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Raja Poongolu Chetty Charities rep. By its Trustees & Others v/s Meer alias Meera Bai & Others

    SECOND APPPEAL NO. 205 OF 2005
    Decided On, 10 July 2012
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE T. RAJA
    For the Appellants: Balasubramanian, Advocate. For the Respondents: R1 & R2 - P.K. Siva Subramaniam, Advocates.


Judgment Text
(Prayer: Second appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 30.03.2004 passed in A.S.No.458 of 2003 on the file of the I Additional Judge, City Civil Court, confirming the Judgment and Decree dated 28.11.2002 passed in O.S.No.8485 of 1997 on the file of the V Assistant Judge, City Civil Court, Chennai.)

JUDGMENT

1. The unsuccessful plaintiff, who lost his suit before both the trial Court and the first appellate Court, has preferred the second appeal.

2. The brief facts, which led to the filing of this second appeal, are as follows:

(i)The suit was filed by the appellant/plaintiff for (a)declaration that the plaintiff trust is the absolute owner of the suit property (b)directing the defendants 1 to 4 to deliver vacant possession of the suit property (c)directing the defendants 1 to 3 to render true and proper accounts of the collections made by them from the defendants 5 to 11 (d)directing the fourth defendant to deliver all the title deeds relating to the suit property (e)directing the defendants 1 and 2 to pay the mesne profits of Rs.789/- and also the future mesne profits of Rs.1,560/- and to pay the costs of the suit.

(ii)The plaintiff is a Trust which came into existence by means of the last Will and testament dated 4.12.1937 executed by late Sri Raja Poongolu Chetty. He died on 21.2.1938. The late Sri Raja Poongolu Chetty had one daughter viz., Krishnaveniammal who married one K.Sambath Chetty. While so, late Sri Raja Poongolu Chetty executed a last Will and testament dated 4.12.1937 Ex.A.1 and the same was probated in O.P.Nos.321 and 322 of 1938 on the file of this Court. Through the said Will, he gave limited life estate to Krishnaveniammal. Further, late Sri Raja Poongolu Chetty created a Trust in the Will dated 4.12.1937 and made provisions for continuance of performing Abishekams, Alankaram and 'Guru Pooja' etc. and also issued direction to perform the same continuously. Under the said Will, he separated the house and ground bearing Old No.98, New No.129, Anna Pillai Street, Madras 600 079, which is described as item No.2 of the suit schedule properties. Under Clause 4 of the Will dated 4.12.1937, life estate and right of enjoyment was given to the testator's daughter Krishnaveniammal and his son-in-law Sampath Chetty equally during their life time with power to collect the rents from the said house bearing Old No.98, New No.129, Anna Pillai Street, Madras 600 079 and pay for taxes and repairs. In the said Will, it was further provided that if children are born to Krishnaveniammal and her husband Sampath Chetty, they shall take the said property absolutely. If Krishnaveniammal predeceased her husband, her husband shall take the property absolutely with full power of alienation. If Sampath Chetty predeceased his wife without making any disposition in writing, his wife Krishnaveniammal shall enjoy the property during her life time and after her life time, it shall vest with the plaintiff Trust.

(iii)It was averred that Sampath Chetty died issuless on 22.7.1981. His wife Krishnveniammal was in possession of the property bearing Old No.98, New No.129, Anna Pillai Street, Madras 600 079. While so, Krishnaveniammal also died on 1.4.1982. As no issues were born to Krishnaveniammal and Sampath Chetty, the property did not devolve upon their issues as contemplated, but the entire suit property vested in the name of the plaintiff Trust. Krishnaveniammal and Sampath Chetty have no right, title or interest to execute the settlement dated 25.1.1957 Ex.B.2.

(iv)It was further averred in the plaint that what was conferred upon Krishnaveniammal and her husband was only a life estate in the suit property bearing Old No.98, New No.129, Anna Pillai Street, Madras 600 079 and the observation of the testator as to Samapth Chetty creating any record in respect of the property even if it is valid Will arise only if he survives Krishnaveniammal. Otherwise, Sampath Chetty will not have any right to deal with the property. The property never vested on Sampath Chetty as absolute owner. Admittedly, Sampath Chetty died issueless on 22.7.1981. Thereafter, since his wife Krishnaveniammal was in possession of the suit property bearing Old No.98, New No.129, Anna Pillai Street, Madras 600 079 as life estate holder and died after the death of her husband on 1.4.1982 and when both the persons Sampath Chetty and Krishnaveniammal died without any issues, the suit property did not devolve upon their issues as contemplated, but the property vested in the plaintiff Trust. Hence, Sampath Chetty had no power to deal with the suit property. Therefore, it was pleaded that the settlement deed dated 25.1.1957 executed jointly both Sampath Chetty and Krishnaveniammal will not bind the plaintiff Trust. On the above said basis, Sampath Chetty and Krishnaveniammal have no right, title or interest to execute the settlement deed dated 25.1.1957, Ex.B.2 jointly in favour of the defendants 1 to 3 and the same had no basis. Therefore, the possession of the defendants 1 to 3 is illegal. Hence, the plaintiff Trust is entitled to take possession of the property and the defendants 1 to 3 have no right to enjoy income therefrom from 1.4.1982.

3. Opposing the above said prayer, a detailed written statement was filed.

(i) The testator late Sri Raja Poongolu Chetty while executing a registered Will dated 4.12.1937, Ex.A.1 separated the suit property from other properties and the same to be enjoyed by K.Sampath Chetty and his wife Krishnaveniammal in the manner indicated therein without subjecting the same to any charities set out in the Will.

(ii) It was the further case of the defendants 1 to 3 that when the testator late Sri Raja Poongolu Chetty specifically mentioned that his daughter Krishnaveniammal and his son-in-law Sampath Chetty both shall equally take the suit property bearing Old No.98, New No.129, Anna Pillai Street, Madras 600 079, which is mentioned as second item among the properties set out in the plaint schedule property, his daughter Krishnaveniammal herself collected the rent of the said house and incurred expenses for the tax and repairs. The recital in the Will further states that if the children are born to Krishnaveniammal and her husband Sampath Chetty, they shall enjoy the said suit property with absolute right. But, they have no issues. If Krishnaveniammal, the daughter of late Sri Raja Poongolu Chetty predeceased her husband, then his son-in-law Sampath Chetty himself shall use and enjoy the suit property absolutely with rights to gift, mortgage, exchange and sell. Per chance, Sampath Chetty, the son-in-law of late Sri Raja Poongolu Chetty predeceased his daughter without making any disposition in writing of the said suit property, his daughter shall enjoy the said property according to the provisions mentioned in the Will and after her life time, the said executors shall take charge of the said properties and conduct according to the particulars set out in Clause 4 of the Will.

(iii) It was further pleaded that when the recital in the Will is mere opinion, the nearer intention of the testator is that no doubt his daughter Krishnaveniammal predeceased his son-in-law Sampath Chetty, his son-in-law Sampath Chetty himself shall use the suit property absolutely with the rights to gift, mortgage and sell. This goes to show that the testator had given more right to his son-in-law than the daughter.

(iv) In this case, both the testator's daughter Krishnaveniammal and his son-in-law Sampath Chetty had jointly executed the settlement deed Ex.B.2 dated 25.1.1957 in favour of the defendants 1 to 3 by accepting the third defendant, who is an orphan, as his foster daughter, appointing the defendants 1 and 2 as her guardians. Hence, the plaintiff Trust had no authority to question the settlement deed Ex.B.2 dated 25.1.1957 executed jointly by Krishnaveniammal and her husband Sambath Chetty.

4. On considering both the oral and documentary evidence, the trial Court framed the following issues:

"1. Whether the deed of settlement deed dated 25.1.1957 has been validly executed pursuant to the absolute bequest in favour of K.Sampath Chetty and Krishnaveniammal?

2. Whether the last Will and testament dated 4.12.1937 of late Sri Raja Poongolu Chetty provided an absolute interest in favour of Krishnaveniammal and her husband K.Sampath Chetty in respect of the suit?

3. Whether plaintiff have any right, title or interest in the suit property?

4. Whether the plaintiff entitled to claim rental collections?

5. To what relief?"

5. In such circumstances, the trial Court examined only one witness as P.W.1 and marked the documents as Ex.A.1 to A.10 on the side of the plaintiff. No witness was examined on the side of the defendants, but the documents were marked as Exs.B.1 to B.7 on the side of the defendants.

6. The trial Court agreed with the case of the plaintiff, by holding that a plain reading of the Will shows that in the absence of children born between Krishnaveniammal and her husband Sampath Chetty, Krishnaveniammal was given life estate for collection of rent and to incur expenses for paying kist and repairs. Mr.Sambath Chetty died first on 22.7.1981 and Krishnaveniammal also died on 1.4.1982, therefore, in the above circumstances, the trial Court came to the conclusion by reading of the Will that by chance, Krishnaveniammal, the daughter of late Sri Raja Poongolu Chetty predeceased his son-in-law Sampath Chetty, her husband shall take the suit property absolutely with full power of alienation. If Sampath Chetty predeceased his wife, without making any disposition in writing of the suit property, limited right of life estate was given to Krishnaveniammal, like collection of rent and to incur expenses for paying kist and repairs and the same shall vest with the plaintiff Trust after her life time.

7. On that basis, the trial Court has held that as per last Will and testament dated 4.12.1937 late Sri Raja Poongolu Chetty has given limited interest to Krishnaveniammal and absolute right on her husband Sampath Chetty. In view of the above, the settlement deed Ex.B.2 dated 25.1.1957 executed in favour of the defendants 1 to 3 by Krishnaveniammal and Sampath Chetty, the daughter and son-in-law of the testator late Sri Raja Poongolu Chetty cannot be questioned. Accordingly, the trial Court dismissed all other reliefs and non suited the plaintiff. Aggrieved by the judgment and decree passed by the trial Court, an appeal was preferred before the first appellate Court and the first appellate Court also confirmed the same. As against the same, the present second appeal has been preferred by the plaintiff Trust.

8. Heard Mr.Balasubrarmanian, learned counsel appearing for the appellant and Mr.P.K.Sivasubramaniam, learned counsel appearing for the respondents 1 and 2.

9. This Court, while entertaining the second appeal has formulated the following substantial questions of law:

"1. Are not the decisions of the Courts below bad in law for the total mis-appreciation and misinterpretation of the intendment of the Will or which is the primary aspect in the case especially when the intention of the testator is the paramount consideration while interpreting a document?

2. Have not the Courts below committed a grave error of law in casually ignoring or brushing aside the vital documentary evidences, each and everyone, adduced by the plaintiffs in the above case which led to the miscarriage of justice?

3. Whether the conclusion of the trial Court that the suit is belated one without considering the dates constituting causes of action in the suit, is erroneous in law and the decisions to be set aside in toto?

4. Have not the Courts below committed an error of law in mis-characterising the suit property otherwise than a Trust property, despite the adduction of documentary evidence on this aspect and the specific plea with regard to the past conduct and declaration of Sampath Chetty as Managing Trustee of the plaintiff Trust?

5. Have the Courts below committed an error of law in not considering that any "ab-initio void document need not be set aside" (Vide ILR 14 Mad. 17 = (i) M.L.J. 338 –Kunhamed Vs. Kutti)?"

10. While addressing the substantial questions of law, the learned counsel for the appellant has submitted that the Courts below have committed a grave error of law in ignoring the vital documents and also totally misinterpreted the intention of the testator. Therefore, when both the Courts have reached the wrong conclusion, the impugned judgment and decree passed by both the Courts below are required to be interfered with. When the testator executed the registered Will dated 4.12.1937, he has precisely shown his clear intention that he had celebrated his daughter's marriage with one Sampath Chetty and if any reason Krishnaveniammal predeceased her husband, her husband will take the suit property absolutely with full power of alienation, but if son-in-law Sampath Chetty predeceased his wife without making any disposition in writing, she shall enjoy the property for her life time and after that, it will vest with the plaintiff Trust, which makes it very clear that if the testator's son-in-law Sampath Chetty expires before her wife Krishnaveniammal without writing any disposition in writing, Krishnaveniammal cannot alienate the property, but it will automatically go to the hands of the plaintiff Trust. But, ignoring these vital and explicit recitals made clearly by the testator late Sri Raja Poongolu Chetty in the Will dated 4.12.1937, the trial Court as well as the first appellate Court wrongly misunderstood the later portion of the last Will and testament and dismissed the suit holding that Sampath Chetty who even before the death of his wife Krishnaveniammal rightly executed the settlement deed dated 25.1.1957 in favour of the defendants 1 to 3 and such finding is not only contrary to the Will, but also against the intention of the testator and the command of the last Will and testament.

11. In support of his submission, the learned counsel for the appellant has relied on the decision in UMA DEVI NAMBIAR AND OTHERS VS. T.C. SIDHAN (DEAD) [(2004 2 SCC 321] for the proposition that 'in case of total inconsistency between two clauses of a Will, the later part of the Will would prevail over the previous one'.

12. He has also relied on another decision in SADHU SINGH VS. GURDWARA SAHIB NARIKE AND OTHERS (2006) 8 SCC 75), wherein it is held that 'what the Court has to attempt is a harmonious construction so as to give effect to all the terms of the Will if it is in any manner possible. While attempting such a construction, the rules are settled. Unlike in the case of a transfer in prasenti wherein the first clause of the conveyance would prevail over anything that may be found to be repugnant to it later, in the case of a Will, every effort must be made to harmonise the various clauses and if that is not possible, it will be the last clause that will prevail over the former and giving way to the intention expressed therein'.

13. The learned counsel for the appellant has also relied on yet another decision in P.S.RANAKRISHNA REDDY VS. M.K.BHAGYALAKSHMI AND ANOTHER (2007 (2) CTC 357), wherein it is observed that 'while interpreting, the document must be read in its entirety. The intention of the parties, it is equally well settled, must be gathered from the document itself. All parts of the deed must be read in their entirety so as to ascertain the nature thereof'.

14. With these, the learned counsel for the appellant, while assailing the impugned judgment, has further submitted that the Will was mis-understood by both the Courts below. The intention of the parties has to be gathered from the document itself. According to the last Will and testament dated 4.12.1937, late Sri Raja Poongolu Chetty provided a limited life estate to Krishnaveniammal and Sampath Chetty and therefore, they have no right to execute Ex.B.2 settlement deed dated 25.1.1957 against the last Will and testament dated 4.12.1937. Hence, as per the intention of the testator and according to the last Will and testament dated 4.12.1937, the suit property has to be vested with the plaintiff Trust, and the suit may be decreed as prayed for by setting aside the concurrent finding rendered by both the Courts below.

15. In reply, the learned counsel for the respondent has submitted that the testator being a business man and also a pious man had made specific provision for two of his immovable properties, of which item No.2 is the suit property, with which we are concerned and Item No.1 with which we are not concerned. However, while dealing with item No.2 of the suit property, the testator had made a specific provision in clause 4 that his daughter Krishnaveniammal and his son-in-law Samapth Chetty shall equally take the suit property and his daughter shall collect the rents and pay for taxes and repairs. The specific provision in clause 4 of the Will with respect to the suit property reads as follows:

"(i) The testator's daughter Krishnaveniammal and his son-in-law Sampathy Chetty shall equally take the suit property and his daughter shall collect the rents and pay for the taxes and repairs.

(ii) If children born to them, they shall take the property absolutely.

(iii) (a) If Krishnaveni predeceased her husband, her husband shall take the property absolutely with full power of alienation.

(iv) If Sampathu Chetty predeceased his wife, without making any disposition in writing, she shall enjoy the property for life and after he, it shall vest with the plaintiff trust".

16. A reading of clause 4 clearly shows that the testator's daughter Krishnaveniammal and his son-in-law Samapth Chetty will have equally take share in the suit property and however, his daughter shall collect the rent and pay for taxes and repairs. If children are born to them, they shall take the property absolutely. If Krishnaveniammal predeceased her husband, her husband shall take the suit property absolutely with full power of alienation. If Sampath Chetty predeceased his wife without making any disposition in writing, his wife shall enjoy the suit property for her life time and after her life time, it shall vest with the plaintiff Trust. The above versions answer the issues arose in the second appeal that if Sampath Chetty died before the death of his wife, leaves any disposition in writing like the settlement deed Ex.B.2 dated 25.1.1957 etc. that cannot be questioned.

17. Besides, in the present case, Krishnaveniammal and Sampath Chetty during their life time jointly decided to execute the settlement deed dated 25.1.1957, Ex.B.2 to the third defendant, the orphan of their foster daughter by appointing the defendants 1 and 2 as guardians. On the above said basis, they jointly executed the settlement deed dated 25.1.1957 for conveying the suit property in favour of the defendants 1 to 3. Therefore, the defendants 1 to 3 have become owners of the suit property and the same cannot be questioned by the plaintiff Trust.

18. As pointed out by the learned counsel for the respondents, in my considered opinion, the first appellate Court and the trial Court have rightly and precisely interpreted the intention of the testator late Sri Raja Poongolu Chetty.

19. The controversy is mainly with respect to the third and fourth mode of bequest. The Will arises only if the legatee were issueless and depending upon the death of each. If Krishnavenimmal predeceased her husband, her husband will take the property absolutely with full power of alienation. Suppose her husband Sampath Chetty dies before his wife, the suit property will be enjoyed till her life time and after her life time it will go to the plaintiff Trust, if the husband did not make or leave any disposition in writing. Therefore, it makes clear that if Krishnaveniammal predeceased her husband, her husband will take the property absolutely. On the otherhand, if Sampath Chetty dies before his wife without leaving any disposition in writing, his wife will enjoy the suit property till her life time and again, the entire property as spoken to in the Will, will go to the plaintiff Trust.

20. The Apex Court in Uma Devi Nambiar and others v. T.C.Sidhan (dead) ((2004) 2 SCC 321) has simplified what is principles of interpretation to be applied, while interpreting a Will, to ascertain the intention of the testator from the words used therein; In fact, one of the principles laid down therein shows that in construing the language of the Will, the Court is entitled to put itself into the testator's armchair and is bound to bear in mind the surrounding circumstances, the position of the testator and his family relationship. This is how the true intention of the testator can be gathered by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory. In the light of the above said principles, if the Court construes the Will by considering Clause (d) of the Will which is given as follows:

"If Sampath Chetty predeceased his wife, without making any disposition in writing, she shall enjoy the property for life and after her life time, it shall vest with the plaintiff's trust."

21. The above clause clearly shows that the said Sampath Chetty, son-in-law of testator, has been given absolute right to dispose of the property. Therefore, his disposition by way of settlement deed remains unquestionable.

22. One another argument advanced by the learned counsel for the appellant that if there is an inconsistency between two provisions, later clause shall be held to prevail over the earlier clause is also anwered by The Apex Court in Uma Devi Nambiar's case (cited supra), while relying upon the principles laid down in Kaivelikkal Ambunhi v. H.Ganesh Bhandar ((1995) 5 SCC 444), observing thus in paragraphs 11 and 12:

11. In Kaivelikkal Ambunhi v. H. Ganesh Bhandary (AIR 1995 SC 2491), it was observed that a Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. As observed in Hammond v. Treharne, (1938 (3) All ER 308), if in a Will there are two inconsistent provisions, latter shall prevail over the earlier clause. This is regulated by the well-known maxim "cum duo inter se pugantia reperiuntur in testamenta ultimum ratum est". This principle is also contained in Section 88 of the Act which together with its illustrations, provides as under:

"88. The last of two inconsistent clauses prevails.-- Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.

Illustrations

(i) the testator by the first clause of his Will leaves his estate of Ramnagar to "A", and by the last clause of his Will leaves it to "B" and not to A". B will have it.

(ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.

12. This rule of interpretation can be invoked if different clauses cannot be reconciled. (See Rameshwar v. Balraj, AIR 1935 PC 187). It is to be noted that rules of interpretation of Will are different from rules which govern interpretation of other documents l

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ike sale deed, or a gift deed, or a mortgage deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents, if there is any inconsistency between the earlier or the subsequent part or specific clauses, inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of Will the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails. 23. Therefore, the above ruling as well as Section 88 of the Indian Succession Act clearly answers the argument of the appellant against him that the later clause shall always prevail over the earlier clause if in a Will there are two consistent provisions. Accordingly, Clause (d) of the Will being the later part, it clears the doubts that Sampath Chetty is entitled to make any disposition in writing during his life time. Therefore, the same cannot be questioned. 24. But, in the present case, since the testator's son-in-law Sampath Chetty before his death executed the settlement deed Ex.B.2 dated 25.1.1957 with more caution by joining hands with his wife Krishnaveniammal, it absolutely makes clear that Sampath Chetty not only made his disposition in writing alone but also took consent of his wife Krishnaveniammal. Therefore, by having harmonious construction of all the clauses of the Will, it can be safely concluded that as per the Will, the executor Sampath Chetty has got absolute right to execute the settlement deed Ex.B.2 25.1.1957 along with his wife. Therefore, the substantial questions of law are answered against the appellant. There is no infirmity or error in the judgments rendered by both the Courts below. Accordingly, the second appeal fails and the same is dismissed. There is no orders as to costs. 25. In view of confirming the judgments rendered by the Courts below by dismissing the second appeal, it is clarified that the Bank Guarantee for Rs.3,50,000/- executed by the applicant/defendants 1 and 2 pursuant to the order passed by this Court in Original application No.2254 and 2257 of 1997 in C.S.No.343 of 1983 is directed to be cancelled. 26. Accordingly, the concerned Registrar is directed to communicate the Bank Manager about the cancellation of the guarantee furnished by the defendants. C.M.P.No.206 of 2009 is allowed. Consequently, C.M.P.No.207 of 2009 is closed.
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