Decided on February 25,1960



SUBBA RAO, J. - (1.)V. T. S. Sevuga Pandia Thevar, hereinafter called the Zamindar, was the Zamindar of the erstwhile Estate of Seithur, an impartible Estate, in Ramanathapuram District in the State of Madras. Originally this Zamindari was an ancestral impartible Estate and it continued to be so in the hands of the Zamindar's father, Sundaradoss Thevar. In the year 1895 the said Sundaradoss Thevar executed a will where under he gave this property to his son, the Zamindar. The Government of Madras, in exercise of the powers conferred on it under the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948, hereinafter called the Act, issued a notification dated 8/03/1954, abolishing the said Zamindari. Thereafter, under S.54-A of the Act the State Government deposited a sum of Rs. 68,589 with the Madras Estates Abolition Tribunal, Madurai, hereinafter called the Tribunal. On 17/01/1955, the Zamiadar filed before the Tribunal a claim for the recovery of the said amount under S. 42 of the Act on the ground that the said Estate was his separate property and, therefore, he was entitled to get the entire amount of compensation. His exclusive claim for the entire amount was resisted by his sons and others entitled to maintenance, inter alia, on the ground that the Estate was an ancestral impartible Estate and, therefore, they were also entitled to share in the compensation or to get maintenance, as the case may be, under S. 45 of the Act. The Tribunal held that the said Estate was a joint family property and, therefore, the persons mentioned in S. 45 of the Act were also entitled to a share in the compensation in the manner prescribed thereunder.. Against the order of the Tribunal the Zamindar preferred an appeal to the High Court of Judicature at Madras making all the objectors respondents to that appeal. That appeal was heard by a Division Bench of the High Court consisting of Rajagopalan and Balakrishna Ayyar, JJ. It held that the said Estate was not an ancestral impartible Estate and that the Zamindar was exclusively entitled to the compensation deposited with the Tribunal. The objectors, by special leave, have preferred the present appeal to this Court.
(2.)MR. A. V. Viswanatha Sastry, learned counsel for the appellants contended that the Seither Estate was an ancestral impartible Estate and, therefore, the Tribunal rightly distributed the compensation between the appellants and the Zamindar in terms of 45 of the Act. He elaborated this argument under different heads, which we shall consider seriatim.
The first contention of the learned counsel is that under the will Sundaradoss Thevar did not bequeath the said Estate to his son the Zamindar, but the will only contained a recital as to the existence of the said Estate and the fact that it would devolve after his death on his next heir, namely, the Zamindar. It is not disputed that on the date the will was executed the holder of an ancestral impartible Estate could validly bequeath it to whomsoever he liked. The answer to the question raised, therefore, depends purely on the construction of the will.

The scheme of the will may briefly be stated thus : The testator at the time of his death owned an ancestral impartible Estate called Seithur Zamin, a self-acquired zamin called the Elumalai Zamin and other movable and immovable properties. He had certain debts and other obligations to discharge; he had to provide, after his death, for the maintenance of his mother, son, daughter, nephew and others. He gave A Schedule property, i.e., the Seithur Zamin, to his son, the Zamindar; B Schedule property, i.e., Elumalai Zamin, to his nephew, C Schedule property, to his daughter; D schedule property, to Challam, who served his wives faithfully, and E Schedule property to Muthiah Bhagavathar. In addition he made other bequests, directed his debts to be paid and other obligations discharged out of his entire Estate. He appointed an Executor to carry out the terms of his will.

(3.)STRONG reliance is placed by learned counsel for the appellants on the preamble to the will, and, emphasizing on the words "After us there is our only son Sevuga Pandia Dorai, aged 11 years, who is entitled to get all our properties as the heir and at present there is none excepting the said person", an argument is advanced that the said words indicate the intention of the testator that the Estate should go to his son as his heir. But the preamble was not the dispositive clause; it only gave the financial position of the testator, the persons to be provided for and declared his right to dispose of the property in favour of the persons mentioned in the will. Consistent with the preamble, the heading of the clauses making the bequests stated "The arrangements made hereby are as follows". What follows were the arrangements made by him and not what the law of inheritance brought about. Under the will the testator bequeathed A, B, C, D and E Schedule properties to different persons and the clauses making the disposition were couched in the same terminology. Though different words were used in the document as translated, both the learned counsel, who know Tamil, agreed that the same Tamil word was used for bequeathing the different properties to different persons. What is more, whenever the testator wanted to give an absolute Estate to a legatee he used the same words of inheritance such as "shall enjoy hereditaily from son to grandson and so on in succession." It is a well settled rule of construction that the same words used in a document shall be given the same meaning unless there is a clear intention to the contrary. It is not disputed that in the case of C, D and E Schedules the said words of disposition conveyed an absolute interest to the legatees mentioned therein. If that be so, we cannot without violating the said rule of construction and without doing violence to the language used give a different meaning to the clause containing the disposition of the A Schedule property in favour of the Zamindar. Under the relevant clause the testator said "Our son Sevuga Pandia Dorai avergal shall take the properties set out in A Schedule herein after our lifetime and hold and enjoy the same with absolute rights and from son to grandson and so on in succession." If the testator intended to bequeath an absolute interest to the legatee, he could not have done so in words clearer than the said words. We find it impossible to construe the said words to mean that the testator was only recognizing the rights of the son to the Estate if he died intestate : that will be rewriting the will. The appointment of an Executor to administer all the properties, including the A Schedule property, is another indication that the said property was also subject to a bequest, the appointment of an Executor would not have arisen in respect of the A Schedule property if the said property had not been bequeathed under the will. Further, the testator directed all the debts due by him to be paid out of his entire property including the A Schedule property. If the Zamindar was taking the impartible Estate as an heir, he would take it free from the liabilities not binding on the Estate. He was taking it subject to the liabilities not binding on the Estate, because he was taking it as a legatee and not as an heir. For instance in the matter of purchase of Elumalai Zamin, which is admitted to be not a part of the impartible Estate, the testator borrowed money from others; he directed the Executor to discharge the said debt from and out of the A Schedule property and the assets relating to the same irrespective of the property that might have been secured in respect of that debt. In respect of other obligations he directed them to be discharged from and out of the entire property bequathed, including the A Schedule property. For instance, he directed the Executor to spend from the said two zamins amounts necessary to meet the expenses for performing the marriage of his younger brother's son, Muthuswami Pandian, for palace construction and repair and also for making jewels for the wife of Muthuswami Pandian. He also directed him to spend from both the zamins the amounts necessary for performing and conducting festivals. What is more, some items of properties forming part of the impartible Estate, i.e., A Schedule property, were bequeathed to others. The following 3 items prima facie formed part of the Seithur Zamin; (1) a palace in the Seithur Zamin Estate; (2) pannai lands in the Estate purchased from Dalava Madaliar; and (3) Pannai lands in Seithur Zamin in Devadanamkulam village; and pannai lands in Kooraipadugai punja in Pallathavu. Though the palace and pannai lands formed part of the impartible Estate, under the will they were bequeathed to Muthuswami Pandian, Muthathal and others. Under the will the Zamindar got not only the impartible Estate, i.e. the A Schedule property, but also properties other than B, C, D and E Schedules. The Estate as well as other properties were bequeathed to him under the same clause couched in the same language. Therefore, it cannot be said that in respect of the A Schedule property there was no bequest and in respect of other properties there was a bequest. Such a construction will introduce inconsistency and incongruity in the dispositive clause. Briefly stated, the testator did not make any distinction in the matter of bequests between the impartible Estate and his other properties. He divided all his properties into A, B, C, D and E Schedules. He asserted his absolute right to dispose of them. Having regard to the circumstances obtaining at the time of executing the will, by using appropriate words he bequeathed them in the manner described by him in the various clauses of the will. He gave to his only son most of the A Schedule property and also some other properties. A small part of the A Schedule property was bequeathed by him to others also. The A Schedule property and other properties were made equally liable to discharge some of the specified debts. There was a clear bequest of the A Schedule property to the Zamindar, subject to the obligations mentioned above and it is impossible to read into the will the contention of the learned counsel that, though in terms it was a bequest, in fact, having regard to the preamble, it was only a recognition of the Zamindar's right to succeed to the Estate. To accept the argument of the appellants is to read into the will something which is not there. Obviously that cannot be done.
In the context of this contention strong reliance is placed upon a judgment of the Judicial Committee in Shyam Pratap Singh v. Collector of Etawah. AIR 1946 PC 103 at p. 105. There, a holder of an impartible Estate executed a will, the relevant part whereof read thus :

Today K has given his son M to me in adoption and I have taken him in adoption. After my death, my adopted son, shall be the "gaddi-nashin" and the owner of my entire movable and immovable property. After my death he shall, like myself have all the powers. M is yet a minor : therefore, during his minority, my mother, B who was my guardian during my minority and who managed the entire estate very well shall remain the guardian of my adopted son and shall manage the entire estate. I have, therefore executed this will in a sound state of body and mind and after full deliberation."

On a construction of the said will the Judicial Committee held that taking the document as a whole the only operative part of it was the appointment of the guardian and the rest of it was narrative; and even on the assumption that the document could be construed as a gift of the property to M, their Lordships held that it was not effective to change its character from that of an impartible Raj governed by the rule of lineal primogeniture inasmuch as the testator had not broken the line of succession but on the contrary had given the property to the person who would succeed under the rule of lineal primogeniture. It is a well settled principle that a particular will shall be construed on its own terms. Except perhaps when the terms of two wills are exactly or practically the same, it is not possible even to derive any help from the construction of one will in construing the other will. The will we have extracted above differs in many material particulars from the will which is now under our scrutiny. That apart, the judgment of the Privy Council discloses that the parties who appeared before it were not interested to argue that the will contained a bequest. The following observation of the Privy Council makes that clear :

"The first question which arises for decision on these consolidated appeals is whether the view taken by the High Court as to the construction and effect of the alleged will of Raj a Hukam is correct. Upon this question the plaintiff and defendant have joined forces in attacking the decision of the High Court, and no argument has been advanced before the Board in support of the decision, since Rani Baisni is not represented. Their Lordships can only decide the question as between the parties to this appeal." Rani Baisni, the only party who was interested to contend that the finding of the High Court that there was a bequest in favour of the adopted son, was not represented before the Privy Council. Further, the terms of the will as extracted above did not contain any clause of clear disposition as in the will in the present appeal. The words used therein were susceptible of the construction accepted by the Judicial Committee, namely, that it was only an indication of the testator of the destination of the property in the event of his death. The decision, therefore, does not help the appellants. We, therefore, hold on a fair reading of the express words used in the will that the testator in clear and unambiguous terms made a bequest of the A Schedule property to the Zamindar, his only son.


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