JUDGMENT
1. The first question arising in this Letters Patent appeal is whether when two female heirs A and B inheriting life interests in properties belonging to a male pro-positus divide the said properties not for mere convenience of enjoyment but under a contract containing terms which indicate that each of the female heirs intends to give up in presenti her life interest in the properties which fell to the share of the other female heir, such a complete relinquishment is valid so as to prevent the heir (A or B) from claiming those properties if she happens to surrive her Co-heir (B or A).
2. That question has been answered by this Court in the affirmative in Sudalai Ammal v. Gomathi Ammal (1912) 23 M.L.J. 355 following similar answers given in several previous cases beginning with Ramakkal v. Ramasami Naicken (1899) I.L.R. 22 M. 522
3. Mr. T.V. Seshagiri Aiyar ingeniously argued (if I understood him right) that such a relinquishment of the whole life interest by A involves a relinquishment of the right of survivorship which is in A, contingent on her surviving B and such a relinquishment is invalid under SECTION 6 of the Transfer of property Act.
4. This argument is based on the assumption that a vested life interest (which is a present interest well-known to the law and allowed by the law to be alienated) can be and ought to be divided into two extra-ordinary interests (not recognised by the law as alienable), namely (1) the right of A to enjoy the properties jointly with B during B’s life-time assuming that B will die before A, and (2) the right in contingent possibility of A to get the undivided share of B by survivorship assuming again that B will die before A.
5. Not only are we of opinion that the above argument based on this division of an entire life interest in imagination into two interests unsustainable but even if there is anything in this argument, that is not a sufficiently strong argument to justify us in over ruling the current of decisions in this Court during the last 15 years.
6. The next question is whether the partition deed Ex. A. does contain words indicating that, so for as plaint schedules I and III (document schedules II and IV properties) are concerned, the plaintiff (appellant) intended to give up her life interest in those properties. The words “Sarva Swatantra Badyamayum and” Santhathi pravesamayum ” have been interpreted by the courts below and by the learned Judge of this Court (from whose decision the Letters Patent appeal has been filed) as indicating such relinquishment and alienation by the plaintiff and we are not prepared to say that they are wrong, though, if some other usual words, as, ” we have no connection with each other’s rights of properties hereafter but only connection by blood relationship, ” had been also inserted the matter would be beyond controversy. Probably such words were not added because the two sisters (plaintiff and the defendant’s mother) did intend to retain common interest in the plaint second and third schedule properties and it is even contended that as regards the second schedule property, the parties intended the ordinary right of survivorship to take its course in favour of that sister (whether the plaintiff or the defendant’s mother) who happen to survive the other. In short, the argument of the appellant’s vakil based on the difference in the phraseology of the document in different portions that is, the fact that the tamil words already referred to are attached to the enjoyment of the 1st and the 3rd schedule properties and such words are omitted in relation to the 2nd schedule house to be enjoyed in common, strongly supports the construction adopted by the lower courts that the plaintiff gave up completely her life-interest in the 1st and 3rd schedule properties in favour of the defendant’s mother and of the defendant’s mother’s descendants.
7. The last question is whether as regards the 2nd schedule house the plaintiff gave up her life-interest completely or whether she or her sister were to enjoy it in common the usual contingent right of survivorship being left unaffected in favor of that sister who happened to survive the other. The difference of language above pointed out supports the plaintiff’s case on this point and though the 12th ground of the second appeal Memorandum treats the 2nd and 3rd schedule properties on the same footing, that mistake should not be pressed against the appellant when the language of the document Ex. A. itself is reasonably clear. But as regards this property, the plaint 2nd schedule house, the plaintiff has by Ex. I sold away her life-interest in half the house to her sister and cannot claim that share now and though the whole house was claimed by the plaintiff in the plaint, the 2nd appeal relates only to the other half of the said house. This other half share of the above house, has come back to her on her sister’s death.
8. In the result, there will be a preliminary decree for the plaintiff for partition of the 2nd schedule house into two equal shares and for possession of one half share with liberty to the defendant and the plaintiff to apply under the Partition Act and with liberty to the Court of first instance to pass orders under that Act.
9. As the appellant has substantially failed, she will pay half the respondent’s costs in this appeal. The order as to costs passed in the Lower Courts will stand.
