JUDGMENT
P.K. Shamsuddin, J.
1. Appellants are defendants 1, 3 and 4 in O. S. No. 19 of 1978 on the file of the Court of Subordinate Judge of Kozhikode.
2. The suit was filed for partition and separate allotment of the plaintiffs’ share. Plaintiffs and defendants 1 to 6 are Thiyyas. Plaint B schedule property belonged to one Janaki, who is the grandmother of plaintiffs and defendants 1 to 6. Kamalakshi and Meenakshi are daughters of Janaki. Plaintiffs and defendants 5 and 6 are children of Kamalakshi. Defendants 1 to 4 are the children of Meenakshi. 7th defendant is an assignee of a portion of the plaint schedule property. On 7-1-1941, Janaki executed a will evidenced by Ext. A1 bequeathing A schedule property therein to Krishnan and Madhavan, who are her sons and Kousalya, who is the daughter of Meenakshi and B schedule property to Meenakshi and Kamalakshi. Kamalakshi pre-deceased Janaki leaving plaintiffs and defendants 5 and 6 and deceased Sikandar and Krishnakumar as legal heirs. Janaki died in 1948. Half share in B schedule property which Kamalakshi would have got had she survived Janaki, devolved on the plaintiffs, defendants 5 and 6, Sikandar and Krishnakumar, Meenakshi died in 1957. Her half right in the B schedule property devolved on her children who are defendants 1 to 4. Sikandar died in 1971 and Krishnakumar died in 1974. Defendants I to 4 sold out 3 cents of B schedule property to the 7th defendant and it was not binding on the plaintiffs and defendants 5 and 6. Calicut Municipal Corporation acquired 2.57 cents and defendants 1 to 4 received the entire compensation without the knowledge of the plaintiffs and defendants 5 and 6. They are entitled to half the amount of compensation. In 1974, defendants 1 to 4 executed a partition deed and effected a division of B schedule property. The 1st defendant sold out a portion of the property to defendants 8 and 9. The 2nd defendant sold out portion of the property to the 10th defendant. The partition deed and subsequent sale deeds are fraudulent documents and were executed without the knowledge of the plaintiffs and defendants 5 and 6 and they were not binding on them. In spite of demand made by the plaintiffs, defendants 1 to 4 were not amenable to make a division of the property and hence the suit.
3. Defendants 1, 2 and 4 filed a joint written statement admitting execution of the Will by Janaki, but contending that since Kamalakshi died during the life time of Janaki, bequest in favour of Kamalakshi was lapsed and whatever right Kamalakshi would have had under the Will in the B schedule property devolved on Meenakshi and that in the circumstances, plaintiffs and defendants 5 and 6 had no right to the plaint B schedule property.
4. Defendants 5 and 6 filed ajoint written statement adopting the plaint averments and 7th defendant filed a written statement contending that by reason of the death of Kamalakshi during the lifetime of Janaki, the entire B schedule property devolved on the surviving legatee and that therefore the plaintiffs and defendants 5 and 6 had no manner of right to the plaint B schedule property. 10th defendant also contended that defendants 1 to 4 had absolute right to sell the property, that he was a bona fide transferee and that even if plaintiffs and defendants 5 and 6 had any right in the property, it was barred by adverse possession and limitation.
5. The trial Court after considering the oral and documentary evidence in the case, came to the conclusion that on the death of Kamalakshi, the bequest in favour of Kamalakshi did not lapse, but devolved on her legal heirs, as if she was alive on the death of Janaki.
6. In this appeal, learned counsel for appellants contended that the view taken by the trial court is wrong. According to him, it is Section 106 of Indian Succession Act that is applicable to the instant case. It reads as follows:–
“If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole.”
Counsel argued that bequest of B schedule property to Meenakshi and Kamalakshi was a joint one and since Kamalakshi pre-deceased Janaki, the testator, the other legatee, namely, Meenakshi takes the whole of B schedule property by virtue of operation of Section 106 of Indian Succession Act, 1925.
7. On the other hand, learned counsel for respondents contended that it is Section 109 that is applicable to the present case. It lays down that :
“Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will”.
Learned counsel submitted that since Kamalakshi is the child of testator, the bequest in favour of Kamalakshi has not lapsed by reason of Section 109, though she predeceased the testator as the plaintiffs and defendants 5 and 6 survived the testator.
8. Another Section which is also relevant in this connection is Section 107 of the Indian Succession Act, which reads as follows :–
“If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator’s property.”
The crucial question that has to be determined in this case is that out of these three provisions, which provision is applicable to the instant case. Both parties agreed that Section 107 has no application to the instant case though for different reasons. According to learned counsel for appellants, no distinct shares have been given to Kamalakshi and Meenakshi and therefore Section 107 has no application. According to counsel for respondents, bequest is to the child and lineal descendants of that child survived the testator and therefore Section 107 which is general in nature has no application in view of Section 109 which is a specific provision in regard to bequest to the child. Learned counsel for appellants also pointed out that the testator had taken care to express her intention not to benefit other heirs than those whose names are specified in the Will and argued that this would constitute a contrary intention contemplated in Section 109 and that intention should be given effect to. In order to appreciate this contention, it would be appropriate to quote the following passage in the Will :–
(Vernakular Matter Omitted ….Ed)
9. It is not disputed that Janaki had other heirs than the legatees, it is on the basis of the above recital, it is argued that no other legal heirs of the testator than the heirs specified in the Will should be benefited by the bequest. It may be noticed that plaintiffs and defendants 5 and 6 are not legal heirs of Janaki and therefore the argument put forward by the learned counsel for appellants to deprive them of the benefit of Section 109 on the basis of the above recital cannot be countenanced. The death of Kamalakshi during her lifetime would have been far from the mind of the testator at the time when the will was executed. The testator would have been well aware that if Kamalakshi was alive on the date of her death, the legal heirs of Kamalakshi would have inherited Kamalakshi’s right in B schedule property on the death of Kamalakshi.
10. Another contention raised by the learned counsel for appellants is that if Janaki intended to benefit the legal heirs of Kamalakshi, it would have been open to her to execute a new will alloting half share in B schedule property to the legal heirs of Kamalakshi, but she did not do so. This according to learned counsel, is clear indication that Janaki did not intend to benefit the legal heirs of Kamalakshi. I am unable to accept this contention. It was open to Janaki to execute a codicile or a new will bequeathing the entire B schedule to Meenakshi on the death of Kamalakshi, if Janaki really wanted to benefit Meenakshi alone and had no intention to benefit the legal heirs of Kamalakshi. That the provisions of Sections 106, 107 and 109 and applicable to Hindus is clear. See Sinnaraj Pillai v. Ramayee Animal, AIR 1969 Mad 96.
11. In Jogeswar Narain v. Ram Chund ILR 23 Cal 670 (PC) the construction of a will of a Hindu testator came up for the consideration of Privy Council. A Hindu testator bequeathed a 4 anna share of a zamindari to his youngest widow and her son for their maintenance with power to alienate by sale or gift the property bequeathed. The Privy Council negatived the contention that the mother and the son became joint tenants in the sense of English Law and not tenants-in-common. Privy Council held that it would not be justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing. It also held that the principle of joint tenancy appears to be unknown to Hindu Law, except in the case of co-parcenary between the members of an undivided family.
12. In Boddu Venkatakrishna Rao v. Smt. Boddu Satyavathi AIR 1968 SC751, the Supreme Court approved the decision of the Privy Council and held that joint tenancy which is unknown to Hindu Law except in the case of co-parcenary between the members of an undivided family could not be spelled out from the recitals in the Will. In the light of the principle enunciated in the above Supreme Court decision, it cannot be held that it was a joint tenancy that was created in favour of Kamalakshi and Meenakshi under Ext. A1 will. Therefore, Section 106 of the Act has no application to the present case.
13. Section 105 states that if the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the testator’s property, unless it appears by the will, that the testator intended that it should go to some other person. Further question that has to be considered is whether in view of Section 109 of the Act, Sections 105, 106 and 107 are excluded. It is profitable to quote here the following passage from the Commentaries of Sanjiva Row’s Indian Succession Act, 5th Edition. Dealing with the scope of Section 109, the learned author observed as follows, at page 438 :–
“The effect of the section is to prolong the original donee’s life by a fiction for a particular purpose, that purpose being to give effect to the will in which the gift which would otherwise lapse occurs, on the fair presumption inherent in this section that the testator will ordinarily intend that the legacy to the son or child should be preserved against the lapse when the legatee leaves an issue alive at the death of the testator…… Where a will is in the favour of children and lineal descendants of the testator, this section 109 comes, into play, and application of Sections 105 to 108 is excluded. Section 109 thus is an exception to those Sections.”
14. In Smt. Gita Devi v. Smt. Munder Devi AIR 1980 All 372, Allahabad High Court observed as follows :–
“Section 109 on the other hand, is a very specific provision, It takes care to save the property for the child of a deceased legatee who is a child of the testator. The primary consideration is that the legacy must not lapse, where the legatee who is the child of the testator dies in the lifetime of the testator leaving behind an issue. The emphasis is that the legatee must be an off-spring of the testator. In other words, the emphasis on Section 109 is that the legatee must be a child of the testator. This is that distinguishes this section from Section 107. Once it is shown that the gift is in favour of a person or persons who come within the meaning of the word “child” of the testator and such a child dies in the lifetime of the testator leaving an issue the requirement of Section 109 is fulfilled. It was argued that Section 107 makes no such provision. This is correct for Section 107 is not confined to a gift in favour of the child of the testator. Section 107 envisages a gift in favour of any two or more persons, not necessarily the children of the testator. Consequently, the provision which has been engrafted in Section 109 could not be provided in Section 107.
It is well settled that when there is a specific provision it excludes the general provision. Section 107 would be the general provision and Section 109 would be the special provision. Consequently, where the major element of Section 109 is present, the principles embodied in Section 107 cannot be made applicable.”
15. Even if it is assumed that there is an apparent conflict between Section 106 and Sec. 109, it has to be held that Section 109 should prevail in view of the well accepted principles of interpretation of statutes. One way in which repugnancy can be avoided is by regarding two apparently conflicting situations as dealing with distinct matters or situations. (See Maxwell on Interpretation of Statutes 12th Edition, page 187). So interpreted, it has to be held that Sections 106 and 107 deal with cases where legatees are not children, while Section 109 deals with cases where the legatees are children. It is also a well settled canon of interpretation that if there is a general provision apparently applicable to all classes and a special provision applicable to a special class, then the provision applicable to a special class must prevail over general provision in its application to that special class. Similarly, if two interpretations are possible, an interpretation which would lead to justice, equity and fairness, should be adopted. So also, the court is to avoid a statutory result that flouts common sense and justice by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice. Viewed in any of these angles, it has to be held that it is Section 109 that is applicable to the present case.
16. Learned counsel for the appellants has placed much emphasis on the expression “any child” and the “legatee” used in Section 109 and contended that Section 109 would apply only if there is only one child and bequest is only to one child, and not otherwise. I am unable to accept this contention. The word “any” cannot be interpreted to mean as “only”. The expression “any” is wide enough to take in its fold more than one child.
17. In Chief Inspector of Mines v. Karam Chand Thapar AIR 1961 SC 838 and in Banwarilal Agarwalla v. State of Bihar AIR 1961 SC 849, the expression ‘anyone’ came up for the consideration of the Supreme Court. The Supreme Court had to interpret the expression “any one the directions”. In the former case, the Supreme Court said :
“(30). If one examines the use of the words ‘any one’ in common conversation or literature, there can be no doubt that they are not infrequently used to mean “every one” – not one, but all. Thus we say “any one can see that this is wrong, to mean “everyone can see that this is wrong”. “Any one may enter” does not mean that “only one person may enter”, but that all may enter. It is permissible and indeed profitable to turn in this connection to the Oxford English Dictionary, at p. 378, of which, we find the meaning of “any” given thus : “In affirmative sentences, it asserts, concerning a being or thing of the sort named, without limitation as to which, and thus collectively of every one of them”. One of the illustration given is — “I challenge anyone to contradict my assertions”. Certainly, this does not mean that one only is challenged; but that alt are challenged. It is abundantly clear therefore that “any one” is not infrequently used to mean “every one”.
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(32) While the phrase “any one of them” or any similar phrase consisting of “any one”, followed by “of” which is followed in its turn by words denoting a number of persons or things, does not appear to have fallen for judicial construction, in our courts or in England — the phrase “any of the present directors” had to be interpreted in an old English case, Isle of Wight Ry. Co. v. Tahourdin, (1883) 25 Ch D 320. A number of shareholders required the directors to call a meeting of the company for two objects. One of the objects was mentioned as “To remove, if deemed necessary or expedient any of the present directors, and to elect directors to fill any vacancy on the Board.”
The directors issued a notice to convene a meeting for the other object and held the meeting. Then the shareholders, under the Companies Clauses Act, 1845, issued a notice of their own convening a meeting for both the objects in the original requisition. In an action by the directors to restrain the requisitionists, from holding the meeting, the Court of Appeal held that a notice to remove “any of the present directors” would justify a resolution for removing all who are directors at the present time. “Any”, Lord Cotton L. J. pointed out, would involve “all”.”
In the latter decision, the Supreme Court followed the ruling in the former decision and held that ‘any one’ in Section 76 of Mines Act should be interpreted as ‘every one’.
18. In view of the principles laid down in the above rulings, and the meaning given in the dictionary to the expression “any”, I am unable to accept the contentions of the learned counsel that Section 109 would apply if bequest was made only to one child.
19. Learned counsel for the appellant finally placed reliance on the subsequent conduct of the parties. He submitted that a portion of the land included in B schedule of the plaint was acquired and that Ext. A2 notice was issued to Kamalakshi’s heirs also, but they did not claim any compensation and the entire compensation was paid to Meenakshi’s heirs, In the plaint, the plaintiffs averred that they demanded their share of compensation, but it was not paid and that therefore in the decree to be passed, adequate provision should be made in regard to the compensation amount which was included in C schedule. Learned counsel also brought to my notice that Corporation Building tax in respect of residential house in the property was paid by the 1st defendant as can be seen from Ext. B3. He further submitted that there was a partition between Meenakshi’s heirs on the basis that Meenakshi alone was entitled to the B schedule property and the Meenakshi’s heirs sold some items to strangers.
20. In my view, these circumstances cannot be pressed into service in determining the legal effect of bequest in favour of Meenakshi and Kamalakshi in the context of one of the legatees predeceasing the testator. There is no evidence that the defendants I to 4 asserted hostile title to the knowledge of the plaintiffs and defendants 5 and 6 for sufficient long period so as to constitute outster of plaintiffs and defendants 5 and 6 and prescribed title against them by adverse possession. All the transactions relied on by the learned counsel were within a period of 12 years immediately before the suit. In the circumstances, the contention that the suit is barred by limitation is also not sustainable.
21. There is a direction in the decree that at the time of partition, the plots in the possession of defendants 7 and 10 should be set apart to them and should be included in the share to be allotted to defendants 1 to 4. That will stand.
In the result, the appeal fails and it is accordingly dismissed. The parties will bear their respective costs.
