JUDGMENT
1. The suit out of which the second appeal arises was instituted by one of the widows left by a Hindu Nellakannu Konar for 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 Ex. A.
2. The most important question in this case is whether according to the terms of Ex. A, the plaintiff was entitled to possession on the death of Shanmugathamrnal 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 Gomathi 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 “Sudalai Arnmal (that is the plaintiff) among us should enjoy until her lifetime, the immoveable properties mentioned in Schedule I hereof which belong to the family, with the Government tirvai etc., that Shanmugathammal and the child Gomathi among us should enjoy the immoveable properties mentioned in Schedule II hereof with the Government tirvai etc., in the same manner.” Although Gomathi is not a party to the agreement this clause expressly provides that Shanmugathammal and Gomathi should enjoy the immoveable properties in Schedule II hereof.
3. Now what was the object of introducing this provision about “Gomathi. Two contentions have been urged by the plaintiff’s vakil as accounting for it. One is, that Gomathi’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.
4. The other contention is, that the object was to indicate that Gomathi was not to have any claim 01 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 Shanmugathammal.” There is also the observation to be made that such a provision against the interest of Gomathi 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 Gomathi’s maintenance as between themselves that if the object was to restrict Gomathi’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 them to any encumbrances and after our death, our heir Gomathi, the daughter of Shanmugathammal among us should enjoy with absolute rights.”
5. There is clear intention manifested by this clause to confer a benefit on Gomathi, because it provides that Gomathi was to have the properties allotted to the two widows absolutely after their death. 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 Gomathi 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, Gomathi should take her property absolutely. The clause is certainly to be understood distri-butively 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, Gomathi must be taken to be spoken of as the heir of each of the widows.
6. 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 Gomathi should enjoy the properties in Schedule II.
7. 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.
8. This power of alienation was not to extend to the immoveable properties which Gomathi 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 the deceased father-in-law two kottas of paddy during her life-time. It was argued that if Gomathi 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 Gomathi 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 Gomathi ware entitled to the property in Schedule II and that the plaintiff did not become entitled to them on the death of Shanmugathammal.
9. It was urged that Gomathi being no party to this document she cannot claim any benefit under it. The agreement of partition was in the nature of a family settlement. Gomathi was the daughter of one of the two widows. In such a case we are of opinion that Gomathi 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 Ramarkal v. Ramasami Naiken. (1899) I.L.R. 22 M. 522.
10. 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 Gomathiammal v. Kuppathai Ammal (1904) 14 M.L.J. 175 is against this contention. Ramakkal v. Ramasami Naiken ani another (1911) I.L.R. 34 A. 189 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 Privy Council in Bhagwandee Doobey v. Myna Baye (1904) 8 C.W.N. 843. 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 properties 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 Kanwar v. Gaura Kunwar (1911) I.L.R. 34 A. 189 and H.H.M. Jayamba Bayi Saiba and Anr. v. H.H.M. Kamakshi Bayi Saiba and Ors. and H.H. Bayi Saiba and Anr. v. H.H.M. Jayayaniba Bayi Saiba and Anr. (1868) 3 M.H.C.R. 424 and Deenamoni v. Elaha-dhut Khan. (1904) 8 C.W.N. 843 But this does not show that a widow may not give up her interest during 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 lifetime. The Privy Council in Bhugwandee Doobey v. Myna Baye (1867) 11 M.I.A. 487 at pp. 514 & 515 carefully 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 and Ors. v. Gita and Ors. (1911) I.L.R. 33 A. 443 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 an 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. Ramaswami Naiken and Anr. (1899) I.L.R. 22 M. 622 this Court followed the view adopted by the Calcutta High Court in Kailash Chander Chakerbuty and Ors. v. Kashi Chandra Chakerbnty and Anr..7 We are of opinion that this contention is not entitled to succeed, notwithstanding the able and strenuous argument of Mr. Ramachandra Aiyar, Vakil for the appellant.
11. We dismiss the second appeal with costs.
