SUPREME
COURT OF INDIA
COURT OF INDIA
SIDDAMURTHY
JAYARAMI REDDY (D) BY … VS. GODI JAYA RAMI REDDY
JAYARAMI REDDY (D) BY … VS. GODI JAYA RAMI REDDY
&
ANR DATED :
01.04.2011
ANR DATED :
01.04.2011
Summarised
Judgement (Scroll for Cmomplete Judgement)
Judgement (Scroll for Cmomplete Judgement)
Introduction :
The
controversy in this appeal, by special leave, is concerned with will dated May
21, 1920 executed by Bijivemula Subba Reddy resident of Chennavaran, village
Kattera Gandla, Badwel Taluq, Cuddapah District. The question is one of
construction upon which the two courts – High Court and trial court – are not
in accord and, have taken divergent view.
controversy in this appeal, by special leave, is concerned with will dated May
21, 1920 executed by Bijivemula Subba Reddy resident of Chennavaran, village
Kattera Gandla, Badwel Taluq, Cuddapah District. The question is one of
construction upon which the two courts – High Court and trial court – are not
in accord and, have taken divergent view.
Facts of the
Case :
Case :
At the time
of execution of the will, Bijivemula Subba Reddy – a Hindu – was aged about 75
years. He had his wife Subbamma, daughter Pitchamma, son-in-law Rami Reddy,
widowed sister Chennamma, widowed daughter-in-law and granddaughter Lakshumamma
living. His only son Sesa Reddy had died in 1917. The testator was man of
sufficient wealth. He had landed property (wet and dry lands and wells) at
various places, namely, in Katteragandla, Rampadu, Varikuntla and Thiruvengala
Puram. He also owned few houses and plots of lands at different places. He had
moveable properties as well in the form of bonds, securities and promissory
notes. The will recites, as indeed is the undisputed fact, that the testator,
except one house situate at Kotha Laxmipally village in which he had 1/3rd
share, was the absolute owner of the properties specified therein.
of execution of the will, Bijivemula Subba Reddy – a Hindu – was aged about 75
years. He had his wife Subbamma, daughter Pitchamma, son-in-law Rami Reddy,
widowed sister Chennamma, widowed daughter-in-law and granddaughter Lakshumamma
living. His only son Sesa Reddy had died in 1917. The testator was man of
sufficient wealth. He had landed property (wet and dry lands and wells) at
various places, namely, in Katteragandla, Rampadu, Varikuntla and Thiruvengala
Puram. He also owned few houses and plots of lands at different places. He had
moveable properties as well in the form of bonds, securities and promissory
notes. The will recites, as indeed is the undisputed fact, that the testator,
except one house situate at Kotha Laxmipally village in which he had 1/3rd
share, was the absolute owner of the properties specified therein.
Pitchamma
had no child although she had married 20 years before the execution of the
will. The testator desired that his daughter Pitchamma adopted a son with the
consent of her husband and his granddaughter Lakshumamma got married to the
adopted son of his daughter Pitchamma.
had no child although she had married 20 years before the execution of the
will. The testator desired that his daughter Pitchamma adopted a son with the
consent of her husband and his granddaughter Lakshumamma got married to the
adopted son of his daughter Pitchamma.
The will is
written in vernacular (Telugu). The correctness of its English translation
annexed with the appeal was disputed by the respondents.
written in vernacular (Telugu). The correctness of its English translation
annexed with the appeal was disputed by the respondents.
Observation
of Court :
of Court :
The
question, however, upon which the fate of this appeal depends is : whether Rami
Reddy became entitled to any legacy by virtue of the defeasance clause under
the will at all.
question, however, upon which the fate of this appeal depends is : whether Rami
Reddy became entitled to any legacy by virtue of the defeasance clause under
the will at all.
The testator
was clear in his mind that after his death, his granddaughter should have
absolute rights in his entire properties. He has said so in so many words in
the will. However, he superadded a condition that, should his daughter
Pitchamma and son-in-law Rami Reddy not adopt a son or if his daughter and son-
in-law adopted a son but that boy did not agree to marry his granddaughter,
then 1/3rd share in his properties shall go over to his daughter Pitchamma and
her husband Rami Reddy. The bequest to the extent of 1/3rd share in the
properties of the testator in favour of Pitchamma and her husband Rami Reddy
jointly was conditional on happening of an uncertain event noted above. As a
matter of fact and in law, immediately after the death of testator in 1920,
what became vested in Rami Reddy was not legacy but power to manage the
properties of the testator as an executor; the legacy vested in Lakshumamma,
albeit, defeasibly to the extent of 1/3rd share. The only event on which the
legacy to Lakshumamma to the extent of 1/3rd share was to be defeated was upon
happening of any of the above events. Mr. R. Sundaravaradan, learned senior
counsel, thus, is not right in contending that on the death of testator in
1920, the legacy came to be vested in Rami Reddy and once vesting took place,
it could not have been divested.
was clear in his mind that after his death, his granddaughter should have
absolute rights in his entire properties. He has said so in so many words in
the will. However, he superadded a condition that, should his daughter
Pitchamma and son-in-law Rami Reddy not adopt a son or if his daughter and son-
in-law adopted a son but that boy did not agree to marry his granddaughter,
then 1/3rd share in his properties shall go over to his daughter Pitchamma and
her husband Rami Reddy. The bequest to the extent of 1/3rd share in the
properties of the testator in favour of Pitchamma and her husband Rami Reddy
jointly was conditional on happening of an uncertain event noted above. As a
matter of fact and in law, immediately after the death of testator in 1920,
what became vested in Rami Reddy was not legacy but power to manage the
properties of the testator as an executor; the legacy vested in Lakshumamma,
albeit, defeasibly to the extent of 1/3rd share. The only event on which the
legacy to Lakshumamma to the extent of 1/3rd share was to be defeated was upon
happening of any of the above events. Mr. R. Sundaravaradan, learned senior
counsel, thus, is not right in contending that on the death of testator in
1920, the legacy came to be vested in Rami Reddy and once vesting took place,
it could not have been divested.
It has come
in evidence that Pitchamma wanted to adopt Godi Venkat Reddy as her son, but
her husband – Rami Reddy – did not agree to that and as a result thereof Godi
Venkat Reddy could not be adopted by Pitchamma. On the issue of adoption of
Godi Venkat Reddy, a serious dispute ensued between Pitchamma and her husband.
Rami Reddy left the family of the testator and the village Chennavaran
somewhere in 1924 and went to nearby village Pappireddypally where he married
second time. It may be that there was no legal impediment for Rami Reddy to
have a second wife before the Hindu Succession Act, 1956 or Bigamy Prevention
Act of 1949 when no child was begotten from Pitchamma yet the fact of the
matter is that he abandoned the family of the testator. There is no merit in
the submission of Mr. R. Sundaravaradan that abandonment was not voluntary and
conscious.
in evidence that Pitchamma wanted to adopt Godi Venkat Reddy as her son, but
her husband – Rami Reddy – did not agree to that and as a result thereof Godi
Venkat Reddy could not be adopted by Pitchamma. On the issue of adoption of
Godi Venkat Reddy, a serious dispute ensued between Pitchamma and her husband.
Rami Reddy left the family of the testator and the village Chennavaran
somewhere in 1924 and went to nearby village Pappireddypally where he married
second time. It may be that there was no legal impediment for Rami Reddy to
have a second wife before the Hindu Succession Act, 1956 or Bigamy Prevention
Act of 1949 when no child was begotten from Pitchamma yet the fact of the
matter is that he abandoned the family of the testator. There is no merit in
the submission of Mr. R. Sundaravaradan that abandonment was not voluntary and
conscious.
Rami Reddy
neither continued as a guardian of minor granddaughter Lakshumamma nor looked
after the testator’s wife, widowed daughter-in-law, widowed sister and
daughter. The female folk were left in lurch with no male member to look after.
He took no care or interest in the affairs of the family or properties of the
testator and thereby failed to discharge his duties as executor.
neither continued as a guardian of minor granddaughter Lakshumamma nor looked
after the testator’s wife, widowed daughter-in-law, widowed sister and
daughter. The female folk were left in lurch with no male member to look after.
He took no care or interest in the affairs of the family or properties of the
testator and thereby failed to discharge his duties as executor.
In view of
the predominant desire that his granddaughter should have his properties and
that his properties did not go out of the family, the testator desired that his
daughter adopted a son with the consent of her husband and his granddaughter
married that boy. The conditional legacy to Rami Reddy (to the extent of 1/3rd
share jointly with Pitchamma) was not intended to be given to him if he
happened to be instrumental in defeating the testator’s wish in not agreeing to
the adoption of a son by his (testator’s) daughter. Such an intention might not
have been declared by the testator in express terms but necessary inference to
that effect can safely be drawn by reading the will as a whole. In the
circumstances, the legacy to the extent of 1/3rd share cannot be held to have
ever vested in Rami Reddy jointly with Pitchamma as it was he who defeated the
adoption of son by the testator’s daughter. As a matter of fact by his conduct,
Rami Reddy rendered himself disentitled to any legacy.
the predominant desire that his granddaughter should have his properties and
that his properties did not go out of the family, the testator desired that his
daughter adopted a son with the consent of her husband and his granddaughter
married that boy. The conditional legacy to Rami Reddy (to the extent of 1/3rd
share jointly with Pitchamma) was not intended to be given to him if he
happened to be instrumental in defeating the testator’s wish in not agreeing to
the adoption of a son by his (testator’s) daughter. Such an intention might not
have been declared by the testator in express terms but necessary inference to
that effect can safely be drawn by reading the will as a whole. In the
circumstances, the legacy to the extent of 1/3rd share cannot be held to have
ever vested in Rami Reddy jointly with Pitchamma as it was he who defeated the
adoption of son by the testator’s daughter. As a matter of fact by his conduct,
Rami Reddy rendered himself disentitled to any legacy.
Not only
that Rami Reddy did not discharge his obligations under the will of looking
after the family and managing the properties as an executor but he was also
instrumental in frustrating the adoption of son by the testator’s daughter.
Much before the defeasance clause came into operation when Lakshumamma married
Godi Venkat Reddy who could not be adopted as son by Pitchamma, Rami Reddy had
already left the testator’s family for good and abandoned the legacy that could
have come to him under that clause.
that Rami Reddy did not discharge his obligations under the will of looking
after the family and managing the properties as an executor but he was also
instrumental in frustrating the adoption of son by the testator’s daughter.
Much before the defeasance clause came into operation when Lakshumamma married
Godi Venkat Reddy who could not be adopted as son by Pitchamma, Rami Reddy had
already left the testator’s family for good and abandoned the legacy that could
have come to him under that clause.
The plea, of
the appellants, that Rami Reddy’s family from the second wife and the
testator’s family was a composite family and the properties were joint family
properties of the plaintiffs and the defendants, has not been accepted by the
trial court as well as High Court. We have no justifiable reason to take a
different view on this aspect.
the appellants, that Rami Reddy’s family from the second wife and the
testator’s family was a composite family and the properties were joint family
properties of the plaintiffs and the defendants, has not been accepted by the
trial court as well as High Court. We have no justifiable reason to take a
different view on this aspect.
Importantly,
Rami Reddy during his life time – although he survived for about 19 years after
the death of the testator – never claimed any legacy under the subject will.
Rami Reddy during his life time – although he survived for about 19 years after
the death of the testator – never claimed any legacy under the subject will.
All in all,
on the construction of the will and, in the circumstances, it must be held, and
we hold that no legacy came to be vested in Rami Reddy and he did not become
entitled to any interest in the estate of the testator and, therefore, the plaintiffs
did not acquire any right, title or interest in the properties of Bijivemula
Subba Reddy.
on the construction of the will and, in the circumstances, it must be held, and
we hold that no legacy came to be vested in Rami Reddy and he did not become
entitled to any interest in the estate of the testator and, therefore, the plaintiffs
did not acquire any right, title or interest in the properties of Bijivemula
Subba Reddy.
Judgement :
In view of
the above, the challenge to the findings of the High Court on the plea of
adverse possession set up by the defendants and the genuineness of the will
executed by Pitchamma in 1953 pale into significance and needs no
consideration.
the above, the challenge to the findings of the High Court on the plea of
adverse possession set up by the defendants and the genuineness of the will
executed by Pitchamma in 1953 pale into significance and needs no
consideration.
However, in
view of our discussion above, we do not think we need to deal with these
authorities in detail. n the result, appeal fails and is dismissed with no
order as to costs.
view of our discussion above, we do not think we need to deal with these
authorities in detail. n the result, appeal fails and is dismissed with no
order as to costs.
———————————————-
SUPREME COURT OF INDIA
SIDDAMURTHY
JAYARAMI REDDY (D) BY … VS. GODI JAYA RAMI REDDY & ANR
JAYARAMI REDDY (D) BY … VS. GODI JAYA RAMI REDDY & ANR
DATED :
01.04.2011
01.04.2011
IN THE
SUPREME COURT OF INDIA
SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
APPELLATE JURISDICTION
CIVIL
APPEAL NO. 2916 OF 2005
APPEAL NO. 2916 OF 2005
Siddamurthy Jayarami Reddy (D) by
LRs.
…. Appellants
LRs.
…. Appellants
Versus
Godi Jaya Rami Reddy &
Anr.
….Respondents
Anr.
….Respondents
JUDGMENT R.M. Lodha, J.
The
controversy in this appeal, by special leave, is concerned with will dated May
21, 1920 executed by Bijivemula Subba Reddy resident of Chennavaran, village
Kattera Gandla, Badwel Taluq, Cuddapah District. The question is one of
construction upon which the two courts – High Court and trial court – are not
in accord and, have taken divergent view.
controversy in this appeal, by special leave, is concerned with will dated May
21, 1920 executed by Bijivemula Subba Reddy resident of Chennavaran, village
Kattera Gandla, Badwel Taluq, Cuddapah District. The question is one of
construction upon which the two courts – High Court and trial court – are not
in accord and, have taken divergent view.
2. At the
time of execution of the will, Bijivemula Subba Reddy – a Hindu – was aged
about 75 years. He had his wife Subbamma, daughter Pitchamma, son-in-law Rami
Reddy, widowed sister Chennamma, widowed daughter-in-law and granddaughter
Lakshumamma living. His only son Sesa Reddy had died in 1917. The testator was
man of sufficient wealth. He had landed property (wet and dry lands and wells)
at various places, namely, in Katteragandla, Rampadu, Varikuntla and
Thiruvengala Puram. He also owned few houses and plots of lands at different
places. He had moveable properties as well in the form of bonds, securities and
promissory notes. The will recites, as indeed is the undisputed fact, that the
testator, except one house situate at Kotha Laxmipally village in which he had
1/3rd share, was the absolute owner of the properties specified therein.
time of execution of the will, Bijivemula Subba Reddy – a Hindu – was aged
about 75 years. He had his wife Subbamma, daughter Pitchamma, son-in-law Rami
Reddy, widowed sister Chennamma, widowed daughter-in-law and granddaughter
Lakshumamma living. His only son Sesa Reddy had died in 1917. The testator was
man of sufficient wealth. He had landed property (wet and dry lands and wells)
at various places, namely, in Katteragandla, Rampadu, Varikuntla and
Thiruvengala Puram. He also owned few houses and plots of lands at different
places. He had moveable properties as well in the form of bonds, securities and
promissory notes. The will recites, as indeed is the undisputed fact, that the
testator, except one house situate at Kotha Laxmipally village in which he had
1/3rd share, was the absolute owner of the properties specified therein.
3. Pitchamma
had no child although she had married 20 years before the execution of the
will. The testator desired that his daughter Pitchamma adopted a son with the
consent of her husband and his granddaughter Lakshumamma got married to the
adopted son of his daughter Pitchamma.
had no child although she had married 20 years before the execution of the
will. The testator desired that his daughter Pitchamma adopted a son with the
consent of her husband and his granddaughter Lakshumamma got married to the
adopted son of his daughter Pitchamma.
4. The will
is written in vernacular (Telugu). The correctness of its English translation
annexed with the appeal was disputed by the respondents. The parties were then
directed to submit agreed translation of the will which they did and that reads
as follows:
is written in vernacular (Telugu). The correctness of its English translation
annexed with the appeal was disputed by the respondents. The parties were then
directed to submit agreed translation of the will which they did and that reads
as follows:
“I,
Bijivemula Subba Reddy son of Balachennu, resident of Chennavaran village
Kattera gandla, Badwel Taluq Cuddapah District, cultivation, this the 21st day
of May, 1920, with sound mind, free will executing the will.
Bijivemula Subba Reddy son of Balachennu, resident of Chennavaran village
Kattera gandla, Badwel Taluq Cuddapah District, cultivation, this the 21st day
of May, 1920, with sound mind, free will executing the will.
Now I am
aged about 75 years. My wife Subbamma is living. I had one son by name Sesa
Reddy. He died at the age of 24 years, about three years back. He had one wife
and one daughter aged about 6 years by name Lakshumma. I have one daughter by
name Pitchamma. I have given in marriage to one Rami Reddy adopted son of
Siddamurthi Duggi Reddy, Papireddypally village Rampadu Majira., though she
married about 20 years back, but she has no issues.
aged about 75 years. My wife Subbamma is living. I had one son by name Sesa
Reddy. He died at the age of 24 years, about three years back. He had one wife
and one daughter aged about 6 years by name Lakshumma. I have one daughter by
name Pitchamma. I have given in marriage to one Rami Reddy adopted son of
Siddamurthi Duggi Reddy, Papireddypally village Rampadu Majira., though she
married about 20 years back, but she has no issues.
She intended
to take a boy in adoption with the consent of her husband.
to take a boy in adoption with the consent of her husband.
As I am old
I could not [sic] able to run my family. After the death of my son, since 15
years, the above persons are looking after my family and my welfare.
I could not [sic] able to run my family. After the death of my son, since 15
years, the above persons are looking after my family and my welfare.
I have also
one widow sister by name Chennamma. She is living with me since 30 years. She
is also helping me in all aspects. I intend to give my grand daughter Lakshumamma
to the proposed adopted son of my daughter Pitchamma.
one widow sister by name Chennamma. She is living with me since 30 years. She
is also helping me in all aspects. I intend to give my grand daughter Lakshumamma
to the proposed adopted son of my daughter Pitchamma.
In the said
event, I intend to give all my belongings, moveable and immovable properties to
the said Lachumma and the adopted son of my daughter Pitchamma. But my daughter
and her husband so far did not take any steps for getting a boy in adoption.
Now as I am sick and suffering from fever and other ailments, I am doubting
whether I can perform the above said acts during my life time.
event, I intend to give all my belongings, moveable and immovable properties to
the said Lachumma and the adopted son of my daughter Pitchamma. But my daughter
and her husband so far did not take any steps for getting a boy in adoption.
Now as I am sick and suffering from fever and other ailments, I am doubting
whether I can perform the above said acts during my life time.
I own lands
in Katteragandla Village, Rampadu village, Varikuntla village, and Thiruvengala
puram village, both wet and dry lands and also wells. I also own a Midde in
Majira. I have one Beeruva in Pancha of my house. I also have household
articles, kallamettelu. I also have lands in Papireddypally village of Rampadu Majira,
two plots and I have absolute rights in one of the same. I also have one house
in Kotha Laxmipally village, of Kathera gandla majira and in that I have 1/3rd
share. I also have bonds and securities and promissory notes transactions. As I
have the above said moveable and immoveable properties and as I am having
absolute rights over the same, none others have any rights whatsoever in the
above said properties. Therefore, I intend to execute the will and the same
shall come into force after my demise.
in Katteragandla Village, Rampadu village, Varikuntla village, and Thiruvengala
puram village, both wet and dry lands and also wells. I also own a Midde in
Majira. I have one Beeruva in Pancha of my house. I also have household
articles, kallamettelu. I also have lands in Papireddypally village of Rampadu Majira,
two plots and I have absolute rights in one of the same. I also have one house
in Kotha Laxmipally village, of Kathera gandla majira and in that I have 1/3rd
share. I also have bonds and securities and promissory notes transactions. As I
have the above said moveable and immoveable properties and as I am having
absolute rights over the same, none others have any rights whatsoever in the
above said properties. Therefore, I intend to execute the will and the same
shall come into force after my demise.
The
following are the terms of the will.
following are the terms of the will.
1) After my
demise, my grand daughter, Lachumamma who is the daughter of my son shall have
absolute rights in my entire properties.
demise, my grand daughter, Lachumamma who is the daughter of my son shall have
absolute rights in my entire properties.
2) As my
grand daughter is minor, till she attains the age of majority and attains power
to manage the above said properties, I hereby appoint my son in law Siddamurthy
ramireddy as executor of the will till then.
grand daughter is minor, till she attains the age of majority and attains power
to manage the above said properties, I hereby appoint my son in law Siddamurthy
ramireddy as executor of the will till then.
3) According
to the will of my grand daughter Laxmamma, in case to marry the adopted son of
my daughter, it shall be performed.
to the will of my grand daughter Laxmamma, in case to marry the adopted son of
my daughter, it shall be performed.
4) As I am
having my wife Subbamma, Widow daughter in law, Pitchamma, and
my widow sister Chennamma, the present guardian, Ramireddy and my grand
daughter Laxmumma, after attaining majority, shall look after the above
persons. If they do not satisfied (sic) with the above arrangements, they shall
enjoy my property with limited rights and necessary arrangements shall be made
by the guardian and after him and my grand daughter Laxmamma after attaining
majority.
having my wife Subbamma, Widow daughter in law, Pitchamma, and
my widow sister Chennamma, the present guardian, Ramireddy and my grand
daughter Laxmumma, after attaining majority, shall look after the above
persons. If they do not satisfied (sic) with the above arrangements, they shall
enjoy my property with limited rights and necessary arrangements shall be made
by the guardian and after him and my grand daughter Laxmamma after attaining
majority.
5) In case,
as God’s grace is not in favour of my aforesaid proposals, namely if my
daughter did not take any boy in adoption and if the said boy will not accept
to marry my grand daughter Laxmamma, I intend to give my aforesaid properties,
1/3rd share to my daughter Pitchamma and her husband who is also my son in law
Ramireddy together. The remaining 2/3rd share is given to my grand daughter
Laxmumma.
as God’s grace is not in favour of my aforesaid proposals, namely if my
daughter did not take any boy in adoption and if the said boy will not accept
to marry my grand daughter Laxmamma, I intend to give my aforesaid properties,
1/3rd share to my daughter Pitchamma and her husband who is also my son in law
Ramireddy together. The remaining 2/3rd share is given to my grand daughter
Laxmumma.
Accordingly
I executed the will and they have the right to partition and they shall enjoy
the properties after division with absolute rights during their life time and
thereafter their legal heirs”
I executed the will and they have the right to partition and they shall enjoy
the properties after division with absolute rights during their life time and
thereafter their legal heirs”
5.
Bijivemula Subba Reddy died within few months of the execution of the will.
After few years of death of the testator, Pitchamma wanted to adopt Godi Venkat
Reddy as her son but her husband Rami Reddy did not agree to that adoption.
Rami Reddy left the Village Chennavaran, his wife Pitchamma and settled in
other village – Pappireddypally. Rami Reddy then married with Subbamma. Out of
the wedlock of Rami Reddy and his second wife, two sons were born : (i)
Siddamurthy Jayarami Reddy and (ii) Siddamurthy Rami Reddy.
Bijivemula Subba Reddy died within few months of the execution of the will.
After few years of death of the testator, Pitchamma wanted to adopt Godi Venkat
Reddy as her son but her husband Rami Reddy did not agree to that adoption.
Rami Reddy left the Village Chennavaran, his wife Pitchamma and settled in
other village – Pappireddypally. Rami Reddy then married with Subbamma. Out of
the wedlock of Rami Reddy and his second wife, two sons were born : (i)
Siddamurthy Jayarami Reddy and (ii) Siddamurthy Rami Reddy.
6.
Lakshumamma married Godi Venkat Reddy somewhere in 1926 and out of that wedlock
one son Godi Jayarami Reddy was born. Unfortunately Godi Venkat Reddy died
within three years of marriage. Godi Jayarami Reddy has one son Godi
Ramachandra Reddy. Rami Reddy died in 1939; Pitchamma died in 1953 and
Lakshumamma died in 1971.
Lakshumamma married Godi Venkat Reddy somewhere in 1926 and out of that wedlock
one son Godi Jayarami Reddy was born. Unfortunately Godi Venkat Reddy died
within three years of marriage. Godi Jayarami Reddy has one son Godi
Ramachandra Reddy. Rami Reddy died in 1939; Pitchamma died in 1953 and
Lakshumamma died in 1971.
7. In 1980,
the two sons of Rami Reddy, born out of wedlock of his second wife Subbamma,
filed a suit for partition of the schedule properties – the properties
bequeathed by Bijivemula Subba Reddy vide his will dated May 21, 1920 –
claiming 1/3rd share therein under that will. They also claimed rent and
profits. The case of the plaintiffs was that they and the defendants were
members of a composite family and were in joint possession and enjoyment of the
properties of Bijivemula Subba Reddy and as per the will they were entitled to
1/3rd share. During the pendency of the suit, one of the sons died and his
legal representatives were brought on record. The plaintiffs are the present
appellants.
the two sons of Rami Reddy, born out of wedlock of his second wife Subbamma,
filed a suit for partition of the schedule properties – the properties
bequeathed by Bijivemula Subba Reddy vide his will dated May 21, 1920 –
claiming 1/3rd share therein under that will. They also claimed rent and
profits. The case of the plaintiffs was that they and the defendants were
members of a composite family and were in joint possession and enjoyment of the
properties of Bijivemula Subba Reddy and as per the will they were entitled to
1/3rd share. During the pendency of the suit, one of the sons died and his
legal representatives were brought on record. The plaintiffs are the present
appellants.
8. The
defendants traversed the claim of the plaintiffs and set up the plea that there
was a dispute between Pitchamma and her husband Rami Reddy over the adoption of
Godi Venkat Reddy; Rami Reddy left the house somewhere in 1924 and settled in
Village Pappireddypally. It was averred that Rami Reddy married a second wife
and not only abandoned Pitchamma but also abandoned his rights to the property
given under the will. Pitchamma then looked after the family in the absence of
any male member, managed the properties and got the patta of these properties
transferred in the name of Lakshumamma and bequeathed her share in the property
by a will in 1953 to Lakshumamma.
defendants traversed the claim of the plaintiffs and set up the plea that there
was a dispute between Pitchamma and her husband Rami Reddy over the adoption of
Godi Venkat Reddy; Rami Reddy left the house somewhere in 1924 and settled in
Village Pappireddypally. It was averred that Rami Reddy married a second wife
and not only abandoned Pitchamma but also abandoned his rights to the property
given under the will. Pitchamma then looked after the family in the absence of
any male member, managed the properties and got the patta of these properties
transferred in the name of Lakshumamma and bequeathed her share in the property
by a will in 1953 to Lakshumamma.
9. The
defendants also set up the plea that Lakshumamma purchased few properties
mentioned in the schedule from her own resources in 1955. They gave the details
of those properties. They further set up the case that Lakshumamma after
executing the will on March 6, 1953 partitioned the properties between herself
and first defendant. By way of additional written statement, the plea of res
judicata was raised. The defendants are the respondents herein.
defendants also set up the plea that Lakshumamma purchased few properties
mentioned in the schedule from her own resources in 1955. They gave the details
of those properties. They further set up the case that Lakshumamma after
executing the will on March 6, 1953 partitioned the properties between herself
and first defendant. By way of additional written statement, the plea of res
judicata was raised. The defendants are the respondents herein.
10. On the
basis of the pleadings of the parties, the trial court framed diverse issues;
the parties let in oral as well as documentary evidence and the trial court
heard the counsel for the parties.
basis of the pleadings of the parties, the trial court framed diverse issues;
the parties let in oral as well as documentary evidence and the trial court
heard the counsel for the parties.
11. The
trial court in its judgment dated December 22, 1986 negated the plaintiffs’
claim that they and the defendants were members of a composite family and the
subject properties were in their joint possession and enjoyment. However, the
trial court did hold that under the will dated May 21, 1920 Pitchamma and Rami
Reddy got 1/6th share each in the properties of the testator. While concluding
so, the trial court held that there was no condition imposed in the will by the
testator that his daughter Pitchamma and son-in-law Rami Reddy must adopt a son
and her granddaughter should marry the adopted son of Pitchamma and her
husband. It was only a pious wish of Bijivemula Subba Reddy that his daughter
Pitchamma adopted a son with the consent of her husband and that his
granddaughter Lakshumamma should marry the adopted son of Pitchamma and her
husband.
trial court in its judgment dated December 22, 1986 negated the plaintiffs’
claim that they and the defendants were members of a composite family and the
subject properties were in their joint possession and enjoyment. However, the
trial court did hold that under the will dated May 21, 1920 Pitchamma and Rami
Reddy got 1/6th share each in the properties of the testator. While concluding
so, the trial court held that there was no condition imposed in the will by the
testator that his daughter Pitchamma and son-in-law Rami Reddy must adopt a son
and her granddaughter should marry the adopted son of Pitchamma and her
husband. It was only a pious wish of Bijivemula Subba Reddy that his daughter
Pitchamma adopted a son with the consent of her husband and that his
granddaughter Lakshumamma should marry the adopted son of Pitchamma and her
husband.
The trial
court further held that the plaintiffs were not claiming the property directly
as legatees under the will but as legal heirs of Rami Reddy and Pitchamma since
will had come into force and was acted upon after the death of Bijivemula Subba Reddy and, accordingly, Pitchamma
and Rami Reddy got 1/6th share each. The trial court also held that the
property acquired by Pitchamma by way of bequest under the will was a separate
property and after her death, it devolved upon her husband’s heirs (i.e.
plaintiffs) and, thus, plaintiffs were entitled to 1/3rd share in the schedule
properties. The trial court negated the plea of adverse possession set up by
the defendants and passed a preliminary decree for partition in favour of
plaintiffs with regard to their 1/3rd share.
court further held that the plaintiffs were not claiming the property directly
as legatees under the will but as legal heirs of Rami Reddy and Pitchamma since
will had come into force and was acted upon after the death of Bijivemula Subba Reddy and, accordingly, Pitchamma
and Rami Reddy got 1/6th share each. The trial court also held that the
property acquired by Pitchamma by way of bequest under the will was a separate
property and after her death, it devolved upon her husband’s heirs (i.e.
plaintiffs) and, thus, plaintiffs were entitled to 1/3rd share in the schedule
properties. The trial court negated the plea of adverse possession set up by
the defendants and passed a preliminary decree for partition in favour of
plaintiffs with regard to their 1/3rd share.
12. The
defendants (present respondents) challenged the judgment and decree passed by
the trial court in appeal before the High Court. The High Court formulated
three points for determination in the appeal viz; (i) whether Rami Reddy failed
to comply with the obligations cast on him under the will dated May 21, 1920
executed by Bijivemula Subba Reddy and he abandoned the family and if so,
whether his legal heirs (Plaintiffs) could claim his share in the property of
the testator; (ii) whether will executed by Pitchamma in 1953 was genuine, true
and bona fide and (iii) whether the defendants have acquired rights in the
schedule properties by adverse possession.
defendants (present respondents) challenged the judgment and decree passed by
the trial court in appeal before the High Court. The High Court formulated
three points for determination in the appeal viz; (i) whether Rami Reddy failed
to comply with the obligations cast on him under the will dated May 21, 1920
executed by Bijivemula Subba Reddy and he abandoned the family and if so,
whether his legal heirs (Plaintiffs) could claim his share in the property of
the testator; (ii) whether will executed by Pitchamma in 1953 was genuine, true
and bona fide and (iii) whether the defendants have acquired rights in the
schedule properties by adverse possession.
13. The High
Court held that it was obligated upon Rami Reddy under the will to maintain the
dependants of the testator and act as an executor of the will. Rami Reddy
failed to discharge both obligations – in maintaining the dependants of the
testator and in acting – as executor. The High Court, thus, concluded that Rami
Reddy could not claim any property under the will. The High Court overturned
the finding of the trial court as regards the will executed by Pitchamma and
held that the will executed by her in 1953 was genuine and true. As regards
plea of adverse possession set up by the defendants–although negated by the
trial court–the High Court held that there was ouster of the plaintiffs 60
years back and there was no semblance of any enjoyment of property by the
plaintiffs’ predecessors-in-title along with the defendants jointly.
Consequently, the High Court by its judgment dated April 20, 2003 reversed the
judgment and decree of the trial court and allowed the appeal preferred by the
defendants.
Court held that it was obligated upon Rami Reddy under the will to maintain the
dependants of the testator and act as an executor of the will. Rami Reddy
failed to discharge both obligations – in maintaining the dependants of the
testator and in acting – as executor. The High Court, thus, concluded that Rami
Reddy could not claim any property under the will. The High Court overturned
the finding of the trial court as regards the will executed by Pitchamma and
held that the will executed by her in 1953 was genuine and true. As regards
plea of adverse possession set up by the defendants–although negated by the
trial court–the High Court held that there was ouster of the plaintiffs 60
years back and there was no semblance of any enjoyment of property by the
plaintiffs’ predecessors-in-title along with the defendants jointly.
Consequently, the High Court by its judgment dated April 20, 2003 reversed the
judgment and decree of the trial court and allowed the appeal preferred by the
defendants.
14. It is
from the judgment of the High Court that present appeal by special leave
arises.
from the judgment of the High Court that present appeal by special leave
arises.
15. Mr. R. Sundaravaradan,
learned senior counsel for the appellants argued: The importation of Section 57
and Section 141 of Indian Succession Act, 1925 (for short, `the 1925 Act’) is
wholly inappropriate since the present case is concerned with the muffussil
will of a Hindu dated May 21, 1920 with regard to the properties situate
outside the city of Madras. The muffussil wills (executed before 1927) do not
require the formalities of execution, attestation and revocation to be carried
out in the manner required by the 1925 Act. The parties did not join issue
about the truthfulness of the will and there was only dispute about its
construction and implementation. Even if it be assumed that Section 141 of the
1925 Act is attracted, the same has been complied with; the attesters were
already dead.
learned senior counsel for the appellants argued: The importation of Section 57
and Section 141 of Indian Succession Act, 1925 (for short, `the 1925 Act’) is
wholly inappropriate since the present case is concerned with the muffussil
will of a Hindu dated May 21, 1920 with regard to the properties situate
outside the city of Madras. The muffussil wills (executed before 1927) do not
require the formalities of execution, attestation and revocation to be carried
out in the manner required by the 1925 Act. The parties did not join issue
about the truthfulness of the will and there was only dispute about its
construction and implementation. Even if it be assumed that Section 141 of the
1925 Act is attracted, the same has been complied with; the attesters were
already dead.
16. It was
vehemently contended by Mr. R. Sundaravaradan that the property vested in the
executor in 1920 on the death of testator and Section 141 of the 1925 Act, even
if applicable, could not divest such vesting in title. Dealing with the
expression “take the legacy” in Section 141, it was argued by learned
senior counsel that the said expression means taking possession of legacy and
not vesting of the legacy. He submitted that the word “executor” used
in the will has been used in loose sense of the term; Rami Reddy was the
son-in-law of the testator, he was looking after and managing the
lands and, therefore, the legacy bequeathed to him was not because he was
to be the executor in strict sense but because he was the testator’s son-in-law
and manager.
vehemently contended by Mr. R. Sundaravaradan that the property vested in the
executor in 1920 on the death of testator and Section 141 of the 1925 Act, even
if applicable, could not divest such vesting in title. Dealing with the
expression “take the legacy” in Section 141, it was argued by learned
senior counsel that the said expression means taking possession of legacy and
not vesting of the legacy. He submitted that the word “executor” used
in the will has been used in loose sense of the term; Rami Reddy was the
son-in-law of the testator, he was looking after and managing the
lands and, therefore, the legacy bequeathed to him was not because he was
to be the executor in strict sense but because he was the testator’s son-in-law
and manager.
17. Learned
senior counsel submitted that there is no legal evidence of mismanagement,
malversation or misappropriation and a vague allegation that the executor has
not done his job required no serious consideration. He argued that the marriage
of Rami Reddy with Subbamma was with the consent of Pitchamma and there was no
legal impediment for a Hindu to have a second wife before Hindu Succession Act,
1956 or Bigamy Prevention Act, 1949 especially when Pitchamma was barren and it
is indeed a legal requirement based on Shastric injunction to have progeny so
that religious efficacy of satisfying the souls of forefathers is completed.
Learned senior counsel contended that there was no voluntary and conscious
abandonment by Rami Reddy and the High Court was in clear error in holding so.
senior counsel submitted that there is no legal evidence of mismanagement,
malversation or misappropriation and a vague allegation that the executor has
not done his job required no serious consideration. He argued that the marriage
of Rami Reddy with Subbamma was with the consent of Pitchamma and there was no
legal impediment for a Hindu to have a second wife before Hindu Succession Act,
1956 or Bigamy Prevention Act, 1949 especially when Pitchamma was barren and it
is indeed a legal requirement based on Shastric injunction to have progeny so
that religious efficacy of satisfying the souls of forefathers is completed.
Learned senior counsel contended that there was no voluntary and conscious
abandonment by Rami Reddy and the High Court was in clear error in holding so.
18. Mr. R.
Sundaravaradan criticized the findings of the High Court on the plea of adverse
possession set up by the defendants and genuineness of the will executed by
Pitchamma in 1953 in favour of Lakshumamma.
Sundaravaradan criticized the findings of the High Court on the plea of adverse
possession set up by the defendants and genuineness of the will executed by
Pitchamma in 1953 in favour of Lakshumamma.
19. Mr. P.S.
Narasimha, learned senior counsel for the respondents, on the other hand,
supported the judgment of the High Court.
Narasimha, learned senior counsel for the respondents, on the other hand,
supported the judgment of the High Court.
20. Indian
Succession Act, 1865 (for short, `the 1865 Act’) was enacted to provide for
intestate and testamentary succession in British India. Section 331 of the 1865
Act, however, excluded its applicability to intestate or testamentary
succession to the property of any Hindu, Muhammadan or Buddhist and it further
provided that its provisions shall not apply to any will made, or any intestacy
occurring, before January 1, 1866.
Succession Act, 1865 (for short, `the 1865 Act’) was enacted to provide for
intestate and testamentary succession in British India. Section 331 of the 1865
Act, however, excluded its applicability to intestate or testamentary
succession to the property of any Hindu, Muhammadan or Buddhist and it further
provided that its provisions shall not apply to any will made, or any intestacy
occurring, before January 1, 1866.
21. By the
Hindu Wills Act, 1870 (for short, `the 1870 Act’), statutory provisions were
made to regulate the wills of Hindus, Jainas, Sikhs and Buddhists in the Lower
Provinces of Bengal and in the towns of Madras and Bombay. Inter alia, Section
2 thereof provided as follows :
Hindu Wills Act, 1870 (for short, `the 1870 Act’), statutory provisions were
made to regulate the wills of Hindus, Jainas, Sikhs and Buddhists in the Lower
Provinces of Bengal and in the towns of Madras and Bombay. Inter alia, Section
2 thereof provided as follows :
“S. 2.
The following portions of the Indian Succession Act, 1865, namely,–
The following portions of the Indian Succession Act, 1865, namely,–
sections
forty-six, forty-eight, forty-nine, fifty, fifty- one, fifty-five and
fifty-seven to seventy-seven (both inclusive), sections eighty-two,
eighty-three, eighty-five, eighty- eight to one hundred and three (both
inclusive), sections one
hundred and six to one hundred and seventy-seven (both inclusive), sections one
hundred and seventy-nine to one hundred and eighty-nine (both inclusive),
sections one hundred and ninety-one to one hundred and ninety-nine (both
inclusive), so much of Parts XXX and XXXI as relates to grants of probate and
letters of administration with the will annexed, and Parts XXXIII to XL (both
inclusive), so far as they relate to an executor and an administrator with the
will annexed, shall, notwithstanding anything contained in section three
hundred and thirty-one of the said Act, apply–
forty-six, forty-eight, forty-nine, fifty, fifty- one, fifty-five and
fifty-seven to seventy-seven (both inclusive), sections eighty-two,
eighty-three, eighty-five, eighty- eight to one hundred and three (both
inclusive), sections one
hundred and six to one hundred and seventy-seven (both inclusive), sections one
hundred and seventy-nine to one hundred and eighty-nine (both inclusive),
sections one hundred and ninety-one to one hundred and ninety-nine (both
inclusive), so much of Parts XXX and XXXI as relates to grants of probate and
letters of administration with the will annexed, and Parts XXXIII to XL (both
inclusive), so far as they relate to an executor and an administrator with the
will annexed, shall, notwithstanding anything contained in section three
hundred and thirty-one of the said Act, apply–
(a) to all
wills and codicils made by any Hindu, Jaina, Sikh or Buddhist, on or after the
first day of September one thousand eight hundred and seventy, within the said
territories or the local limits of the ordinary original civil jurisdiction of
the High Courts of Judicature at Madras and Bombay; and
wills and codicils made by any Hindu, Jaina, Sikh or Buddhist, on or after the
first day of September one thousand eight hundred and seventy, within the said
territories or the local limits of the ordinary original civil jurisdiction of
the High Courts of Judicature at Madras and Bombay; and
(b) to all
such wills and codicils made outside those territories and limits, so far as
relates to immoveable property situate within those territories or
limits:”
such wills and codicils made outside those territories and limits, so far as
relates to immoveable property situate within those territories or
limits:”
22. The 1925
Act which came into force on September 30, 1925 has eleven parts. Part VI has
twenty three chapters. Section 57 to Section 191 are covered by Part VI.
Section 57 provides thus:
Act which came into force on September 30, 1925 has eleven parts. Part VI has
twenty three chapters. Section 57 to Section 191 are covered by Part VI.
Section 57 provides thus:
“S.57.
Application of certain provisions of Part to a class of Wills made by Hindus,
etc. – The provisions of this Part
Application of certain provisions of Part to a class of Wills made by Hindus,
etc. – The provisions of this Part
which are set out in Schedule III shall, subject to the restrictions and
modifications specified therein, apply–
(a) to all
Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of September, 1870, within the territories which at the said date
were subject to the Lieutenant- Governor of Bengal or within the local limits
of the ordinary original civil jurisdiction of the High Courts of Judicature at
Madras and Bombay;and
Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of September, 1870, within the territories which at the said date
were subject to the Lieutenant- Governor of Bengal or within the local limits
of the ordinary original civil jurisdiction of the High Courts of Judicature at
Madras and Bombay;and
(b) to all
such Wills and codicils made outside those territories and limits so far as
relates to immoveable property situate within those territories or limits; and
such Wills and codicils made outside those territories and limits so far as
relates to immoveable property situate within those territories or limits; and
(c) to all
Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of January, 1927, to which those provisions are not applied by
clauses (a) and (b):] Provided that marriage shall not revoke any such Will or
codicil.”
Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of January, 1927, to which those provisions are not applied by
clauses (a) and (b):] Provided that marriage shall not revoke any such Will or
codicil.”
Clauses (a)
and (b) of Section 57 of the 1925 Act are pari materia to clauses (a) and (b)
of Section 2 of the 1870 Act. Clause (c) is a new provision.
and (b) of Section 57 of the 1925 Act are pari materia to clauses (a) and (b)
of Section 2 of the 1870 Act. Clause (c) is a new provision.
23. As
noticed above, present case is concerned with the will executed in 1920. The
will is admittedly a muffussil will as it has not been executed within the
local limits of ordinary original civil jurisdiction of the High Court of
Judicature at Madras. Clause
noticed above, present case is concerned with the will executed in 1920. The
will is admittedly a muffussil will as it has not been executed within the
local limits of ordinary original civil jurisdiction of the High Court of
Judicature at Madras. Clause
(a) of Section 57 is apparently not
attracted. The subject will also does not relate to immoveable properties
situate within the local limits or territories as set out in clause (a). In
this view of the matter, clause
attracted. The subject will also does not relate to immoveable properties
situate within the local limits or territories as set out in clause (a). In
this view of the matter, clause
(b) is also
not attracted. Clause (c) does not get attracted, as it applies to wills and
codicils made on or after January 1, 1927.
not attracted. Clause (c) does not get attracted, as it applies to wills and
codicils made on or after January 1, 1927.
24. Since
the subject will is not covered by any of the clauses of Section 57, Part VI of
the 1925 Act is not applicable thereto. Section 141 which falls in Chapter XIII
of Part VI of the 1925 Act that provides – if a legacy is bequeathed to a
person who is named an executor of the will, he shall not take the legacy,
unless he proves the will or otherwise manifests an intention to act as
executor — is, thus, not applicable to the subject will. As a matter of fact,
both learned senior counsel were ad idem that Section 141 of the 1925 Act, as
it is, has no application at all.
the subject will is not covered by any of the clauses of Section 57, Part VI of
the 1925 Act is not applicable thereto. Section 141 which falls in Chapter XIII
of Part VI of the 1925 Act that provides – if a legacy is bequeathed to a
person who is named an executor of the will, he shall not take the legacy,
unless he proves the will or otherwise manifests an intention to act as
executor — is, thus, not applicable to the subject will. As a matter of fact,
both learned senior counsel were ad idem that Section 141 of the 1925 Act, as
it is, has no application at all.
25. We may
also state that although the statutory provisions concerning construction of
wills from Sections 74 to 111 of the 1925 Act do not apply but the general
principles incorporated therein would surely be relevant for construction of
the subject will.
also state that although the statutory provisions concerning construction of
wills from Sections 74 to 111 of the 1925 Act do not apply but the general
principles incorporated therein would surely be relevant for construction of
the subject will.
26. It is
well settled that the court must put itself as far as possible in the position
of a person making a will in order to collect the testator’s intention from his
expressions; because upon that consideration must very much depend the effect
to be given to the testator’s intention, when ascertained. The will must be
read and construed as a whole to gather the intention of the testator and the
endeavor of the court must be to give effect to each and every disposition. In
ordinary circumstances, ordinary words must bear their ordinary construction
and every disposition of the testator contained in will should be given effect
to as far as possible consistent with the testator’s desire.
well settled that the court must put itself as far as possible in the position
of a person making a will in order to collect the testator’s intention from his
expressions; because upon that consideration must very much depend the effect
to be given to the testator’s intention, when ascertained. The will must be
read and construed as a whole to gather the intention of the testator and the
endeavor of the court must be to give effect to each and every disposition. In
ordinary circumstances, ordinary words must bear their ordinary construction
and every disposition of the testator contained in will should be given effect
to as far as possible consistent with the testator’s desire.
27. The
above are the principles consistently followed and, we think, ought to be
guided in determining the appeal before us. What then was the intention of this
testator? The only son of the testator had predeceased him. At the time of
execution of will, he had his wife, widowed sister, widowed daughter-in-law,
daughter and minor granddaughter surviving; the only other male member was his
son-in-law – Rami Reddy. He intended to give all his properties to the
granddaughter but he was aware that after her marriage, she would join her
husband’s family. The testator intended that his entire estate remained in the
family and did not go out of that and having that in mind, he desired that his
daughter adopted a son with the consent of her husband and his granddaughter
married the adopted son of his daughter. He, therefore, stated, “I intend
to give all my belongings, moveable and immoveable properties to the said
Lakshumamma and the adopted son of my daughter Pitchamma”. He expressed in
unequivocal terms, “after my demise, my granddaughter Lakshumamma who is
the daughter of my son shall have absolute rights in my entire
properties”.
above are the principles consistently followed and, we think, ought to be
guided in determining the appeal before us. What then was the intention of this
testator? The only son of the testator had predeceased him. At the time of
execution of will, he had his wife, widowed sister, widowed daughter-in-law,
daughter and minor granddaughter surviving; the only other male member was his
son-in-law – Rami Reddy. He intended to give all his properties to the
granddaughter but he was aware that after her marriage, she would join her
husband’s family. The testator intended that his entire estate remained in the
family and did not go out of that and having that in mind, he desired that his
daughter adopted a son with the consent of her husband and his granddaughter
married the adopted son of his daughter. He, therefore, stated, “I intend
to give all my belongings, moveable and immoveable properties to the said
Lakshumamma and the adopted son of my daughter Pitchamma”. He expressed in
unequivocal terms, “after my demise, my granddaughter Lakshumamma who is
the daughter of my son shall have absolute rights in my entire
properties”.
28. The
testator gave two very particular directions in the will that until Lakshumamma
attained the age of majority and attained power to manage properties; (one)
Rami Reddy shall act as an executor till then and (two) the executor shall look
after the female members in the family, namely, his wife Subbamma, widowed
daughter-in-law, daughter Pitchamma, widowed sister Chennamma and granddaughter
Lakshumamma. Rami Reddy, thus, was obligated to carry out the wishes of the
testator by managing his properties and looking after the minor granddaughter
Lakshumamma till she attained majority and also look after other female members
in the family.
testator gave two very particular directions in the will that until Lakshumamma
attained the age of majority and attained power to manage properties; (one)
Rami Reddy shall act as an executor till then and (two) the executor shall look
after the female members in the family, namely, his wife Subbamma, widowed
daughter-in-law, daughter Pitchamma, widowed sister Chennamma and granddaughter
Lakshumamma. Rami Reddy, thus, was obligated to carry out the wishes of the
testator by managing his properties and looking after the minor granddaughter
Lakshumamma till she attained majority and also look after other female members
in the family.
29. The
clause, however, upon which the appellants’ are claiming the rights in the
properties of Rami Reddy is the clause that reads “…if my daughter did
not take any boy in adoption and if the said boy will not accept to marry my
granddaughter Lakshumamma, I intend to give my aforesaid properties, 1/3rd
share to my daughter Pitchamma and her husband, who is also my son-in-law Rami
Reddy together. The remaining 2/3rd share is given to my granddaughter
Lakshumamma”.
clause, however, upon which the appellants’ are claiming the rights in the
properties of Rami Reddy is the clause that reads “…if my daughter did
not take any boy in adoption and if the said boy will not accept to marry my
granddaughter Lakshumamma, I intend to give my aforesaid properties, 1/3rd
share to my daughter Pitchamma and her husband, who is also my son-in-law Rami
Reddy together. The remaining 2/3rd share is given to my granddaughter
Lakshumamma”.
30. Mr. R.
Sundaravaradan, senior counsel for the appellants is right in contending that
the above clause in the will is not a repugnant condition that invalidates the
will but is a defeasance provision.
Sundaravaradan, senior counsel for the appellants is right in contending that
the above clause in the will is not a repugnant condition that invalidates the
will but is a defeasance provision.
31. In Mt.
Rameshwar Kuer & Anr. v. Shiolal Upadhaya and Ors.1, Courtney-Terrell,
C.J., speaking for the Bench, explained the distinction between a repugnant
provision and a defeasance provision thus :
Rameshwar Kuer & Anr. v. Shiolal Upadhaya and Ors.1, Courtney-Terrell,
C.J., speaking for the Bench, explained the distinction between a repugnant
provision and a defeasance provision thus :
“The
distinction between a repugnant provision and a defeasance provision is
sometimes subtle, but the general principle of law seems to be that where the
intention of the donor is to maintain the absolute estate conferred on the
donee but he simply adds some restrictions in derogation of the incidents of
such absolute ownership, such restrictive clauses would be repugnant to the
absolute grant and therefore void; but where the grant of an absolute estate is
expressly or impliedly made subject to defeasance on the happening of a contingency
and where the effect of such defeasance would not be a violation of any rule of
law, the original estate is curtailed and the gift over must be taken to be
valid and operative.”
distinction between a repugnant provision and a defeasance provision is
sometimes subtle, but the general principle of law seems to be that where the
intention of the donor is to maintain the absolute estate conferred on the
donee but he simply adds some restrictions in derogation of the incidents of
such absolute ownership, such restrictive clauses would be repugnant to the
absolute grant and therefore void; but where the grant of an absolute estate is
expressly or impliedly made subject to defeasance on the happening of a contingency
and where the effect of such defeasance would not be a violation of any rule of
law, the original estate is curtailed and the gift over must be taken to be
valid and operative.”
1 A.I.R.
1935 Patna 401
1935 Patna 401
32. The
distinction between a repugnant provision and a defeasance provision explained
in Mt. Rameshwar Kuer1 has been followed subsequently. In our view, Patna High
Court rightly explains the distinction between a repugnant provision and a
defeasance provision.
distinction between a repugnant provision and a defeasance provision explained
in Mt. Rameshwar Kuer1 has been followed subsequently. In our view, Patna High
Court rightly explains the distinction between a repugnant provision and a
defeasance provision.
33. The
question, however, upon which the fate of this appeal depends is : whether Rami
Reddy became entitled to any legacy by virtue of the defeasance clause under
the will at all.
question, however, upon which the fate of this appeal depends is : whether Rami
Reddy became entitled to any legacy by virtue of the defeasance clause under
the will at all.
34. The
testator was clear in his mind that after his death, his granddaughter should
have absolute rights in his entire properties. He has said so in so many words
in the will. However, he superadded a condition that, should his daughter
Pitchamma and son-in-law Rami Reddy not adopt a son or if his daughter and son-
in-law adopted a son but that boy did not agree to marry his granddaughter,
then 1/3rd share in his properties shall go over to his daughter Pitchamma and
her husband Rami Reddy. The bequest to the extent of 1/3rd share in the
properties of the testator in favour of Pitchamma and her husband Rami Reddy
jointly was conditional on happening of an uncertain event noted above. As a
matter of fact and in law, immediately after the death of testator in 1920,
what became vested in Rami Reddy was not legacy but power to manage the
properties of the testator as an executor; the legacy vested in Lakshumamma,
albeit, defeasibly to the extent of 1/3rd share. The only event on which the
legacy to Lakshumamma to the extent of 1/3rd share was to be defeated was upon
happening of any of the above events. Mr. R. Sundaravaradan, learned senior
counsel, thus, is not right in contending that on the death of testator in
1920, the legacy came to be vested in Rami Reddy and once vesting took place,
it could not have been divested.
testator was clear in his mind that after his death, his granddaughter should
have absolute rights in his entire properties. He has said so in so many words
in the will. However, he superadded a condition that, should his daughter
Pitchamma and son-in-law Rami Reddy not adopt a son or if his daughter and son-
in-law adopted a son but that boy did not agree to marry his granddaughter,
then 1/3rd share in his properties shall go over to his daughter Pitchamma and
her husband Rami Reddy. The bequest to the extent of 1/3rd share in the
properties of the testator in favour of Pitchamma and her husband Rami Reddy
jointly was conditional on happening of an uncertain event noted above. As a
matter of fact and in law, immediately after the death of testator in 1920,
what became vested in Rami Reddy was not legacy but power to manage the
properties of the testator as an executor; the legacy vested in Lakshumamma,
albeit, defeasibly to the extent of 1/3rd share. The only event on which the
legacy to Lakshumamma to the extent of 1/3rd share was to be defeated was upon
happening of any of the above events. Mr. R. Sundaravaradan, learned senior
counsel, thus, is not right in contending that on the death of testator in
1920, the legacy came to be vested in Rami Reddy and once vesting took place,
it could not have been divested.
35. It has
come in evidence that Pitchamma wanted to adopt Godi Venkat Reddy as her son,
but her husband – Rami Reddy – did not agree to that and as a result thereof
Godi Venkat Reddy could not be adopted by Pitchamma. On the issue of adoption
of Godi Venkat Reddy, a serious dispute ensued between Pitchamma and her
husband. Rami Reddy left the family of the testator and the village Chennavaran
somewhere in 1924 and went to nearby village Pappireddypally where he married
second time. It may be that there was no legal impediment for Rami Reddy to
have a second wife before the Hindu Succession Act, 1956 or Bigamy Prevention
Act of 1949 when no child was begotten from Pitchamma yet the fact of the
matter is that he abandoned the family of the testator. There is no merit in
the submission of Mr. R. Sundaravaradan that abandonment was not voluntary and
conscious.
come in evidence that Pitchamma wanted to adopt Godi Venkat Reddy as her son,
but her husband – Rami Reddy – did not agree to that and as a result thereof
Godi Venkat Reddy could not be adopted by Pitchamma. On the issue of adoption
of Godi Venkat Reddy, a serious dispute ensued between Pitchamma and her
husband. Rami Reddy left the family of the testator and the village Chennavaran
somewhere in 1924 and went to nearby village Pappireddypally where he married
second time. It may be that there was no legal impediment for Rami Reddy to
have a second wife before the Hindu Succession Act, 1956 or Bigamy Prevention
Act of 1949 when no child was begotten from Pitchamma yet the fact of the
matter is that he abandoned the family of the testator. There is no merit in
the submission of Mr. R. Sundaravaradan that abandonment was not voluntary and
conscious.
36. Rami
Reddy neither continued as a guardian of minor granddaughter Lakshumamma nor
looked after the testator’s wife, widowed daughter-in-law, widowed sister and
daughter. The female folk were left in lurch with no male member to look after.
He took no care or interest in the affairs of the family or properties of the
testator and thereby failed to discharge his duties as executor.
Reddy neither continued as a guardian of minor granddaughter Lakshumamma nor
looked after the testator’s wife, widowed daughter-in-law, widowed sister and
daughter. The female folk were left in lurch with no male member to look after.
He took no care or interest in the affairs of the family or properties of the
testator and thereby failed to discharge his duties as executor.
37. In view
of the predominant desire that his granddaughter should have his properties and
that his properties did not go out of the family, the testator desired that his
daughter adopted a son with the consent of her husband and his granddaughter
married that boy. The conditional legacy to Rami Reddy (to the extent of 1/3rd
share jointly with Pitchamma) was not intended to be given to him if he
happened to be instrumental in defeating the testator’s wish in not agreeing to
the adoption of a son by his (testator’s) daughter. Such an intention might not
have been declared by the testator in express terms but necessary inference to
that effect can safely be drawn by reading the will as a whole. In the
circumstances, the legacy to the extent of 1/3rd share cannot be held to
have ever vested in Rami Reddy jointly with Pitchamma as it was he who defeated
the adoption of son by the testator’s daughter. As a matter of fact by his
conduct, Rami Reddy rendered himself disentitled to any legacy.
of the predominant desire that his granddaughter should have his properties and
that his properties did not go out of the family, the testator desired that his
daughter adopted a son with the consent of her husband and his granddaughter
married that boy. The conditional legacy to Rami Reddy (to the extent of 1/3rd
share jointly with Pitchamma) was not intended to be given to him if he
happened to be instrumental in defeating the testator’s wish in not agreeing to
the adoption of a son by his (testator’s) daughter. Such an intention might not
have been declared by the testator in express terms but necessary inference to
that effect can safely be drawn by reading the will as a whole. In the
circumstances, the legacy to the extent of 1/3rd share cannot be held to
have ever vested in Rami Reddy jointly with Pitchamma as it was he who defeated
the adoption of son by the testator’s daughter. As a matter of fact by his
conduct, Rami Reddy rendered himself disentitled to any legacy.
38. Not only
that Rami Reddy did not discharge his obligations under the will of looking
after the family and managing the properties as an executor but he was also
instrumental in frustrating the adoption of son by the testator’s daughter.
Much before the defeasance clause came into operation when Lakshumamma married
Godi Venkat Reddy who could not be adopted as son by Pitchamma, Rami Reddy had
already left the testator’s family for good and abandoned the legacy that could
have come to him under that clause.
that Rami Reddy did not discharge his obligations under the will of looking
after the family and managing the properties as an executor but he was also
instrumental in frustrating the adoption of son by the testator’s daughter.
Much before the defeasance clause came into operation when Lakshumamma married
Godi Venkat Reddy who could not be adopted as son by Pitchamma, Rami Reddy had
already left the testator’s family for good and abandoned the legacy that could
have come to him under that clause.
39. The
plea, of the appellants, that Rami Reddy’s family from the second wife and the
testator’s family was a composite family and the properties were joint family
properties of the plaintiffs and the defendants, has not been accepted by the
trial court as well as High Court. We have no justifiable reason to take a
different view on this aspect.
plea, of the appellants, that Rami Reddy’s family from the second wife and the
testator’s family was a composite family and the properties were joint family
properties of the plaintiffs and the defendants, has not been accepted by the
trial court as well as High Court. We have no justifiable reason to take a
different view on this aspect.
40.
Importantly, Rami Reddy during his life time – although he survived for about
19 years after the death of the testator – never claimed any legacy under the
subject will.
Importantly, Rami Reddy during his life time – although he survived for about
19 years after the death of the testator – never claimed any legacy under the
subject will.
41. All in
all, on the construction of the will and, in the circumstances, it must be
held, and we hold that no legacy came to be vested in Rami Reddy and he did not
become entitled to any interest in the estate of the testator and, therefore,
the plaintiffs did not acquire any right, title or interest in the properties
of Bijivemula Subba Reddy.
all, on the construction of the will and, in the circumstances, it must be
held, and we hold that no legacy came to be vested in Rami Reddy and he did not
become entitled to any interest in the estate of the testator and, therefore,
the plaintiffs did not acquire any right, title or interest in the properties
of Bijivemula Subba Reddy.
42. In view
of the above, the challenge to the findings of the High Court on the plea of
adverse possession set up by the defendants and the genuineness of the will
executed by Pitchamma in 1953 pale into significance and needs no
consideration.
of the above, the challenge to the findings of the High Court on the plea of
adverse possession set up by the defendants and the genuineness of the will
executed by Pitchamma in 1953 pale into significance and needs no
consideration.
43. In
fairness to Mr. R. Sundaravaradan, learned senior counsel for the appellants,
it must be stated that he cited the following authorities: (Katreddi) Ramiah
and another v. Kadiyala Venkata Subbamma and others [A.I.R. 1926 Madras 434];
Balmakund v. Ramendranath Ghosh [A.I.R. 1927 Allahabad 497]; Ratansi D. Morarji
v. Administrator-General of Madras [A.I.R. 1928 Madras 1279]; Bhojraj v. Sita
Ram and others [A.I.R. 1936 Privy Council 60]; Ketaki Ranjan Bhattacharyya and
others v. Kali Prasanna Bhattacharyya and others [A.I.R. 1956 Tripura 18]; P.
Lakshmi Reddy v. L. Lakshmi Reddy [(1957) SCR 195]; AL. PR. Ranganathan
Chettiar and another v. Al. PR. AL. Periakaruppan Chettiar and others [A.I.R. 1957
S.C. 815]; Darshan Singh and others v. Gujjar Singh (Dead) By LRs. and others
[(2002) 2 SCC 62]; Govindammal v. R. Perumal Chettiar and others [(2006) 11 SCC
600] and Govindaraja Pillai and others v. Mangalam Pillai and another [A.I.R.
1933 Madras 80]. However, in view of our discussion above, we do not think we
need to deal with these authorities in detail.
fairness to Mr. R. Sundaravaradan, learned senior counsel for the appellants,
it must be stated that he cited the following authorities: (Katreddi) Ramiah
and another v. Kadiyala Venkata Subbamma and others [A.I.R. 1926 Madras 434];
Balmakund v. Ramendranath Ghosh [A.I.R. 1927 Allahabad 497]; Ratansi D. Morarji
v. Administrator-General of Madras [A.I.R. 1928 Madras 1279]; Bhojraj v. Sita
Ram and others [A.I.R. 1936 Privy Council 60]; Ketaki Ranjan Bhattacharyya and
others v. Kali Prasanna Bhattacharyya and others [A.I.R. 1956 Tripura 18]; P.
Lakshmi Reddy v. L. Lakshmi Reddy [(1957) SCR 195]; AL. PR. Ranganathan
Chettiar and another v. Al. PR. AL. Periakaruppan Chettiar and others [A.I.R. 1957
S.C. 815]; Darshan Singh and others v. Gujjar Singh (Dead) By LRs. and others
[(2002) 2 SCC 62]; Govindammal v. R. Perumal Chettiar and others [(2006) 11 SCC
600] and Govindaraja Pillai and others v. Mangalam Pillai and another [A.I.R.
1933 Madras 80]. However, in view of our discussion above, we do not think we
need to deal with these authorities in detail.
44. In the
result, appeal fails and is dismissed with no order as to costs.
result, appeal fails and is dismissed with no order as to costs.