1. The suit out of which the second appeal arises was instituted by one of two widows left by a Hindu, Nallakannu Konar, for the possession of the properties which were in the enjoyment of her co-widow, the title alleged being that she became entitled to succeed to the property as survivor on the death of her co-widow. The two widows, after the death of their husband, effected a partition, which is evidenced by Exhibit A. The most important question in the case is, whether according to the terms of Exhibit A, the plaintiff was entitled to possession on the death of Shanmugathammal, her co-widow. The two lower Courts have put different constructions upon the document. Its interpretation is not free from difficulty. But, after careful consideration of its terms, we have come to the conclusion that the construction put by the District Judge, which is against the plaintiff, is correct. The parties to the agreement were the plaintiff and her co-widow, but there can be no doubt that the daughter of Shanmugathammal, named Gomati, was an important object of consideration at the time of the arrangement. There had been disagreement between the widows and, according to the document, mediators were called in to settle the disputes; and the contract embodies the arrangement which was entered into as the result of the mediation. It states: 'Sudalaiammal (that is, the plaintiff) among us should enjoy until her life-time, the immoveable properties mentioned in schedule I hereof which belong to the family, with the Government tirvai, etc; that Shanmugathammal and the child Gomati among us should enjoy the immoveable properties mentioned in schedule II hereof, with the Government tirvai, etc., in the same manner.' Although Gomati is not a party to the agreement, this clause expressly provides that Shanmugathammal and Gomati should enjoy the immoveale properties in schedule II hereof.
2. Now, what was the object of introducing this provision about Gomati? Two contentions have been urged by the plaintiff's Vakil as accounting for it. One is that Gomati's name was put in merely because she would, as a matter of fact, have the benefit of property allotted to Shanmugathammal as her daughter. In other words, no specific legal effect was intended to be given to the mention of her name.
3. The other contention is that the object was to indicate that Gomati was not to have any claim on account of her maintenance or the expenses of her marriage as against Sudalai Ammal. This is, of course, possible but, in that case, it is noteworthy that the clause restricting her right is not confined, in terms, during the life-time of Shaumughathammal. There is also the observation to be made that such a provision against the interest of Gomati, who was not a party to the document, would be ineffectual as against her. Still, it is possible that the two ladies put it in, in order that Shanmugathammal should be liable for Gomati's maintenance as between themselves. But if the object was to restrict Gomati's right, it is not likely that the clause would be put in the form it bears. The clause is not restrictive in its terms, but purports to give her a right, namely, the right of enjoyment of the properties in schedule II. There is another important clause added after the schedule. It is in these terms: 'We both should enjoy respectively the properties mentioned in schedules I and II aforesaid during our life-time without subjecting it to any encumbrances, and after our death, our heir Gomati, the daughter of Shanmugathammal, among them, should enjoy with absolute rights.'
4. There is a clear intention manifested by this clause to confer a benefit on Gomati, because it provides that Gomati was to have the properties allotted to the two widows absolutely after their deaths. This was, no doubt, clearly more than what the widows could effect by any arrangement between themselves. But, none-the-less, it shows their intention that Gomati should derive, the benefit provided under this instrument. We have perused the clause in the original document and we are of opinion that it should be construed to mean that after the life-time of each widow, Gomati should take her property absolutely. The clause is certainly to be understood distributively with respect to the enjoyment by the two widows as shown by the word respectively and it appears to us that with regard to succession also, it was intended, to operate distributively. Thus construed, Gomati must be taken to be spoken of as the 'heir' of each of the widows.
5. On this construction, this clause would lend strong support to the interpretation placed by the District Judge on the former clause, that both Shanmugathammal and Gomati should enjoy the properties in Schedule II.
6. Another object, perhaps, of the last clause was to make it clear that the widows were not to alienate or encumber the immoveable properties allotted to each. They were empowered to alienate some moveable properties by an earlier clause. This power of alienation was not to extend to the immoveable properties which Gomati was to take on the death of each widow with absolute powers of alienation. Reliance was placed on one of the clauses supporting a contrary construction. The document provides that each of the two ladies should pay one Irulammai, the sister of their deceased father-in-law, two kottas of paddy during her life-time. It was argued that, if Gomati was intended to have the right to enjoy the properties in schedule II, a provision would have been inserted that, if she owned the property exclusively on the death of Shanmugathammal, she would also be bound to pay the maintenance due to Irulammai. This argument is entitled to some weight. But it may be that it was assumed that as Shanmugathammal was stated to be bound to pay part of the maintenance, the same obligation would continue to rest on Gomati if she survived her. At any rate, we do not think that the argument derived from this clause is sufficient to outweigh the considerations we have already mentioned. On the whole, we are of opinion that both Shanmugathammal and Gomati were entitled to the property in schedule II and that, the plaintiff did not become entitled to them on the death of Shanmugathammal.
7. It was urged that Gomati, being no party to this document, cannot claim any benefit under it. The agreement of partition was in the nature of a family settlement; Gomati was the daughter of one of the two widows. In such a case, we are of opinion that Gomati would be entitled to claim the benefit of the provision made in her favour. This is in accordance with the view held by this Court in several cases. See Ramakkal v. Ramasami Naickan 22 M.k 522 : 9 M.L.J. 101.
8. The next question argued for the appellant is that, supposing that Sudalai Ammal intended by Exhibit A to give up her life-interest during the whole of her life-time, even though Shanmugathammal might die before her, such an agreement is invalid because the co-widows of a Hindu could not make a partition which would deprive either of them of the right to succeed by survivorship to the property allotted to the other. No principle of Hindu Law is cited in support of this contention. It is admitted that the decision of Gomathi Ammal v. Kupputhayi Ammal 14 M.L.J. 175 is against this contention. Uamakkal v. Raamsamy Naicken 9 M.L.J. 101 is also against it, though an attempt was made to distinguish it on the ground that the partition in that case was held to be effective, not as against the heirs of the deceased widow, but as against her alienees. And, it was argued, that the case was really rested on the ground of estoppel. The decision does not, however, proceed on the ground of estoppel, Reliance was placed on the observations of the Judicial Committee of the Privy Council in Bhagwandeen Doobey v. Myna Bee 11 M.I.A. 487. In that case, their Lordships were dealing with the effect of partition made by order of Court and not with the result of a contract entered into between the widows. According to the Mitakshara Law, the widows of a Hindu take a joint interest in his estate with rights of survivorship. If they effect a partition, the presumption would be that each widow gave up her right of enjoyment of the property allotted to the other widow during the life-time of the latter, and a Court will not enforce against the will of one widow any right to partition except the right of enjoyment during the life-time of each of the widows to whom properties are allotted. This is the principle underlying Chittar Kunwar v. Gaura Kunwar 13 Ind. Cas. 320; Dinamoni Chaudhurani v. Elahadat Khan 8 C.W.N. 843 and H.H.M. Jijoyiamba Bayi Saiba v. H.H.M. Kamakshi Bayi Saibu and H.H.M. Bayi Saiba v. H.H.M. Jijoyiamba Bayi Saiba 3 M.H.C.R. 424. But this does not show that a widow may not give up her interest during the whole of her own life-time and not merely during the life-time of the other widow to whom the property may be allotted. Such an agreement would be supported by consideration, viz., the right to enjoy some of the properties during her own life-time. The Privy Council, in Bhagwandeen Doobey v. Myna Bee 11 M.I.A. 487carefully avoided expressing any opinion on this question. Both the Madras cases referred to above are direct authorities for the position that she may do so; and, on principle, it is difficult to say why she should not. It is not denied that a widow may part with her life-interest in favour of a stranger. Why should she not deal with it in an agreement of partition between her and her co-widows? In Durga Dutt v. Musammat Gita 9 Ind. Cas. 498 this question did not arise for decision. The question there was whether a donee from a widow could enforce a partition against her co-widows and it was held that she could. There is, no doubt, ah observation at page 446 which might be construed to be in plaintiff's favour. But we cannot take it as a deliberate opinion upon a question which was not before the learned Judges who decided the case. In Ramakkal v. Ramasamy Naiken 9 M.L.J. 101 this Court followed the view adopted by the Calcutta High Court in Kailash Chandra Chuekerbutty v. Kashi Chandra Chuckerbatty 24 C.k 339. We are of opinion that this contention is not entitled to succeed, notwithstanding the able and strenuous argument of Mr. Ramasamy Iyer, the learned Vakil for the appellant.
9. We dismiss the second appeal with costs.