S.A.ALLOWED - (1.) THE defendant is the appellant. THE respondent filed a suit in O.S. No. 329 of 1994 before the District Munsif Court, Nagapattinam, for recovery of possession of the suit properties on the following averments.
(2.) THE suit properties along with other properties belonged to one Krishnammal. She executed a will under Ex.A.1 on 9.5.1952 bequeathing her properties to her sister Govindammal till her life time and after her life time the A, B and C schedule properties would respectively devolve on Rajamanickam Naidu, Packirisamy Naidu and Rajamani Ammal and their heirs. THEre was a further clause that the properties should not be alienated. In case Packirisamy Naidu died issueless, the properties bequeathed to him would revert to the heirs of the other two legatees. THE appellant was the wife of Packirisamy and the respondent was the daughter of Rajamanickam, Packirisamy having died issueless on 16.10.1993, the appellant had not surrendered possession of the property bequeathed to Packirisamy to the respondent and other heirs. THE suit was therefore necessitated. The appellant resisted the suit contending Inter alia as follows: The appellant was the only heir of Packirisamy Naidu o The Will made It clear that Packirisamy Naidu should enjoy the properties during his life time and thereafter his heirs should take them. Only thereafter the question of the heirs of Rajamanickam and Rajamani Ammal would arise. The suit was bad for non-joinder of necessary and proper parties. There was an oral arrangement as per which the legatees had to take the properties bequeathed to them absolutely and as such Rajamanickam sold away the propert ies given to him under the Will. Rajamani Ammal had leased out the properties given to her. In as much as Packirisamy also got absolute rights, he had also executed a Will on 4.10.1989 giving the properties he got under the Will to his sister's son Kuppusamy, as per the terms of which after the life time of the appellant. Kuppusamy would have to take the properties absolutely. Only in those circumstances, the appellant was in possession and enjoyment of the suit properties. The suit was liable to be dis missed. The Trial Court framed the necessary issues and on an appreciation of oral and documentary evidence held that the appellant was in possession and enjoyment in her own right as the heir to Packirisamy Naidu and therefore, the suit was liable to be dismissed, as the possession of the appellant was legally valid. By its judgment and Decree dated 4.3.1996, the trial Court dismissed the suit. However, on appeal, the lower Appellate Court relied on the decision of this Court in Vadivel Mooppan v. Ramasami Goundan, 1984 (II) M.L.J. 1 and held that the suit was maintainable, that there was a distinction between the words "varisu" and 'santati" and that the Will Ex. A-1 was very clear that the testatrix meant only the children born to the respective legatees and not the heirs. In the opinion of the Lower Appellate Court, the appellant was not a 'santati" o In that view, by its Judgment and Decree dated 6.2.1997 the Lower Appellate Court reversed the decision of the Trial Court, set aside the dismissal of the suit, allowed the appeal and decreed the suit as prayed for. Aggrieved, the present second appeal has been filed. At the time of admission, the following substantial questions of law were framed for decision in the second appeal "(1) Whether the interpretation of the material, document namely the Will of Krishnammal by the Lower Appellate Court is in accordance with law and is correct" (2) Whether the non-impleading of the other heirs of the reversioner renders the suit defective"" Mr.S.Sampathkumar, learned counsel appearing for the appellant submitted as follows: There was no distinction in the context that the words "varisu" and 'santati" mentioned in Ex.A-1 meant one and the same and the appellant was entitled to be in possession as heir to Packirisamy Naidu and the suit was liable to be dismissed. The recitals in Ex.A.1 will were incongrous and offended the rule against perpetuity as set out in Section-114 of the Indian Succession Act, 1925. Per contra, Mrs.Prabha Sridevan submitted that the concept of rule against perpetuity could not be brought in or imported into Ex.A-1 wherein the recitals were unambiguous and clear as to succession in the event of failure of any particular line of the legatees.
(3.) LEARNED counsel also relied on the provisions of Sections 87, 88 and 113 of the Indian Succession Act and also the decision of the Supreme Court in N.Krishnaammal v. R.Ekambaram, AIR 1979 S.C12987. The duty of the court is only to ascertain the intentions of the testator. The guide to interpret the Will is the Will itself and his intentions have to be" gathered from the language of the Will. Bower v. Louis, 1884 (9) AC 890. In Subbaryar v. Subbammal, 27 IA 162: 24 Mad. 214 Lord Macnagten observed that the language of one instrument does not afford much assistance in the construction of another. In Kasturi v. Ponnammal, AIR 1961 SC 1302 the Supreme Court observed as follows: "In dealing with the principle that intestacy should be avoided Mukerji, J said Gnambal v. T.Raju Iyer, AIR 1951 SC 103, that the desire to avoid Intestacy was based on English habits of thought which should not necessarily bind an Indian Court. Therefore, there can be little doubt that what Mr.Visvanatha Sastry formulates as a rule of construction against the avoidance of intestacy cannot be treated as an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy, while the other involves intestacy, the court would certainly be justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly in regard to the rule that vesting should not be postponed the position is exactly the same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together. In construing a will it is generally not profitable or useful to refer to the construction of the other wills because the construction of each will must necessarily depend upon the terms used by the will considered as a whole and the result which follows as a fair and reasonable construction of the said words must vary from will to will. Therefore we must look at the relevant clauses carefully and decide which of the two rival construction should be accepted" ;