Kannammal, Ponnarasi and Rajagopal vs Rajeswari and Jagannathan

Prabha Sridevan, J.—The appellants case is that Section 10 of the Transfer of Property Act would apply to Ex-A1, the settlement deed

which decides the parties'' rights while according to the respondent Section 14 of the Act will apply. There was one Swami Naidu. He gave a life

interest in his properties to his son-in-law Munusamy Naidu, under a deed of settlement dated 02-04-1932, which is also registered. The recitals

of this document are crucial. Munusamy Naidu died leaving behind him surviving two daughters, three sons and the widow and three sons of the

pre-deceased son. One of the daughters is one Dadhabai Ammal. Her sister, brothers and legal representatives of the other brother released their

rights in the property by a registered release deed dated 31-05-1959 (Ex-A2). So whatever rights they might have had vested in Dadhabai

Ammal. She had two sons and a daughter The daughter and her husband are the respondents herein. Dadhabai Ammal and her two sons sold the

property to one Sundaram Chettiar. The appellants herein are his legal representatives represented by Power Agent. Sundaram Chettiar filed

O.S.NO.7642 of 1983 for declaration and recovery of possession against the respondents. The Trial Court dismissed the suit holding that the

settlement deed dated 02-04-1932, Ex-A1 is hit by the principles of Section 14 of the Transfer of Property Act.

The learned counsel for the appellant would submit that the Trial Court erred in dismissing the suit. According to him, under the settlement deed

Munusamy Naidu alone was given a life interest and his children were to take the property absolutely. Therefore, their rights of alienation cannot be

restrained and if such a clause was there it was void as per Section 10 of the Transfer of Property Act. He would submit that as per Ex-A2,

releasors gave Dadha bai Ammal their absolute share in the property. After that she became solely and absolutely entitled to the suit property with

full powers of alienation and she had settled the property to her two sons under Ex-A3 dated 31-05-1979. She also executed the sale deed Ex-

A4 alongwith her sons to the appellants herein. According to the learned counsel there was no justification to hold that the rule against perpetuity

would hit Ex-A1. He relied on Ramkishore Lal Vs. Kamal Narain 1963 Supp.2 SCR 417 and Radha Sundar Dutta Vs. Mohd. Jahadur Rahim

and Others, .

Mr. S.V. Jayaraman, learned Senior Counsel for the respondent on the other hand would submit that it is not possible for the appellants to take

the benefit of one clause and ignore the other and while the reasoning of the Trial Court may not be entirely satisfactory the conclusion is not

erroneous. He would submit that g[j;jpu gt[j;jpu ghuk;ghpakha; mDgtpj;J tu ntz;oaJ will only mean successive life estates in perpetuity. The learned

Senior Counsel would also submit that the very fact that the word rh;t Rje;jpukha;; is not found, shows that absolute estate is not given to the heirs

of Munusamy Naidu. Therefore, the judgment of the Lower Court is perfectly needs no interference.

Since the appeal has to be decided on the construction of a document the recitals of the documents are extracted:

@fPH;fz;l mokid tPLfs; fpiua njjp Kjy; vd; mDnghfj;jpYk;. RthjPdj;jpYk; ,Ug;gij nkw;fz;l egh;flhhp Kdprhkp eha[L vdf;F kUkf

gps;isahfapUg;gjpdhy;. mtUf;F vd;dhy; Xh; Mjut[ Vw;gLj;j ntz;Lk; vd;fpw vz;zk; bfhz;l fPH;fz;l tPL kidfis RthjPdgLj;jp mjw;Fz;lhd K:y

j!;jhnt$pfis bfhLj;J brl;oy;bkz;lha; bfhLj;Jtpl;likahy; fPH;fz;l brhj;jpd; tUkhdj;ij khj;jpuk; th'';fp fPH;f;fz;l brhj;JfSf;F fl;l ntz;oa thpfis fl;oa[k;. bra;a

ntz;oa hpg;ngh;fisr; bra;Jk;. kpr;rKs;s Jifiaf; bfhz;L $Ptpj;Jf; bfhz;L tu ntz;oaJ/ kw;wgo fPH;f;fz;l brhj;Jfis fpiuak; mlkhdk;. brl;oy;bkz;L. jhdk;.

xg;ge;jk;. $hkPd; vt;tpj guhjPdk; bra;a ghj;jpaij fpilahJ/ nkw;fz;l egh; $Pt jpirf;F gpwF nkw;fz;l egUila re;jjpfis g[j;jpu gt[j;jpu ghuk;ghpakha;

mDgtpj;J tu ntz;oaJ/ jtpu kw;wgo nkw;fz;l re;jjpfs; R{hpad; re;jpuhs; cs;stiuapy; fpiuak;. mlkhdk;. $hkPd;. xg;ge;jk;. ahbjhU guhjPdk; bra;a

ghj;jpaij fpilahJ/ nkw;fz;l re;jjpfs; fPH;f;fz;l brhj;Jfspd; tUkhdj;ij khj;jpuk; th'';fp fl;l ntz;oa thpfis fl;oa[k;. bra;a ntz;oa hpg;ngh;fis bra;Jk; kpFjp

bjhifapy; $Ptpj;J tu ntz;oaJ/@

There is no ambiguity regarding the first part. Under this, the settlor gives his son-in-law, Munusamy Naidu with an intention to make some

provision for him the properties with the right to enjoy the income therefrom after paying the taxes and effecting repairs. The said Munusamy Naidu

had no right to sell, mortgage or otherwise create any encumbrance or effect a transfer by way of settlement, gift, agreement or charge. The hitch

comes in the second part which states that after the life time of the aforesaid person his heirs were to enjoy the property, ""g[j;jpu gt[j;jpu

ghuk;ghpakha;@/ The heirs cannot alienate the property so long as the sun and moon exist and these heirs shall enjoy only the income after paying

the taxes and effecting repairs.

The settlor obviously intended to create a life estate in favour of Munusamy Naidu. Can the same be said of the interest created in favour of this

children? The Court below came to the conclusion that these clauses are hit by Section 14 of the Transfer of Property Act. Section 14 reads thus:

Rule against perpetuity.-- No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more

persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom,

if he attains full age, the interest created is to belong.

The rule applies to creation of future interests and it also prescribes time limit beyond which such interest shall not vest. Therefore, the Lower

Court held that since the transferor can create as many interests as he desires in favour of the persons at the time of transfer and since

Nanukannammal, Dadabai Ammal and Narayana Naidu were living at the time of Ex-A1 they will get only a life interest and after their lives, their

descendants would be entitled to the property absolutely and so the first respondent being Dadabai Ammal''s daughter is entitled to a share, since

Dadabai Ammal had no right to alienate the property over which she had no right to alienate. If what is applicable is only Section 10 of the

Transfer of Property Act the situation is different.

Section 10 states that any condition which imposes a restraint on alienation shall be void and is extracted below:

Condition restraining alienation.-- Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any

person claiming under him from parting with or disposing off his interest in the property, the condition or limitation is void, except in the case of a

lease where the condition is for the benefit of the lessor or those claiming under him; provided that property may be transferred to or for the benefit

of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or

her beneficial interest therein.

The word g[j;jpu gt[j;jpu ghuk;ghpakha;. in Ramanatha Iyer''s Law Lexicon is held to mean giving an absolute estate. The learned Senior

Counsel appearing for the respondent on the other hand would submit that there are no words to denote an absolute estate like rh;t Rje;jpukha;

and nor is there any recital to signify the vesting of title since it merely states mDgtpj;J tu ntz;oaJ which could only denote possession, with no

powers of alienation but no ownership. If there is a valid transfer any condition in restraint of alienation is void and the transfer stands. The transfer

in favour of Munusamy Naidu is only that of a limited estate. But the transfer to his heirs does not indicate a life estate but a transfer subject to a

restraint on an alienation. In an English case Re Parry and Daggs 1886 31 Ch D 130,134, cited in Mulla''s Transfer of Property Act 9th edition,

Fry, LJ has held as follows:

From the earliest times the courts have always leant against any device to render an estate inalienable. It is the policy of the law always to make

estates alienable, and it is immaterial by what device it is attempted to prevent an owner from exercising the power of ownership.

Section 10 of the Transfer of Property Act incorporates a rule of equity and good conscience since the right of transfer is incidental to, and

inseparable from the beneficial ownership of property. The rule against perpetuity enacted which is in Section 14 of the Transfer of Property Act

will come into operation where the transfer of property creates an interest which is to take effect after the lifetime of one or more persons living at

the date of such transfer. In this case, the settlement does not either vest the property on someone who is not in existence on the date of transfer or

nor does it delay the vesting beyond the minority of a person who is a alive at the time of transfer. The result of the rule against perpetuity is that the

minority of the ultimate beneficiary is the latest period at which an estate can be made to vest.

Nataraja Mudaliar Vs. Panduranga Mudaliar, also deals with the deed of settlement. In that case under the settlement deed the settlor''s wife T

was to take the properties with absolute rights and after her demise his nephew P who performed the funeral ceremonies and take such of the

properties as remained in T''s possession at the time of her death absolutely. It was held that T had only a right to enjoy the property with absolute

powers of disposal till her lifetime and the clause provided for T becoming entitled for the property was not repugnant and would only show that he

intended that T should have such limited right and not have the absolute right of taking the property to be enjoyed by her from generation to

generation. The recitals in that case was as follows:

eP vd; k]dtpahdgoahYk; ekf;F vt;tpj re;jjpa[k; ,y;yhj goahYk; cd;]dj; jtpu vdf;F rl;lg;go ntW thhpRfs; ,y;yhjgoahYk; vd; $Pt jpirf;F gpwF eP

epk;kjpahf thH;e;J tuntz;Lbkd;w ey;y@

and the word re;jjp was held to mean issues and thhpRfs; to mean heirs and the decision in Bondada Manumallaswami and Another Vs. Rinisetti

Chinna Narayanaswami (deceased) and Others, was cited as follows:

In Sanford V. Sanford Joyce, J., 1901 I Ch. 939 pointed out that : The rule is to construe a will ut res magis valeat quam pereat, and to give

effect, so far as possible to all the words used by the testator, quoting the dictum of Kay, J., in Williams V. Pounder (1887)56 L.J. Ch. 113) . In

the judgment above referred to Joyce, J., observed: It has been said by the Court of appeal that the true way to construe a will is to form an

opinion apart from the decided cases and then to see whether these decisions require any modification of that opinion, not to begin by considering

how far the will in question resembles other wills upon which decisions have been given.

Lakshmi Ammal V. Alluddin Sahib 1962 2 MLJ 187 was also referred to in this case and it was held that when the testator took care to

indicate with the properties without any distinction after his wife''s lifetime should go to each of the daughters, it should be presumed that it was

clearly in his mind that the wife''s estate was only to be a limited estate or life estate and not an absolute one.

If we test the recitals in this settlement in that context it is seen that the settlor had not indicated to whom the properties should go after

Munusamy Naidu''s santhathis. The settlor also handedover the title deeds to the said property forthwith indicating that he had divested himself of

all rights in the property. Therefore, the absolute estate must be held to have vested in Munusamy Naidu''s santhathis. If that is the case the next

clause which imposes a restraint on alienation will be clearly hit by Section 10 of the Transfer of Property Act. Therefore, when the Settlor referred

to Santhathis it can only be held to mean the heirs of the settlee, on whom the estate was to devolve on his death. Then the settlement deed

becomes a valid document and the intention of the settlor can be given effect to as fully as possible barring his restraint on alienation which as we

have seen already is against public policy. But the learned Trial Judge has held the entire documents to be invalid. Further, apart from the recitals in

the settlement deed restraining the powers of alienation there is nothing to indicate who shall be given power to enjoy the property after Munusamy

Naidu''s santhathis or that it shall go to their heirs and their heirs thereafter, in perpetuity no one having the power to alienate the property. It was

submitted that one has to take the entire document as a whole ascertaining the intention of the settlor and give effect to it and not dissect each

sentence so as to give an artificial meaning. It is clear from a reading of the entire settlement deed that the settlor wanted to make provision for his

son-in-law. Though there are no pleadings to that effect it is clear that Swami Naidu, the settlor had only one daughter. Again though there is no

specific mention to it, it is almost certain that his daughter had died and that is why he wanted to make some provision for the son-in-law. At the

same time, he took care that the son-in-law did not dissipate the properties to the prejudice of his own blood namely his grandchildren and

therefore, a limited life estate was given to the son-in-law. He definitely intended his descendants to benefit but for some reason imposed a

condition restraining alienation perhaps by way of abundant caution because he felt that in the immaturity of youth his grandchildren may waste the

property. But that is not relevant to the present case. What is relevant is that he imposed an absolute perpetual restraint on alienation which is void

since the transfer was an absolute transfer in favour of Munusamy Naidu''s santhathis.

The last named beneficiaries in the deed are the heirs of Munusamy Naidu. It is settled law that under the rule of construction of documents

that if out of two constructions possible one results in giving effect to the deed and one results in avoiding the deed, the former should be preferred.

If it is possible to stretch the words, ""nkw;fz;l egUila re;jjpfs;@ in the document to mean the heirs in perpetuity which would result in the settlor

transferring the life estates in perpetuity and if this construction is adopted then the Court is left with no option but to ignore the document as the

Trial Court has done. On the other hand if the words, re;jjpfs; referred only to the issues i.e., the children of the settlee Munusamy Naidu then the

settlor intended them to take the property absolutely as the words, g[j;jpu gt[j;jpu ghuk;ghpakha;. with a restraint on alienation. Since Section 10

of the Act declares that such an alienation is void, the ""re;jjp s"" the heirs of Munusamy Naidu are entitled to ignore the restraint on alienation and

deal with the property as absolute owners. This is what they have done and therefore, the release deed in favour of Dadabai Ammal cannot be

held to be invalid and the sale deed in favour of appellants is also a valid sale.

In these circumstances, the judgment of the Court below is set aside and the appeal is allowed. The suit is decreed as prayed for. No costs.