S. Jhansi Lakshmi Bai & Ors. v. Pothana Apparao & Ors.

Shah, J. One Appanna died on March 12, 1953, leaving him surviving no wife or lineal descendant. Subba Rao claim-ing to be the father's sister's son. of Appanna instituted suit No. 64 of 1953 in the Court of the Subordinate Judge, Eluru. for partition and separate possession of his half share in the mo-perties described in Schs. A, B, C, D & E. The plaintiff f:laim-ed that Appruma died intestate, and that he and his brother Venugopala Rao were the nearest heirs entitled to the entire es-tate of Appanna. To this suit were impleaded Pothana Apparao (husband of the sister of Mangamma wife of Appanna), his children, certain relations of Mangamma and the tenants on the lands in suit. Venugopala Rao was impleaded as the 24th defen-dant. The suit was defended by Pothana Apparao and others contending, inter alia, that Appanna had made and executed a will on July 14, 1948, devising his property in favour of various legatees and the plaintiff's suit for a share in the property was on that account not maintainable. The Trial Court held that Appanna of his free will and while iii. a sound state of mind had executed the will on July 14, 1948, whereby he disposed of his properties described in Schs. A, B, · C, D & E, but the Court held that the disposition of the property in Schs. C & E lapsed because Mangamma who was a legatee of the properties died be-fore the testator, and that the direction in the will that whatever remained out of the Sch. E property after the life time of Man-gamma shall pass to Venkataswamy and Seshagirirao defendants Nos. 3 & 2 respectively or their descendants was void and in· capable of taking effect. The learned Judge accordingly passed a decree in favour of the plaintiff and the 24th defendant for possession of properties described in Schs. C & E.

In appeal to the High Court of Andhra Pradesh, Chandra- ~ Sastry, J., allowed the appeal filed by Pothana Apparao and h1S two sons Venkataswamy and Seshagirirao, and dismissed the claim of the plaintiff in respect of Schs. C & E properties. An appeal under the Letters Patent filed by the plaintiffs against the judgment of Chandrasekhar, J. was dismissed.

It has been concurrently foun<i by all the Courts that when he was in a sound and disposing state of mind Appanna executed on July 14, 1948, the will set up by the defendants. In an appeal with special leave this Court will not ordinarily allow a question about due execution to be canvaased, and our attention is not invited to any exceptional circumstances which may justify a de-parture from the rule.

The only question which survives for consideration relates to the true effect of the dispositions made by the will in respect of Sch. C and Sch. E properties. The relevant provisions of the will may first be set out :

"I am now about forty years of age. I do not have male or female issue. . . . My wife is alive. . . . and with the fear that I may not survive I have made the following provisions in respect of my immovable and movable properties to be given effect to.

I have given power to my wife Mangarnma to sell the immovable property mentioned in the C Schedule hereunder and utilise the amount for celebratir;; the marriage and other auspicious functions of Tholeti Narsimha Rao's daughter Seetharatnam mentioned in the B Schedule and for constructing a Ramamandlram in Rajavaram village in my name. .. I'

"The immovable property mentioned in the E Schedule hereunder sh411 be enjoyed by my wife Man-gamma with all powers of dispo&ition by way of gift, sale, etc. Whatever remains out of the aaid E Sche-dule mentioned immovable property after her lite-time, (the said property) shall pass either to the said Ven-kataswamy and Seshagiri or their descendants. • • . • In the event of my wife taking a boy in adoption the propeflY mentioned in the E schedule hereunder shall pass to the said adoptee with all powers of disposition by way of gift, sale etc. after her life-time. . • . . • . .

If, for any reason, the properties and rights do not pass to the individuals mentioned in the aforesaid

paras, such properties and rights shall be enjoyed by my wife Mangamma with absolute rights."

Appanna had directed his wife Mangarnma to sell the pro-perties described in Sch. C and to utilise the proceeds for two purposes, "celebrating the marriage and other auspicious fll!lc-tions" of Seetharatnam, and "for constructing a Ramamantliram in Rajavaram village" in his name. But the marriage of Seetha-ratnam was celebrated during the lifetime of Appanna, and expenses in that behalf were defrayed by Appanna, and no ex-penses remained to be incurred after the death of Appanna. Mangamma had no beneficial interest in Sch. C property. She was merely appointed to sell the property and to utilise the proceeds for the purposes specified in the will. The Trial Judge clearly erred in holding that the estate lapsed because Mangamma died during the lifetime of Appanna. In the view of Chandra-sekhar Sastry, J., since there was a joint bequest for two purposes, and one of the purposes for which the Sch. C properties were c,Jevised was accomplished by Appanna the bequest in its entirety must enure for the remaining purpose i.e. constructing a Ramamandiram, and the plaintiffs' claim for possession of the I C Schedule properties must fail. The learned Judges of the

High Court agreed with that view.

But there was no "joint bequest" of the properties. In the absence of allocation of the amounts to be utilised for "celebrat-ing the marriage and other auspicious ~unctions" of Seetharatnam and for constructing a Ramamandiram, it must be presumed that the fund was to be utilised in equal moieties for the two pur-poses. Failure of one of the purposes will result in a moiety of the amount devised falling into the residue.

In Jogeswar Narain Deo v. Ram Chund Dutt and Others(') a devise under the will of a Hindu testator who had given a four-anna share of his estate to his daughter and her son for their maintenance with power of making alienation thereof by sale or gift £ell to be construed. The Judicial Committee held that on a true construction of the will each took an absolute interest in a two-anna share in the estate. In dealing with the contention that there was a joint estate granted to the daughter and her son the Judicial Committee observed :

I. " ...... Mr. Branson ...... maintained upon the

authority of Vydinada v. Nagammal (ILR 11 Mad. 258) that, by the terms of the will the Rani and the appe!lent became, in the sense of English law, joint tenants of the 4-annas share of Silda, and not tenants in common; and that her alienation of her share before it was severed, and without the consent of the other

joint tenant, was ineffectual. The circumstances of that case appear to be on all fours with the circum- >tanccs which occur here, and, if well decided, it would be a precedent exactly in point. There are two substan-tial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lord-ships that the learned Judges of the High Court of Madras were not justified in importing into the construc-tion of a Hindu will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu Jaw, except in the case of coparcenary between the memben of an un-divided family."

That principle applies here. The fund was 'devised for the construction of a Ramamandlram at Rajavaram village and for "celebrating the marriage and other auspicious functions" of Se<:tharatnam. Since no part of the fund was needed for the benefit of Seetharatnam, the legacy failed pro tanto and fell into the r<!«idue. Under th.~ will Mangamma was made the owner of the residue. hut by her death during the lifetime of Appanna the residuary bequest lapsed and vested as on intestacy in the 9lain-tiff and the 24th defendan!. The devise of a moiety of the fund to be applied for the construction of a Ramamandiram however stands good and the trust must be carried out. Mangamma is dead, but on that account the charitable trust is not extinguished The Trial Court must give appropriate directions for utilisation of that moiety for constructing a temple according to the direc-tion of Appanna in the will.

The testator gave to his wife Mangamma an absolute inte-rest in the E Schedule properties, for she was invested with all powers of disposition "by way of gift, sale etc." The·will then proceeded to direct that whatever remained out of the E Schedule properties after her death shall pass to Venkataswamy and Seeshagirirao. If Mangamrna had survived Appanna, probably the devise in favour of Venkataswamy and Seshagirirao may have failed, but that question does not arise for consideration.

Se.:tion I 05 of the Indian Succession Act, 1925, which applies to the wills of Hindus provides :

"(I) If the le~atce does not survive the testator. the leeacv cannot take effect, but shall lapse and form part of the residue of the testator's property. unless it appears bv the will that the testator intended that it ff\ should 20 -to some other person.

('.!) "

Mr. Chag!a for the plaintiffs contends that the estate in the E Schedule properties devised in favour of Mangarnrna lapsed, for, there was nothing in the will which expressly provided that in the event of Mangamma dying during the testator's lifetime, the devise in favour of Venkataswamy and Seshagirirao shall be accelerated. Counsel relies upon the judgment of Wickens, V. C., m Browne v. Hope(') and contends that a legacy does not lapse, if the testator does two things-he, in clear words, ex-cludes lapse; and he clearly indicates the person who is to take the legacy in case the legatee should die in his lifetime. In Browne's case (1) che testator gave, by his will, the residue of his estate to trustees to pay and transfer the same to seven named legat•,es in equal shares as tenants in common, and therr respec-tive executors, administrators and assigns; and he declared that such shares shall be vested interests in each legatee immediately upon the execution thereof, and that 'the shares of the married women shall be for their separate use. It was held that the share of one of the Jegatees-a married woman-who died after the date of the will, but before the testator, did not belong to her husband, who was. her legal personal representative, and it lapsed.

Counsel says that the rule of interpretation as enunciated by 'Vice Chancellor Wickens is incorporated in s. 105 of the Indian Succession Act, 1925. He submits that a legacy will not lapse only if the testator by express direction excludes lapse, and indi-cates clearly. the person who shall take the legacy if the legatee dies during his lifetime.

We are concerned to construe the provisions of s. 105 of the Indian Succession Act. That section enacts that a legacy sha!l lapse and form part of the residue of the testator's property if the legatee does not survive the testator except where it appears by the will that the testator intended that the legacy shall on the legatee not surviving him go to some other person. We are un-able to agree that the iniention of the testator that a legacy shall not lapse may be given effect to only if the testator expressly directs that if the legatee dies during his lifetime the legacy shall go to some other person, and that intention to exclude lapse ~n­ not be inferred. Section 105(1) does not say, nor does it im-ply, that the testator must have expressly envisaged the possibility of lapse in consequence of the legatee dying during his lifetime and must have made a provision for that contingency.

In In re. Lowman Devenish v. Pester(') a testator, who under a settlement was absolutely entitled to a moiety of the prr0,eeds of a certain real estate under a trust for sale, by his will devised·

(I) L. R. 14 Equity Cases, 343. (2) [1885] 2 Ch. 348.

that real estate. by its proper description, together with certain real ~late of his own, to trustees, to the use of H, for life, with remamder to trustees to preserve the contingent remainders, with ~ema~nder to th~ use of the first and other sons of H successively In tail male, with remainder to the use of the first and other sons of his niece E successively in tail male, with remainder to the use of the first and other sons of his niece M successively in tail male, with remainder to the use of the first and other sons of his niece F successively in tail male, with remainder over. H survived the testator and died a bachelor. M also survived the te;tator and died unmarried. E was still alive but unmarried and seventy years of age. F had two sons, the eldest of whom died before the testator. It was held that when there are in a will successive limitations of personal estate in favour of several persons absolutely, the first of those persons who survives the tes-tator takes absolutely, although he would have taken nothing if any previous legatee had survived and had taken : the effect of the failure of an earlier gift is to accelerate, not to destroy, the later gift.

This rule was applied in In re. Dunstan, Dunstan v. D11nsta11(' ). A testatrix by her will gave freeholds absolutely to A, subject to the bequest that whatever out of the freeholds should remain after A's death shall be given to a named charity. It was held that if A had survived the testatrix the gift to the charity would have been repugnant and void, and A would have taken the frcchollls absolutely. But since A died in the lifetime of the tes-tatrix, the doctrine of repugnancy did not apply, and the gift to charity was accelerated and took effect.

Mangarnma died during the lifetime of the testator : there-by the estate in Sch. E properties granted to Venkataswamy and hlS brother Seshagirirao was accelerated. The plaintiffs are there-fore not entitled to any share in Sch. E properties.

The decree of the High Court is modified. It is declared that there is intestacy in respect of a half share in the fund arising by sale of Sch. C properties, and the plaintiff and the 24th de~n­ dant are entitled to take that half share in the fund. It is direct-ed that the Trial Court will issue appropriate directions for appli-cation of the other half of the fund arising by sale of Sch. C properties for constructinJZ Ramamandiram at Rajavaram village as direcred by the testator in his will. Subject to this modifica-1ion the appeal will be dismissed. The appellant will pay 3/4th of the costs of the contesting respondents in this Court.

(I) (19t8} 2 Ch. 304.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 445 of 1966.

Appeal by special leave from the judgment aind order dated March 9, 1964 of the Andhra Pradesh High Court in Letters Patent Appeal No. 2 of 1963.

M. C. Chagla ·and T. Saty_anarayana, for the appellants. P. Ram Reddy and K. !ayaram, for the respondents.