Thimmi Chetty vs Goundan alias Muniappa Gounder

Ramaprasada Rao, J.—The plaintiff who was not successful in O.S. No. 20 of 1968 on the file of the District Judge of Dharmapuri at

Krishnagiri, is the appellant. The suit scheduled property belonged to one Thathi Chetti and his permanently kept concubine Muniamma, they

having purchased this property under Ex. B-1 dated 25th June 1930. It is common ground that Muniamma, by such purchase, secured an absolute

interest over one half of the property. The said half is not in question in this appeal; nor was it challenged in the Court below. The subject matter of

this appeal, therefore, relates to the one half interest which Thathi Chetti had over the suit property by virtue of the purchase as above. Under Ex.

A-1 dated 8th October 1931 Thathi Chetti executed a settlement deed in and by which he disposed of his one half interest, which we shall

hereafter refer to as the interest of Thathi Chetti, and the terms of such settlement are the subject matter of this appeal, as well as in the Court

below. We shall presently refer to the recitals in Ex. A-1, as the controversy revolves upon the interpretation of the recitals therein. To continue the

narrative, after such a settlement, both Thathi Chetti and Muniamma sold their interest in the property under Ex. B-4 dated 30th November 1934

to the first defendant, who was the son of the concubine. The plaintiff''s case is that under Ex. A-1 and in accordance with the recitals therein,

Thathi Chetti provided only a life interest in favour of Muniamma, thereafter reserved a life interest in himself and the ultimate remainder was to go

to his two sons, namely, the plaintiff and another son. No one on behalf of the other son is interested in this litigation. But the plaintiff''s case is that

as per the recitals of Ex A-1, the ultimate remainder in the interest of Thathi Chetti reverted to him and his brother after the death of Muniamma in

1967 and that, therefore, the claim of the first defendant as absolute owner of the entirety of the property (he having secured the other half from his

mother) is untenable and hence he was entitled to a decree for partition of the A schedule property and for separate possession of his half share

therein, as the ultimate remainderman of the estate of his father. This was resisted by the first defendant on the ground that the recitals in Ex. A-1

are clear and even if liberal interpretation has to be given to the recitals in Ex. A-1, on an overall reading of it, it is clear that after the life time of his

mother Muniamma, Thathi Chetti, her paramour, was the immediate remainderman and he having joined his mother under Ex. B-4 to sell the one

half share in the property, nothing more remained for the plaintiff to succeed to the estate of Thathi Chetti in so far as the plaint property is

concerned. The lower Court framed the following issues on the above material pleadings.

Whether the plaintiff is entitled to partition of A schedule properties?

Whether the plaintiff is entitled to any mesne profits and if so to what amount ?

Whether the transfer of A schedule property by settlement deed dated 8th October 1931 is void as being opposed to public policy ?

Whether Bodiammal alias Muniammal constructed the house in the suit A scheduled land out of the income from the said land ?

Whether the 1st defendant had perfected his title to the A schedule land by adverse possession ?

To what relief is the plaintiff entitled ?

Additional Issue:

Is the suit for partition not maintainable ?

What, if any, is the value of improvement ? and held against the plaintiff. Hence the appeal.

Mr. M.R. Narayanaswami, appearing for the appellant, strenuously contended that the recitals in Ex. A-1 should be read as a whole and even

though it is a deed of settlement, the principles of interpretation applicable to Wills would also apply while reading and understanding a settlement

deed, that what Muniamma, the concubine of Thathi Chetti, got under Ex. A-1 was only a life interest and that the latter stipulations therein further

contemplated a life interest in Thathi Chetti himself and an ultimate remainder to his sons including the plaintiff. Having thus interpreted the

provisions of Ex. A-1, the learned counsel would stress upon the principle of interpretation of deeds and instruments and would ask us to look into

the entirety of the document instead of truncating it and contended that thus interpreted the decision of the Court below is wrong.

As the ratio which has to be rendered in this decision entirely depends upon the interpretation of the document in question, we would extract Ex.

A-1 for purposes of immediate reference so as to appreciate the correctness of the contentions of the learned counsel for the appellant:

The first portion of the document which is again excerpted for a proper understanding and interpretation appears to be in unambiguous and clear

terms.

The recital shows that Muniammal sought for assistance and benevolence from the donor late Thathi Chetti and wanted him to provide her

permanently with some property as that she could spend the rest of her life. It is in this context that the donor, not for the purpose of future

cohabitation, but in consideration of the past relationship and at the behest and request of his concubine, who lived with him for 20 years, made a

small provision, the value of which was estimated by him at Rs. 100/-, and it related to the one half of the entirety of the suit property, and made it

further clear that as and from the date of the disposition she was to take it absolutely and he stipulates that he has delivered possession of that

portion of the property also to her. There is, therefore, an immediate vesting of the title in one moiety of the property to Muniamma and there is the

categorical assertion that possession of that portion of the property was also delivered. In the light of these, we are of the view that any further

limitations imposed by the donor so as to impinge upon the absolute nature of the disposition already made, which, in our view, is an unconditional

gift in present to the donee therein, should only be read to be rejected as a void limitation on absolute title. S. 19 of T.P. Act runs thus:

Vested interest.--Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to

take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested,

unless a contrary intention appears from the terms of the transfer.

A vested interest is not defeated by the death of the transferee before he obtained possession.

Explanation:--An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment hereof is

postponed, or whereby a prior interest in the same property is gives or reserved to some other persons, or whereby income arising from the

property is directed to be accumulated until the time of enjoyment arrives or from a provision that if a particular event shall happen the interest shall

pass to another person.

On a fair reading of the first portion of the excerpt as above, we have no hesitation in holding that there has been a transfer of property and an

interest therein was created in favour of Muniamma and such a creation was as and from the date of the execution of the instrument and there was

not only this vesting of such title in the property within the meaning of S. 19, but it was also followed by a solemn affirmation that possession of the

moiety was also delivered to the donee. Such possession was possible in the instant case because Muniamma was already in possession of the

other half share. The terms used in a deed should be interpreted in its strict and primary acceptation and should not be viewed with reference to the

secondary motives referred to by the settlor in an instrument of settlement. We shall presently refer to the clauses which follow, which according to

us, are restrictive intrinsically and otherwise. It would, therefore, mean that the various restrictive clauses which follow the primary unambiguous

disposition would be void, as failure to comply with them will not involve any forfeiture at all. No doubt, it is generally accepted that an instrument

has to be read as a whole so as to assist the Court, which is called upon to interest it to find out the substance of the transactions contained in the

deed and also the nature of the disposition contemplated therein. But this generic exposition of law as to interpretation of deed is always governed

by the equally well-known principle of interpretation that when the terms are unambiguous and clear the intention of the executant need not be

searched for and a demand is made on the Courts for the acceptance of the primary words deployed by the donor or the executant without any

further probe into the motive or design behind the execution of such instruments. Reference is made to a decision of the Supreme Court reported in

Ramachandra Shenoy and Another Vs. Mrs. Hilda Brite and Others, and also a decision of our Court reported in Hamsaveni Ammal v. Rajagopal

Chettiar 1977-1 M.L.J. 207. We are afraid that the Supreme Court decision would not help the learned counsel for the appellant. There, the

dispositive clause read as follows:

3(c). All kinds of movable properties that shall be in my possession and authority at the time of my death, i.e., all kinds of movable properties

inclusive of the amounts that shall be got from others and the cash, shall after me be enjoyed by my eldest daughter Sevarina Sabina and after her

lifetime by her male children too as permanent and absolute hukdars.

There is a difference between the recital which came up for consideration before the Supreme Court and that which is confronting us. Whilst in the

Supreme Court case there is an express disposition for life in favour of the daughter, in our case the disposition is positively of an absolute nature in

favour of Muniamma to take effect forthwith. As an argument was addressed before the Court that the entirety of the document should be looked

into, the Supreme Court had to discuss about the correctness of the contention raised on the terms of the Will as above, whether there was an

apparent absolute interest in favour of the daughter or an absolute interest. Having regard to the recitals which immediately followed and which, in

our view, governed the situation, the Supreme Court expressed their opinion that what was conferred on the daughter was only an apparent

absolute interest. Even so, in Hamsaveni ammal v. Rajagopal Chettiar 1977-1-M.L.J. 207 , the clause considered by V. Ramasami, J., ran as

follows:

Here again, the use of the word "" "" was accepted upon to subserve the contention that there was an absolute disposition in favour of the donee.

The learned Judge negatived this contention following the well-known principle That the recitals in a document if ambiguous, have to be read as a

whole so as to understand the expression "" "" as an appellation and not as an indicative of a positive vested interest in favour of the donee. These

are documents and instruments wherein expressions like "" "" etc., are used as words of art which some times lead to controversies as to the

entitlement of persons eo nominee mentioned therein as those who could secure those properties under the instrument. But in our case the earlier

portion of the document makes it clear that the settlor has gifted the property to Muniamma and has expressed unequivocally that on and from that

date she shall have absolute rights over it'' "" "" and it is also proclaimed that possession of the half share has also been delivered to her. Therefore,

the recital which constitutes the expression disposition in this case, raises no doubt at all about the absolute vested interest created by Thathi Chetti

in favour of Muniamma and such a vested interest cannot be divested by the adoption of certain follow up recitals which would militate against such

vesting of title and which would also delimit the force and legality of such entitlement. In a Bench decision of out Court, reported in Saradambal

Ammal v. Natesa Mudaliar 1072-1-M.L.J. 244=84 L.W. 830 it was observed by the learned Judges that such conditions should always be

understood as conditions subsequent and not as the intentional basis for the disposition as such. The first portion of the recital referred to above

cannot divest, therefore, a vested interest, because the interest was never contingent; nor was it meant or understood to be contingent upon an

obligation. We shall, however, proceed to refer to the follow up recitals which were the basis of the argument of Mr. M.R. Narayanaswami:

The recitals that followed could be broadly compartmentalised under two heads. The first one is that Thathi Chetti felt apprehensive about the

fidelity of the lady after the execution of the settlement and, therefore, he wanted to impose a condition that as long as she is loyal and obedient to

him, the settlement would operate on its own force. This was the very clause, which the Division Bench of our court in Saradambal Ammal v.

Natesa Mudaliar 1072-1-M.L.J. 244=84 L.W. 830 said was inoperative, as the gift made by the donar in the earlier part of the document in that

case constituted as it were an absolute gift pure and simple, the effect of which could not be limited by any conditional clauses thought of and

incorporated in the same document. The other portion of the latter portion of the recital copied above contemplated that after the death of

Muniamma, the property should revert to Thathi Chetti in the first instance and thereafter (after his lifetime) his sons should take the property in

equal shares. The contention of Mr. Narayanaswami is that Thathi Chetti created a life interest in favour of Muniamma followed up by another life

interest in himself and as ultimate remainder in favour of his sons. We are unable to agree as to this course of interpretation. We are considering this

aspect only in the alternative, as we have already expressed in candid terms that there was an absolute disposition in unequivocal and unambiguous

language by Thathi Chetti in and by which he conferred an immediate interest in Muniamma, which was an absolute one. But for purposes of

completion and with respect to the learned counsel, we have considered his alternative argument also. We are unable to understand the follow up

clause as meaning that Thathi Chetti contemplated two life interests, one in favour of the concubine Muniamma and after her death, in favour of

himself. If at all and literally interpreted the language employed, it appears to us that Thathi Chetti, who suspected the fidelity and loyalty of his

concubine after the execution of the instrument, wanted to make it very clear that in case of happening of such a contingency and certainly after her

death the property should revert to him absolutely. He did not reserve a life interest in himself, but contemplated an ultimate vested reminder in him.

It is only after his death, his sons could come anywhere near the property. Understanding the follow up clauses in the manner said above, the sale

of the property by both Thathi Chetti and Muniamma under Ex. B-4 puts a lid to the controversy, for the the life estate holder, viz., Muniamma and

the ultimate reminderman, viz., Thathi Chetti conveyed their right, title and interest in the property to the first defendant and thereby making the first

defendant the owner in the eye of law of the other portion of the suit property. Even on a fair interpretation and understanding of the expressions

which followed the main dispositive unambiguous clause, we are unable to agree with the learned counsel for the appellant that the first defendant

did not secure a title in the property as spoken to by him. We have already referred to the fact that the first defendant was the owner of one moiety

of the property. By obtaining a sale over the other half from Thathi Chetti and Muniamma, he became the full owner of the entire property. There

was nothing, therefore, left for the plaintiff to seek for a partition of the property of Thathi Chetti, as there was none in existence for him to ask for

such a partition and separate possession. The conclusion of the learned trial Judge, though for different reasons, is correct. The appeal, therefore,

fails and is dismissed. There will be no order as to costs.