R. Karuppiah, J.@mdashThe appellants, who are defendants 7 to 11 in a suit in O.S. No. 260 of 1991 filed this second appeal against the decree and judgment made in A.S. No. 43 of 2004, dated 26.8.2004, on the file of the Principal District Court, Vellore, wherein the Appellate Court modified the decree and judgment passed by the trial court in O.S. No. 260 of 1991, dated 19.9.2001 on the file of the Subordinate Court, Ranipet. For the sake of convenience, the appellants are referred to as defendants 7 to 11 and respondents 1 and 2 are referred to as plaintiffs 2 and 3 and respondents 3 to 8 are referred to as defendants 4, 5, 12 to 16.
2. During the pendency of the suit, the first plaintiff died and plaintiffs 2 and 3 are recognized as legal heirs of the first plaintiff. The first defendant died and defendants 6 to 11 impleaded as legal heirs of the first defendant. The second defendant died and defendants 12 and 13 were impleaded as legal heirs of the second defendant. The third defendant died and defendants 14 to 16 were impleaded as legal heirs of the third defendant. The 13th defendant died and 12th defendant recognized as legal heir of the 13th defendant. After decree and judgment of the first appellate Court and before filing the second the appeal, the 4th plaintiff died.
3. The respondents 1 and 2 herein, who are the plaintiffs 2 and 3 and the deceased first and fourth plaintiffs have filed the suit for partition of 1/7th share each and after death of the plaintiffs and defendants, the suit was amended and prayed for the following reliefs:
(a) directing the division of the suit properties described in the schedule hereunder into 7 equal shares and allot one such share to each of the plaintiffs 1 to 4 herein, sub-dividing the 1/4th share of the deceased first plaintiff once again into 3 equal shares, and allotting one such 1/3rd of the 1/4th share to each of the plaintiffs 2 and 3 herein and defendants 14 to 16 herein with regard to good and bad soil, buildings, wooden materials, fixtures etc. by metes and bounds.
(b) directing the defendants 6 to 12 and 14 to 16 to give accounts for the income they have appropriated from the schedule mentioned properties.
(c) by granting a permanent injunction restraining the defendants 6 to 12 and 14 to 16 herein from alienating the suit properties without the consent of the plaintiffs 2 to 4 herein, (amended as per order in I.A. No. 210/95 dated 8.9.1995).
(d) directing the defendants to pay the cost of this suit to the plaintiffs.
4. Briefly the case of the plaintiffs is that the suit properties were originally belonged to late A.G. Thiruvengada Naicker as self acquired properties and he died in July 1986. The first wife namely, Pushpammal died in the year 1930 and her sons are defendants 1 and 2 and her daughter is the fourth plaintiff. After the death of his first wife, late A.G. Thiruvengada Naicker married the deceased first plaintiff, namely Pattammal as second wife and her daughters are the plaintiffs 2 and 3 and her son is the third defendant. Therefore, plaintiffs 1 to 4 and defendants 1 to 3 are the legal heirs of the deceased late A.G. Thiruvengada Naicker. Both late A.G. Thiruvengada Naicker and his second wife were residing at Item No. I till the death of late A.G. Thiruvengada Naicker and then, the first plaintiff began to live with her daughter at Madras and the above said item remained vacant. Suit items 2 and 3 have let out to defendants 4 and 5 and they paid the rent to the deceased first plaintiff till October 1986. Since they discontinued to pay the rent from November 1986, the deceased first plaintiff issued legal notice on 10.8.1987 to vacate the premises and the above said defendants 4 and 5 sent a reply on 25.8.1987 by stating that defendants 1 to 3 claimed rent from defendants 4 and 5 as legal heirs and also collected the rent from defendants 4 and 5 for two years. After the death of defendants 1 to 3, their legal heirs are receiving the income from the suit properties and also attempted to alienate the suit properties and hence, the suit.
5. The second defendant filed a written statement and adopted by the 12th defendant, in which it is not disputed the relationship between the parties. But, the defendants denied the contention that the suit properties belonged to late A.G. Thiruvengada Naicker, the father of this defendant. But, the suit properties belonged to the grand father of this defendant, namely Govindappa Naicker (Govindarajulu Naicker). According to this defendant, the said Govindappa Naicker (Govindarajulu Naicker) had executed a registered Will in the year 1917 since Govindappa Naicker (Govindarajulu Naicker) had no trust or confidence in his son A.G. Thiruvengada Naicker. As per the Will, defendants 1 to 3 are entitled to 1/3rd share each in the suit properties and the plaintiffs have no right, title or interest over the suit properties. The second defendant has not received any rent from the tenants and he was residing at Madras. According to this defendant, late A.G. Thiruvengada Naicker was acting only as the guardian of the properties and he had never exercised any right. Further, the properties were bequeathed in favour of his grandsons and the defendants 1 to 3 are entitled to 1/3rd share each in the suit properties and also Defendants 1 to 3 have perfected title over the properties by way of ouster and adverse possession. The suit is also barred by limitation and not maintainable on the ground of mis-joinder of parties 2 to 4 have absolutely no right in the property along with the first plaintiff.
6. Fourth and fifth defendants filed separate written statements in which, it is stated that they are the tenants under late A.G. Thiruvengada Naicker, who was the original owner of the property from the year 1972 to 1974 respectively. After his death, in July 1986, some family dispute arose among the legal heirs, namely defendants 1 to 3 and the defendants 4 & 5 were never in default of payment of rent and they are ready to pay the rent in future. Hence, they prayed for dismissal of the suit.
7. Defendants 7 to 11 filed separate written statements and adopted by the 6th defendant in which it is stated that the suit properties are not self acquired properties of late A.G. Thiruvengada Naicker as stated in the plaint. But, it is originally belonged to Govindaajulu Naicker, the fatter of late A.G. Thiruvengada Naicker. Govindarajulu Naicker by a registered Will gave only life interest in favour of late A.G. Thiruvengada Naicker and he was not the absolute owner of the suit properties. On the death of A.G. Thiruvengada Naicker, as per the Will, his male children alone became the absolute owner of the suit properties. Therefore, the allegation that the legal heirs of late A.G. Thiruvengada Naicker are entitled to equal share is not correct. On his death, the defendants 1 to 3 alone are entitled to 1/3 share each in the suit properties. The plaintiffs are not co-parceners and hence, they are not entitled to any share in the suit properties and they have no locus-standi to file the suit for partition. Neither late A.G. Thiruvenkana Naicker nor his father Govindappa Naicker (Govindajulu Naiker) left any movable properties. These defendants are not taking steps to alienate the suit properties. Therefore, they prayed for dismissal of the suit.
8. Trial court has framed eight issues and also one additional issue. On the side of the plaintiffs, 3rd plaintiff deposed as PW 1 and marked four documents as Exs. A1 to A4. On the side of the defendants, 7th defendant alone deposed as DW 1 and marked one documents as Ex. B1.
9. The trial Court has discussed about the oral and documentary evidence adduced on either side and finally, partly decreed the suit and granted the relief of partition as prayed for in the plaint, but rejected the relief of permanent injunction and accounts. Aggrieved over the above said judgment and decree passed by the trial Court, defendants 7 to 11 preferred an appeal in A.S. No. 43 of 2004 and the appellate Court partly allowed the appeal and modified the decree and judgment passed by the trial Court as plaintiffs 2 to 4 are entitled to each 1/6th share in the suit properties. Aggrieved over the above said judgment and decree passed by the first appellate Court, defendants 7 to 11 preferred this second appeal.
10. This Court has admitted the second appeal on the following substantial question of law:
Whether the interpretation regarding the term ''Pillaigal'' in the Will Ex. B1 given by the Courts below is legally sustainable
11. Heard learned counsel appearing for defendants 7 to 11 and the learned counsel appearing for plaintiffs 2 and 3.
12. The plaintiffs filed the suit for partition in respect of three items of suit properties. The relationship stated in the plaint is not in dispute. The trial Court has discussed about the oral and documentary evidence adduced on either side and rejected the contention of the defendants that as per Ex/B1 Will executed by Govindaraju Naicker, the deceased defendants 1 to 3 are alone entitled to 1/3rd share each in the suit properties and also rejected the contention that the deceased defendants 1 to 3 are entitled to the suit properties by adverse possession and therefore, the trial Court has granted the relief of partition and accounts. The first appellate Court has held that the trial Court has correctly concluded that as per Ex. B1 Will, both the male and female issues of late A.G. Thiruvengada Naicker are entitled to equal share in the suit properties, but the second wife, namely pattammal is not entitled to any share as per Ex. B1-Will. Therefore, the sons and daughters of late A.G. Thiruvengada Naicker are entitled to 1/6th share each instead of 1/7th share in the suit properties.
13. In the second appeal the main contention of the defendants 7 to 11 is that both the Courts below have wrongly interpreted the term "Pillaigal" in Ex. B1, Will as if "Pillaigal" means both male and female issues, but careful reading of the above said term, ''Pillaigal'' only referred as male issues and therefore, female issues are not entitled to any share as per Ex. B1-Will.
14. Per contra learned counsel appearing for the plaintiffs submitted that the term Pillaigal means both male and female issues and therefore, both the Courts below have correctly held that the male and female are entitled to equal share in the suit properties as per Ex. B1 Will and therefore, there is no need to interfere with the above said concurrent findings of the both Courts below.
15. Learned Counsel appearing for appellants/defendants 7 to 11 relied on Tamil Lexicon published under the Authority of the University of Madras Vol. V, Part I, in which it is stated as under:
16. The learned counsel for appellants/defendants 7 to 11 further relied on Na. Kathiraivelpillai Tamil-Tamil Language Agarathi, in which "Pillaigal" means
17. The learned counsel for the defendants further relied on Manimegalai Tamil-Tamil Language Agarathi in which Plliaigal means
18. The learned counsel for the appellants/defendants further relied on the judgment of the Hon''ble Supreme Court reported in
8. From the earlier decisions of this Court the following principles, inter alia, are well established:-
(1) In construing a document whether in English or in vernacular the fundamental rules is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (
(2) In construing the language of the will the court is entitled to put itself into the testator''s armchair
19. The learned counsel appearing for the respondents/plaintiffs submitted that a careful reading of the above said Tamil Lexicon itself shows that "Plliaigal" means both the male and female members and not male member alone. Further, as per the law laid down by the Hon''ble Supreme Court in the decision cited supra, both the Courts have correctly considered the surrounding circumstances and ascertained the meaning of its language and finally, held that "Plliaigal" means both the male and female members.
20. Considering the above said rival submissions it is relevant to extract the relevant potion in the above said Ex. B1 Will as under:-
21. A careful reading of the averments revealed that the testator had intention to give B schedule properties to his second son namely, A.G. Thiruvenkada Naicker for life estate without power of alienation and then, his children (i.e.) male and female members are entitled to in the above said properties. In the above said Will itself the testator has clearly stated about the terms son as and daughter . Therefore, in the first portion the term pillaigal refers both male and female members as contented by the learned counsel appearing for the respondents/plaintiffs and not sons alone as contended by the learned counsel appearing for the appellants. Both the courts below have correctly discussed the above said facts and held that Pillaigal means both the male and female issues. Therefore, the findings of the Courts below are not perverse findings and hence, no need to interfere with the above said findings of the Court below. Further, the first appellate Court has correctly discussed and finally held that the second wife namely, the first plaintiff in the suit is not entitled to any share and only his children of the A.G. Thiruvenkada Naicker alone is entitled to share in the suit properties as per the Will and hence, the first appellate Court has correctly allotted 1/6th share each to the children of A.G. Thiruvengada Naicker instead of 1/7th share each. Therefore, decree and judgment passed by the first appellate Court, modifying the decree and judgment passed by the trial court is to be confirmed and the second appeal is to be dismissed and the answered the substantial question of law accordingly. In the result the second appeal is dismissed. No order as to costs.
