TMI Blog1971 (9) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... heard these appeals together and, by a common judgment, modified the decree of the trial Court by its judgment and decree dated 9th July, 1962. The plaintiffs filed two applications for the grant of the certificate under Article 133 of the Constitution Since two certificates were granted, we have two appeals before us, but both of them are by the plaintiffs. 2. As already stated, the suit, out of which these appeals arose, had been filed by Nagappa Setty. His suit was for partition of the family properties. To start with, there were nine defendants to the suit, defendants 1.8 being Nagappa's younger brothers and defendant No. 9 being their mother. On an objection raised by the defendants that necessary parties were not on record, the other defendants, who were members of the defendants' family, were joined as parties. The Chief contest was between Nagappa Setty, on the one hand, and defendants 1-9, on the other. 3. The plaintiff Nagappa Setty based his claim principally on the will dated 1st January 1933(Ext. A A) made by his father Lachiah Setty. He claimed that the properties in suit were, in accordance with the will, the self-acquisitions of Lachiah Settey which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iah Setty. The will does not specify the several movable and immovable properties of the testator; but it says that all the properties of the family standing in the name of either himself or his sons were his self-acquired properties which he was in a position to dispose of by a testamentary document. A mere look at the schedules to the plaint would go to show that the properties are numerous and extensive, indicating thereby that the family was one of the wealthiest families in Mysore State. Evidence has been led to show that Lachiah Setty belonged to a family which carried on extensive business in coffee and other commodities from about the year 1860. The family owned coffee estates After the death of Lachiah's father, Lingappa Setty, there was a partition of the family properties between Lachiah, his younger brother, Manjiah, and the two sons of a pre-deceased elder brother, Sidd-anna. The partition deed is Ext. VII dated 18th July, 1910. In this partition, Lachiah received a large amount of cash, considerable movable and immovable properties, including coffee estates, and also a running business in cloth at Chiekmangalure. Lachiah's eldest son, Nagappa Setty, had alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ten sons, M.L. Vasudeva Muny, defendant No. 8, had just attained majority and the other son, M.L. Dasaratha Setly, was a minor of 16 years of age. 7. In the very first paragraph, Lachiah Setty says that he was eighty years old at the time and, on account of illness, he was growing weak. The reason given by him for making the will is that, owing to his old age and possible accidents of life, he was executing the Will, when, he was of sound mind and body, in order to express his desire regarding disposal of his vast properties and the manner in which the members of his family should conduct themselves after him This leaves no doubt that Lachiah Setty intended to make a testamentary disposition of his properties to take effect after his death. In para 2, he names the several numbers of his family and says that all of them, including their wives and sons were under his care and protection. He further says that all the sons had great regard and affection for him, for his eldest son Nagappa Setty, and their mother, Rukminiamma, defendant No. 9 and the relations between all of them were harmonious. Then, in para 3, he says that, in the family partition with the brother and brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards me towards him and towards their mother. All my sons should conduct themselves in this manner. It is my firm conviction that there will be scope for our family to rise into a greater status and prosperity, even in furture, if they remain united and conduct themselves as such. But by providence, if by any reason it becomes unavoidably necessary to effect a partition amongst my sons, all my movable immovable properties, assets and liabilities should be divided as hereunder. 19. Out of the entire movable and immovable properties that I own at present and the properties that might be acquired by the family in future, the liabilities that might be exist in respect of the entire properties at that time, should be deducted and the remaining properties, movable and immovable should be divided into 16 parts and out of which four anna share should be given to my eldest son Nagappa Setty or if he is not alive, to his sons. Two annas shares should be given to my second son Subbaraya Setty or if he is not alive, to his sons. Two annas share should be given to my Dha-ramapathni Sowbhagyavathi Rukminiyamma. The remaining eight annas share should be divided equally amongst the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lachiah Setty. But unfortunately, Luchiah, though a father, could not, under the Hindu law, dispose of, by will, joint family property or any part thereof and as a will it was clearly inoperative on the various dispositions made by him (See Paryatibai vs Bhagwant, Vishwanath Patak 39 Bom. 593, and Subbarami Beddi v. Ramamma) 43 Mad. 824. This latter case has questioned the correctness of a previous decision of that Court in Appan Patra Chariar v. V.S. Snnivasa Chariar and Ors. 40 Mad. 1122. The decisions proceed on the principle which was well-settled in Vittla Bulten v. Yamenamma (1874) 8 M.H.C.R. 6, and Lakshman Dada Naik v. Ramachandra Dada Naik 5 Bom. 48 P.C. that a coparcener cannot devise joint family property by will, because, on the date of his death when the will takes effect, there is nothing (or the will to operate on, as, at the moment of his death, his interest passes by survivorship to the other coparceners. 9. It is true that, in some cases, the Privy Council had given effect to a will by a coparcener when the dispositions had been made with the consent of the other coparceners (See Brijraj Singh and Anr. v. Sheodan Singh and Ors. 40 I.A. 161, and Lakshmi Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll amongst the relations (See Ram Chaian Das vs Giris Nandini Devi and Ors. . The question, therefore, is whether the father and sons in this case had been really motivated by the above objects when the father purported to make the Will which would then be a misnomer for an agreement embodying a family arrangement. As to this, we are constrained to say there is very little either in the will or the pleadings or the evidence led in the case. In construing a document, whether in English or in vernacular, the fundamental rule is to ascertain the intention from the words used. The sum ending 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 (See Ram Gopal v. Nand Lal and Ors. 1950 S.C.U. 766. The Will here does not show that there was any occasion for making a family arrangement The Will itself discloses that all the sons were on amicable terms, there were no dissensions, no contrary claims and no reasonably anticipated disharmony. On the other hand, the father exhorts the sons to continue to remain joint and undivided for the greater glory of the family as one unit. It is true that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to act in a particular circumstances. The father, it is obvious, did not contemplate a severance of the joint family status in the foreseeable future. Deaths of sons were not unlikely to occur which would have completely upset the shares suggested by him in para. 19 Secondly, a situation, like the one we have in this case where only one of the members of the family wanted to separate from the others, was bound to create a difficult problem. A son, in disregard of his father's exhortation to remain joint, desires to separate, while the other sons, in obedience to the father's wishes, do not desire to separate. In such a case, the latter would be able to retort to the former. Since you disregard the father's wishes that we should continue to be join, we are discharged from the necessity or obeying father's wishes with regard to shares in partition. A problem of this kind would inevitably create difficulties in the matter of sharing the family property as suggested by the father and, for that reason also, the contents of para, 19 are better construed as suggestions of the father as expressly stated by him in para, 20. In short, the contents of paras 18 and 19 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This evidence also has not been accepted by both the Courts and we think there is good reason to think that the story now given at the time of the hearing is an after-thought. In short, there is nothing in the Will, the pleadings, or the evidence which goes to show that there was any occasion for agreeing to a family arrangement, or that the motivation, which is necessary or a family arrangement, was ever present to the minds of Lachiah and his sons when the will was executed. 12. Technical objections were also raised to the alleged family arrangement embodying Ext. A A on the ground that one of the sons, M.L. Vasudeva Murthy, defendant No. 8, had just attained majority when he had signed the acceptance of the Will and the other son, Dasaratha Setty, who was then a minor, had also signed the Will. There is no evidence to show that Vasudtva Murthy who was a callowlad at the time, had independent advice when he had signed along with his brothers; and, so far as the minor Dasaratha Setty is concerned, his signature below the Will has absolutely no voluet Lachiah was the guardian of Dasartha Setty at the time and, as pointed out in Subbarami Rfddi v. Ramamma (supra), the arrangeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In short, there was no legal acceptance of the alleged arrangement by Dasaratha Setty and for that reason also the alleged family arrangement must fail. But even assuming that all the sons had accepted the arrangement the acceptance means no more than merely agreeing to abide by the suggestions made by their father in the will and since, as already pointed out, there was no consideration for such acceptance, the document must fail as a family arrangement. It was suggested in the course of arguments that the will was acted upon and reference was made to certain payments alleged to have been made in pursuance of the father's directions. Both the Courts have found that the Will was not acted upon and we see no good reason to take a different view. In our opinion, the High Court was right in holding that the document Ext. AA was inoperative as a Will and ineffective as a family arrangement. 15. The learned Trial Judge thought that the plaintiffs' share in the family property was 1/9th, but the High Court, for reasons which are not challenged before us in the arguments has come to the conclusion that the plaintiffs' correct share would be 2/19th. We agree with that fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... begged down by the quarrels between the sons. In the meantime, one of the Arbitrators died. The other co-Arbitrators were requested to continue with the arbitration, but they too could not make much progress Thereafter, allegations were made about partiality against one of the other of the Arbitrators and the matter went to Court and, since the arbitration was not completed by a certain date, all attempts at arbitration aborted. However, after 11th July, 1940, the plaintiff, on the one hand, and the defendants, on the other, continued to do business; and it is the plaintiffs case that the defendants had continued the family business with the help of family assets and, hence, that business with the help of family assets and, hence that business and the assets of that business must be all made available for partition. Both the Courts have held that the plaintiff was not entitled to get any share in the business, or in the properties acquired from the profits of that business. They have also held that on 11th July, 1940, the old family business in the name of Lachiah Setty Sons and Giri Coffee Works had come to an end and that the plaintiff, on the one hand, and the defendants, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the defendants on and after 11-7-1940 should be considered as the exclusive business of the defendants, and the plaintiffs would have no right to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have not claimed and cannot claim any share in the business run by the plaintiff after 11-7-1940 or in the profits and acquisitions made by him that business. This finding, however, is not to be understood to mean that the securities and stock-in-trade already referred to are not to be taken into account as family assets for the purpose of partition, nor can the parties declare the liability to account to each other for the income derived by the from the family assets in their possession. 18. We have dealt with all the points raised in the course of the arguments before us and, in our view, the findings of the High Court are quite unexceptionable. The appeals must, therefore, fail. It was however, brought to our notice that the wording of the decree as passed by the High Court is likely to be. mis-interpretated and misconst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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