Case: Arulayi Nadachi Selvi Ammal Nadachi (Dead) By L.Rs Vs. Selvi Ammal Nadachi Maria Arulayi Nadachi (Dead) By L.Rs

the other items excluding 1 (which I have given to you today with full rights), after my lifetime you can take possession of No. 1 above, she should be in management of them and enjoy them in that capacity. After her lifetime, Nos. 2 and 3 above will take those properties with full rights including powers of alienation (with absolute rights including powers of alienation)."You" in Clause 1 includes the wife of the settlor and their two daughter, Arulayi Nadachi and Rosammal Nadachi, who have been referred to as No. 1, No. 2 and No. 3 respectively in Clause 4. Even proceeding on the translation made by the learned Judge we do not see how it can be said that the first defendant was given only a life interest. It is said that the expression "full rights" or "absolute rights" in the first sentence of Clause 4 should be contrasted with the same expression used in last sentence of the clause with the words "including powers of alienation" added. According to the learned Judge, these words were added to indicate that when the settler said that "after my lifetime you can take possession of them with full rights, he did not mean to grant absolute ownership to any of the three. The translation of the last sentence of Clause 4 in Ex. A-1 is not materially different, ". . . after the death of party No. 1, parties Nos. 2 and 3 shall take over the same absolutely with right of alienation thereto". The learned Judges view is that the settlers intention was that the first defendant should manage all the properties including those in the shares of the daughters but after her lifetime the daughters would become absolute owners. This means that after the death of the first defendant her daughters would each become owner of half share in all the properties including those in their mothers share. We do not think that the words "full rights" can be read in this restricted sense as the High Court has done. Clause 1 provides that item No. 1 of the properties mentioned in the schedule to the settlement deed would be enjoyed by all the three from the date the deed was executed with "full rights and with powers of alienation". It will be useful here to refer to Clause 5 of the deed which has not been translated by the learned Judge. Clause 5 says that certain properties were allotted to the settlor "absolutely" on partition and that he was in possession and enjoyment thereof "absolutely" and, further, that he was "having transactions regarding the same". It is clear beyond doubt that the settlor held the properties referred to in Clause 5 as absolute owner though the words "with the right of alienation" are absent here. It seems plain to us that the words "with the right of alienation" were added in the last sentence of Clause 4 only to emphasise that during the lifetime of the mother she would remain in management and enjoyment of all the properties and the daughters would have no right of alienation in respect of the properties in their shares so long as she was alive.3. On the question of mesne profits, for the appellant pointed out that Clause 4 of the deed permitted the first defendant to "manage and enjoy" the properties given by the settlor to her daughter so long as she was alive, and therefore she could not be made liable for mesne profits. Counsel for the first respondent drew out attention to the relevant portion of Clause 4 as translated by the learned Judge which according to her was more accurate. Clause 4 provides inter alia that during the lifetime of the first defendant "she should be in management" of the properties and "enjoy them in that capacity". It was submitted that the words "in that capacity" indicated that the first defendant was to be in possession of her daughters properties as manager only and therefore accountable to them for mesne profits. We do not think that this contention is correct even on the translation as made by the learned Judge. The first defendant was given the right not only to manage but also "to enjoy". This means in our opinion that she was to remain in possession of the properties in her daughters shares not as owner, but having a right to enjoy the profits thereof so long she was alive which is similar to the right reserved by the settlor for himself in Clause 1 in respect of the properties other than item 1 of the properties mentioned in the schedule to the deed.4. Counsel for the first respondent also sought to read Clause 4 as giving the first defendant a right of management over all the properties which implied, the argument proceeded, that she had only a life interest in respect of her own share, because there was no point in giving her a right of management over properties of which she was the absolute owner. We do not think that Clause 4 can be read in the way suggested by the learned Counsel for the first respondent. The opening paragraph of the settlement deed makes it quite clear that the properties were given to the first defendant and her two daughters absolutely subject to the terms set out in the five clauses that followed. Clause 4 does not limit the first defendants rights in her own share but imposes a limitation on the rights of her daughters as long as she was alive.5. The High Court in decreeing the claim for mesne profits observed :It is quite possible that the settlor when he directed that the property should be managed by his wife had in view the status of his daughters as unmarried and therefore unprotected young women at that time.This is an unwarranted conjecture, contrary to the plain words of the deed, and this is also not the case of any of the parties.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We do not think that Clause 4 can be read in the way suggested by the learned Counsel for the first respondent. The opening paragraph of the settlement deed makes it quite clear that the properties were given to the first defendant and her two daughters absolutely subject to the terms set out in the five clauses that followed. Clause 4 does not limit the first defendants rights in her own share but imposes a limitation on the rights of her daughters as long as she was alive.