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

This appeal by special leave arises out of a suit for partition and mesne profits. The suit was instituted by theof the first respondent in the court of the District Munsif, Padmanabhapuram on June, 13, 1960 seeking a decree for partition and recovery of her share in the properties mentioned in the plaint and a decree for mesne profits from the date of the suit till recovery of possession. The first and second defendants were respectively the mother and younger sister of the plaintiff. According to the plaintiff she had 1/2 share in the properties. The claim was based on a deed of settlement (Ex.executed on November 11, 1943 by Devashayam, husband of the first defendant and father of plaintiff and the second defendant who died on April 1, 1953. The trial Court on a construction of the settlement deed held that the plaintiff and the two defendants had each 1/3 share in the properties and the plaintiffs claim of 1/2 share in the properties was untenable; some of the properties mentioned in the plaint were however excluded which were found to belong to either strangers or to the first defendant absolutely. As regards mesne profits, the trial Court found that the plaintiff was entitled to 1/3 share in the mesne profits from June 1958 but left the amount to be considered at the time of passing the final decree. A preliminary decree was made accordingly. The plaintiff preferred an appeal against this decision. The Subordinate Judge, Nagercoil, who heard the appeal affirmed the trial Courts finding that the plaintiff was entitled only to 1/3 share in the properties, and not 1/2, and that she was entitled to recover possession of her share. On the question of mesne profits also the Subordinate Judge agreed with the trial Court. The plaintiff carried a second appeal to the High Court and the first defendant also preferred acontending that she was entitled to remain in possession of all the properties during her lifetime in terms of the settlement deed and the plaintiff could not therefore ask for partition or recovery of possession during her lifetime. The High Court construing the deed of settlement held that the deed conferred only a life interest on the first defendant in respect of her 1/3 share and the remaining 2/3 belonged in equal shares to the plaintiff and the second defendant so that on the death of the first defendant the other two would be entitled also to their mothers 1/3 share thus enlarging the share of each to 1/2. Overruling the first defendants case that in terms of the deed of settlement she was to be in management of all the properties so long she was alive and the suit for possession was therefore not maintainable, the High Court held :It is quite possible that the settler 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 the time. But it was not his intention to give his life powers of management for all time, irrespective of future developments like marriage of the daughters.

Reasoning:
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.