Case: V.T.S. Thyagasundaradoss Thevar &amp; Others Vs. V.T.S. Sevuga Pandia Thevar &amp; Another

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 Zamindars 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 March 8, 1954, abolishing the said Zamindari. Thereafter, underA 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 January 17, 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.

Reasoning:
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 willWe 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 brothers 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 Zamindars 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 doneIt 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 bequestWe find it difficult to appreciate this argument. We have already held in dealing with the first point that under the will there was a clear bequest of the Estate in favour of the Zamindar. We have also expressed the view that the preamble to the will had only described the factual position at the time the will was executed and that it had no impact on the dispositive clause. The relevant clauses of the will making the bequest do not even remotely suggest the idea now canvassed before us. In view of the similarity of the clauses of disposition used in regard to different bequests, all of them should be construed in the same way. If so construed, it cannot be suggested that only in the case of the Zamindar a joint family Estate was given, whereas in the case of others an absolute Estate was given. In terms of the bequest, all of them got a similar Estate, namely, an absolute Estate in respect of the properties bequeathed to themAs the law then stood, a holder of an ancestral impartible Estate could alienate the same in favour of a third party by a deed inter vivos or under a will : in either case the alienee or legatee, as the case may be, got an absolute interest therein. The holders son could not interdict the said alienation or bequest as he had no right by birth therein. The son had only a right to take the ancestral Estate by survivorship in case the father died intestate. The exercise of the right by a father to alienate destroyed his sons right to take it by survivorship. If one right was exercised, the other was lost. As the Zamindar got the Estate as a legatee and not as a member of a joint Hindu family by right of survivorship, he got it absolutely in his own right under the terms of the will9. The question may be looked at from a different angle. The testor, as we have interpreted his will, conferred an absolute interest in the impartible Estate on the Zamindar. How did that absolute Estate become a joint family Estate in the hands of the legatee? An absolute Estate so conferred could have been limited by law operating on the bequest or by some inherent disqualification of the legatee to receive in absolute bequest. None of the said two circumstances existed in the present caseOn a construction of the document in that case, the learned Judge held that the gift was given exclusively to the donee and not or the benefit of his branch of the family. The said judgment decided two points, namely, (i) if a son gets the property of his father by inheritance or in partition, it being ancestral property under Hindu law, he becomes ar with his son or sons; and (ii) the father can bequeath hisd property to his son or sons absolutely or to the branch of his or their family. The first depends upon Hindu law and the second on the nature of the bequest made. We have already held on a construction of the will in question that the father bequeathed the property, which he was entitled to do under law, absolutely to the Zamindar and not to the branch of his family. As the Zamindar obtained his fathers property by way of bequest and not by virtue of his right as a son or descendant there is no scope for invoking Hindu law to hold that in his hands the said property became the joint family property. We, therefore, hold that in the hands of the Zamindar the impartible Estate was hisTo appreciate this contention it will be necessary to know briefly the incidents of an impartible Estate before the said Act was enacted. The law is so well settled that it does not call for copious citation or discussionn in terms limits the unrestricted power to incur debts or alienate properties possessed by an impartibler in respect of his Estate. The limits of his power are defined by reference to the power of a managing member of a joint Hindu family, not being the father or grandfather of the other, to make an alienation of the joint family property or to incur a debt. His power in regard to alienations and debts is equated to that of a manager of a joint Hindu family. While an impartibler before the Act could alienate the Estate or a part thereof or incur debts binding on the Estate without any restrictions on his power, after the Act he can only do so under the circumstances where a manager of a Hindu joint family can do so. But it is not possible to hold that then by its own force converted ad impartible Estate before the Act into a joint family Estate thereafter. The words of then do not bear any such contention. If so, it follows that though the Seithur Zamin was an impartible Estate under Madras Act II of 1904, it continued to be ad property of the ZamindarIt is not necessary to express our opinion on this question, as the Tribunal as well as the High Court, on a consideration of the evidence placed before them, came to the conclusion that the evidence adduced for that purpose was wholly insufficient to sustain a finding of blending. The finding is one of fact and no exceptional circumstances have been placed before us to make us interfere with that findingWe do not see any justification for this contention. Section 45(1) only gives the description of an ancestral impartible Estate as evolved by judicial decisions. As noticed earlier it has been held by the Judicial Committee that an impartible Estate, though ancestral, is clothed with the incidents of ad and separate property, but the right of survivorship alone still remains and to the extent the Estate still retains the character of a joint family property. Section 45(1) of the Act in terms succinctly describes an ancestral impartible Estate in the light of the said decisions. As we have held that Seithur Zamin is not an ancestral impartible Estate in the hands of the Zamindar, it is outside the scope of S. 45 of the Act. It follows that it will be governed by Rr. 1 and 4 (1) of the Rules made under the Act. It is not disputed that if R. 4 (l) applies, the appellants are out of Court, for the Zamindar alone owned the Estate before the notified date.