HIGH COURT OF MADRAS
Decided on September 09,1966
ISAKKI AMMAL THAYAMMAI AMMAL …Appellant
(1) This second appeal by the plaintiff raises a short but not an easy question in the construction of a deed. The Courts below have differed in their views. Briefly stated the point for decision is whether a purported deed of settlement is a composite instrument being a deed of settlement in respect of specified properties and a testamentary document in relation to the remaining properties and a testamentary document in relation to the remaining properties of the settlor. The deed in question was executed by Arunachalam Pillai, a Hindu Vellala, residing at Palayamkottai, Tirunelveli Dt, on 21-4-1927, as a marriage settlement on the eve of his third marriage. The preamble to the document sets out the circumstances under which the document was executed. His first wife was dead and had left a daughter Isakki who had been married away. He had taken a second wife by name Meenakshi about 8 years previously; but she had no issue and it is in these circumstances he sought the hand of the present plaintiff as third wife in the hope of continuing the line. She was his uncle’s daughter, then just aged 16, and the deed recited that when the marriage proposal was made, her father insisted on settlement of some properties as a condition for the marriage, in as much as the second wife was living and there was besides the daughter by the first wife. Items 1 and 2 of the plaint schedule were settled on her in the circumstances under the deed, the deed to take effect on the date of the marriage, the marriage being fixed about a fortnight ahead.
(2) The operative portion of the deed provides for the settlor and the settlee to enjoy the properties jointly during their lifetime the settlee living with the settlor. During the settlor’s life-time the settlee cannot by herself in any way encumber or alienate the properties. Even so during the settlee’s lifetime, the settlor was not entitled by himself to encumber or alienate the properties. Then comes the clauses of the deed requiring construction. Having provided for the enjoyment of the settled properties during their lives, the deed proceeds to provide for the future devolution of the properties settled. Under the first clause after his and her lifetime, if she had male heirs they were to take the scheduled properties and his other properties with absolute rights. The construction contended for is that this clause is partly a transfer in praesenti under the settlement and partly a testamentary disposition.
(3) It is contended that all the remaining properties of the settlor not the subject of the settlement are testamentarily disposed of by this clause. The next clause provides that if the settlee had only female heirs, the said female heirs and the settlor’s first wife’s daughter Isakki alias Thangathammal should partition (the properties) equally and enjoy. It is contended that these female heirs take and devide not only the properties, the subject of settlement but also the properties, the subject of settlement but also the other properties of the settlor. The third clause provides that in the event of the settlee having no heirs she would take the properties scheduled under the deed with absolute rights. Then follows a clause providing against revocation of the settlement under any circumstances.
(4) The settlor died about the year 1937 leaving no male issue even by his third wife, the present plaintiff. He had by her only a daughter by name Meenakshi now alive. The second wife is also dead and the first wife’s daughter Isakki died in or about 1945 leaving her two children, defendants 1 and 2. The third defendant in the suit is the husband of the first defendant. The plaintiff has come forward with this suit basing her title to the properties set out in Schedules 3 to 8 in the plaint as heir to the deceased Arunachalam Pillai. She contends that the estate which she has inherited from her husband on his death in these properties has, under the Hindu Succession Act XXX of 1956, become enlarged into an absolute and heritable estate. Schedules 1 and 2 to the plaint are the properties which were settled on her by her husband and she claims a life interest in the same. It is alleged by her that defendants 1 and 2 are setting up title to the properties described in Schedules 3 to 8 as co-owners along with her Possession is sought from the defendants of the properties described in schedules 3 and 5 and declaration of her title and injunction is sought in respect of the other properties. A shop has been constructed on the fifth schedule item. The trial Court which found for the plaintiff on the construction of the deed, decided that the construction of the shop was by defendants 1 and 2 at their expense and before the plaintiff could have possession of the 5th schedule item, she should pay a sum of Rs. 2000 as compensation to defendants 1 and 2.
The appellate Court which has found against the plaintiff on the construction of the deed finds on the merits that the plaintiff need not compensate defendants 1 and 2 for the construction of the shop as she had herself spent for the construction. As desired by the parties, the property set out in schedule 8 has not been the subject of relief. The learned District Judge on his interpretation of the deed, has held that the plaintiff will be entitled to a life state only in all the properties that is even in the properties described in schedules 3 to 7 defendants 1 and 2 having a half right in the vested remainder along with the plaintiff’s daughter. In that view, possession had been directed to be delivered to the plaintiff of the third and fifth scheduled properties. Her possession of the properties for her lifetime is protected by injunction.
(5) The short though not simple question for decision is whether on its true construction the document Ex. A-1 while being a deed of settlement operating in praesenti on the properties set out in Schedules 1 and 2 of the plaint, is also a testamentary document in respect of the remaining plaint items. That a document can be partly testamentary and partly immediately effective as a settlement is not in dispute. A document can contain a legal declaration of the intention of the executant with respect to his property to take effect after his death notwithstanding that the document may contain other provisions to take effect during his lifetime. A part of the instrument may operate in praesenti as a deed and another in futuro as a will. See Chandmal v. Lachhmi Narain, (1900) ILR 22 All 162. If a deed is severable and part of it clearly testamentary, such part may take effect as a will, though the remaining parts are not testamentary. But the essential distinction and a necessary element to read a will in such a document is that the relative provisions must be revocable. “A will is in all cases revocable, even though the testator may declare it irrevocable”. Theobald on Wills, 12th Edn. Para 78 page 28. Also as pointed out by thing Court inIgnatia Brito v. Rego, 64 Mad LJ 650 (652) = (AIR 1933 Mad 492 at p. 493), where an instrument is deed in form, there must be something very special in the case to justify its being treated as testamentary in character. Now bearing in mind that a document could be ambulatory and testamentary in part and effective as a settlement in part, I shall proceed to construe the relevant clauses.
(6) The cardinal rule of interpretation of deeds as well as other instruments is to look for the intention of the executant in the words of the document and for that purpose the language of the entire deed has to be taken into consideration. As far as possible the interpretation should be such that effect is given to all the parts and no portion of the instrument is rejected. In the construction of a document the prime factor to be found is the intention of the executant as expressed in the deed. The intention has to be gathered from the document itself, and if the words are express and clear, effect has to be given to them and there can be no extraneous enquiry as to what was thought or intended. But it is well established that where there is ambiguity in the language employed it is permissible to look to the surrounding circumstances at the time of execution to determine what was intended to be conveyed by the language used. Very often the status and training of the parties using the words have to be taken into consideration. Very many words are used in more than one sense and the sense differs according to the circumstances and context. It was stated by Sir Gorrell Barness P in the testamentary suit, Simpson v. Foxon, 1907 P. 54 at p. 57.
“But what a man intends and the expression of his intention are two different things. He is bound and those who take after him are bound by his expressed intention. If that expressed intention is unfortunately different from what he really desires so much the worse for those who wish the actual intention to prevail”. In River Wear Commissioners v. Adamson, 1877-2 AC 743, Lord Blackburn sets out the rule thus–
“In all cases the object is to see what is the intention expressed by the words used. But from the imperfection of language, it is impossible to know what that intention is without inquiring further and seeing what the circumstances were in reference to which the words were used and what the object appearing from these circumstances which the person using them had in view; for the meaning of words varies according to the circumstances in respect of which they were used”.
To construe the settlement deed in the present case Ex. A-1, we have this that it is an instrument duly stamped and registered as a deed of settlement of specified properties. The settlor was out only to settle specified properties for his would be third wife and not generally provide for the devolution of all this properties. Ex. A-1 sets out in the schedule the properties which are the subject of the settlement. The occasion for bringing up the instrument is set out in the preamble portion. On behalf of the plaintiff who was taken as third wife, her father had insisted on settlement of properties. The instrument is executed on the eve of the marriage and the deed itself states that it is a marriage settlement. As regards the properties settled the deed first deals with the rights of the settlor and settlee therein during their lifetime. The controversial part of the document starts when providing for the subsequent devolution of properties settled. The relevant clauses run thus:
(Portion in Tamil omitted–Ed.)
The first three clauses have to be read together a single thought pervades the provisions, and when read through one sees gaps and ambiguity. In the event of the settlee having male heirs while providing that the male heirs shall take an absolute estate in the properties settled after the lifetime of the settlor and settlee on a first reading it reads as if it is further provided that they shall so take the other properties of the settlor also. A single verb serves for both sets of properties. I am asked to read in this clause a testamentary disposition in respect of the remaining properties of the settlor. I will then be reading a single clause in the instrument partly as testamentary and partly as a deed. Now this clause provides for devolution after the lifetime of both the settlor and the settlee. With reference to the properties specified and settled, there can be no difficulty or doubt in applying the clause. The survivor of the two spouses takes a life estate with remainder over to the male heirs. A marriage settlement quite commonly takes that form. The position gets complicated when I have to construe the clause with reference to the remaining properties of the settlor. The learned District Judge interprets this clause as giving a life estate in them in the settlee after the lifetime of the settlor if she outlives him. The sons do not inherit even these properties on the death of the father: they take the properties only after the lifetime of the widow, just as in the case of the settled properties. It is this interpretation that makes me hesitant to fall in with the lower Court. No doubt if the settlor outlives the settlee, on his death whether the clause is given effect to or ignored in relation to the other properties, the sons take the other properties absolutely as heirs.
In the event of the settlee outliving the settlor, there is no specific provision vesting the other properties on the settle or for that matter on any one else in the interregnum. The words by themselves if given effect to only postpone the sons for the lifetime of their mother and it is contended for the defendants that they will meanwhile vest in the settlee for her life like the settled properties. To this the argument on behalf of the plaintiff is that the settlor had not embarked on making any testamentary disposition then; to attribute to him an intention to postpone the vesting of his properties on his male heirs for the life-time of the plaintiff. It is argued that this is to find in him an unreasonable or capricious intention. He was anxious to get a son. He was taking a third wife to have male progeny. It was not any infatuation for the girl that brought about the settlement. Certainly he was not anticipating that the male progeny expected would be wayward. Why then should he postpone his sons inheriting his other properties on his death? If they are postponed to take after their mother they may be postponed for decades; they may become grand-fathers before they get their father’s estate.
Then there was the second wife alive and it is pointed out for the plaintiff that there is absolutely no evidence of any other provision having been made for her maintenance. May be she has no issue; but only 8 years had elapsed after her marriage and why should one presume that he was ignoring her altogether. Learned counsel for the plaintiff argues that the circumstances do not warrant imputing a testamentary intent to the settlor in this clause ignoring just and lawful claims and demands on his dispositive powers. It is submitted that the reference to the other properties of the settlor is only by way of illustrating the absolute character of the estate that would be taken by the sons only emphasising the estate they would be taking. Whether it has nay significance or not, the language used in relation to the female heirs is different and this may explain the need for illustration. Hence I may refer to the observations in Patch v. Shore, 1862-2 Dr. and Sm. 589 = 143 RR 283.
“The rule is, that if an instrument be a deed in its form in order to hold it is testamentary, or in the nature of a will there must be something very special in the case; it must even go to this extent, that it was the intention of the settlor that the instrument was to be ambulatory till his death, and then to operate at all events; or that he intended the instrument to be a will animo testandi”.
(7) The test of revocability may be satisfied in this case, as the document states that the executant has no power to revoke the settlement and the clause may be confined to the settled properties. But all the same when both the clauses of properties, the properties settled as well as the other properties are dealt with by a single clause to construe that the same words apply in praesenti in respect of one set of properties and are testamentary in respect of different set of properties the language and the occasion must be compelling. The question is, do the language and circumstances of its user call for such drastic departure by interpretation. I do not see why, if without violence to the language the reference to the other properties can be read as merely a statement of a fact that will happen a construction involving an unlikely intention should be adopted. The language of the provision does not compel that both the sets of properties must be taken at the same time, that it, after the death of the settlor and his wife. It seems to me that the settlor and his wife. It seems to me that the settlor may point out that the male heirs will be taking his other properties absolutely and provides that along with those properties they shall take the settled properties also absolutely after the lifetime of the mother the settlee. The settlor expresses his wish that the settled properties should follow the devolution of his other properties. He was not by the document providing for the devolution of his other properties. Clearly however read he has made no provision with reference to the remaining properties in the event of the settlee having neither male nor female heirs. This is a pointer that the settlor may not be on the subject of disposition of his other properties then. The reference to the other properties can be read as reference to an event that will happen on the death of the settlor; Matrum en Sottukkaliyum–just means Matrum en Sottukkatippol–that is the sons will take the settled properties absolutely even as they would take his other properties absolutely even as they would take his other properties. In Williams on Executors and Administrators, 14th Edn. Volume 2, it is pointed out at page 512:
“Where the words of the will are unambiguous they cannot be departed from merely because they lead to consequences capricious or even harsh and unreasonable; but where they are capable of two interpretations, that construction of them is to be adopted which is in accordance with an intelligible and reasonable, and not a capricious or anomalous result. A testator must not be presumed to intend an absurdity, but, if shown by the context or by the whole will to have so intended, the intention, if not illegal, must be carried out”.
The principles applicable in the construction of a deed are not different. to accede to the construction adopted by the appellate Court is to ascribe to the testator who has been so anxious to get a son a desire not in consonance with the normal wishes and attitudes of the class of people to which the testator belongs. A Court construing an ambiguous document cannot shut out such considerations. Where the language is not clear, I am not prepared to impute such an intention to the settlor in the case in the year 1927, and the construction should not be guided by the subsequent events and the need for what may be considered as equitable and rational interpretation in the state of things now obtaining. I am not taking into consideration the argument of learned counsel for the plaintiff that the properties were ancestral. I am on the construction of the deed and at the time he executed the deed even if the properties were ancestral, he was the sole coparcener absolutely entitled to the properties and would not have imagined that the birth of a son would fetter his disposal of the properties. But all the same I do not think that any Hindu could postpone his son taking his estate after him for the lifetime of his widow, when the son is yet to be born and nothing can be predicted about him. Where the intention of the executant is clear but the language is ambiguous and when it appears from the context that a word must have been incorrectly employed by the testator in the place of some other word, the Court could read the word as it ought to be. Illustrative of the limits to which the Court will go in construing a document I may quote Willams on Executors and Administrations, 14th Edn. Volume 2, at page 616, referring to Forth v. Chapman (1720) 1 P. Wms 663 (667):
“Thus, in (1720) 1 P. Wms 663 (667), where the testator devised real and personal estate to A, and if he should die and leave no issue of his body, then to B, Lord Maclesfied said that it might be reasonable enough to take the same wards as to the different estates of reality and personality in different senses, and as if repeated by the several classes and that the words ‘have no issue’ as applied to the personal estate, should be taken to mean, leave no issue at the time of his death, but as applied to the free-hold to mean an indefinite failure to of issue”. Chief Baren Kelly observed thus in Gwyn v. Neath Canal Co. (1868) 3 Ex. 209 at p. 215.
“The result of all the authorities is that when a Court of law can clearly collect from the language within the four corners of the deed or instrument in writing the real intention of the parties, they are bound to give effect to it by supplying anything necessarily to be inferred from the terms used and by rejecting as superfluous whatever is repugnant to the intention so concerned”.
Oldgers in his Treatise, Construction of Deeds and Statutes, 4th Edn. at page 48, gives another illustration:
“For instance in a marriage settlement the intention was to provide for all children sons and daughters and the Court effected that intention by transposing the clause creating the power to make provision for younger children and that containing the limitation to the daughters in the event of there being no son; whereby the words ‘such younger children’ would include both sons and daughters”.
But of course, to the guise of construction one cannot rewrite the deed for the executant and it is permissible to look for the intention of the executant only when the language is not clear and it becomes necessary to find out what the executant was at by the words used. Also extrinsic evidence of the intention is not admissible. Only when there is doubt, evidence is permissible as to what the words mean or how they are to be applied to the circumstances of the executant. In my reading of the document, the executant has not expressed any testamentary intent by the words in question.
(8) To go to the next clause, the clause applicable in the events that have happened, I agree with learned counsel for the defendants that the clause providing for the contingency of the settlee having only female heirs must be read along with the preceding clause and goes with it. This provision as the previous one comes into effect after the lifetime of the settlor and the settlee. In the event of the settlee having female heirs, her female heirs and the first wife’s daughter have to take the properties equally. The question is do these female heirs take both sets of properties equally. It is contended for the plaintiff that even if the first clause should be read as containing a testamentary disposition in respect of the other properties, this clause does not necessarily take in the testamentary disposition. Learned counsel contends that this can refer only to the scheduled properties. But counsel for the defendants draws my attention to the very next clause where the contingency of the settlee having neither male or female issue is dealt with. That clause provides that the settlee shall take the scheduled properties absolutely. If it should be held that the first clause is partly dispositive in character, it is difficult to hold that the second clause does not take the other properties and make a testamentary disposition of them in the contingency contemplated therein. The second clause makes no reference whatever to the properties. It is understood in the context and the properties which are to be shared equally under that clause must only be the two sets of properties, referred to in the preceding clause.
(9) The several clauses show a continuity of thought. To me it seems that a single subject matter is dealt with, devolution of properties after the lifetime of both.
(10) The specific reference in the third clause to the settled properties is only by way of emphasis and not in contrast with the subject matter of the clauses preceding. The clause immediately following the third clause refers to the document as a settlement and then follows the provision against revocation. No doubt as stated earlier, if the disposition is testamentary, the mere fact that the testator has stated that it was irrevocable, will not stand in the way of revocation. But when considering whether the settlor intended a particular provision to be testamentary or not, one can properly refer to the specific provision by the settlor that he had no right of revocation of the terms of the deed and here the terms are not clearly severed. To read the reference to the taking of the other properties absolutely as merely setting out a fact that will happen and indicating separately that the male heirs will have the same absolute estate in the settled properties will be giving effect to all the provisions of the deed and will be reading the document as a whole. No words will get omitted and no unintelligible and unreasonable effect will be given to the provisions of the deed. It is not contended that the document effects a settlement of the properties not specified in the schedule thereunder. It cannot be in view of Sections 21 and 22 of the Indian Registration Act.
(11) For the defendant reference is made to Ramautar Singh v. Ranisundari, . In the matter of construction of
documents authorities and decisions on particular documents are not of much help. They can be looked up as illustrations of the principles that should guide interpretation. In the ulimate, effect of the words of any particular document has to depend upon the context in which the words have been used and would be conditioned by the tenor of the document. In , the testamentary clause and the
dispositive clause in regard to the gift were distinct and separate, and there was no doubt that the donor’s dominant intention was to pass his other properties also after his death to the donee. It is pointed out in that case that the intention of the executant in respect of the other properties was not at all obscure.
(12) I am conscious that the construction which I find myself constrained to adopt may be having an effect which would not have been dreamt of by the settlor in view of the Hindu Succession Act XXX of 1956. If the settlor could be consulted today he may vehemently assert in the background of the subsequent events and legislation that his intention was as now interpreted by the appellate Court. But the document has to be construed not in the light of events that have subsequently happened and the laws that have been subsequently passed. But for Act XXX of 1956, the plaintiff will be having only a woman’s estate in the other properties of the settlor as his heir on the construction of the document which I am inclined to take agreeing with the trial Court. Now by virtue of the Act, the plaintiff will take the properties set out in schedules 3 to 7 as absolute owner.
(13) The second appeal has to succeed. The variation of the decree of the lower appellate Court necessitated by the view I take is to grant the plaintiff a declaration that she is entitled to the properties set out in schedules 3 to 7 of the plaint absolutely in substitution of the limited declaration granted by the appellate Court in Clause 1 of its decree. The finding of the learned District Judge as to the construction on Schedule 5 properly is a finding of fact. Therefore in other respects the decree and judgment of the lower appellate Court have to stand affirmed. The second appeal is allowed to the extent indicated above. In the circumstances of the case, the parties will bear their respective costs throughout. Leave granted.
(14) Appeal allowed.