Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 B 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 c 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 D 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 E 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 F 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 G required no serious consideration. He argued that the marriage of Rami Reddy with Subbamma was with the consent of Pitchamma and there was nc 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 H injunction to have progeny so that religious efficacy of satisfying SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.] 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.
19. Mr. P.S. 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.
21. By the Hindu Wills Act, 1870 (for short, 'the 1870 Act'), statutory provisions were made to regulate the wills of HiRdus, 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, na~ely,- 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), c [2011) 4 S.C.R. 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 XXXlll 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 (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:"
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: "S.57. 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 Ill 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 SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. 193 · GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.] 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 (c) to all Wills and codicils made by any Hindu, · C 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 o or codicil." Clauses (a} and (b), of Section 51 of the 1925 Act CJre par/ 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 wiU'executed in 1920. The will is admittedly a muffussil will as it· has not been executed within the local limits. of ordinal"/ original civil jurisdiction of the High Court of Judica'ture 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 (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.
24. Since the subject will is not covered by any ofthe 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 A 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. c
25. We may also state that although the statutory provisions concerning construction of wills from Sections 7 4 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 D 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 E disp()sition 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 F 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- .l 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 G 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. H He, therefore, stated, "I intend to give all my belongings, SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.] 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.
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".
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.
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 : 1. A.l.R. 1935 Patna 401 c [2011) 4 S.C.R. "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 conf~rred 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."
32. The distinction between a repugnant provision and a defeasance provision explained in Mt. Rameshwar Kuer1 has D been followed subsequently. In our view, Patna High Court rightly explains the distinction between a repugnant provision and a defeasance provis!on.
33. The question, however, upon which the fate of this E 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 F 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 G 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 Ran:ii Reddy jointly was conditional on happening of an uncertain event noted above. As a matter of fact and in law, H immediately after the death of testator in 1920, what became SIDDAMURTHY JAYARAMI REDDY (D) BY LRS. v. GODI JAYA RAMI REDDY & ANR. [R.M. LODHA, J.] 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 vestinq 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 D: 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 impe~iment 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. Sundaravi)radan that abandonment was not voluntary and conscious. 36. · Rami Reddy neither continued as a guardian. ef 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 G 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 A 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 B to be instrumental in defeating the testator's wish in not agreeing to ~he 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 c 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 E 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 G 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. 41. All in all, on the construction of the will and, in the AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 199 DESIGNATED AUTHORITY 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. c 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.LR. 1926 Madras 434]; Balmakund v. Ramendranath Ghosh [A.l.R. 1927 D Allahabad 497]; Ratansi D. Morarji v. Administrator-General of Madras [A.LR. 1928 Madras 1279]; Bhojraj v. Sita Ram and others [A.l.R. 1936 Privy Council 60]; Ketaki Ranjan Bhattacharyya and others v. Kali Prasanna Bhattacharyya and others [A.LR. 1956 Tripura 18]; P. Lakshmi Reddy v. L. Lakshmi Reddy [(1957) SCR 195]; AL. PR. Ranganathan Chettiar and another v. A/. PR. AL. Periakaruppan Chettiar and others [A.LR. 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.LR. 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. R.P. Appeal dismissed.