Somasundaram Ammal and Others vs K. Kanthimathinatha Pillai

A. Ramamurthi, J.—The unsuccessful defendants 1 to 8 and the aggrieved 9th defendant in O.S.No. 1051 of 1985 on the file of District

Munsif Court, Tirunelveli, have preferred these two second appeals.

The case in brief is as follows: The suit property originally belonged to Valliammal, wife of Ramaiah Pillai and she was in possession and

enjoyment. On 23.1.1937 while she was in a sound and disposing state of mind, she executed a Will that after her death, Subbiah Pillai should get

the suit property and he should enjoy the same without alienation. He was allowed to enjoy the income from the suit property. After the lifetime of

the father, the step mother of the testatrix, namely, Parvathy Ammal and the testatrix''s husband''s deceased brother''s wife Chidamabarathammal

should enjoy the property jointly during their lifetime without any power of alienation. If any of the persons predeceased the other person, then the

surviver can enjoy the property till her lifetime without alienation. After the lifetime of Subbiah Pillai, Parvathy Ammal and Chidamabarathammal,

the property should go to the testatrix''s husband''s brothers and their children and they would get the property absolutely. Subbiah Pillai enjoyed

the property as per the Will and after his death, Parvathy Ammal and Chidamabarathammal enjoyed the property. Chidambarathammal died on

21.2.1983 and as per the condition in the Will, the vested reminder should go to the heirs of the brothers of the testatrix''s husband. The plaintiff is

the son of one of the brothers of the testatrix''s husband. The first defendant is the wife of one of the brothers of the testatrix''s husband and

defendants 2 to 8 are her children. The plaintiff claims that he is entitled to half share in the vested remainder and similarly defendants 1 to 8 are

entitled to the remaining half. The 9th defendant is a cultivating tenant of the property and after the death of Chidambarathammal in 1983, and

raised cultivation, but she did not pay the share due to the plaintiff. The plaintiff also issued notice to the 9th defendant claiming the lease paddy.

The allegation of the 9th defendant that she would be liable to pay lease paddy only if there was any yielding is not correct. The lease paddy for the

suit property is 2 kottah per crop. The paddy was sold at Rs. 200 per kottah. Hence, the plaintiff filed the suit for partition and separate

possession of his half share in the property and also for arrears of lease paddy from the 9th defendant.

Defendants 1 to 8 admitted that the suit property originally belonged to Valliammal, wife of Ramaiah Pillai and also the execution of the Will.

After the death of Kandasamy Pillai, father of the plaintiff, the husband of the first defendant and father of defendants 2 to 8 Nataraja,

Chidamabarathammal lived upto 21.2.1983. Chidamabarathammal lived even after the death of Valliammal''s husband''s brother. So, the opening

of the vested remainder starts only on the death of Chidamabrathammal. Until her death, nobody can claim any right over the schedule mentioned

property. On the death of Chidambarathammal, the legal heir''s of Valliammal''s husband''s brother, who are the plaintiff and defendants 1 to 8 are

entitled to the property in equal shares. The plaintiff is not entitled to claim half share, but entitled to claim only l/9th share in the property. The

plaintiff has no right to claim any lease paddy before 21.2.1983 as no right accrue to him. During Kar 1983, the entire crop has failed. The

defendants are always ready and willing to give l/9th share in the lease paddy to the plaintiff.

The 9th defendant contended that she is a cultivating tenant of the suit property. She is not liable to pay any lease paddy if there was no yielding

from the land. Originally her husband was a lessee and paying the lease paddy to Valliammal. After the death of her husband, the 9th defendant is

the lessee of the property and she had paid the lease paddy without any arrears. The husband of the first defendant used to come and collect the

lease paddy from her. The plaintiff and his father never met the 9th defendant and they never informed their right. She is not liable to pay any lease

paddy to the plaintiff as she had already paid without arrears.

The trial Court framed 6 issues and on behalf of the plaintiff he was examined as P.W.1 and Exs.A-1 to A-4 were marked and on the side of

the defendants, Ex.B-1 was marked and no one was examined. The trial Court passed a preliminary decree as prayed for in favour of the plaintiff,

but dismissed the claim of arrears of lease paddy from 9th defendant. Aggrieved against this, the plaintiff preferred A.S.No. 15 of 1988 and

defendants 1 to 8 preferred A.S.No. 18 of 1988 and the learned Subordinate Judge, Tirunelveli after hearing the parties, allowed A.S.No. 15 of

1988 and the judgment of the decree of the trial Court were modified with reference to the relief ''B'' in the plaint and the 9th defendant was

directed to pay a sum of Rs. 1,000 being the arrears of lease paddy due to the plaintiff and dismissed A.S.No. 18 of 1988. Aggrieved against this,

these two second appeals are filed.

At the time of admission S.A.No. 900 of 1989, the following substantial questions of law were framed by this Court for consideration:

(1) Whether both the Courts below have properly interpreted the Will, Ex.A-1?

(2) Whether both the Courts below erred in holding that the vested remainder was given to the two brothers and not to the heirs?

(3) Whether the respondent is entitled to only l/9th share not 1/2 share?

(4) Whether the Section 111 of the Indian Succession Act applies to the facts of the case and not Section 119 of the said Act?

At the time of admission S.A.No. 922 of 1989, the following substantial questions of law were framed by this Court for consideration:

(1) Whether the observation of the first appellate Court that the appellant is bound to know the Will is correct in law?

(2) Whether the payment of rent to one co-sharer amounts to payment of rent to all the co-sharers till partition is made through Court or

otherwise?

Heard, the learned Counsel of both sides.

Both parties admitted that the suit property originally belonged to one Valliammal and when she was in a sound and disposing state of mind, she

executed the Will Ex.A-1. The last recital under Ex.A-1 is as follows:

The plaintiff and the defendants had given different interpretation as to who is entitled to the vested right in the property. It is clear that the property

should go to the brother of the testatrix''s husband absolutely. One of the brothers named Muthiah Pillai died even before Chidambarathammal

without any issues. There were only two brothers of her husband, namely, Kandasamy Pillai and Nataraja Pillai. A plain reading of Ex.A-1 would

clearly indicate that they can enjoy the property absolutely. But, however, defendants 1 to 8 contended that the brothers of deceased husband are

not entitled to enjoy the property absolutely, but only their legal heirs have been given the said right. There is a bar of alienation of the property in

respect of the other persons has been specifically mentioned, But no such bar is available so far as the brothers are concerned. No doubt, it is

stated in the recitals that ''after them'' their heirs should enjoy the property absolutely, the document should be read as a whole to find out the

intention of the testatrix and the interpretation cannot be given to each and every sentence.

Learned Counsel for appellants/defendants 1 to 8 contended that both the Courts below have not properly interpreted the Will Ex.A-1. The

right of the heirs if any Will accrue only after the death of the brothers of the testatrix''s husband. Both the Courts below erred in holding that

Kandasamy Pillai and Nataraja Pillai were given absolute rights. The inclusion of the word ''after them'' only clearly indicates the mind of the

testatrix that two brothers should not have absolute right. The intention of the testatrix was to give vested remainder only to the heirs and not to the

brothers. Both the Courts below failed to property appreciate Section 111 of the Indian Succession Act and the Courts below erred in holding that

Section 119 of the Indian Succession Act alone applies to the facts of the case.

Learned Counsel for the appellant/9th defendant contended that the lower appellate Court has no legal reason to reverse the well considered

judgment of the trial Court. It not the duty of the appellant to make enquiry as to who are the heirs entitled to the property. The appellant is a

cultivating tenant. If the plaintiff had any share or right in the suit property, he sought to have sent a suit notice to the appellant. Admittedly, the suit

notice was sent only in 1984 and the suit was filed in July, 1985. The lower appellate Court also failed to note that the plaintiff is a co-sharer and if

the entire rent is paid to the other co-sharer, the other person has to seek his remedy against them, who had collected the rent.

As adverted to, the right of the plaintiff in getting partition of the property is not in dispute. The plaintiff claims half share in the property

whereas according to defendants 1 to 8, the plaintiff is entitled to get only l/9th share. Reliance is placed upon Section 111 and illustration (iv) of

the Indian Succession Act and pointed out that the property should go to the heirs of the brothers of the testatrix''s husband only absolutely and so,

they are entitled to the property in equal shares. Section 111 of the said Act reads as follows:

Where a bequeath is made simply to a described class of persons, the thing bequeathed shall go only to such of those who are alive at the testators

death.

Illustration IV is as follows:

A bequeaths one third of his lands to B for his life and after his decease to the sisters of B. At the death of the testator, B had two living C and D

and after that even to another sister E was born. C died during the life of B, D and E have survived B. One third of A''s land belong to D and E

and the representatives of C in equal shares.

Based upon this only, learned Counsel for the appellants/defendants 1 to 8 contended that the testatrix had bequeathed the vested remainder in

favour of the brothers of her husband and their heirs. The plaintiff is the only son of Kandasamy Pillai and defendants 1 to 8 are the heirs of another

brother namely, Nataraja Pillai are alive and, as such, all the 9 persons are entitled to claim equal shares in the vested remainder and if that be so,

the plaintiff can get only 1/9th share.

Learned Counsel appearing for the respondent/plaintiff contended that illustration (iv) and Section 111 of the said Act are not applicable, but

only Section 119 is applicable. According to him, the vested remainder starts on the death of the testatrix, she had categrocially stated in the Will

that the property should go to her husband''s brothers and to their heirs, absolutely. This would establish that the brothers of the husband of the

testatrix would get the property absolutely and if there was any remainder, the same would go to the heirs after their lifetime. The delivery of

possession of the property was postponed till the death of the three estate holders. When the property is vested with Kandasamy Pillai and

Nataraja Pillai each of them will be entitled to half share in the property. After their death only, their heirs will each get half share in the property.

Section 119 of the Indian Succession Act reads as follows:

Where by the terms of a bequest of the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper

time till shall, unless a contrary intention appears by the Will, become vested in the legatee on the testator''s death, and shall pass to the legatee''s

representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator''s death said to

be vested in interest.

It is therefore clear that the vested remainder vests with two brothers of the testatrix''s husband on the death of the testatrix and they got it in

equal shares. As adverted to, the plaintiff is the only heir to his father and, as such, he would be naturally entitled to half share in the property.

Learned Counsel for the respondent/plaintiff relied on the decision reported in P. Somasundaram v. K. Rajammal (1976) M.L.J. 444, wherein

it was held as follows:

Under Section 119 of the Indian Succession Act, the vested interest in the suit properties had devolved on V on the death of the testator subject to

the charge for maintenance in favour of herself, P and C, which charge of maintenance would not suspend the vesting of the properties of the

legatee ''V''.

The principle in the said decision can be made applicable to the case on hand. Under the circumstances, the lower appellate Court correctly came

to the conclusion that Section 111 of the Indian Succession Act is not applicable, but only Section 119 of the said Act is applicable to the facts of

the case and, as such, the plaintiff is entitled to get half share in the property.

It is admitted by both parties that the 9th defendant is the cultivating tenant of the property and the lease paddy is 2 Kottah per crop. Now, the

plaintiff has made a claim in the lease paddy for 5 crops valued at Rs. 1,000. The 9th defendant stated that she had paid the lease paddy with

defendants 1 to 8 she had no occasion to see either the plaintiff or his father. The lower appellate Court adverted that the 9th defendant ought to

have verified as to who are the legal heirs entitled to collect the lease paddy and only then he ought to have delivered the same. It is the duty of the

tenant to make proper enquiry before parting with lease paddy; but the 9th defendant simply stated that she had paid only with defendants 1 to 8

and there is no material to show that any enquiry was conducted by her. It is not the case of the 9th defendant that she had made enquiry and after

that only payment was made. It is also curious to note that the 9th defendant has not entered into the box and stated the circumstances under which

she has paid the lease paddy only with defendants 1 to 8. She also attempted to state that there was no yield during the particular period and only

if there was yield, she is liable to pay lease paddy. She has not filed any document to show that she would be liable to pay lease paddy only if there

was yield. If there were no crops, then there was no necessity for her to pay with defendants 1 to 8. This would only indicate that there could not

have been any failure on the crops during the relevant period and now this stand has been taken by the 9th defendant only to defeat the valuable

right of the plaintiff. Because of this only, the lower appellate Court came to the conclusion that the 9th defendant is liable to pay a sum of Rs.

1,000 being the value of arrears of lease paddy due to his share for 5 kottahs of paddy.

The lower appellate Court has correctly analysed the oral evidence as well as documents in its proper perspective. There is no erroneous

appreciation of law to ascertain the quantum of share to the plaintiff as well as defendants 1 to 8. The 9th defendant ought to have verified before

giving the lease paddy to the legal heirs and in the absence of any proper enquiry, she is bound to pay the due share of the plaintiff. There is no

illegality or infirmity in the judgment of the lower appellate Court and no interference is called for.

For the reasons stated above, both the second appeals fails and accordingly dismissed. No costs.