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Shanmugham And Others v. Saraswathi And Others
Structured Summary of the Opinion
Factual and Procedural Background
This second appeal was filed by defendants 1 to 3. The suit concerned multiple properties divided into three groups: items 1–37, items 38–44 and items 45–57.
At trial the suit was dismissed in entirety. On first appeal the appellate Court (lower appellate Court) granted a decree in favour of the plaintiffs for items 1–37 in full and granted a preliminary decree for one half share in items 45–57. The appellate Court confirmed dismissal of the suit as regards items 38–44. The plaintiffs filed a memorandum of cross-objections in respect of items 38–44.
The dispute turns substantially on the construction of a Will executed by one Muruga Pandaram (Ex. A-1 dated 1-7-1922). He had three wives (Poongavanam, Pachaiammal and Nagarammal). Paragraphs 1 and 2 of the Will give lifetime interests to Pachaiammal and Nagarammal respectively, with the sons of both wives to divide the properties after the respective life interests. Paragraph 3 and 4 concern other daughters and their issues. Paragraph 5 (the principal clause in controversy) bequeaths several items to both Pachaiammal and Nagarammal for their lives and provides that after their lifetimes "their sons shall divide equally and enjoy the same" and after the lifetime of the sons "their children shall take it absolutely with powers to alienate." The Will uses the Tamil term (vernacular matter omitted) (pillaigal) when referring to "sons' issues" in paragraph 5, and the dispute chiefly concerns the meaning of that vernacular term.
Relevant factual details mentioned in the opinion include: - Items 1–37 were allotted to Saravanan (a son of Muruga Pandaram through Nagarammal) in an earlier partition suit (O.S. No. 46 of 1933), and Saravanan later died leaving no heir other than the plaintiffs who are his daughters. - Items 38–44 were properties purchased by Saravanan at a court auction in execution of a decree (O.S. No. 43 of 1933) and relate to life estates of Palani and Singaravelu. - Items 45–57 relate to paragraphs 1 and 2 of the Will and raise additional issues of construction and non-joinder of co-sharers (the appellants have two sisters by Pavunambal and Sakunthala).
Legal Issues Presented
- What is the meaning of the Tamil expression (vernacular matter omitted) (pillaigal) as used by the testator in paragraph 5 of the Will — does it include female children (i.e., all children irrespective of sex) or only male children?
- Whether the properties numbered 1–37, described in paragraph 5 of the Will and allotted to Saravanan in a prior partition suit, belong to the plaintiffs (Saravanan's daughters) as vested remainder holders.
- Whether items 38–44 (purchased by Saravanan at court auction) confer any interest on the plaintiffs, given that what was purchased was the life estate of Palani and Singaravelu and those life tenants are deceased.
- How the last clause of the Will affects the properties dealt with in paragraphs 1 and 2 (items 45–57): whether the clause reaffirms absolute ownership by the sons or limits the sons to life estates with vested remainders to their children; and whether a suit for partition in respect of items 45–57 is maintainable in the absence of co-sharers (non-joinder).
Arguments of the Parties
Appellants' (Defendants 1–3) Arguments
- They contested the appellate Court's interpretation of the word (vernacular matter omitted), advocating that the term, in the testator's usage, refers only to male children; the trial Court accepted this interpretation.
- As to items 45–57, appellants argued that a concluding clause in the Will directs that properties referred to in paragraphs 1 and 2 are to be enjoyed according to those paragraphs — which, they say, would make the sons (Saravanan, Palani and Singaravelu) absolute owners. Saravanan had executed a settlement in favour of the mother of the appellants (Ammakannu), so plaintiffs cannot claim a share.
- Alternatively, if the concluding clause creates only a life estate for the sons with vested remainders to their children, appellants contended the suit for partition is incompetent without all co-sharers being made parties (they pointed to two sisters by Pavunambal and Sakunthala who were not impleaded).
- Appellants noted that the lower appellate Court granted only a preliminary decree for items 45–57 and argued such a decree is not maintainable when all co-sharers are not before the Court.
Respondents' (Plaintiffs') Arguments
- Respondents (plaintiffs) argued that the testator's use of (vernacular matter omitted) (pillaigal) should be read as including both male and female children; respondent's counsel contended the testator deliberately used different expressions and, where he referred to "sons' issues" he intended to include female as well as male descendants.
- With respect to items 45–57, plaintiffs contended the same interpretation applicable to items 1–37 should apply — i.e., Saravanan, Palani and Singaravelu had only life interests and the vested remainder goes to Saravanan's daughters (the plaintiffs).
- Plaintiffs further submitted that the point about non-joinder of co-sharers was not taken in the Courts below and could not be allowed to be raised for the first time in the second appeal, and that the plaintiffs claimed only Saravanan's half share allotted to him in a separate file (O.S. No. 453/63 on the District Munsif, Villupuram) while the sisters of the appellants could claim the other half.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Meenakshi Sundarammal v. Shanmuga Sundarammal, (1954) 1 Mad LJ 12 (SN) | The Tamil expression "pillaigal" must be construed mainly with reference to context; in appropriate cases it can mean "children" irrespective of sex, especially where the locality uses the term for female children as well. | The Court relied on this authority to support the appellate Court's interpretation that "pillaigal" could include female issues; finding the appellate Court's interpretation plausible and contextually acceptable, the second appeal court declined to interfere with that factual finding. |
| A. Ramachandra Pillai v. Valliammal, (1987) 100 Mad L.W 486 | It is well settled that a suit for partition is not maintainable in the absence of some co-sharers (non-joinder of necessary parties affects maintainability). | The Court applied this principle to hold that non-joinder of co-sharers (the appellants' two sisters) was a fatal defect with regard to items 45–57; as a result, the Court dismissed the suit insofar as those items and permitted the plaintiffs liberty to file a fresh suit including all co-sharers. |
Court's Reasoning and Analysis
The Court's analysis proceeded in the following sequence, closely following the facts and the Will's language:
-
Meaning of (vernacular matter omitted) (pillaigal):
- The Court observed that the Tamil term "pillaigal" has been judicially considered in Meenakshi Sundarammal (1954), which instructs that the word should be construed with reference to the testator's context and local usage and that it can denote children irrespective of sex in appropriate contexts.
- The Will itself uses two different vernacular expressions when referring to "sons" and "sons' issues." The Court attached significance to the testator's deliberate choice of expressions, concluding it was possible the testator intended "pillaigal" to include both male and female issues of his sons (so that after the sons' lifetimes their children — male or female — could take absolutely).
- The Court also referred to the Tamil Lexicon (University of Madras, Vol. V, p. 2712) which defines the expression as "child, infant, offspring," supporting the inclusive meaning.
- Because the appellate Court (the final court of fact) had accepted an interpretation (that "pillaigal" includes female children) which the second appeal Court considered plausible and acceptable, the Court declined to interfere with that factual conclusion in second appeal unless there was material showing a narrower local meaning. No such material existed on record.
-
Items 1–37:
- The Court accepted that items 1–37 were dealt with in paragraph 5 of the Will and had been allotted to Saravanan in an earlier partition suit (O.S. No. 46 of 1933).
- Because Saravanan had no other heir and the plaintiffs are his daughters, the Court found they are entitled to the items allotted to Saravanan's share as vested remainder holders; thus the appellate Court's decree in favour of the plaintiffs for items 1–37 was correct and confirmed.
-
Items 38–44:
- The Court noted that Saravanan had purchased these properties in a court auction executed to satisfy a decree for mesne profits (O.S. No. 43 of 1933). What was purchased by Saravanan was the life estate of Palani and Singaravelu.
- Both Palani and Singaravelu died before the present suit; the Court reasoned that on the death of the life tenants the vested remainder passes to their heirs (defendants 1–3 and others, if any), and the plaintiffs could not claim interest in those items.
- Both the trial Court and the appellate Court had negatived the plaintiffs' claim regarding these items, and the second appeal Court affirmed that conclusion.
-
Items 45–57 and the Last Clause of the Will:
- Items 45–57 relate to paragraphs 1 and 2 where properties were given for life to the two wives (Pachaiammal and Nagarammal) and thereafter to be divided equally by their sons. The Will also contained a concluding clause (vernacular matter omitted) whose precise effect was disputed.
- Appellants argued the concluding clause confirmed absolute ownership by the sons (and therefore any settlement by Saravanan would defeat plaintiffs' claim) or, alternatively, created only life estates for the sons with vested remainders to their children (which would require that all co-sharers be parties for partition).
- The Court recognized the vital procedural point that a suit for partition is not maintainable in the absence of some co-sharers; the appellants' two sisters (Pavunambal and Sakunthala) had not been impleaded. The Court applied A. Ramachandra Pillai v. Valliammal to hold that non-joinder of necessary co-sharers goes to the root of a partition suit and can be raised at any stage.
- Given the non-joinder and the fact that any conclusion on the last clause would not be binding on the unimpleaded co-sharers, the Court concluded it would be better to leave the matter open and allow plaintiffs liberty to institute a fresh suit including all co-sharers. The Court expressly declined to decide whether the last clause is merely a reaffirmation of paragraphs 1 and 2 or an additional condition limiting sons to life estates; it chose not to express any final opinion on that interpretive question.
Holding and Implications
Core Rulings:
- Items 1–37: The decree of the lower appellate Court in favour of the plaintiffs relating to items 1–37 is confirmed. The second appeal is dismissed with regard to those items.
- Items 38–44: The decree of the lower Courts confirming dismissal of the plaintiffs' claim with regard to items 38–44 is confirmed. The plaintiffs' memorandum of cross-objections in respect of those items is dismissed.
- Items 45–57: The decree of the lower appellate Court insofar as items 45–57 is concerned is set aside. The suit insofar as it relates to items 45–57 is dismissed and the plaintiffs are given liberty to file a fresh suit for partition of those items against all co-sharers. The second appeal is allowed in respect of items 45–57 as indicated.
- Costs: The parties will bear their respective costs.
Implications:
- Direct effects on the parties (as ordered): plaintiffs obtain the properties numbered 1–37 (as vested remainder holders), defendants (and other heirs) retain the vested remainder in items 38–44, and the question of entitlement in items 45–57 is left open pending fresh litigation that includes all co-sharers.
- The Court declined to lay down a new precedent on the precise construction of the last clause in the Will (items 45–57); instead it left the interpretive question open so that a fresh suit including all necessary parties may determine it. Thus no new rule of broad application was decisively established on that point by this opinion.
Order: The second appeal is dismissed as regards items 1–37, the decree as to items 38–44 is confirmed and memorandum of cross-objections dismissed; the appeal is allowed as regards items 45–57 by setting aside the appellate decree and dismissing the suit on those items with liberty to plaintiffs to institute a fresh suit including all co-sharers. Order accordingly.
1. The second appeal is by defendants 1 to 3 in the suit. Conveniently the properties involved in the suit can be classified into three groups. The first group comprises items 1 to 37, second group items 38 to 44 and the third group items 45 to 57. While the trial Court dismissed the suit in entirety, the appellate Court has granted a decree in favour of the plaintiffs for items 1 to 37 entirely and for one half share in items 45 to 57. As regards those items a preliminary decree has been passed. As regards items 38 to 44 dismissal of the suit has been confirmed by the appellate Judge. The plaintiffs have filed memorandum of cross-objections in so far as those items are concerned.
2. One Muruga Pandaram had three wives Poongavanam, Pachaiammal and Nagarammal. In this case we are not concerned with Poongavanam. He executed a will marked as Ex. A-1 dated 1-7-1922. Under the will he dealt with certain properties in paragraph 1 which were bequeathed to his second wife Pachaiammal after his lifetime to be enjoyed by her further life. It is stated in para 1 that after her lifetime the sons of both the wives Pachaiammal and Nagarammal shall divide the property. In paragraph 2 some other items are given for life to Nagarammal and again there is a clause that after her lifetime the sons of both the wives shall divide the property. In paragraph 3 certain properties are given to Kullammal and Dhanabagyam his daughters to be enjoyed for life and after their lifetime to be taken by their sons absolutely with powers to alienate. In paragraph 4 certain properties are given to his another daughter to be enjoyed by her for her life and to be taken after her lifetime by her sons absolutely with powers to alienate. The most important and relevant paragraph for the purpose of this case is paragraph 5. He has mentioned several items of properties in that paragraph and bequeathed the same to both the wives Pachaiammal and Nagarammal after his lifetime for their enjoyment for life and after further their lifetime, their sons shall divide equally and enjoy the same. After the lifetime of the sons, their children shall take it absolutely with powers to alienate. The Tamil expressions used in clause 5 are, when he referred to his sons (vernacular matter omitted) and when he referred to his sons' issues (vernacular matter omitted). The question is, what exactly is the meaning of the word (vernacular matter omitted) (pillaigal) used by the testator in the Will. Normally (vernacular matter omitted) (pillaigal) indicates male children. But in several parts of the State the word (vernacular matter omitted) (pillai) is also used when female child is referred to. In fact the expression is used in several parts or the State to indicate all the children including males and females. The contention of the respondent is that a distinction has been made by the testator between the expressions (vernacular matter omitted) and (vernacular matter omitted). According to him, whenever he wanted to give any item to his sons, he referred to them as (vernacular matter omitted) and when he expressly referred to the issues of his sons, he used the expression (vernacular matter omitted). That itself according to learned counsel for the respondents shows that he wanted all the female and male issues of his sons to take the property. That interpretation put forward by learned counsel for the respondents herein has been accepted by the lower appellate Court, while the contrary interpretation put forward by the appellant's counsel was accepted by the trial Court. The question before me is whether the lower appellate Court is in error in accepting the interpretation put forward by respondents' counsel.
3. The expression (vernacular matter omitted) has come up for judicial interpretation in the case of Meenakshi Sundarammal v. Shanmuga Sundarammal, (1954) 1 Mad LJ 12 (SN). A Division Bench of this Court held that the Tamil expression ‘pillaigal’ has to be construed mainly with reference to the context in which that expression is used by the testator himself and that there can be no difficulty in holding in appropriate cases, that by that expression the testator meant ‘children’ without any reference to the sex of the children, especially when it is shown that in the locality the expression ‘pillaigal’ was also used in reference to female children.
4. No doubt in this case no other evidence has been adduced to prove that in the locality the expression (vernacular matter omitted) was used to indicate both male and female children. But the Will itself uses two different expressions (vernacular matter omitted) and (vernacular matter omitted). When the testator has chosen to use the expression (vernacular matter omitted) while referring to the issues of his sons, a significance has to be attached to the said expression. It is quite possible that the testator wanted to include both male and female issues of his sons in order that they take the property absolutely after the lifetime of his sons to whom he gave only a life interest.
5. In Tamil Lexicon published by, the University of Madras, Volume V at page 2712, the expression (vernacular matter omitted) is defined as “child, infant, offspring”. In this case the appellate Court which is the final Court of fact has accepted the interpretation which is quite plausible and acceptable. Sitting in second appeal, I do not think the said judgment should be interfered with. One of the two possible interpretations have been accepted by that Court, Unless there is material on record to show that in the locality (vernacular matter omitted) would mean only male children and it cannot at all indicate female children and that the testator used only the expression (vernacular matter omitted) for referring to the male issues of his sons, I do not think it proper on the part of this Court to interfere with the interpretation accepted by the lower appellate Court. Hence, the conclusion of the lower appellate Court that items 1 to 37 among the suit properties which are dealt with in paragraph 5 of the Will belonged to the plaintiffs inasmuch as they are the only heirs of Saravanan the son of Muruga Pandaram through Nagarammal is correct. It should be mentioned here that the said items were allotted to the share of the said Saravanan in a suit for partition filed by him along with Chinnathambi, who died unmarried later, that is O.S No. 46 of 1933 on the file of Sub-Court, Cuddalore against Palani and Singaravelu, the sons of Pachaiammal. As there is no other heir to Saravanan, the plaintiffs who are his daughters are entitled to the items allotted to Saravanan's share. On his death, the plaintiffs being the vested remainder holders are entitled to get those properties. Hence the decree passed by the lower appellate Court as regards items 1 to 37 is correct.
6. With reference to items 38 to 44 they are properties purchased by Saravanan in Court auction in execution of a part of the decree passed in his favour in O.S No. 43 of 1933 for mesne profits as against Palani and Singaravelu. It cannot be disputed that what he purchased in court auction was the life estate of Palani and Singaravelu and both of them being dead before this suit, the vested remainder in those properties would naturally go only to their heirs, that is, defendants 1 to 3 and others, if any. The plaintiffs cannot claim any interest in those items as the interest purchased in Court auction was only a life estate of Palani and Singaravelu. Both the Courts have rightly negatived the claim of the plaintiffs with regard to those items. Even with regard to those items the contention of learned counsel for the respondents is that on the interpretation given for items 1 to 37 his client will be entitled to get the properties. But that is not acceptable on the face of it. If the judgment-debtor had only a life estate and the court auction purchaser Saravanan had purchased only the same, on the death of the life estate holders, the vested remainder people who are admittedly defendants 1 to 3 will get the same.
7. What remains to be considered is the claim regarding items 45 to 57. These items are subject matter of paragraphs 1 and 2 of the Will to which I have already made a reference. In those two paragraphs the properties were given for enjoyment for life by Muruga Pandaram to his two wives Pachaiammal and Nagarammal and after their lifetime to be divided by their sons equally. Clauses 1 and 2 refer only to the sons of two ladies mentioned in these two paragraphs. But at the end of the Will, the following clause is found:— (vernacular matter omitted).
(Items 1 and 2 shall also be enjoyed according to the above clause). The contention of the appellants is that under this clause the properties which were mentioned in paragraphs 1 and 2 of the Will are directed to be enjoyed in accordance with the condition mentioned in the respective paragraphs 1 and 2. If that contention is accepted, the properties are to be taken absolutely by Saravanan and his two brothers Palani and Singaravelu and during his lifetime Saravanan had executed a settlement deed in favour of the mother of the appellants by name Ammakannu and, therefore, the plaintiffs cannot claim any share in the said properties. It is alternatively contended by him that if on the other hand the clause means that even the properties set out in paragraphs 1 and 2 are to be taken by the sons of the testator for their lifetime and the vested remainder going to their children after their lifetime, the suit has to fail because the plaintiffs can only claim a share and ask for partition in those items and the suit for partition cannot be maintained without all the sharers being made parties. According to learned counsel for the appellants, the appellants have two sisters by Pavunambal and Sakunthala and they have not been impleaded in the suit as parties. It is pointed out that even the lower appellate Court has granted only a preliminary decree in favour of the plaintiffs for one half share in the items 45 to 57 and such preliminary decree is not maintainable inasmuch as all the co-sharers are not made parties to the suit. On the other hand, learned counsel for the plaintiffs contends that in so far as itmes 45 to 57 are concerned, the same interpretation which applies to items 1 to 37 will apply and in those items also Saravanan, Palani and Singaravelu got only a life interest. According to him, after the lifetime of Saravanan, the vested remainder goes to his two daughters Saraswathi and Lakshmi, the plaintiffs. It is further argued that the question of non-joinder of other sharers was not raised in the Courts below and it cannot be allowed to be raised for the first time in second Appeal. It is submitted that the plaintiffs have claimed only the half share belonging to Saravanan which was allotted to him in O.S No. 453/63 on the file of District Munsif, Villupuram and the sisters of the appellants can claim a share only in the other half share which belonged to Palani and Singaravelu.
8. There is no merit in the contentions. The question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers. See A. Ramachandra Pillai v. Valliammal, (1987) 100 Mad L.W 486.
9. There is no dispute that the appellants have two sisters who are also co-sharers. Whatever conclusion is arrived at by this Court on the interpretation of para 5 of the Will, it will not be binding on the sisters of the appellants even if they are impleaded as parties to the present suit and the trial Court is directed to give them an opportunity to file a written statement and decide the matter once again with regard to items 45 to 57. It will be as good as having a fresh trial of the entire matter in relation to those items. It is as if the suit has to be tried once again from the beginning with reference to items 45 to 57, and that will be only leading to unnecessary complications and keeping this suit pending for unnecessarily longer time. Hence, I am of the opinion that it is better to leave open the question so that a fresh suit may be instituted by the plaintiffs, if so advised, with regard to items 45 to 57 claiming their shares in those properties and all the questions including the question of interpretation of the last clause found in that will can be gone into therein. Hence, I am not expressing any opinion as to whether the condition in the last clause is only a re-affirmation of what is stated in paragraphs 1 and 2 or the last clause will be an additional condition giving only life estate to the sons of the testator in the properties which are dealt with in paragraphs 1 and 2 also.
10. In the circumstances, the suit in so far as it relates to items 45 to 57 is dismissed and liberty is given to the plaintiffs to file a fresh suit with regard to those items for partition as against all the co-sharers. The decree passed by the lower appellate Court in so far as items 45 to 57 is concerned, is set aside. The decree of the lower appellate Court relating to items 1 to 37 is confirmed.
11. The second appeal is dismissed with regard to those items. With regard to items 38 to 44, the decree of the lower Courts is confirmed and the Memoran-dum of cross-objections is dismissed. The second appeal is allowed with regard to items 45 to 57 as indicated above. The parties will bear their respective costs.
12. Order accordingly.
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