AI Structured Summary
Not yet generated for this judgment
Judgment
Varadachariar, J.—This appeal arises out of a suit instituted by the appellant for recovery of possession of certain properties or in the
alternative for the appointment of a Receiver. The point for decision lies in a narrow compass and turns mainly upon the construction of a
razinamah (Ex. B) which put an end to an old litigation O.S. No. 16 of 1889 relating to the succession to the Bodinayakanur Zamindari. To help
towards the proper interpretation of Ex. B, it is necessary to state a few facts relating to that litigation.
Up to December, 1888, the Zamindari of Bodinayakanur was in the possession of one Kamaraja Pandiya Nayakar, who died in December,
1888, leaving him surviving a widow Kamalu Ammal, a daughter Meenakshi and a step-brother Vadamalai. For many years after 1888, every
person connected with this family seems to have proceeded on the assumption that this step-brother was disqualified to inherit and he has been
uniformly ignored till a very recent litigation. The deceased Zamindar left a number of uncles, of whom it is necessary to mention one
Visvanathasami Nayakar, the grandfather of the present first defendant. That uncle had a son Kandasami who was the plaintiff in O.S. No. 16 of
1889, which was compromised by Ex. B. On the death of Kamaraja, disputes arose as to the succession to the Zamindari. If Kamaraja was
divided from his uncles, the estate would presumably have devolved upon his widow and the widow also put forward a will alleged to have been
executed by her husband in her favour. If, on the other hand, Kamaraja was a member of a joint Hindu family with his uncles, the estate would
have devolved by survivorship. In the latter alternative there was a further question, whether it would have passed by ordinary primogeniture or by
lineal primogeniture. Under the rule of ordinary primogeniture succession would have devolved on Sundara Pandiya Nayakar who was the eldest
uncle then alive; but under the rule of lineal primogeniture it would have devolved on Kandaswami, son of Visvanathasami. The estate was
registered by the Collector in the name of the widow pursuant to certain statements made by the uncles and by Kandaswami. But later on
Kandaswami denied that he ever made that statement and asserted his claim on foot of survivorship. Sundara Pandiya also seems to have
contemplated asserting his title, but his claims, which were apparently considered not very strong, were easily bought off by Ex. T. Kandaswami,
who thought that he had a much more substantial claim, instituted O.S. No. 16""of 1889, claiming possession of the Zamindari and the properties
attached thereto. The widow set up her title, both as heir to her husband and as the legatee under his will, on the footing that the husband had
become divided from his uncles. After a number of witnesses had been examined in the case, the parties settled their disputes by the razinamah by
Ex. B, dated 8th May, 1890.
The razinamah contains three sets of provisions: one relates to the Zamindari proper and its appurtenances (Clauses 1 to 4); another provision,
namely, Clause 6 deals with certain properties which belonged to or were in the possession of the deceased Zamindar excluding the Zamindari and
other properties which passed under Clauses 1 to 4; and a third, namely, Clause 7, provides for any acquisitions that may be made by the widow
out of the income of the estate in her hands or by other means. As regards the Zamindari, the arrangement was that the widow should enjoy it
during her lifetime and that Kanda-swami and his heirs should enjoy it after her death. It is obvious that what was given to the widow in respect of
the Zamindari was a strict life-estate and not an ordinary widow''s estate, because in the latter alternative there could be no declaration of the right
of succession in Kandaswami and his heirs. The lower Court rightly held that Kandaswami took a vested remainder as regards the Zamindari. In
respect of the properties covered by Clause 6, that clause provides that the widow and her heirs will enjoy the same with absolute rights, with
powers of alienation by way of gift, exchange, sale, etc., and that the plaintiff and his heirs shall have no subsequent claim thereto. Clause 7
provides that the properties falling under it shall not merely belong to the widow exclusively, with powers of alienation, etc., but that after her death
they shall belong to the widow''s own heirs and that the plaintiff or his heirs shall have no right or claim in respect thereof.
Meenakshi, the daughter of the deceased Zamindar, predeceased her mother, but she left a son the plaintiff and two daughters defendants 2 and
The second defendant has married the first defendant. The third defendant is a childless widow and for the purpose of this litigation she is
supporting the second defendant, who, it is perhaps not too much to assume, is siding with her husband the first defendant as far as she can
support him legally. Kamalu Ammal died in January, 1921. In the ordinary course, the plaintiff would succeed to whatever properties Kamalu
Ammal could be held to have taken as her husband''s heir, while defendants 2 and 3 would succeed to whatever properties Kamalu Ammal held
as absolute owner or as Stridhanam. Referring to the three groups of properties abovementioned as dealt with under Ex. B, the Zamindari and
whatever was comprised in Clauses 1 to 4 of Ex. B have now passed to the first defendant as Kandaswami''s heir. The present litigation relates to
the two sets of properties covered by Clauses 6 and 7 of Ex. B. It is the plaintiff''s case that so far as the properties covered by Clause 6 are
concerned, Kamalu Ammal took only a widow''s estate and that he is therefore entitled to possession of those properties on Kamalu Animal''s
death. He is accordingly suing for possession of those properties. In the alternative, he contends that even if it should be held that Kamalu Ammal
took the properties covered by Clause 6 for an absolute estate, defendants 2 and 3 who are only limited owners, have not taken proper steps to
protect the estate and that as he is the next presumptive reversioner, he is justified in asking the Court to appoint a Receiver to protect the estate
and keep it intact so as to make it available to him when the succession opens to him. As regards the properties covered by Clause 7 of Ex. B, the
plaintiff concedes that his grandmother was entitled to them absolutely but claims a receiver for the reasons stated above in connection with the
properties falling under Clause 6. The first defendant takes exception to the construction placed in the plaint upon Ex. B. In effect, he pleads jus
tertii as regards the properties covered by Clauses 6 and 7 of the compromise. There is also a dispute between the first defendant and the plaintiff
as to what exactly are the properties covered by Clauses 1 to 4, and the properties covered by Clause 6. The plaintiff, for instance, contends that
all pannai lands situate within the Bodinayakanur estate must be deemed to have passed to the widow under Clause 6, whereas the first defendant
contends that pannai lands, which must by the custom of the estate or under the law be regarded as forming part of the Zamindari passed to the
Zamindar for the time being under Clause 1 and that only, a few items which might have belonged individually to Kamaraja must be held to have
passed under Clause 6. Defendants 2 and 3 also take exception to the interpretation placed by the plaintiff upon Clause 6 in so far as he contends
that under that clause Kamalu Ammal took only a widow''s estate. As regards the plaintiff''s alternative claim for the appointment of a Receiver,
these defendants contend that they have not been guilty of waste and that there is accordingly no reason or justification for the appointment of a
Receiver. The lower Court dismissed the plaintiff''s suit, holding that under both Clauses 6 and 7 of Ex. B, Kamalu Ammal took an absolute estate
in the properties thereby dealt with, that the plaintiff had therefore no present right to possession and that in respect of his possible reversionary
claim after the death of defendants 2 and 3, no case had been made out for the appointment of a Receiver to protect the estate. Hence this appeal
by the plaintiff.
Taking the language employed in Clause 6 of Ex. B, there can be very little doubt that to the extent to which it lay in the power of the parties
thereto, it was intended to give the properties absolutely to the widow. It may be that in his capacity as the late Zamindar''s grandson the plaintiff is
entitled to impeach that compromise on the footing that no arrangement between the widow and Kandaswami can enlarge the estate which the lady
would have taken under the law; but such a case can only be set up by the plaintiff in his own right as heir to his grandfather. The plaintiff for
reasons best known to himself has not thought fit to institute this suit on that footing. Presumably he is not prepared to take upon himself the onus of
proving that his maternal grandfather died in a state of separation from his uncles and from his step-brother. But whatever the reason may be, this
litigation has been instituted by the plaintiff as heir within the meaning of Clause 6 of Ex. B and not on the footing that dehors Ex. B he is entitled to
claim in his own right as heir of his maternal grandfather. Mr. Krishnaswami Aiyar contended that Ex. B should be interpreted in the light of the
claim put forward by the widow in that litigation and that so interpreting Ex. B, it would be reasonable to hold that the parties intended to give her
only a widow''s estate. But this ignores the fact that for very good reasons the parties drew a distinction between one set of properties involved in
that litigation and another set of properties involved in that litigation. The widow claimed as her husband''s heir the whole property involved in that
suit, that is, the Zamindari property as well as the other properties. Likewise, Kandaswami claimed all the properties involved in that litigation, by
survivorship. If his claim by survivorship was well founded, it was undoubtedly open to him to grant such portion of the property involved in that
litigation as he pleased to the widow in absolute right. As we have already stated, we are not here concerned with the question whether in fact he
had power so to grant or not, but on the case which he put forward, he undoubtedly would have had the power. It is important to remember that if
Kandaswami was prepared to accept her claim as heir to the late Zamindar he could not have ensured the Zamin passing to himself or his heirs,
because that would have depended upon his surviving the widow and even if he had survived the widow, as the widow had a daughter and the
daughter had in due course a son, the Zamin would never have passed to him at all. That is why he was obliged to put forward a claim by
survivorship. In these circumstances it does not seem to us fair to allow the antecedent claims of the properties to control the construction of the
clear words employed in Clause 6. It may be that if Clause 6 made no reference to heirs at all or to unrestricted powers of disposition but merely
granted the estate simpliciter to the widow, it would be possible to infer that only a woman''s estate and not an absolute estate was intended to be
conferred on the widow. But when the clause expressly says that the widow and her heir should take the property with absolute rights, with
powers of alienation by way of gift, exchange, sale, etc., it does not seem reasonable to say that the words do not connote what their natural
meaning undoubtedly conveys.
Mr. Krishnaswami Aiyar asked us to read the word ""heirs"" in Clause 6 as referring to the husband''s heirs and not to Kamalu Ammal''s heirs,
and for this purpose he emphasised the difference between the language of Clause 6 and the language of Clause 7, which uses the expression ""her
own heirs"". We do not think there is much force in this argument. The use of the expression ""her own heirs"" in Clause 7 is easily explained when the
state of the law as it stood at the time with reference to acquisitions made by a woman out of the income of her husband''s estate in her possession
is borne in mind. It was not by any means clear at that time that any savings made by her out of the income or any investments thereof made by her
would pass to her heirs. Though it was recognised that during her lifetime the income would be at her absolute disposal, many cases had held that
her savings and investments would pass as part of the main estate. Clause 7 was therefore put in to preclude any claim by Kandaswami or his heirs
to any savings or acquisitions by the widow out of the income. That accounts for the emphatic expression ""her own heirs"" and we do not think it
was intended to draw any antithesis between her heirs and her husband''s heirs; if the expression related to any heirs of the husband other than
Kandaswami, no provision in the document precluding those heirs would have been operative as against such other persons when they were not
parties to the document. The antithesis really was between a claim that these acquisitions should pass with the Zamindari and a claim that they
should pass to the woman''s heirs. As regards the suggestion that ""heirs"" in Clause 6 should be understood as referring to the husband''s heirs, we
are clearly of opinion that as a matter of grammatical construction or even of the sense of the language used, it is impossible so to read it. It is true
that in some distant part of the clause there is a reference to the husband but in the immediate context undoubtedly is a reference to the first
defendant and therefore the word ""heirs"" following immediately thereafter can only mean the first defendant''s heirs.
* * * * * *
A question was raised before us as to the extent of the pannai properties comprised under Clause 6 as distinguished from any pannai properties
that could be alleged to be covered by Clause 7. We do not think it is necessary to express any opinion on that question in this litigation. In the
view we have above expressed as to the construction of Clause 6, the plaintiff''s claim in respect of whatever pannai properties are covered by
Clause 6 can only be that of a presumptive reversioner; and on this basis, if we were of opinion that a case for the appointment of a Receiver had
been made out, it might be necessary to decide which are the pannai properties to be included in the Receiver''s charge. But as we have come to
the conclusion that no case for the appointment of a Receiver has been made out, we prefer to leave open to question whether any pannai
properties and if so what properties passed under Clauses 1 to 4.
* * * * * *
The appeal accordingly fails and is dismissed with costs (one set to be distributed in the proportion in which the lower Court has distributed the
costs awarded by it among the various defendants).