A. Sreenivasa Pai and Anr. v. Saraswathi Ammal Alias G. Kamala Bai

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 410 of 1971. From the Judgment and Order dated 28.1.1970 of the Kerala High Court in Appeal Suit No. 327 of 1964. T .s. Krishnamurthy Iyer, N. Sudhakaran and M.R.K. P:Lllai for the Appellants. P.S. Poti, Sardar Bahadur Saharya and V.B. Saharya for the Responde~ts. The Judgment of the Court was delivered by VENKATARAMIAH, J. There was one K.Vasudeva Pai who was carrying ·on business at Quilon, which is now in the State of Kerala. Padmavathi Amal was his wife. They had a son by name V. Sreeni vasa Pai and daughter by name S. Lakshmi lmnnal (Defendant No. Saraswathi Amal alias G.Kamala Bai (Plaintiff) was the wife of V.Sreenivasa Pai. S.Lakshmi Ammal had been given in marriage to A.Sreenivasa Pai (Defendant No.l). K.Vasudeva Pai was adjudged insolvent in the year 1923 by the District Court at Quilon and consequently_ the properties belonging 'to him vested in the Official Receiver.

The Official Receiver conveyed so111e of the said properties under a sale deed in favour of one S.A.S. Ayyavu Iyer in or about the year 1926. These properties were two plots of land with some buildings and out-houses at Quilon. Later on, in the year 1930 Ayyavu Iyer conveyed the properties purchased by him in favour of A. Sreeni vasa Pai, the son-in-law of K. Vasudeva Pai, under whom A.Sreenivasa Pai was working all along. Subsequently, on December 12, 1932 A.Sreenivasa Pai executed a settlement deed transferring the said properties in favour of his mother-in-law A.S.PAI v. SARASWATHI AMMAL (VENKATARAMIAH, J.] Padmavathi l\mmal. This deed is in Malayalam language. An English translation of this · deed is produced before us. The relevant portion of the settlement deed translated into English reads as follows .Qn seeing that you are now in distress after selling in auction of all the properties belonging to your family by the Receiver in I.P. 48 of 1099 of the District Court.

Quilon towards the debts recently incurred by your husband Krishna Pai, Vasudeva Pai and due to my worry over it and in view of my desire to give certain properties to be enjoyed by yau and after your life time,· by Sreenivasa Pai, from generation to ·generation,· paramparaya, for all time on the bona fide belief that the income etc. of the properties proposed to be given would be sufficient for your family life, the properties described in the schedule below purchased by me with myself acquired funds from Subbayyavayyan Ayyavayyer, the general power of attorney holder S/o Sankaranarayan Iyer Subbayyavayyan, doing Hundi business in Quilon Bazar, as per sale deed No. 4026. of 1105 and held by me on absolute right, constructing additional buildings therein and holding possession of the same, and paying land tax and municipal tax and collecting rent of some of the buildings leased on rent, are surrendered to you as· per this deed, reiinquisliing all my rights and liabilities, making my love and affection towards you and your family as consideration and as you are dependent on me subject to the condition that ·you and your descen- F dants shall not execute any documents or mortgage or Otti charging these properties and charging other debts on these properties and in case of violation of the above provisions, they will not be valid and I and my descendants shall have the full power only to object and set aside . the same.

I hereby agree that G you, and after you, your son, and his descendants from generation to generation for all time may hold the properties and enjoy the same from this day onwards effecting mutation in your name, payiiig government assessment and municipal tax and 'since the rent deeds of the buildings given on rent have been given along with this, collecting the rent etc. of the above IJ SUPKEME COURT H.EPORTS buildings by you from today possession of the shops eviction." .•.•••• [l985j SUPP.2 s.c.R. onwards along and by recovering with key after (Underlining by us) K.Vasudeva Pai died in the year 1932 and hil:i son v.Sreeaivasa ?ai died in the year 1935. Padraavathi Antnal, the widow of K. Vasudeva Pai., in whose favour the settlement de(-!d had bl~en executed, died on June 27, 1951. After her death Saraswathi A.mmal alias G.Kamala Bai, the widow of v.SreenJ.vasa Pai filed a suit in the year 1952 in o.s. No. 153 of iY52 on the file of the Vistnlct Judge, Quilon for possession of the properties described in plaint A and H Schedules, the Plaint 'A'

Schedule properties being the properties which had been settled in favour of Padmavathi Ammal under the settlernent deed referred to above and plaint 'li' Schedule properties being certain other properties said to have been purchased from out of the rents and other incomes realised from the plaint 1 A' Schedule properties as A.::>reenivasa Pai and his wife S.Lakshmi Annnal had denied the right of Saraswathl Ammal a_;_ias G. Kamala Bai. The case put forward by her in the plaint was that the plaint 'A' Schedule properties hact 'been purchased in the name of A.Sreenivasa Pai for the benetit of Padmavathi Ammal and her family and they stood only nominally in the name of A.Sreenivasa Pai. The said suit was dismissed by the District Judge, Quilon on September 16, 1957 holding that the benami nature of the purchase of the plaint 'A' Schedule properties in the name of A.Sreenivasa Pai had not bie:en established.

Saraswathi Ammal alias G.Kamala liai filed au appeal aginst the judg1n.ent of the District Court before the High Court of Kerala in A.S. No. 297 of 19)9. The High Court was of the opinion that on the evidence on record the~e was no reason to interfere with the decree of the Trial Court dismissing the suit holding that the benami nature of the. trar..saction had not been established but it was, however, of the view that since the true effect of the settlement deed had not been considered by the Trial Court an opportunity should be given to the plaintiff to amend the plaint suitably and the issues at" ising uut Of such amendraents should be tried again by the Trial Court· Accordingiy, the High Court by its Judgment dated ,January 18, 1961 remanded the case to the District Court.

After remand, the plaint· was ai.aended raising an alternative plea stating that under the settlement deed Padmavathi Ammal had been conferred only a life estate and the properties had been given absolutely to V.!:lreenivasa Pai to enjoy them after the life time of Padma.va.thi Ammdl. lt was furthet" pleaded that on the death of Padma.va.thl A.S.PAI v. SARASWATHI AMMAL [VENKATARAMIAll, J.] Ammal who was only a life estate holder, the properties devolved on Saraswathi Ammal alias G.Kamala Bai who was the sole heir of V.Sreenivasa Pai. A.Sreenivasa Pai and Lakshmi Ammal pleaded that Padmavathi Ammal had been conferred absolute title in respect of the plaint 'A' Schedule properties and on her death the said properties being Streedhana properties of Padmavathi Ammal had devolved on her daughter Lakshmi Ammal. On the basis of the fresh pleadings filed by the parties, three additional issues were framed by the Trial Court and of them we are concerned with the following two issues (i)

What is the nature of the estate obtained by the deceased Padmavathi Amnal as per the settlement deed executed by the Ist defendant in her favour? (ii) Is it a document creating only a limited interest in her favour with a vested remainder in favour of plaintiff's husband which on latter's death devolved on plaintiff as his heir? The Trial Court after hearing the parties again dismissed the suit on July 30, 1962 holding that Padmavathi · Ammal had been conferred an absolute estate under the settlement deed and on her death her daughter Lakshmi Ammal had inherited them. Aggrived by the judgment of the Trial Court Saraswathi Amnal alias G.Kamala Bai again filed an appeal in A.S. No. 327 of 1964 on the file of the High Court. of Kerala.

On appeal the High Court reversing the judgment of the Trial Court held by its judgment dated January 28, 1970 that under the settlement deed Padmavathi Ammal had been conferred a life estate only in the properties settled under· the document in question and that V.Sreenivasa Pai, the husband of Saraswathi Ammal alias G.Kamala Bai had been conferred an absolute estate in those properties to be enjoyed by him after the death of Padmavathi Ammal. It accordingly held that Saraswathi Ammal alias G.Kamala Bai was ·entitled to the properties described in plaint Schedule which were the ·" ·:.subject matt.er of. the settlement deed, she being the sole heir of • ",V.Sreenivi>.sa Pai on the termination of the life 'estate on the d~~th of Paam,;vathi Ammal. Her claim as regards the plaint 'B' Schedule properties was however negatived by the High Court. In this appeal by certificate A. Sreeni vasa Pai and S. Lakshmi Ammal have questioned the· correctness of the decision of the High Court in so far as the plaint: 'A·,.

Schedule propertie.s are concerend. The only contention urged before us in this appeal by the appellants is that under the settlement deed· Padmavathi Armnal [1985J SUPP.2 s.c.R. became the absolute owner of the properties described in the plaint 'A' Schedule and that on her death her daugher S.Lakshmi Ammal acquired title to the said properties under the law of inheritance applicable to Streedhan properties, she being the sole heir to the properties owne<I by Padmavathi Allina!. The deci - sion in this case depends upon the true coustruction of the recitals in the settlement deed. In constrUiag a document, whether in English or in any Iudian language, the fundamental rule to be adopted is to ascertain the intention from the words employed in it.

The'' surrounding circumstances may be considered for the purpose of ascertaining the intended meaning of those words, specially when there is some aniliiguity in t.he words used in the document.· There is no doubt that·if the properties transferred under the settlement deed had become the absolute properties of Padmavathi Ammal, S.Lakshmi Ammal alone would be entitled to the said propP.rties. The. question, however, for determination is whether Padmavathi .Ammal acquired an absolute estate in the properties covered by the settlement deed or whether she had only a life estate in them. The crucial wrds in the settlement deed which have a bearing on the question before us are : "in view of my desire to give certain properties to be enjoyed by you and after your life time, b]

Sreenivasa Pai, the son born of you to Vasudeva Pai, fri)m generation to generation, paramparaya, for all time l· • • • • • • • • • • • • • • • • • • • • • • • • • • • • I hereby agree that you, and ·after you, your son and his descendants fl'om generation to generation for all time may hold the properties and enjoy the same fr.om this day onwards ..... ~ ............... ,j lt is seen from the portions of the settlement deed, extracted above, that A.Sreenivasa Pai desired to give the prope.rties mentioned in the Mid deed to V.Sreenivasa Pai absolutely subject to the life interest conferred on Padmavathi Amnal. 'It is difficult to agree with the subnission made on behalf of the appellants that the said document conferred an absolute title on Padmavathi Ammal because the document does not show that the properti.e.s were being given to her to be enjoyed by her and by her heirs from generation to generation.

It m.'1.y be noted that V.Sreenivasa Pai admittedly was not an apparent heir to the properties of Padmavathi Arnmal on the date of the document as her daughter Lakshmi Ammal was alive on that date. If A.Sreenivasa Pai intP..nded that his wife s.Lak.shmi Ammal should succeed to the properties transferred under the settlement deed after the death of Padmavat:W. Ammal he would have stated in the document that the properties should on her death go to her heirs but on the other hand he stated "I hereby agree that you, and A.S.PAI v. SARASWATHI AMMAL [VENKATARAMIAH, J.] after . you, · y0ur son, and his descendants from generation to generation for all time illay hold the properties and enjoy the same from this day onwards." These words clearly point out that A.Sreenivasa Pai never intended that the properties transferred under the deed of settlement should on .the death of Padmavathi Ammal go to her heir at law.

Acceptance of the contention of the appellants in the circumstances would render 'and after you, yours son and his descend4nts fiom generation to generation' meaningless. Any such construction should ordinarily be avoided. Having regard to the recitals in the document and the circumstances •in which it came .to be executed, we are 'of"the view.t~t the above words of disposition conferring title on v. Sreenivasa Pai do not constitute a subordinate clause in the deed. We do not agree that these words have been used in the document merely as a defeasance clause attached to the absolute estate conveyed in favour of Padmavathi Ammal. Nor do these words appear to our mind to create a different mode of succession to the absolute estate of Padmavathi Ammal after her death· They treat V.Sreenivasa Pai as a direct.beneficiary under the deed itself. The ·document read as a whole leaves no doubt in our mind that V. Sreeni vasa Pai was given under it the absolute estate in the properties subject to the life estate created in favour of Padmavathi Ammal.

The object of executing· the· settlement deed was obviously to confer the benefit on the family of V.Sreenivasa Pai which was in distress and not that Padmavatlii ·Ammal should alone be benefited. The document conferred, as observed by the High Court, a vested interest in favour of V.Sreenivasa Pai but his right to enjoy the property only was however postponed to the death of Padmavathi Ammal. Since V .Sreeniva.sa Pai had acquired a vested right in the properties on December ,12, 1932, i.e., the date of the settlement deed it could not .be defeated by his death before he obtained possession. His widow Saraswathi Ammal alias G.Kamala Bai· being his sole heir was, therefore, entitled to the said properties on the termination of the life estate of Padmavathi Anjmal. Our view is also in conformity with the rule of construction adopted by this Court in Ramachandra Sbeooy & Anr. v. Mrs. Hilda Brite & Ors., [1964] 2 S.C.R. 722, at pages 135-736 where this Court has observed thus :

"It is one of the cardinal principles Ot construction of wills that to the extent that it is· legally possible effect should be given to every disposition contained in the will unless the law prevents' effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if [19851 sUPP.2 s.c.a. the first interest crested is valid the subsequent interest cannot take effect but Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute f ollawed by a gift of the same to B absolutely "on" or "after" or "at" A's desth, A ia prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accOlllllOdate the interest crested in favour of B."

The High Court was, therefore, right in decreeding the suit in favour of Ssraswathi Amnal alias G. Kamala Bai in so far aa U the plaint 'A' Schedule properties were concerned. Before concluding the judgment, we should refer to one other submission made by the lesrned counsel for the appellants .A.Sreenivasa Pai and S.Lakshmi Amnal regarding claim made by them in respect of the improvements said to have been made by A.Sreenivasa Pai on the properties described in plaint 'A' Schedule. We do not find any substance in this submission because Padmavathi Amnal died on June 27, 1951 and the plaintiff had instituted the suit on September 10, 1952 and it is not shown that any improvements Md been made in good faith during the period between the said two dates. In the result this appeal fails and it is dismissed with costs. Appeal dismissed.