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High Court of Judicature at Madras
SRINIVASAN
S.S. Rajalinga Raja & Others
Versus
S. Thiruvengadathammal & Others
S.A. 365 & 380 of 1981 & C.M.P. 7155 & 7156 of 1984, & 12907 & 13315 of 1986
Decided On :Decided on: 06-10-1986
WILL - Interpretation - Bequest of properties to grandsons for life with remainder to their male santhathi or santhathis - Whether the term 'santhathi' includes female issue - Whether the vested remainder in the present case was with Gomathi which was liable to be defeated by the birth of a son to Chockalingam.
Fact of the Case:
The plaintiff, the daughter of one of the sons of Thiruvengadathammal, filed a suit for partition and separate possession of 1/6th share in the suit properties. The suit properties belonged to Sooryanarayana Chetti who died in 1928. By his will dated 25-1-1926 he bequeathed the suit properties and other properties in favour of his wife Thiruvengadathammal. The latter executed a will dated 13-5-1931, distributing her properties among her grandsons, sons and others. Thiruvengadathammal had two sons and a daughter. The plaintiff in this suit is the daughter of one of the sons of Thiruvengadathammal, viz, Chidambaram Chettiar. The first defendant is the brother of the plaintiff. The second defendant is the daughter of Thiruvengadathammal. Defendants 3 to 6 are the grandchildren of Thiruvengadathammal through her other son Manikavasagam Chettiar. The seventh defendant is the wife of the first defendant. Thiruvengadathammal died on 14-5-1931. According to the plaintiff, the present suit properties fell to the share of Chockalinga Chettiar another brother of the plaintiff. Chockalingam had a daughter, by name Gomathi who predeceased him. Chockalingam died on 16.3.1957. The plaintiff claims that Chockalingam had only a life estate in the properties and on his death, there was a reverter to Thiruvengadathammal, the testatrix and as she had already passed away, the property devolved on her heirs and that the plaintiff was thereby entitled to 1/6th share and the other shares belong to defendants 1 to 7.
Finding of the Court:
The court held that the term 'santhathi' includes female issue and that the vested remainder in the present case was with Gomathi which was liable to be defeated by the birth of a son to Chockalingam.
Issues: 1. Whether the term 'santhathi' includes female issue? 2. Whether the vested remainder in the present case was with Gomathi which was liable to be defeated by the birth of a son to Chockalingam?
Ratio Decidendi: 1. The court held that the term 'santhathi' includes female issue based on the following grounds: a. The testatrix intended to distribute the estate among her descendants and desired that it should not be frittered away by the direct legatee. b. She wanted the properties to reach the hands of her great-grand children. c. She did not want any collaterals of her grandsons to take a share in them. d. There is no indication whatever to exclude females or deny them the right of succession. e. On the other hand, we find that she has made direct bequests to her grand-daughter, sisters daughter and her own daughter-in-law. f. She did not want to confine her bounty to males only. g. The words used in the relevant clauses are . The Tamil word is equavelant to ‘or’ indicating an alternative. h. It is quite obvious that her first choice was male santhathi! Santhathi is a Sanskrit word freely and normally used in Tamil also. i. It is a term of wide import. It means ‘descendants’ or ‘issues’. j. In some of the decisions of this Court, it has been pointed out that the term ‘santhathi’ can be understood to mean not merely the children but also childrens children, childrens childrens children etc. k. In the context will mean male descendant or male issue. l. That itself will include and mean the plural of them too. m. That term is itself sufficient to cover all the male issues if there are more than one. n. When the testatrix provided for an alternative by using the word it can only mean that in the absence of a male issue, she wanted the property to be taken by other specified persons. o. One cannot expect that in the year 1931, an old woman in India introduced a clause with a sort of legislative meticulousness providing for singularity and plurality of great-grandsons. p. When the testatrix provided for an alternative bequest in the event of a failure of the first bequest, she has again used the term . Necessarily, this refers to descendants other than male descendants. q. Her intention was that if her grandson had male issues such male issues should take the properties and in the absence of them other issues or descendants of her grandsons should take the property. 2. The court held that the vested remainder in the present case was with Gomathi which was liable to be defeated by the birth of a son to Chockalingam based on the following grounds: a. It is a well known rule of construction that vesting should not be postponed for long. b. If a construction by which immediate vesting is possible, the same should be adopted. c. In this case Gomathi got a vested right as soon as she was born and it was liable to be defeated by the birth of a son to Chockalingam. d. As Chockalingam did not have any son, the vested interest of Gomathi was never defeated.
Final Decision: The court allowed the appeals only with reference to the appellants in the two appeals. The decree passed by the learned Subordinate Judge of Tirunelveli and confirmed by the learned District Judge of Tirunelveli will be set aside only with reference to defendants 9, 10, 17, 19, 20, 21, 26 to 32 and 44 only and the properties owned by them and the suit as against them will stand dismissed. Both parties will bear their respective costs throughout. The decree passed with reference to the other defendants and other properties will not be disturbed.
1. These two second appeals revolve round the interpretation of a Will executed by a common ancestor of the plaintiff and defendants 1 to 7. The first respondent in both the appeals is the plaintiff in the suit for partition and separate possession of 1/6th share in the suit properties. Admittedly, the suit properties belong to one Sooryanarayana Chetti who died in 1928. By his will dated 25-1-1926 he bequeathed the suit properties and other properties in favour of his wife Thiruvengadathammal. The latter executed a will dated 13-5-1931, distributing her properties among her grandsons, sons and others. Thiruvengadathammal had two sons and a daughter. The plaintiff in this suit is the daughter of one of the sons of Thiruvengadathammal, viz, Chidambaram Chettiar. The first defendant is the brother of the plaintiff. The second defendant is the daughter of Thiruvengadathammal. Defendants 3 to 6 are the grandchildren of Thiruvengadathammal through her other son Manikavasagam Chettiar. The seventh defendant is the wife of the first defendant. The 6th defendant died pending suit and her legal representatives were brought on record as defendants 48 to 51. Thiruvengadathammal died on 14-5-1931. According to the plaintiff, the present suit properties fell to the share of Chockalinga Chettiar another brother of the plaintiff. Chockalingam had a daughter, by name Gomathi who predeceased him. Chockalingam died on 16.3.1957. The plaintiff claims that Chockalingam had only a life estate in the properties and on his death, there was a reverter to Thiruvengadathammal, the testatrix and as she had already passed away, the property devolved on her heirs and that the plaintiff was thereby entitled to 1/6th share and the other shares belong to defendants 1 to 7. Defendants 7 to 46 were alienees in possession of various properties and they were claiming under alienations made by Chockalingam Chettiar as well as Gomathi. According to the plaintiff, any right acquired by the alienees came to an end on the death of Chockalingam Chettiar and that she was entitled to partition and separate possession of the properties. Hence she has filed the present suit.
2. The alienees contended that by separate written statements that the plaintiffs claim of reverter to Thiruvengadathammals estate on the death of Chockalingam was unsustainable and that on a proper construction of the will of Thiruvengadathammal, the property belonged to Chockalingam absolutely. Some of the defendants contended that the suit was barred by limitation. Some others claim to have prescribed title by adverse possession. It was also contended by some of the defendants that Chockalingam Chettiar had left him surviving his third wife, by name, Meenakshi, and that he had a son by name Easki and as they were alive, the plaintiff was not entitled to claim any right in the suit property. It is not necessary for me to set out in detail the various contentions raised in the written statements as the entire matter will depend upon the interpretation of the will of Thiruvengadathammal.
3. Both the Courts below have taken the view that Chockalingam got only a life estate under the will of Thiruvengadathammal and on his death, there was a reverter to Thiruvengadathammals estate and the plaintiff and defendants 1 to 7 being heirs of Thiruvengadatbammal, were entitled to the property. The contention that Chockalingams third wife and a son through her, were alive was not accepted by the courts below. Consequently, the courts below have passed a preliminary decree for partition of plaintiffs 1/6th share and for 1/12th share of each, of defendants 3 and 4 in the suit properties other than items 8 to 11, of the second schedule and item 3 of the 8th schedule. There is no necessity for me to refer to the controversy regarding the items excluded by the courts below from the purview of the decree for partition, as it is not the subjectmatter of the second appeal.
4. It will be convenient to give the g
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