1. These appeals arise from two cross - suits before the thiruvalla district munsiff's court. A. S. No. 391 of 1951 arises from o. S. No. 258 of 1117 and a. S. No. 503 of 1953 from o. S. No. 149 of 1123. The plaint schedule property in the two suits is one and the same. It consists of twelve paras of paddy land and it belonged originally to the tarwad of the plaintiff in o. S. No. 258. In a partition arrangement evidenced by ext. Iii (copy), Dated 17. 3. 1097, One - sixth out of it went to govinda pillai krishna pillai, Defendant 1 in o. S. No. 149 of 1123 and the remaining five - sixth of his uncle parameswaran pillai narayana pillai. Govinda pillai krishna pillai is the uncle of the plaintiff in o. S. 258 and parameswaran pillai narayana pillai was her grand - uncle. Though under ext. Iii there was a division of the right into five - sixth and one - sixth, It is common ground that no division by metes and bounds was ever made. Govinda pillai krishna pillai has all along been away in allahabad and according to the plaintiff in o. S. 258, Parameswaran pillai narayana pillai remained in possession of the entire property. After his death in 1109, The plaintiff would have it that her mother kutty amma obtained possession and continued to be so until her death in kanni 1116 and that thereafter the property passed into her possession. On these allegations she instituted o. S. 258 to obtain a permanent injunction restraining defendant 1 in the suit from interfering with her possession. Defendant 2 to the suit is the plaintiff's own father and according to her he was colliding with defendant 1. Subsequent to the institution of the suit the brother of defendant 1 and some others were made parties to the suit at their own instance.
2. Defendant 1 contested the suit. He claimed to be in possession of parameswaran pillai narayana pillai's five - sixth share as per an usufructuary mortgage, Ext. Iv dated 3. 11. 1116. According to him after the partition evidenced by ext. Iii, The said narayana pillai had possession only of his five - sixth share and the remaining one - sixth was looked after by defendant 2, The plaintiff's father for and on behalf of govinda pillai krishna pillai. On 28. 2. 1106 parameswaran pillai narayana pillai executed a chitty hypothecation bond (ext. Ii) in favour of defendant 1 in the sum of rs. 600. Narayana pillai died in 1109 (28. 12. 1109) and his properties devolved on his widow narayani amma and his son by a predeceased wife, By name narayana pillai parameswaran pillai. Until 24. 4. 1111 the said parameswaran pillai remained possession of narayana pillai's estate when a division was effected between him and the widow - see ext. 1. Under that division narayana pillai's five - sixth share in the plaint schedule property was, Together with some other items, Allotted to the share of the widow, And she undertook the liability to discharge the debt due to defendant 1 as per ext. Ii. She died in 1113 and under her will (ext. Vi) her sister's grand - daughter, One ambika amma, Claimed title to all her properties. In edavom 1116 the said ambika amma made an application before the thiruvalla district munsiff's court signifying her intention to liquidate the amounts due to defendant 1 as per ext. Ii under the provisions of the debt relief act - vide ext. Vii (21. 10. 1116). Afterwards defendant 1 and ambika amma came to terms and she executed ext. Iv in favour of the former. The application under the debt relief act was got dismissed on 31. 12. 1116. On the same day as ext. Iv was executed in favour of defendant 1, Defendant 2 executed a pattomchit (ext. V) to defendant 1 averring that the sugar - cane cultivation on the property was made by ambika amma and that after the canes were cut and removed in chingom (1117), He will surrender possession to defendant 1 on 30. 1. 1117. Defendant 1 would have it that defendant 2 surrendered possession to him on the said date as per the undertaking embodied in ext. V. This is how defendant 1 claimed to be in possession of the five - sixth share of the plaint schedule property which parameswaran pillai narayana pillai got under ext. Iii. Defendant 2 remained ex - parte. Defendant 3 supported his brother, Defendant 1 and defendant 4 was only interested to remove the sugar - cane grown by him on a portion of the property.
3. O. S. 258 was first disposed of on 29. 3. 1123 and the decision went in favour of the plaintiff. Defendants 1 and 3 took the matter in appeal before the high court in a. S. 266 of 1123, But before filing the appeal they instituted o. S. 149 of 1123 in the lower court for a division by metes and bounds of the five - sixth share mortgaged to defendant 1 under ext. Iv. To that suit govinda pillai krishna pillai is defendant 1, Kutty amma devaki amma (the plaintiff in o. S. 258) defendant 2, Her father (defendant 2 in o. S. 258) defendant 3, Ambika amma (the mortgagor in ext. Iv) defendant 4 and the receiver appointed in o. S. 258 defendant 5. The learned district munsiff who disposed of o. S. 258 had confined his attention to the question of possession alone and the high court thought that a disposal of the suit based on a consideration of the mere question of possession was not satisfactory. In view thereof and also in view of the institution of o. S. 149, A. S. 266 of 1123 was allowed and the case remitted to the lower court for retrial. The two suits were directed to be heard together and the judgment remitting the case contains a specific direction that the rival titles the parties set up to the property should be adjudicated upon. The revised judgment in o. S. 258 is one dismissing the suit. In o. S. 149 plaintiff 1 (defendant 1 in o. S. 258) has been given a decree for partition. Hence these appeals.
4. The plaintiff in o. S. 258, Who was mentioned earlier is defendant 2 in o. S. 149, Has brought both the appeals. The leading judgment has been delivered in o. S. 149, But the direction this court gave that the question of ambika amma's title should be gone into by the lower court has not been very much kept in view by the learned district munsiff who disposed of the two suits. He, However, Has found definitely that the plaintiff in o. S. 258 or her sub - tarwad had no title whatever to any property left behind by narayana pillai. We are at one with him in this view. Narayana pillai died only in 1109. Therefore, When succession opened to his estate, As per the law then in force (nair act ii of 1100) his on though by a predeceased wife who died before the first nair act (i of 1088) became entitled to a one - half share thereto, The other half going to his widow. She was childless. The argument advanced on behalf of the appellant that the widow would get a one - half share and that the other one - half will devolve or lapse to narayana pillai's tarwad does not commend itself to us as correct. The result is, Even as matters stood on the date of the institution of o. S. 258, In order that the plaintiff thereto could obtain any relief she had to establish her possession, But that too would now be of no avail in view of o. S. 149, Provided the mortgagee thereunder could show a prima facie right to remain in possession until evicted in due course of law. We shall therefore first address ourselves to the question of possession.
5. Narayana pillai died, As soon earlier, On 28. 12. 1109. It is common ground that he remained in possession of his five - sixth share until his death. His heirs were his widow narayani amma and narayana pillai parameswaran pillai, His son by a predeceased wife. The said parameswaran pillai has been examined in the case as dw. 1. Both he, And defendant 2 (o. S. 258) as dw. 2, Have given definite evidence that until 24. 4. 1111 when the division under ext. I was made, The former remained in possession of narayana pillai's estate and that thereafter parameswaran pillai remained in possession of what he took under the division and narayani amma took possession of what she got thereunder. We have seen that the five - sixth share in the plaint property was allotted to narayani amma's share. This evidence which we are inclined to believe, Conforms to the statements contained in ext. I regarding possession. Further, It is seen that after narayana pillai's death the revenue registry of his estate was changed into the name of parameswaran pillai. Narayani amma died in 1113 and she had left a will (5. 7. 1109) bequeathing her properties to ambika amma. A question we have to decide in this case is whether that will would convey to ambika amma the post - will acquisitions of narayani amma. Her husband narayana pillai died (28. 12. 1109) after she made her will and it is only then she obtained any interest in his estate. Whatever that be we find ambika amma dealing with narayani amma's estate as if it had passed to her in its entirety. We have evidence of that assertion first in ext. Vii (21. 10. 1116) when she filed the application under the debt relief act to liquidate the amount due to defendant 1 (in o. S. 258) as per ext. Ii. This is followed by the mortgage, Ext. Iv of 3. 11. 1116, In favour of defendant 1. Ext. V of even date, Executed by dw. 2, Lends corroboration to the evidence that after narayani amma's death ambika amma had possession of the property. Ambika amma's claim to possession is therefore supported by documentary evidence. Both dws. 1 and 2 have no reason to give evidence against the plaintiff (o. S. 258). No doubt, It has been alleged that the father was ill - disposed towards the daughter but we consider that to be not true as the father had given all his properties to his wife and children and he was admittedly living with them and looking after their affairs. In the face of ext. V, The plaintiff had of necessity to state that the father was enmically disposed towards her. There is also other oral evidence in the case in support of the case that after narayana pillai's death, First dw. 1, Then narayani amma and after her, Ambika amma had possession of this property. The oral evidence in the case also shows that since 1117 the plaintiffs in o. S. 149 (defendants 1 and 3 in o. S. 258) had possession. The witnesses other than dws. 1 and 2 who speak to these facts are dws. 3 to 7. The learned munsiff who passed the revised judgment in o. S. 258 has believed them and we see no reason to form a different estimate as to their credibility. As against all these evidences, Oral and documentary, The plaintiff has virtually to depend upon the oral evidence of herself (pw. 1) and pws. 2 to 6. The lower court discussed the evidence led by the plaintiff in para. 5 of its judgment in o. S. 149. As we are generally in agreement with the criticism therein levelled against that evidence and as the evidence on the opposite side is far more reliable, We think it unnecessary to refer to the grounds dealt with by the learned munsiff over again. Admittedly the plaintiff had not paid any tax after 1114 and there is no proper proof of the michavaram receipts produced by her.
6. In the circumstances we feel bound to uphold the lower court's decision that the plaintiff (o. S. 258) had no possession of the five - sixth share of the plaint property. For the present purpose it is immaterial whether she was in possession or not of the remaining one - sixth share. When the property has not been divided by metes and bounds it is difficult to understand how the parties could have separate possession of distinct blocks, But the effect of the evidence in the case is that the south - western portion representing the one - sixth share of govinda pillai krishna pillai was being separately enjoyed.
7. The result of the foregoing discussion is that a. S. 391 fails. We dismiss that appeal with costs.
8. We have next to deal with a. S. 503. We have found that narayana pillai's widow obtained title to the five - sixth share of the plaint property under ext. I and that thereafter till her death she was in possession thereof. We have also found that on her death its possession passed to ambika amma, The mortgagor under ext. Iv (defendant 4 in o. S. 149). The question we have to decide now is whether she had any title thereto. She claimed it under ext. Vi, The will executed by narayani amma. As noticed earlier the will was executed before a one - half share in narayana pillai's estate vested in the testator. Mr. T. K. Kurien, Who appeared for the respondents in these appeals, Contended that the will would operate on the after - acquired properties also. Reliance was placed for this argument on s. 90 of the indian succession act (act
xxxix of 1925). That section reads:
"the description contained in a will of property the subject of gift, Shall, Unless a contrary intention appears by the will, Be deemed to refer to and comprise the property answering that description at the death of the testator"
.
learned counsel also referred to the decisions in alavandar gramani v. Danakoti ammal a. I. R. 1927 madras 383 and rangoo v. Harisa a. I. R. 1932 nagpur 163. We are afraid s. 90 of the succession act or the decisions relied upon cannot be of any assistance to the plaintiff. There are no general words of devise in ext. Vi and it purports only to dispose of the properties then in existence or rather those that the testator then owned. A decision in point is that reported in lekshmi narasamma v. Ammanna sidhanti a. I. R. 1937 madras 26. The will purports to refer only to the properties that belonged to the testator on the date of its execution. Those properties are specifically described in it. "a contrary intention" as envisaged in s. 90 is therefore clear on the face of ext. Vi. No doubt ext. Vi states in the preface portion that ambika amma shall be the testator's heir, But subsequent portions make it abundantly clear that the reference is only to the devolution of the properties described in the will by reference to their names, Survey numbers, Boundaries, Etc.
9. The following quotation from pp. 363 and 364 of basu's indian succession act (1946 edition) would support our view on the question.
"contrary intention, Deducible, When - the cases on this exception falls into two classes (hawks 20) :
(1) where the date of the will as opposed to the death is distinctly referred to; as where a testator bequeaths "my house with the lands belonging thereto now occupied at b. ", A field taken into occupation by the testator after the date of the will, Will not pass. (hutchinson v. Barras,1 w. R. 538). If the words are not "essential" this section will have operation. Re harton (1920 - 2 ch. 1).
(2) where there is particularity in the description of the specified subject of gift, Showing that an object in existence at the date of the will was intended. For example, Where a testator gives "my brown horse" or "the houses which i bought from mr. B," (see emuss v. Smith, 2 de g. & s. 722) or "all the stock which i have purchased" douglas v. Douglas, (kay, 400, 405), The description shows that it must have been intended to refer to the state of things existing at the date of the will and not at the death of the testator, (stokes, P. 57). In order that the first of these may be sufficient, The reference to the date of the will must be such as to leave no doubt as to the testator's intention. For instance, A devise of 'such lands in kent as i owned at' date of will would no doubt carry no after - acquired lands in kent. But it is doubtful if such a phrase as 'which i now own' would be enough to do so. It was held in cole v. Scott, (1849) i mac. & c. 518, That it would be enough; but that case has not been since treated with much respect. See castle v. Fox (1871) l. R. 11 eq. 544 per malanis v. C. ; saxton v. Saxton (1879) 13 ch. D. 359, At p. 361 per malanis v. C. ; and in re champion: dudley v. Champion (1893) 1 ch. 101 at p. 107, Per north, J. ; underhill 120; vide also lord lilford v. Powys keck (1862) 30 beav. 300. "indeed, There seems to be a tendency on the part of the courts to read words indicating the present time, Such as 'lands i am seised of (deo v. Walker (1844) 12 m. & w. 591), 'shares i now possess'. (hepburn v. Skirving (1869) 4 jur. N. S. 651; wagstaff v. Wagstaff (1869) 8 eq. 229), As referring to the date not of the will, But of the death of the testator", Underhill 120. "whether this tendency or the ground of it is correct is doubtful after the explanation given by lindley, L. J., Of s. 24 in in re postal and lamb (1885) 30 ch. D. 50. And see re edwards rowlands v. Edwards (1890) 63 l. T. 481. The more correct rule would appear to be that recognised by north, J. ; in re champion (1893) i ch. 101, In which while holding that 'now in my occupation', And such like expressions, Refer to the date of the will, Still, Unless they are an essential part of the description, They should not be taken as limiting it to things within it at the date of the will. And see in re fraser: lowther v. Fraser (1904) i ch. 726 p. 65". (underhill 121).
under ext. Vi, Ambika amma, Defendant 4, Cannot, Therefore, Be taken to have obtained any title to the plaint property (five - sixth share). Our first reaction, Therefore, Was to allow a. S. 503 and dismiss o. S. 149 as well.
10. However, Ambika amma is a member of narayani amma's sub - tarwad and the senior - most member thereof - none other than the father of defendant 2 (the plaintiff in o. S. 258) - is a party to this suit as defendant 3. The charge created under ext. Iv is in respect of a liability contracted by narayana pillai himself and on the date of the mortgage, The mortgagor had possession of the property. Her possession since passed to the mortgagee, Plaintiff 1 in o. S. 149. In the circumstances we consider that the appropriate course for us would be to confirm the lower court's decision permitting a division of the plaint property by metes and bounds and to deliver possession of five - sixth share thereof to the plaintiffs in the suit. Whether other members of narayani amma's sub - tarwad have superior claims to that of the plaintiffs or of ambika amma is not a matter which concerns us here. Defendant 2, The plaintiff in o. S. 258 or defendant 1 or for that matter, Even their sub - tarwad or tarwad has no claim or title to the five - sixth share in the property. Admittedly the parties had not divided the property by metes and bounds. Defendant 5, The receiver in o. S. 258 is in possession of the entire property. To dismiss o. S. 149 now would be to create an impossible position for all concerned. In the circumstances notwithstanding our finding that ext. Vi, Narayani amma's will did not operate on her post - will acquisitions, We feel constrained to confirm the lower court's decision (o. S. 149) and dismiss a. S. 503 as well. The plaintiff (in o. S. 149) will, As directed by the lower court, Take the necessary steps to effect a division as indicated above and to obtain possession of the five - sixth share. The profits collected by the receiver will be shared by the plaintiffs and defendant 1 (govinda pillai krishna pillai) in the ratio of five - sixth and one - sixth. In the circumstances of the case, Parties will bear their costs in this suit throughout. The lower court's decision as to costs will, Therefore, Stand vacated. Order accordingly.