1996 Supreme(SC) 1014

1996(5) Supreme 653
SUPREME COURT OF INDIA
S.C. Agrawal and G.T. Nanavati, JJ.
Usha Subbarao -Appellant
versus
B.E.Vishveswariah & Ors. -Respondents
Civil Appeal No. 9062 of 1996
Decided on 8-7-1996
Counsel for the Parties :
For the Appellants : V. Gopalaih, and E.C. Vidya Sagar, Advocates.
For the Respondents : K.R. Nagaraja, Advocate.

Headnote:Indian Succession Act, 1925-Section 119-Transfer of Property Act, 1882-Section 19-Will-Construction of-Determining date of vesting of interest in bequest-Testator died leaving behind his wife and five sons-Appellant is wife of one of the sons who predeceased his mother-She claiming 1/5th of her deceased husband in properties left by her father-in-law, on basis of a Will-Considering the words used and the surrounding circumstances, the bequest in favour of legatees held to be of a vested interest- Legacy vested in legatees, including husband of appellant, at the time of testator s death-After the death of her husband, appellant is entitled to claim 1/5th share of her husband.

       Held : In order to determine whether the appellant can claim any right in the properties of the testator, it is, therefore, necessary to examine the nature of the bequest that was made by the testator in favour of his five sons including the deceased husband of the appellant. If it is found that the bequest is in the nature of vested interest, it would vest in the husband of the appellant on the death of the testator and after the death of her husband the appellant, as his legal representative, would be entitled to claim her husband s interest in the properties. But in case the bequest is found to be in the nature of a contingent interest which was to vest in the legatees only after the death of Smt. Nadiga Nanjamma, the appellant would not be entitled to claim any interest in the properties since her husband had pre-deceased Smt. Nadiga Nanjamma. (Para 10)

       According to the Will the right to separate enjoyment of the share in respect of properties mentioned at items Nos. 2, 3, and 4 of Schedule "A" as well as properties mentioned in Schedules "C" and "D" was available to each of the sons of the testator on his attaining the age of majority and that the right to separate enjoyment of the bequest relating to share in the property mentioned at item No. 1 of Schedule "A" and properties mentioned in Schedule "B" was available only after the death of Smt. Nadiga Nanjamma. But even during the period the right to separate enjoyment was not available to the legatees the income from the properties was available for the maintenance of the legatees, their education, their Upanayanams and marriages as well as for maintenance of Smt. Nadiga Nanjamma. (Para 12)

       Further held that the income from the properties was to be used partly for the maintenance, education, Upanayanams and marriages of the legatees and partly for the maintenance of their mother, Smt. Nadiga Nanjamma. Since the legatees, as sons, were under an obligation to maintain their mother, it must be held that the entire income from the properties was to be applied for the benefit of the legatees and in accordance with the rule referred to above, the bequest in favour of the legatees must be held to be of a vested interest. (Para 13)

       The testator after making the bequest in favour of the legatees has given the direction that a son on attaining majority could demand partition according to the prevailing Hindu Law in force at that time to get his portion in items Nos. 2, 3, and 4 in Schedule "A" and the thrift deposit standing in his name as mentioned in Schedule "C" as well as his portion in the properties specified in Schedule "D". This is a case where the testator has made a distinction between the gift itself and the event denoting the time of payment, division or transfer, viz. attaining the age of majority. It falls in the same category as illustration (ii) to Section 119 of The Indian Succession Act and must be held to be a bequest of vested interest in respect of these properties. (Para 15)

       Similarly, the direction in the Will excluding the property at item No. 1 of Schedule "A and the properties mentioned in Schedule "B" for partition during the life time of Smt. Nadiga Nanjamma and that Smt. Nadiga Nanjamma would be entitled to reside in the house at item No. 1 of Schedule "A" and to use the income from the properties mentioned in Schedule "B" for her own maintenance if she lives separate from any of the major sons, only creates a limited life interest in the said properties in favour of Smt. Nadiga Nanjamma and it does not have the effect of rendering the bequest in respect of those properties as a contingent bequest and it continues to be a bequest of a vested interest in those properties. (Para 16)

       Consequently held : We are unable to read the Will as indicating a contrary intention to make a departure from the rule regarding vesting of the legacy as contained in Section 119 of the Act. In our opinion, the Will cannot be construed as creating a contingent interest in the sons of the testator so as to postpone the date of vesting of the legacy till after the death of Smt. Nadiga Nanjamma. On a proper construction the Will must be construed as containing a bequeath of a vested interest in favour of the sons surviving the testator which means that the legacy vested in the legatees, including the husband of the appellant, at the time of testator s death and after the death of her husband, the appellant is entitled to claim the one-fifth share of her husband in properties mentioned in Schedules "A", "B" and "D" in addition to properties mentioned in Schedule "C" viz. the thrift deposits standing in the name of the appellant s husband in the Bank of Mysore Ltd. (Para 19)

       (ii) Will-Construction of-Intention of testator to be ascertained from words used keeping in view surrounding circumstances, position of testator, his family relationship- Will must be read as a whole. (Para 11)

       (iii) Transfer of Property Act, 1882-Section 19-Indian Succession Act, 1925-Section 119-Will-Rule regarding vesting of legacy-Distinction between a vested interest and a contingent interest. (Para 8)