1953 Supreme(Mad) 376

MADRAS HIGH COURT
SATYANARAYANA RAO,RAJAGOPALAN
T.A.Meenakshi Sundarammal
Versus
K. Subramania Ayyar and others
Appeals Nos.184 and 185 of 1947
Decided On : 27 November, 1953

Headnote:

WILL - CONSTRUCTION - LEGACY - INTEREST OF LEGATEES - WHETHER LEGATEES TOOK ABSOLUTE INTEREST OR RESTRICTED INTEREST - MEANING OF THE TERM 'SHARA' - WHETHER SALE OF LEGACY PROPERTY BY LEGATEE IS VOID UNDER SECTION 23 OF THE CONTRACT ACT - LIMITATION ACT (IX OF 1908), ARTS. 44, 123, 140, 142.

Fact of the Case:

Appavoo died in 1922 leaving a will. He had three sons, Kannuswami, Arumugam and Chinnaswami and a daughter, Ponnammal, who predeceased him. Ponnammal had three sons Neelamegam, Muthukrishnan and Ramaswami, Meenakshi Sundarammal was one of the two daughters of Ponnammal; and Meenakshi Sundarammal married her maternal uncle Arumugam. On the date of Appavoos death Arumugam and his wife Meenakshi Sundarammal had two daughters, Kanakavalli and Shanmuga Sundarammal; a third daughter named Baby was born some time after Appavoos death; they had no sons. Of these three daughters, Kanakavalli died in 1938 before she was 18. Of the three sons of Appavoo, only Kannuswami had both sons and daughters. Neither Arumugam and Chinnaswami had any sons.

Finding of the Court:

1. The term 'shara' in paragraphs 5 and 6 of the will was intended by the testator only to signify the distinction between the absolute interest he conferred on one set of legatees and the limited interest he conferred on the other set of legatees, namely, Kannuswami and Chinnaswami. 2. The sale of item 1 under Ex. D-3 was not void under S.23 of the Contract Act. 3. The claim of Meenakshi Sundarammal for the fourth share of Kanakavalli is barred by the law of limitation. 4. Shanmuga Sundarammals claims also to her fourth share in item 1 will have to be rejected as barred by the law of limitation. 5. Neither Meenakshi Sundarammal nor Shanmugha Sundarammal obtained a share in either of these two items as legacy under the terms of Appavoos will Ex. P.1. 6. The claims of Meenakshi Sundarammal and Shanmugha Sundarammal to a share in items 3 and 4 can be dealt with together. 7. Even had Meenakshi Sundarammal, Kanakavalli and Shanmugha Sundarammal acquired any rights as legatees in item 4, their claim to recover possession of their shares in these items of immoveable properties will have to be rejected as barred by the law of limitation.

Issues: 1. Whether the Tamil word pillaigal could apply to the daughters of Arumugam? 2. Whether Arumugams wife and children shared the legacy in items 3 and 4 as well along with Arumugam, that is, whether the direction that the sons of the testator should enjoy the bequest in paragraphs 5 and 6 in accordance with the terms mentioned in paragraphs 1 to 4 of the will should be construed to mean that whatever was bequeathed to Arumugam in paragraphs 5 and 6 of the will, he shared with his wife and children as specified in paragraph 3 of the will. 3. Was the sale of item 1 under Ex. D-3 void under S.23 of the Contract Act? 4. is the claim or any portion thereof barred by the law of limitation?

Ratio Decidendi: 1. The word pillaigal however, has to be construed mainly with reference to the context in which that expression was used by the testator himself in Ex. P-1 and judged by that test there appears to be no difficulty in holding that by that expression the testator meant "children" without any reference to the sex of the children. 2. In our opinion the word shara in paragraphs 5 and 6 of the will was intended by the testator only to signify the distinction between the absolute interest he conferred on one set of legatees and the limited interest he conferred on the other set of legatees, namely, Kannuswami and Chinnaswami. We are of opinion that the term shara cannot be expanded to include in it the legatees enumerated in paragraph 3 of the will in the absence of any specific reference to Arumughams wife and children among the legatees either in paragraph 5 or in paragraph 6 of the will. 3. At least two factors have to be proved before the requirements of S.23 can be satisfied by Meenakshi Sundarammal, who seeks to avoid the sale under Ex. D.3: (1) that the termination of the criminal case against Arumugam was unlawful, and (2) that the sale under Ex. D.3 constituted the consideration or part consideration for the agreement between Ramaswami Aiyar and Arumugam to terminate the criminal case then pending against Arumugam. Neither of these conditions was satisfied. 4. Since Kanakavalli was a party eo nomine to the contract of sale evidenced by Ex. D.3, Art.44 of the Limitation Act would have applied, had Kanakavalli herself brought a suit to avoid Ex. D.3. That precisely is the position of her heir, Meenakshi Sundarammal.

Final Decision: Appeals dismissed with costs, one set to be divided between the contesting respondents in two groups equally.