must be taken to be a claim which is inconsistent with the claim which he made in the suit of 1893, that suit being based upon
the footing that the family was undivided. Mr. Thirunarayana Chariar says that the plaintiff is now seeking to set up an alternative claim which is
inconsistent with the claim as set up in the suit of 1893; and that being so u/s 13 of the old Code and the corresponding enactment of the present
Code, it was a ground of attack which he ought to have put forward in the earlier suit, he is precluded from patting it forward in this suit. For the
purpose of this argument he assumes that the claim is alternative and inconsistent. On authority it would seem that in order to avoid the objection of
res judicata it is not necessary for a plaintiff: to put forward a claim and also an alternative and inconsistent claim on which he relies, I think
generally speaking, that may be said to be the effect of the decision in Ramasami Aiyar v. V ythinatha Aiyar ILR (1902) M. 760, which was cited
with approval in the case of Thirthakat Madathil Raman v. Thirthakat Krishna Nair ILR (1905) M. 153. Now, as I have said, the suit of 1893
proceeded on the footing that the family was undivided; and the only question was ""could Dhanakoti dispose of the property, which he purported
to dispose of by will?"" There was certainly no adjudication in that suit on the question as to what was the nature of the estate which the two ladies
took under the will of Dhanakoti. That question is not referred to in the pleadings. It is not raised in the issues. It does not so far as I can see,
appear to have been ever discussed in the suit of 1893. So far as I know, the only passage in the judgment of the Court of appeal which can be
referred to as supporting Mr. Thirunarayana Chariar''s contention that this question was adjudicated upon in the suit of 1893 is the last sentence of
the judgment of the Court of Appeal. The learned Judge there says ""It may be that in 1865 he (i.e. the testator Dhanakoti) was willing that his
brother (i.e. Thulukkanam) should have the reversion of the old family house (i.e. the house in question) but after partition ""was denied in 1886, he
seems to have been on bad terms with his brother and had made wills which defeat the reversion. If divided he had a legal right to do this and we
must hold en the evidence that the division is established."" Mr. Thirunarayanachariar asks us to read that as an adjudication on the question which
is now before us, viz., as to the effect of the clause in the will which conveyed an estate or interest to the widows in'' the house in question. The
language is quite general, ""had made wills which defeat the reversion"" and I do not think that the learned Judges when they made that observation
intended to hold that, as a matter of construction, the effect of the will of 1893 was to pass to the two ladies an Restate of inheritance so as to give
them full powers of alienation which would have the effect of defeating reversionary rights in the plaintiffs in that suit. The question which was
before the Judges was the question whether the property was undivided family property or divided family property and I think that that general
observation must be taken to have been made with reference to the question which they had to determine.
Assuming that that is not the right view and that the learned judges did purport to deal with this question of the effect of the words of the will
with reference to this house and the interest which these two ladies were to take in the house, that to my mind is clearly not the question which was
before them, and if the learned judges did adjudicate on this question, it seems to me that it was wholly unnecessary for the purposes of the case
before them and on that view I should hold that the matter is not res judicata. So much then for the plea of res judicata.
Then the further question is as to the construction of the will. The will and codicil were executed by Dhanakoti shortly before his death in 1893
and the question is '' Did an estate of inheritance pass to the two ladies under the will or codicil?
It is admitted that Section 82 of the Indian Succession Act by virtue of the provisions of the Hindu Wills Act applies to the will tin question. That
section says ""Where property is bequeathed to any person he is entitled to the whole interest of the testator therein unless it appears from the will
that only a restricted interest was intended for him."" Therefore we have to consider by the light of that section what was the intention of the testator
in the will in question. Paragraph 3 of the will refers to a house described as No. 6. That house was under mortgage and the testator by express
words makes a bequest of that house to a man named Murugappa. The words of the will are ""Neither I nor my heirs shall have any interest
whatever in respect of the house."" The house in question in this suit, No. 23 was also under mortgage. The testator makes no express bequest of
this house but in dealing with the two houses together, Nos. 6 and 23, he says in paragraph 4, ""The documents of No. 6 and the documents of 23
shall be taken by Murugappa and by the two ladies respectively. When he wanted to make over the full ownership of the house to Murugappa he
uses apt words. So far as the ladies are concerned, there is no express bequest and all he says is that ""They shall have the documents.'' We are
entitled for the purpose of ascertaining the intention, to read this will by the light of surrounding circumstances. One circumstance was that the two
ladies had been residing in the house for nearly 30 years, apparently consistently with, if not under the terms of the agreement, Exhibit C, which
gave them right to be there for their life-time. Then there is another provision which says "" that debts due to the testator should be collected and
taken by the two ladies, arid his executor, the 1st defendant in the present suit, as heirs. Then we have the codicil; and I think it is clear from this
codicil that the predominant motive in the testator''s mind was to make it clear that the property with which he was dealing was self-acquired
property and, therefore, property with which he was entitled to deal by will. I very much doubt if there was present to his mind the nature of the
estate which by the will passed to the two ladies. Paragraph 7 of the codicil, I think, makes it clear that what he was, particularly anxious to do was
to avoid litigation after his death with reference to the question as to whether he had power to dispose of their property by will. Can we possibly
hold reading the instruments as a whole, that the words ""the documents of the house shall be taken by the two ladies"" passed an estate of
inheritance to them? There must be some words indicating an absolute gift either expressly or by implication. I am unable to draw the inference
from the words used that the testator intended to make an absolute gift of his property. If he had so intended its is difficult to see why he should not
use similar words to those which he used with regard to Murugappa when he devised another house to him. I do not propose to discuss the
authorities. I will refer to only one case of Caralapathi Chinna Cunniah v. Cota Nammalvariah (1909) I.L. 33 M. 91. That is also a case to which
Section 82 of the Succession Act applied. Now what are the words there? There were certain bequests and then the testator made the gift in these
words ""I give all the remaining properties of every sort which fell to my share to my wife Andalu. Therefore my aforersaid wife Andalu herself
should enjoy all the remaining property."" And the learned Judges in discussing these words say ""The circumstances that she is a widow, that there
are no words of inheritance, words authorising her to alienate, are not in themselves sufficient to show that the widow takes only a restricted estate,
as in such cases there is no presumption to be raised u/s 82; the words themselves showing that she took an absolute estate. But we may take the
circumstances into consideration in construing the other provisions of the will. The recital in the will that his wife should ""enjoy"" the property is
important to indicate the intention of the testator""; and they go on ""we are inclined, therefore, to think he did not intend that his widow should have
the power to alienate the estate""; and the effect of that decision, is that an estate of inheritance did not pass. There we have a case where
notwithstanding the words ""enjoy"" and the general words, ""I give all the remaining properties of every sort which fell to my share, to my wife"" the
court held that an estate of inheritance did not pass. It seems to me that even assuming that there is a bequest of the house to the widows we
cannot hold that under these words an estate of inheritance passed under the will. On this question also, I therefore take the learned Judge''s view.
The only other question is with reference to issue 4. It was not very seriously pressed by Mr. Thirunarayanachariar. That issue was ""was the sale to
1st defendant made to satisfy a certain decree and on that ground binding on the other members of the family?"" The learned judge has held that the
sale Was not binding on the plaintiff, and I am certainly not prepared to say that he was wrong.
Therefore it seems to me that this appeal fails and that we must dismiss it with costs.
Tyabji, J.
We may assume for the purposes of this appeal that the parties to the suit of 1893 were either the same parties that are concerned in these
proceedings, or parties through whom the present plaintiff and defendants are claiming; and the question to be decided by us is whether the matters
substantially and directly in issue in trie earlier suit are also matters directly and substantially in issue, at, present; and whether therefore the present
suit is barred by the plea of res judicata. For the purpose of determining the question we must see what was the nature of the first suit and what is
the nature of the present suit. In the earlier suit the claim was for a declaration that the members of the family to which the parties belonged were
undivided and that the wills referred to in the plaint in that'' salt were void by reason of the property having been undivided previous to their
execution. Incidental reliefs were asked for, but these were the main questions before the court in 1893. Now, the nature of the present suit has
also, in my opinion, to be determined at least primarily by a reference to the allegations in the plaint and reliefs sought in this suit; and these reliefs
are that a declaration be made that the plaintiff in this suit is the nearest reversioner to the husband of the two ladies who have been referred to
before us as the widows. This suit is filed on the assumption that the property was divided, as was held in the earlier suit; the relief asked for is
based on the construction which is alleged should be placed on the will and codicil which the plaintiff in the earlier suit wished to be declared to be
void but which are admitted for the purposes of this suit to have been valid. It seems to me that taking these facts into consideration there cannot
be much doubt that the decision in the earlier suit cannot be a bar to the present suit. It is however argued that a document (Exhibit D in the
present, suit) was also put in evidence in the earlier suit (being Exhibit C therein) and that inasmuch as it was relied upon in the earlier suit and was
adjudicated upon, to the extent that it was relied upon the present suit must be barred. I entirely agree with what has fallen from the learned Chief
Justice as regards the effect of this document on the questions involved in the earlier suit and that it is unnecessary for us to consider what was the
exact bearing of this document in that suit. For the present purposes, I think it is enough to state that the plaintiff''s suit does not rest on Exhibit C;
that the highest at which the argument for the appellant can be put is this : that in the earlier suit a document was relied upon by the plaintiff and that
in the present suit the same document is relied upon by the opponents of the plaintiff. I therefore agree that this suit is not barred by the operation
of Section 11 of the Civil Procedure Code.
If therefore, the present suit is not barred on the plea of res judicata the question is whether the plaintiff has made out on the construction of the
will and codicil that the widows took only a life estate. I agree with what the learned Chief Justice has said as regards the construction of the will
and I have come to the conclusion tha6 the widows took only a life estate by the following amongst'' other considerations. There is no distinct
statement in the will that the property is to be taken by the widows; and I think on a consideration of the provisions of the will and codicil, which,
for this purpose, must of course be read together, it is abundantly clear that what the testator had in mind was to assure the enjoyment by the
widows for their life time of this property, to make it quite certain that they were entitled to hold that property and safeguard them from being
disturbed in their possession of it by Tulukkanam and by that branch of the family. I think there is an entire absence of anything to show that the
testator for a moment considered what was to become of the property after the widows had their life estate therein; and this is made clearer when
we consider the nature of the rights that the testator gave and the terms in which ha gave these rights to Murugappa and also the terms in which he
bequeathed to the widows the moveable properties. With regard to the latter,the testator is careful to mention not only that the widows may enjoy,
or shall enjoy the moveables but also that they may deal with them as they wish. There is an absence of any power to the widows to deal with the
Immovable property in question. I need hardly say that, in construing the clause of a will of this nature in favour of the widows of a Hindu testator it
is impossible not to bear in mind the remarks of their Lordships of the Privy Council in the case of Mahomed Shumsool Huda v. Shewakram L.R.
2 I.A. which were recently alluded to in the case of Reali Prasad Mullick v. Ranee Mani Dassee ILR (1908) C. 896. For these reasons and for the
reasons stated by the learned Chief; Justice I agree that this appeal should be dismissed with costs.