1. The first question arising in this Letters Patent appeal is whether when two female heirs A and B, inheriting life interests in properties belonging to a male propositus divide the said properties not for mere convenience of enjoyment, but under a contract containing, terms which indicate that each of the female heirs intends to give up in praesenti her life interest in the properties which fell to the share of the other female heir such a complete relinquishment is valid so as to prevent her (A and B) from claiming those properties if she happens to survive her co-heir (B or A).
2. That question has been answered by this Court in the affirmative in Sudalai Ammal v. Gomati Ammal(1), following similar answers given in several previous cases beginning with Ramahkal v. Ramasami Naicken(2).
3. Mr. T.V Seshagiri Aiyar ingeniously argued (if I understood him right) that such a relinquishment of the whole life Interest by A involves a relinquishment of the right of survivorship which is in A contingent on her surviving B and such a relinquishment is invalid under Section 6 of the Transfer of Property Act.
4. This argument is based on the assumption that a vested life interest (which is a present interest well known to the law and allowed by the law to be alienated) can be and ought to be divided into two extraordinary interests (not recognized by the law as alienable), namely (1) the right of A to enjoy the properties jointly with B during B's lifetime assuming that B will die before A and (2) the right in contingent possibility of A to get the undivided share of B by survivorship assuming again that B will die before A.
5. Not only are we of opinion that the above argument based on this division of an entire life-interest in imagination into two interests is unsustainable, but even if there is anything in this argument that is not a sufficiently strong argument to justify us in overruling the current of decisions in this Court during the last 15 years.
6. The next question is whether the partition deed Ex. A does contain words indicating that, so far as plaint Schs. 1 and 3 properties (document Schs. 2 and 4 properties) are concerned the plaintiff (appellant) intended to give up her life interest in those properties. The words sarwa swatantra badhyamayum and santhathi pravesamayum have been interpreted by the Courts below and by the learned Judge of this Court (from whose decision this Letters Patent appeal has been filed), as indicating such relinquishment and alienation by the plaintiff and we are not prepared to say that they are wrong, though if some other usual words as “we have no connexion with each other's rights of properties hereafter but only connexion by blood relationship,” had been also inserted the matter would be beyond controversy. Probably such words were not added because the two sisters (plaintiff and defendant's mother) did intend to retain common interest in the plaint Schs. 2 and 3 properties and it is even contended that as regards Sch. 2 property the parties intended the ordinary right of survivorship to take its course in favour of that sister (whether the plaintiff or the defendant's mother) who happened to survive the other. In short the argument of the appellant's vakil based on the difference in the phraseology of the document in different portions that is the fact that the Tamil words already referred to are attached to the enjoyment of Schs. 1 and 3 properties and such words are omitted in relation to Sch. 2 house to be enjoyed in common strongly supports the construction adopted by the lower Courts that the plaintiff gave up completely her life interest in Schs. 1 and 3 properties in favour of the defendant's mother and of ithe defendant's mother's descendants.
7. The last question is whether, as regards Sch. 2 house the plaintiff gave up her life interest completely or whether she and her sister were to enjoy it in common the usual contingent right of survivorship being left unaffected in favour of that sister who happened to survive the other. The difference of language above pointed out supports the plaintiff's case on this point and though the 12th ground of the second appeal memorandum treats Schs. 2 and 3 properties on the same footing, that mistake should not be pressed against the appellant when the language of the document Ex. A. itself is reasonably clear. But as regards this property, the plaint Sch. 2 house, the plaintiff has by Ex. 1 sold away her life interest in half the house to her sister and cannot claim that share now and though the whole house was claimed by the plaintiff in the plaint the second appeal relates only to the other half of the said house. This other half-share on the above view has come back to her on her sister's death.
8. In the result there will be a preliminary decree for the plaintiff for partition of Sch. 2 house into two equal shares and for possession of one half-share with liberty to the defendant and the plaintiff to apply under the Partition Act and with liberty to the Court of first instance to pass orders under that Act.
9. As the appellant has substantially failed she will pay here respondent's costs in this appeal. The order as to costs passed in the lower Courts will stand.
S.N/R.K
10. Appeal allowed.