Rekapalli Radhakrishnayya alias Frank R. Anderson and Another vs Bhamidipati Sakuntala and Others

Basheer Ahmed Sayeed, J.—This appeal arises out of the judgment and decree of the learned Subordinate Judge of Kakinada decreeing

the suit in favour of the plaintiff, declaring that the plaintiff is entitled to recover a one-third share of the plaint B and C schedule properties with

mesne profits and costs of the suit and passing a preliminary decree to that effect.

The plaintiff filed the suit for partition by metes and bounds for recovery of her one-third share of the properties set out in B and C schedules

appended to the plaint, and, for separate possession of such share. The plaintiff also prayed for mesne profits, past and future, in respect of the

schedule mentioned properties. The plaintiff''s case was that her maternal grandfather one Paddibhotla Venkata-krishnia executed a deed of

settlement dated 5th May, 1903, marked Ex. P-2 in the case, creating an absolute estate in favour of the plaintiff''s mother and also two of her

maternal aunts to the extent, of one-third share each in the properties mentioned in the schedules B and C to the plaint, the settlor reserving to

himself certain interests for his lifetime without any rights of alienation and that her mother died in 1917, even during the lifetime of the maternal

grandfather, leaving the plaintiff and her brother. The senior maternal aunt of the plaintiff is said to have died in or about 1905, while the junior

maternal aunt died in 1943. The settlor himself died on 30th August, 1933. ""She further contended that though this deed of settlement contained

certain conditions in respect of the devolution of the property after the death of her mother, those conditions were void and inoperative, and, that

she being the daughter of her mother who got an absolute estate under the settlement deed, Ex. P-2, she was entitled exclusively to a one-third

share of the properties described in the schedule to the plaint according to the law of succession in respect of Stridhanam property; while the one-

third share belonging to the senior maternal aunt was inherited by the second defendant being the only daughter of her mother. The share of the

junior maternal aunt had already been settled in equal moieties on the father of the third defendant and the husband of the fourth defendant. The

third and the fourth defendants therefore took a one-sixth share each. The fifth defendant is an alienee from the first defendant who is the brother of

the plaintiff.

The contesting defendants have been the first and the fourth defendants. While the fourth defendant contended that she was not a necessary or

proper party to the suit, and that she was not liable to pay anything towards past or future mesne profits, she also denied that the daughters were

given any absolute estate in the properties of the late Venkatakrishnia, and, generally supported the case of the first defendant. The first defendant

who is the main contestant in the suit claimed that the settlement created only life estates in favour of the three daughters of Venkatakrishnayya, the

settlor, that the remainder after the life estate in favour of the three daughters, vested in the male heirs of the daughters as per the terms of the

settlement, that the plaintiff being a daughter was not entitled to any share in the suit properties, that the deed of settlement did not contain any void

or inoperative terms, that the gift in favour of the three daughters was only of a limited extent, that the gift-over in favour of the male children of the

daughters was effective, that by reason of his junior maternal aunt having died issueless, her property also vested in the surviving son of

Venkayamma that is the 1st defendant and the daughter of Sarva Lakshmamma, i.e., the 2nd defendant, that he was therefore entitled to a moiety

of the suit properties to the exclusion of the plaintiff, that the fourth defendant had no right to the suit properties, and, that the fifth defendant was

only an alienee from the first defendant to the extent of his (1st defendant''s) half share in the suit properties. The first defendant also denied his

liability to pay any mesne profits. The fifth defendant being the alienee from the first defendant naturally sailed with the first defendant.

After framing as many as six issues and after considering numerous authorities cited by both the parties, the learned Subordinate Judge came to

the conclusion that the contention of the plaintiff was right, that only an absolute estate was created in favour of the daughters by the deed of

settlement, that the further words used in the deed had the effect of altering the legal course of succession to an absolute estate and that therefore

they were void and inoperative. Against this finding the 1st and 4th defendants have preferred this appeal.

The main question in this appeal is therefore one of construction of the deed of settlement, Ex. P.-2. The learned Counsel for the appellants

contends that the deed of settlement, construed as a whole, creates only a life estate in favour of each of the daughters, to the extent of 1 /3 and

that the ultimate devise is in favour of the male issues in preference to the female issues born to the said daughters-and that there is nothing in the

terms of the settlement deed that militates against this interpretation of the true intention and meaning of the settlor. As against this, the learned

Counsel for the respondents would argue that when Clauses 4 and 8 of the deed of settlement are read together, what is given to the daughters is

only an absolute estate, and an absolute estate having been created the further terms and conditions of the deed restraining devolution in the usual

legal manner applicable to absolute estates are repugnant to the creation of the absolute estate and are therefore void and inoperative. As between

these two contentions, we have to find out from a reading of the various clauses of the settlement as a whole as to what exactly was the real

intention and meaning of the settlor in making the settlement.

Before we proceed further, it is necessary that the relevant clauses of the settlement deed which are Clauses 4, 7 and 8 should be set out. The

fourth clause reads as follows:

It is settled that you, three individuals (daughters), shall take the said property, subject to the terms mentioned below, with equal rights in three

shares and shall pass on hereditarily from your sons to grandsons and so on i.e., unlike Stridhanam (property), if you should each separately have

male issue and female issue, the share of each of you shall pass to her sons or if there should be no male children, to her daughters.

The seventh clause reads as follows:

It is settled that in case any one of the said three daughters should not have aurasasanthana (children born in her) or should unfortunately die

issueless, her share of property should only pass to the daughters and their aurasa-santhans then living; and the husband of the deceased or his

heirs shall have no right thereto.

And the eighth clause reads as follows:

The said property has been subject to the said conditions, delivered possession of to you. Hence, you shall enjoy the same happily and

hereditarily from your sons to grandsons and so forth with powers of gift, sale, etc. subject to the said conditions.

The seventh clause really applies to the case of the third daughter Bapanamma, who died issueless and whose share, according to the said

clause, enures to the benefit of the other surviving daughters and their aurasa-santhans and the husband of the deceased daughter or his heirs shall

have no right. This clause is not very material in this case except to the extent that under this clause the interest of the third daughter has ceased on

her death and has devolved upon the aurasa-santhans of her sisters, she having died issueless.

In construing a deed of this kind, it will be relevant to take into consideration certain facts which have a bearing on the question at issue. The

settlor in the present case is a Hindu governed by the Mitakshara law, and while providing for the devolution of joint family property, members of

the Hindu joint family entertain certain notions and wishes which cannot ordinarily be ignored. It can be fairly assumed that generally it is the desire

of a Hindu testator or settlor that an estate, particularly an ancestral estate, should be retained in the family as far as possible and ordinarily it is the

case that in the Hindu Society women do not take absolute estates by inheritance which they are enabled to alienate in the exercise of their rights of

ownership. Further in this present case, the settlor had only daughters and his anxiety would naturally be to keep the property in his family and that

it should go to his heirs as far as possible, though he intended to benefit his daughters at the same time. The settlor seems to be also conscious that

if the property were given absolutely to the daughters, it will go not to the male children by them, but only to the daughters. If these things are kept

in view, there should be no difficulty in arriving at the real intention of the testator in the present case and the nature of the estate he was creating

while devising the property in favour of his daughters.

An examination of the language of Clause 4 of the deed of settlement, Exhibit P-2 in this light reveals that while the testator bestows on the

three daughters a benefit, he makes clear, at the same time, by unambiguous terms as to what exactly is the character of the estate that he seeks to

bestow upon the daughters for their enjoyment. He states in Clause 4 of the said deed that the three daughters shall take the said property, subject

to the terms mentioned, below, with equal rights in three shares, and, he completes the dispositive words by further stating that the estate so vested

shall be passed on hereditarily from son to grandson and so forth. Not being satisfied with this, he seems to make it further clear as to what he

means by the estate being passed from son to grandson. He therefore adds the words that ""unlike streedhanam property"" the property bestowed

upon the daughters should devolve upon male issues in preference to female issues, and so forth. This clause, taken as a whole, therefore

constitutes the actual creation of the estate in favour of the daughters and in the very act of creating the said estate, the settlor makes his meaning

quite clear by the language which he has adopted. Thus while creating the estate in favour of the daughters, the language of this clause as a whole

makes it obvious that the testator intends that the property should be first enjoyed by the three daughters for their lifetime and that after such

enjoyment it should devolve upon his heirs through the daughters but not in the manner that streedhanam property would devolve, but on the other

hand in the ordinary manner, known to Hindu Law of devolution of separate property, viz., that the daughters'' sons should get in preference to the

daughters'' daughters, if there are aurasa sons. The introduction of the words ''unlike streedhanam property'' when an estate is created in favour of

the daughters, cannot point to any other conclusion except that it was the deliberate intention of the settlor to give only limited estate to the

daughters and not confer an absolute estate, which would be the case but for the insertion of the words ""unlike streedhanam. property "". It

therefore seems to be clear to us that while the settlor intends to benefit the daughters for their lifetime, his paramount intention remains that the

property should be ultimately enjoyed by his grandsons by the daughters as a gift over and and not that it should be passed on to the daughters''

daughters. Even so, the terms of Clause 8, which are confirmatory and explanatory of what is stated in Clause 4 of the deed, indicate that the

intention of the settlor was only that the property shall be enjoyed by the daughters in such a manner as to pass it on to the sons and grandsons to

be inherited by them after the lifetime of the daughters. From a reading of these two clauses, leaving out the other terms which are descriptive of

the interests and rights reserved for himself by settlor for his life-time, the conclusion to our mind is irresistible that the settlor had no other intention

than that the daughters should be benefited by a life-estate and that the granddaughters should get only in case there are no grandsons.

The learned Counsel for the appellant has however invited our attenton to various decisions relied upon by him for the purpose of showing that

what was intended by the settlor was only a limited estate in favour of the daughters and not an absolute estate. In particular the decisions in Radha

Prasad Mullick v. Ranee Mani Dasee (1908) 18 M.L.J. 287 : L.R. 35 IndAp 118 : ILR 35 Cal. 896, Venkata Chandikamba v. Venkata Rao

(1928) 53 M.L.J. 557, Bondada Manumallaswami and Another Vs. Rinisetti Chinna Narayanaswami (deceased) and Others, , Govindaraja Pillai

and Others Vs. Mangalam Pillai and Another, , Thayalai Achi v. Kannammal (1934) 68 M.L.J. 707, Pavani Subbamma (deceased) Pavani

Gurumurthy L.R. of 1st Appellant (deceased) Vs. Anumala Rama Naidu (deceased) Mungamoor Venkatakrishna Rao and Another, ,

Narayanaswami v. Gopalaswami 46 L.W. 258, Khajeh Habibulla v. Anga Mohan Roy Chudhuri ILR (1942) 2 Cal. 363 and Nisar Ali Khan v.

Muhammad Ali Khan (1932) 63 M.L.J. 336 : ILR 7 Luck. 324 : L.R. 59 IndAp 268 , cited by him seem to be relevant to the present case. These

decisions lay down the general rules and broad principles for the construction of wills and deeds similar to the one under consideration in this

appeal and in particular, they lay down the rule that the entire, terms of the will should be taken as a whole and the intention of the testator or

settlor, should be gathered from the language used in the particular will or deed involved. In the view we have taken of the terms of the deed under

consideration in the present appeal, we do not think it necessary to discuss each one of these cases in detail. Suffice it to say that each Case has

been decided upon the construction of the particular terms and language of the will or deed involved in that case and it is difficult and dangerous, as

has been laid down in those very authorities to construe the real tenor and import of one document by the construction placed upon other

documents however similar the terms employed may be. No two wills or deeds are couched in exactly the same language so as to warrant the

application or interpretation of one document to the intepretation of another document. ''There is always a good deal of difference in the context

and the surrounding circumstances of each case and the language of each will or deed has to be construed in its particular context and the real

intention has to be collected from the general tenor of the terms of the will or deed taken as a whole; and, if there are inconsistencies or

irreconcilabilities, these may have to be reconciled so as to make the will or deed as a whole intelligible and consistent. However, we feel that

applying the principles of interpretation as deducible from the many important decisions quoted above, it will be safe and correct to say that the

intention of the settlor in the deed under consideration in this appeal, was only to bestow a limited estate in Savour of his daughters and that the

absolute estate should vest in his male grandchildren in preference to his grand-daughters.

Mr. P. Somasundaram the learned Counsel for the respondents, however, invites our attention to the following authorities, viz., Ramlal

Mookerjee v. Secretary of State (1881) L.R. 8 LA. 46 : ILR 7 Cal. 304 1 CWN 387 (Privy Council) , AIR 1935 187 (Privy Council) ,

Govindbhai Lallubhai Patel Vs. Dahyabhai Nathabhai Patel, , Haradhone Ghose Vs. Dasarathi Mukherji and Another, , Anantha Sayana Naidu,

by next friend Renu Ammal Vs. Kondappa Naidu alias Devarajulu Naidu and Others, , Krishnaswami by grandmother and next friend,

Pankajammal Vs. Srinivasan and Others, , Bishun Singh v. Thakurji Mangala Nain (1945) 1 M.L.J. 91 : L.R. 72 IndAp 27 : (1945) ILR All. 231

(P.C.), Lalla Baksh Singh v. Phoolchand (1945) 2 M.L.J. 393 (P.C.) and to a passage in Mayne''s Hindu Law at page 760 and Section 139 of

the Succession Act, and, contends that the terms contained in Clauses 4 and 8 of the deed, Exhibit P-2'' in the present case, read together, have

the effect of giving an absolute estate in favour of the daughters and that the words contained therein such as

...ulike Stridhanam property, if you should each separately have male issue and female issue, the share of each of you shall pass to her sons or if

there should be no male children,. to her daughters

have the effect of curtailing the absolute estate already bestowed in the earlier part of the Clause 4 of the deed and that therefore it should be

considered to be repugnant and consequently inoperative and void. But we feel it difficult to agree with his contention. A reading of the decisions

quoted by the learned Counsel for the respondents makes it clear that in almost every one of those cases, the terms creating the estate have been

clear and unambiguous and have left no room for any doubt as to what exactly was the intention of the testator or settlor concerned In each one of

them. The dispositive words used in each of those cases have had. the effect of creating an absolute estate and so they have been decided

accordingly. We have already stated that it is not safe, nor always permissible to import into the consideration of one will or deed, the

interpretation of the terms of another will or deed however similar the langugage and words may appear to be. We do not think it therefore

necessary to examine the authorities cited in detail for we have to deal with the terms and circumstances of each deed or will as it emerges to arrive

at the true meaning and intention of the settlor or testator. As we have already observed, in the present case, the language used by the settlor for

the creation of the estate in favour of the daughters, in our opinion, leaves no room for doubt, that what he intends to create was only a life estate

and not an absolute estate. The entire clause forms one whole by itself as expressing the intention of the settlor and does not lend itself to being split

up into parts. We consider, even otherwise, that neither the latter words in Clause 4 of the deed, nor for the matter of that, the terms. in Clause 8

of the deed, have the effect of cutting down any absolute estate created in favour of the daughters. On the other hand, those words by themselves

constitute the creation of only a life estate in favour of the daughters. Much emphasis however has been laid upon the words ''Putra Powtra

Parampara'' occurring in both Clauses 4 and 8 of the deed, not only by the lower Court but also by the learned Counsel for the respondents, but,

in the view we have taken of the construction of those two clauses, we cannot agree with the contention that these words by themselves create an

absolute estate in the daughters and that the later words seek to alter the legal course of succession to an absolute estate so created. We think that

the language of Clause 4 taken as a whole is consistent with the view that what is created in favour of the daughters is not a ""stridhanam estate"" but

an estate well known to law, viz., a life estate with a gift-over in favour of the male grandchildren of the settlor in preference to the female

grandchildren.

We do not agree also with the opinion of the learned Subordinate Judge that the terms used by the settlor in the latter part of Clause 4 have the

effect of altering the course of legal succession for the simple reason, that what the settlor is creating by the terms of the said clause is not any

estate unknown to the Hindu Law. There seems to be no warrant for such a conclusion when we keep in view the anxiety of the settlor that the

property should be made available to his male grandchildren by the daughter after the life-time of the daughters who are sought to be benefited in

the first instance.

When we see that in one of the decisions relied upon by the learned Counsel for the respondent, viz., Bishun Singh v. Thakurji Mangala Nain

(1945) 1 M.L.J. 91 : L.R. 72 IndAp 27 : (1945) ILR All. 231 (P.C), it has been held that a widow on whom no absolute estate is conferred could

still have full powers of transfer in excess of the ordinary power of transfer for legal necessity possessed by her as a Hindu widow, it is difficult for

us to accept that the mere use of the words ""Putra Powtra Parampara"" bereft of the context and what follows thereafter, would constitute an

absolute estate in favour of the donees as is sought to be made out in the present case by the learned Counsel for respondents. In the view we

have taken of the construction of the deed, viz., that it is not the intention of the donor to create an absolute streedhanam estate and then seek to

alter the legal course of succession to such an estate, and, for the reason that the true meaning and import of this deed of settlement or will should

be gathered from the language and the surrounding circumstances of each case, we feel that a detailed discussion of the scope of each one of the

authorities cited by the learned Counsel for the respondents is not called for and is not likely to serve much purpose. It is also not our desire to

make this judgment more voluminous.

For the reasons stated above, we hold that the deed Exhibit P-2 does not give any absolute estate to the daughters and that it was the intention

of the settlor as gathered from the terms of the deed Exhibit P-2 that the male grandchildren should have a preferential right to succeed to the

estate after the lifetime of the daughters of the settlor and it follows that the decree of the learned Subordinate judge is not correct and will have to

be reversed. We accordingly set aside the decree of the learned Subordinate Judge and declare that the first defendant will be entitled to a half

share of the suit properties as per our construction of the deed, Exhibit P-2 in the appeal, and the suit of the plaintiff will stand dismissed.

The appeal is therefore allowed with costs throughout payable by the plaintiff.