Shanmugham and others vs Saraswathi and others

Srinivasan, J.—The second appeal is by defendants 1 to 3 in the suit. Conveniently the properties involved in the suit can be classified into

three groups. The first group comprises items 1 to 37, second group items 38 to 44 and the third group items 45 to 57. While the trial Court

dismissed the suit in entirety, the appellate Court has granted a decree in favour of the plaintiffs for items 1 to 37 entirely and for one half share in

items 45 to 57. As regards those items a preliminary decree has been passed. As regards items 38 to 44 dismissal of the suit has been confirmed

by the appellate Judge. The plaintiffs have filed memorandum of cross-objections in so far as those items are concerned.

One Muruga Pandaram had three wives Poongavanam, Pachaiammal and Nagarammal. In this case we are not concerned with Poongavanam.

He executed a will marked as Ex.A-1 dated 1-7-1922. Under the will he dealt with certain properties in paragraph 1 which were bequeathed to

his second wife Pachaiammal after his lifetime to be enjoyed by her further life. It is stated in para 1 that after her lifetime the sons of both the wives

Pachaiammal and Nagarammal shall divide the property. In paragraph 2 some other items are given for life to Nagarammal and again there is a

clause that after her lifetime the sons of both the wives shall divide the property. In paragraphs certain properties are given to Kullammal and

Dhanabagyam his daughters to be enjoyed for life and after their lifetime to be taken by their sons absolutely with powers to alienate. In paragraph

4 certain properties are given to his another daughter to be enjoyed by her for her life and to be taken after her lifetime by her sons absolutely with

powers to alienate. The most important and relevant paragraph for the purpose of this case is paragraph 5. He has mentioned several items of

properties in that paragraph and bequeathed the same to both the wives Pachaiammal and Nagarammal after his lifetime for their enjoyment for life

and after further their lifetime, their sons shall divide equally and enjoy the same. After the lifetime of the sons, their children shall take it absolutely

with powers to alienate. The Tamil expressions used in clause 5 are, when he referred to his sons (vernacular matter omitted) and when he referred

to his sons'' issues (vernacular matter omitted). The question is, what exactly is the meaning of the word (vernacular matter omitted) (pillaigal) used

by the testator in the Will. Normally (vernacular matter omitted) (pillaigal) indicates male children. But in several parts of the State the word

(vernacular matter omitted) (pillai) is also used when female child is referred to. In fact the expression is used in several parts or the State to

indicate all the children including males and females.

The contention of the respondent is that a distinction has been made by the testator between the expressions (vernacular matter omitted) and

(vernacular matter omitted). According to him, whenever he wanted to give any item to his sons, he referred to them as (vernacular matter omitted)

and when he expressly referred to the issues of his sons, he used the expression (vernacular matter omitted). That itself according to learned

counsel for the respondents shows that he wanted all the female and male issues of his sons to take the property. That interpretation put forward

by learned counsel for the respondents herein has been accepted by the lower appellate Court, while the contrary interpretation put forward by the

appellant''s counsel was accepted by the trial Court. The question before me is whether the lower appellate Court is in error in accepting the

interpretation put forward by respondents'' counsel.

The expression (vernacular matter omitted) has come up for judicial interpretation in the case of Meenakshi Sundarammal v. Shanmuga

Sundarammal, (1954) 1 MLJ 12 (SN). A Division Bench of this Court held that the Tamil expression ''pillaigal'' has to be construed mainly with

reference to the context in which that expression is used by the testator himself and that there can be no difficulty in holding in appropriate cases,

that by that expression the testator meant ''children'' without any reference to the sex of the children, especially when it is shown that in the locality

the expression ''pillaigal'' was also used in reference to female children.

No doubt in this case no other evidence has been adduced to prove that in the locality the expression (vernacular matter omitted) was used to

indicate both male and female children. But the Will itself uses two different expressions (vernacular matter omitted) and (vernacular matter

omitted). When the testator has chosen to use the expression (vernacular matter omitted) while referring to the issues of his sons, a significance has

to be attached to the said expression. It is quite possible that the testator wanted to include both male and female issues of his sons in order that

they take the property absolutely after the lifetime of his sons to whom he gave only a life interest.

In Tamil Lexicon published by the University of Madras, Volume V at page 2712, the expression (vernacular matter omitted) is defined as

child, infant, offspring"", in, this, case the appellate Court which is the final Court of fact has accepted the interpretation which is quite plausible and

acceptable. Sitting in second appeal, I do not think the said judgment should be interfered with. One of the two possible interpretations have been

accepted by that Court, Unless there is material on record to show that in the locality (vernacular matter omitted) would mean only male children

and it cannot at all indicate female children and that the testator used only the expression (vernacular matter omitted) for referring to the male issues

of his sons, I do not think it proper on the part of this Court to interfere with the interpretation accepted by the lower appellate Court. Hence, the

conclusion of the lower appellate Court that items 1 to 37 among the suit properties which are dealt with in paragraphs of the Will belonged to the

plaintiffs inasmuch as they are the only heirs of Saravanan the son of Muruga Pandaram through Nagarammal is correct. It should be mentioned

here that the said items were allotted to the share of the said Saravanan in a suit for partition filed by him along with Chinnathambi, who died

unmarried later, that is O.S.No. 46 of 1933 on the file of Sub-Court, Cuddalore against Palani and Singaravelu, the sons of Pachaiammal. As there

is no other heir to Saravanan, the plaintiffs who are his daughters are entitled to the items allotted to Saravanan''s share. On his death, the plaintiffs

being the vested remainder holders are entitled to get those properties. Hence the decree passed by the lower appellate Court as regards items 1

to 37 is correct.

With reference to items 38 to 44 they are properties purchased by Saravanan in Court auction in execution of a part of the decree passed in his

favour in O.S.No. 43 of 1933 for mesne profits as against Palani and Singaravelu. It cannot be disputed that what he purchased in court auction

was the life estate of Palani and Singaravelu and both of them being dead before this suit, the vested remainder in those properties would naturally

go only to their heirs, that is, defendants 1 to 3 and others, if any. The plaintiffs cannot claim any interest in those items as the interest purchased in

Court auction was only a life estate of Palani and Singaravelu. Both the Courts have rightly negatived the claim of the plaintiffs with regard to those

items. Even with regard to those items the contention of learned counsel for the respondents is that on the interpretation given for items 1 to 37 his

client will be entitled to get the properties. But that is not acceptable on the face of it. If the judgment-debtor had only a life estate and the court

auction purchaser Saravanan had purchased only the same, on the death of the life estate holders, the vested remainder people who are admittedly

defendants 1 to 3 will get the same.

What remains to be considered is the claim regarding items 45 to 57. These items are subject matter of paragraphs 1 and 2 of the Will to which

1 have already made a reference. In those two paragraphs the properties were given for enjoyment for life by Muruga Pandaram to his two wives

Pachaiammal and Nagarammal and after their lifetime to be divided by their sons equally. Clauses 1 and 2 refer only to the sons of two ladies

mentioned in these two paragraphs. But at the end of the Will, the following clause is found :-- (vernacular matter omitted).

(Items 1 and 2 shall also be enjoyed according to the above clause). The contention of the appellants is that under this clause the properties which

were mentioned in paragraphs 1 and 2 of the Will are directed to be enjoyed in accordance with the condition mentioned in the respective

paragraphs 1 and 2. If that contention is accepted, the properties are to be taken absolutely by Saravanan and his two brothers Palani and

Singaravelu and during his lifetime Saravanan had executed a settlement deed in favour of the mother of the appellants by name Ammakannu and,

therefore, the plaintiffs cannot claim any share in the said properties. It is alternatively contended by him that if on the other hand the clause means

that even the properties set out in paragraphs 1 and 2 are to be taken by the sons of the testator for their lifetime and the vested remainder going to

their children after their lifetime, the suit has to fail because the plaintiffs can only claim a share and ask for partition in those items and the suit for

partition cannot be maintained without all the sharers being made parties. According to learned counsel for the appellants, the appellants have two

sisters by Pavunambal and Sakunihala and they have not been impleaded in the suit as parties. It is pointed out that even the lower appellate Court

has granted only a preliminary decree in favour of the plaintiffs for one half share in the items 45 to 57 and such preliminary decree is not

maintainable inasmuch as all the co-sharers are not made parties to the suit. On the other hand, learned counsel for the plaintiffs contends that in so

far as items 45 to 57 are concerned, the same interpretation which applies to items 1 to 37 will apply and in those items also Saravanan, Palaniand

Singaravelu got only a life interest. According to him, after the lifetime of Saravanan, the vested remainder goes to his two daughters Saraswathi

and Lakshmi, the plaintiffs. It is further argued that the question of non-joinder of other sharers was not raised in the Courts below and it cannot be

allowed to be raised for the first time in second Appeal. It is submitted that the plaintiffs have claimed only the half share belonging to Saravanan

which was allotted to him in O.S. No. 453/63 on the file of District Munsif, Villupuram and the sisters of the appellants can claim a share only in

the other half share which belonged to Palani and Singaravelu.

There is no merit in the contentions. The question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to

the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers. See A. Ramachandra

Pillai v. Valliammal (1987) 100 ML.W. 486.

There is no dispute that the appellants have two sisters who are also co-sharers. Whatever conclusion is arrived at by this Court on the

interpretation of para 5 of the Will, it will not be binding on the sisters of the appellants even if they are impleaded as parties to the present suit and

the trial Court is directed to give them an opportunity to file a written statement and decide the matter once again with regard to items 45 to 57. It

will be as good as having a fresh trial of the entire matter in relation to those items. It is as if the suit has to be tried once again from the beginning

with reference to items 45 to 57, and that will be only leading to unnecessary complications and keeping this suit pending for unnecessarily longer

time. Hence, I am of the opinion that it is better to leave open the question so that a fresh suit may be instituted by the plaintiffs, if so advised, with

regard to items 45 to 57 claiming their shares in those properties and all the questions including the question of interpretation of the last clause

found in that will can be gone into therein. Hence, I am not expressing any opinion as to whether the condition in the last clause is only a re-

affirmation of what is stated in paragraphs 1 and 2 or the last clause will be an additional condition giving only life estate to the sons of the testator

in the properties which are dealt with in paragraphs 1 and 2 also.

In the circumstances, the suit in so far as it relates to items 45 to 57 is dismissed and liberty is given to the plaintiffs to file a fresh suit with

regard to those items for partition as against all the co-sharers. The decree passed by the lower appellate Court in so far as items 45 to 57 is

concerned, is set aside. The decree of the lower appellate Court relating to items 1 to 37 is confirmed. The second appeal is dismissed with regard

to those items. With regard to items 38 to 44, the decree of the lower Courts is confirmed and the Memorandum of cross-objections is dismissed.

The second appeal is allowed with regard to items 45 to 57 as indicated above. The parties will bear their respective costs.

Order accordingly.