Tirupathi Naicken and Another vs Venkatasubba Naicker and Another

Srinivasa Aiyangar, J.—The point for determination in this second appeal is as observed by Mr. Varadachariar in his opening, in a very

narrow compass. The whole argument ranged round the proper construction of Ex. 2 in the case. It. was in. the nature of a deed of settlement

made by one Subba Nayak and his first wife Gangammal and was obviously made at a time when Subba Nayak contemplated taking a second

wife. The plaintiffs are the sons of Subba Nayak by the second wife whom ha subsequently married. Their claim in the action was on the footing

that on a proper construction of the clauses in Ex. 2 there was a defeasance of the estate created in favour of Gangammal and her daughter

Krishnammal and that therefore, the plaintiffs have become entitled to the property to recover which they have instituted the suit. The 2nd

defendant who claimed in the written statement to be the adopted son of Krishnaminal has defended the action on the ground that there was no

such defeasance as on the basis of which the plaintiffs have claimed. Both the lower Courts have found in favour of the adoption of the 2nd

defendant and, therefore, we must take it for the purpose of the present discussion that, he is the duly and validly adopted sen of Krishnammal.

The only question then is whether, having regard to the particular clauses in the Will, such a condition has happened as on the happening of which it

is provided that the property should go to the children of Subba Nayak by his second wife. There were two items of Immovable property and

various provisions are made with regard to these two items. With regard to item No. 2 the item with which alone we are at present concerned it is,

provided in the deed that it should be enjoyed by Gangammal for herself and on behalf of her daughter Krishnammal. Then it is provided by a

clause which in translation runs as follows: ""That if Krishnammal happens to have no issue and Gangammal begets no further children the suit

property, item No. 2 shall go after the lifetime of these two to the children of the second wife."" The correctness of this translation has not been

challenged before us. The Tamil word for issue in the clause is ""santhathi"". The learned Advocate General who appears for the respondents has

fairly conceded that he did not propose to raise any contention on the ground that the expression ""santhathi"" taken by itself was inapt or incapable

of including in its connotation an adopted son. But having made that concession what he offered to show was that taking the document as a whole

and all the clauses in it and especially the scheme in the entire document there was clear indication in the document itself to exclude from the

connotation of this expression ""santhathi"" an adopted son of Krishnammal; in other words, that though the word ""santhathi,"" generally speaking,

may beheld to include an adopted son, still, having regard to the context and the other clauses and the scheme of the deed of settlement, the word

santhathi"" in this deed and la the particular context must be construed excluding an adopted son. For the purpose of this decision it is enough, to

say that we have not been persuaded by the Advocate-General that there is any indication of any such exclusion. I think the observations really

concurred by the learned gentlemen who appeared on both sides may be accepted as true in the case of the document under construction, namely,

that very little help may be regarded as derivable from a consideration of the other clauses. So far, however, as the particular clause in question is

concerned, it is necessary to note that whereas the document speaks of the contingency of there ft being no ""santhathi"" of Krishnammal, the same

clause speaks of the further contingency of Gangammal not begetting any children thereafter. This is a contradistinction in the use of language in my

judgment not to be neglected entirely in arriving at a proper construction of the clause and the meaning of the deed of settlement to be gathered

from the language employed. Why with reference to Gangammal the document should speak of the contingency of no children being born to her

thereafter and why similar or exact language was not adopted with reference to Krishnammal, is not clear except on the supposition that some

distinction was clearly intended between the two cases. This contradistinction would seem really to indicate that by the use of the expression

santhathi"" what the deed of settlement intended to indicate should not be regarded as confined to the children born of Krishnammal Therefore far

from there being an indication to the effect contended for by the learned Advocate-General it seems to me that the indication may indeed be read

in the document that by the use of the expression ""santhathi"" in contradistinction to ""kushandhikal"" in the same clause the deed of settlement clearly

intended to make out and indicate thereby that by the expression ""santhathi"" was meant some descendant of Krishnammal who will; be in a

position to continue the line or to represent her, estate. There is also the further somewhat strikingly curious expression that with reference to

Krishnammal the contingency on the happening of which defeasance is contemplated is staled in the following Tamil words ""santhathi illamal

pokirapadiyalum"". Taking all the words of that clause the correct construction seems to my mind to be the contemplation of the entire extinction, of

the line of Krishnammal and, laying regard to what may be regarded as the general notions of every Hindu it is impossible to say that a line could

be said to have become extinct when there is an adopted son. From this it follows that the proper view to take of the provisions in this deed is that

the contingency on the happening of which alone the plaintiffs can claim the property, has not really happened because the line of Krishnammal has

not become extinct for the simplest of all reasons that the adoption of the 2nd defendant to Krishnammal has been found by both the lower Courts.

This is sufficient to dispose of the case. The learned Advocate-General has argued that the plaintiffs have also made a claim on the ground that if on

a proper construction the property item No. 2 should be held to have been granted only for two life-estates to Gaugammal and Krishnammal and

even if the defeasance clause did not operate in favour of the plaintiff there was no other clause disposing of the remainder and that, therefore, it

should be held to have reverted to Subba Nayak and that as the plaintiffs are Subba Nayak''s sons they were entitled to have the property. With

regard to these contentions it is sufficient to state that the plaintiffs'' claim in this case cannot possibly be regarded as having been laid on any such

basis. In fact that is not the title on which they have come to Court and instituted the action. The learned Subordinate Judge in the Court below has,

therefore, advisedly not given any finding with regard to the same. Mr. Varadachariar for the appellant has not invited us to go into the matter. We,

therefore, state nothing about it. 80 far, therefore, as the actual title on which the plaintiffs have claimed is concerned they have failed to make out a

case of defeasance with which they came into Court and it must, therefore, follow that the lower Appellate Court was wrong in granting a decree

to the plaintiffs. The appeal should, therefore, be allowed and the decree of the District Munsif will be restored. The appellant will have his costs

throughout.

Ananthakrishna Aiyar, J.

I agree. The plaintiffs sued for the recovery of possession of certain Immovable properties basing their claim, on the defeasance clause

contained in the settlement deed, Ex. 2 in the case. The clause runs as follows:

If Krishnammal happens to have no issue (santhathi) then the property should go to the children of the second wife.

The plaintiffs are the children of the second wife mentioned in the settlement deed. The question in the case, therefore, turns upon the meaning to

be attached to the word ""santhathi"" (issue) occurring in the settlement. The learned Advocate-General conceded, and I think very properly, that the

word ""santhathi"" (issue) is wide enough to include ''adopted son'' also, and as the 2nd defendant in this case has been found to be the adopted son

of Krishnammal prima facie the plaintiffs'' claim should fail. With reference to, the meaning of the word ""santhathi"" I may as well refer to

Muppidathi Ammal v. Muthuswami Pillai 107 Ind. Cas. 289 : AIR 1923 Mad. 126 : I.L.T. 40 Mad. 263, recently decided and also to the

decision in Balasubra'' mania Pillai v. Pitaha Pillai 33 Ind. Cas. 552 : (1916) 1 M.W.N. 306. Now when the meaning of the word is clear what we

have to do in the words of their Lordships of the Privy Council in the case of Maharaja Manindra Chandra Nandi Vs. Raja Sri Sri Durga Prashad

Singh, is this:

In construing the terms of a deed the question is not what the parties may have intended, but what is the meaning of the words which they used.

The learned Advocate General while conceding that the word ""santhathi"" (issue) is wide enough to include ""an adopted son,"" also, however,

contended that having regard to the context in which the expression is used in Ex. 2, it must be held that in this particular case the inference to be

drawn is in favour of the plaintiffs. Now, having regard to the meaning of the word ""santhathi"" (issue) as mentioned above, unless I am able to draw

a clear indication to the contrary in the several clauses of this settlement I think I am bound to attach the ordinary meaning to the word issue. For as

observed by the Privy Council in Gurusami Pillai v. Sivakami Amaml 18 M. 347 : 22 I.A. 119 : 5 M.L.J. 106 : 6 Sar. P.C.J. 610 : 6 Ind. Dec.

591 it is a sound principle of construction that where the language of a Will is clear and consistent, it shall receive its literal construction unless there

is something in the Will itself to suggest departure from it.

Having carefully gone through the other portions of Ex. 2, I am satisfied that in this particular case, the inference, if any, to be drawn from the

other portions of the document is not at all in favour of the contention advanced by the learned Advocate-General. In the very same paragraph in

which the defeasance clause occurs, the following clause also occurs ""If Gangammal should beget no further children."" The circumstance that in the

very same paragraph, different expressions are used would ordinarily induce one to come to the conclusion that the expressions are not used in the

same sense. Further there are other indications also in Ex. 2 as mentioned in the judgment of my learned brother; so that I am not satisfied that the

context in the case compels one to come to the conclusion that the word ""santhathi"" is used in any special sense in this settlement deed. I am not

prepared to hold that the ordinary meaning to be attached to the word ""santhathi"" has in any way been displaced by the context in the present case.

I, therefore, agree to the decree proposed by my learned brother.