T.C. Raghavan, J.@mdashOne of the second appeals is by the first defendant in a partition suit, and the other by the 13th defendant. The deceased father of the latter was the brother of the former. The two brothers, plaintiffs 1 and 2 and others constituted a marumakkathayam Nair tarwad; and they partitioned the properties under Ext. P. 1 and P. 3 of 1114 and 1119 respectively. A sister of the first defendant and of the father of the 13th defendant by name Kochukarthiayani Amma was one of the sharers in the partitions. She had no children; and she died issueless. The controversy in the second appeals relates to the properties left by her appended to the plaint as, schedules A and B. The former Kochukarthiayani got under Ext. P. 1, and the latter under Ext. P. 3. There were other properties also left by her and included in the suit; but the second appeals are confined to the A and the B schedules. The appellants claimed that in the properties left by Kochukarthiayani the other members had no right, and that the first defendant, Gopalakrishnan Nair, and the 13th defendant''s father, Ramakrishna Pillai, alone had right. This contention has been concurrently rejected by the lower courts, and hence the second appeals. From the facts stated above it is clear that the main question for consideration in the second appeals is the interpretation of Exts. P. 1 and P. 3. The recitals of these two documents are different; and therefore, I shall consider the documents one by one.
2. I shall first consider Ext. P. 3 relating to properties in schedule B. The relevant provision in the document is that the several sharers will enjoy their respective shares for all time in full right after getting mutation in their names and paying their shares of the taxes. The recital continues that since Kochukarthiyani has no children, Ramakrishnan and Gopalakrishnan will retain the properties in their possession, collect their income and properly maintain her after paying the revenue regularly; that if Kochukarthiayani is not satisfied with their management at any time, she has the right to collect the income direct or through her agent or by leasing the properties; that if necessary, she can take one year''s advance rent; that if she wants more funds, she may get the amounts by charging the properties in conjunction with Ramakrishnan and Gopalakrishnan; and that if she encumbers the properties, otherwise, the debt will not bind the properties. The recital proceeds that in case Kochukarthiayani marries and begets children, the share allotted to her will belong to her and her children in full right and that Gopalakrishnan and Ramakrishnan will have no further interest thereafter.
3. It is contended by the counsel of the appellants that the effect of the aforesaid provision was to confer only a life estate in Kochukarthiayani; and that the remainder vested in Ramakrishnan and Gopalakrishnan. He alternatively argues that even if the effect of the provision extracted was to confer an absolute estate on Kochukarthiayani, still, in the event of her dying issueless, the estate would be divested, though the defeasance was not effected by a gift over, but was only a defeasance simpliciter. In other words, the alternative contention is that the vesting in Kochukarthiayani was to be terminated on the happening of the contingency that she died issueless. I do not think this contention can be accepted. If the effect of the provision is to confer only a life estate on Kochukarthiayani, the provision does not indicate that the remainder vested in Gopalakrishnan and Ramakrishnan. Again, if what was conferred on Kochukarthiayani was an absolute estate which would be defeated on the happening of the contingency, her dying issueless, even then, the defeasance is simpliciter, and there is no gift over to Ramakrishnan and Gopalakrishnan. In either case, after the death of Kochukarthiayani the B schedule properties would not go to Ramakrishan and Gopalakrishnan, but would go to her tarwad.
4. I shall next come to Ext. P. 1, where the language is different. Clause 2 is almost similar to the one in Ext. P. 3; and it recites that the several sharers will take and enjoy their shares for all time in full right after obtaining mutation in their name and paying the revenue. Towards the end of the document there is another provision, which reads that until Kochukarthianani begets a child and it becomes a major, she has no right to encumber her share; that if any encumbering becomes necessary, she has to do it in conjunction with either or both of Gopalakrishnan and Ramakrishnan; that if she encumbers her share otherwise, Ramakrishnan and Gopalakrishan, jointly or individually, have the right to set it aside; and that if she dies issueless, her share will go in moieties to Gopalakrishan and Ramakrishnan. It is the effect of this provision that has to be considered; and I may straightaway point out that this is not in the nature of a mere afterthought or a pious wish, but is a definite expression of the intention of the parties.
5. In interpreting a document like this, what the courts have first to do is to gather the intention of the parties; and that has to be done by construing all the provisions of the document together. No provision should be rejected or declared to be void, unless such rejection is absolutely necessary: in other words, a provision should be rejected, only if its acceptance will go against any principle of law. If any authority for this obvious proposition of law is necessary, the Division Bench ruling of this Court in Krishnan Kumaran v. Mathew J. Mattom (1957 K. L. T. 407) may be referred to. Therefore, the two provisions referred to above have to be construed together, if it is legally possible.
6. In so construing, two courses are open. The intention of the parties to the document is clear; and that is that in case Kochukarthiayani died issueless, the share allotted to her should go to Ramakrishnan and Gopalakrishnan in moieties. The parties also appear to have intended that even during the lifetime of Kochukarthiayani, she should not have the right to encumber the properties given to her. In case she wanted to do that, she had to do it in conjunction with either Ramakrishnan or Gopalakrishan or with both of them. If she failed to do that and she encumbered the properties by herself, the debt would not bind the properties; and Ramakrishnan and Gopalakrishnan jointly or individually could get the transaction set aside. The first contention urged by the appellants'' counsel for my acceptance is that the two provisions construed together will only indicate a life estate to Kochukarthiayani. In support of this argument the counsel relies on the Division Bench ruling of this Court already referred to. The Division Bench has construed a partition arrangement, which had similar provisions alike those before me; and, construing the relevant provisions together, has held that the estate created was only a life estate. This Court has not held that the subsequent provision laying restrictions was void. Construing in the same manner the two provisions mentioned above, I feel it is quite possible to hold that what was intended by the parties was only a life estate to Kochukarthiayani with the remainder to Ramakrishanan and Gopalakrishnan.
7. There is yet another manner in which this provision can be viewed. Even if the earlier provision conferred an absolute estate on kochukarthianyani, the subsequent provision can be construed not as a repugnant provision, but as a defeasance clause. In this connection, the subsequent provision may be scrutinised more closely. When that is done, what emerges is that there are really two parts to the subsequent provision. The first is the one dealing with the enjoyment of the properties by Kochukarthiayani during her life; and the next is the one which says that if she dies issueless, the properties will go to Ramakrishan and Gopalakrishnan. It may be possible to say that the first provision, which restricts the enjoyment of the properties by Kochukarthiayani during her lifetime, is a repugnant clause. Nevertheless, it is not possible to say that the latter part of the provision, laying down that in the event of Kochukarthiayani dying issueless her share should go to Ramakrishnan and Gopalakrishan, is a repugnant provision. This provision can only be a defeasance clause. I do not think I need point out the distinction between a defeasance clause and a repugnant provision. The distinction has been pointed out in a succinct manner by Sundaram Chetty J. in Govindaraja Pillai v. Manglam Pillai (A. I. R. 1933 Mad. 80), which has been followed in several decisions by several High Courts. I have had also occasion to consider and follow the judgment of Sundaram Chetty J. (Vide for example, Mt. Rameshwar Kuer v. Shiolal Upadhaya (A.I.R. 1935 Pat. 401) and
8. Mr. Kalathil Velayudhan Nair, on behalf of the plaintiff-respondents argues that the above decisions and the principle of a defeasance clause cannot apply to partitions. According to him, the principle of defeasance can apply only to transfers inter vivos or bequests and not to partition. Why should the principle of an estate getting terminated or extinguished on the happening of a contingency as embodied in sections 28 and 31of the Transfer of Property Act and sections 131 and 134 of the Succession Act not be applied to partitions as well? The principle in its very nature must apply not only to transfers inter vivos and to bequests, but must apply to every estate, however created, whether by transfer inter vivos, by will or by partition. The only question to be considered is as to what is the nature of the estate, whether it is an absolute estate which will be extinguished or terminated on the happening of a contingency, or whether it is an absolute estate with the addition of provisions restricting the enjoyment thereof. That the provision appears in a partition document will not in any way alter the position.
9. Thus I disagree with the lower courts in their construction of Ext. P.1; and I hold that under Ext. P. 1 the properties included in schedule A of the plaint will go to Ramakrishnan and Gopalakrishan on the death of Kochukarthiayani issueless. The second appeals are therefore allowed in part; and the preliminary decree for partition of the properties included in schedule A is set aside. The preliminary decree for partition of the properties in schedule B is confirmed. In other words, the preliminary decree passed by the lower courts will stand modified by the exclusion of schedule A. No costs.
