Judgement

SHAH, J.: One Appanna died on March 12, 1953, leaving him surviving no wife or lineal descendant. Subba Rao claiming 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 properties described in Schs. A, B, C, D & E. The plaintiff claimed that Appanna died intestate, and that he and his brother Venugopala Rao were the nearest heirs entitled to the entire estate 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 24 th defendant. The suit was defended by Pothana Apparao and others contending, inter alia, that Appanna had made and execute 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 in a sound state of mind had executed the will on July l4, 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 before the testator, and that the direction in the will that whatever remained out of the Sch. E property after the lifetime of Mangamma shall pass to Venkataswamy and Seshagirirao defendants Nos. 3 & 2 respectively or their descendants was void and incapable 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.

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

3. It has been concurrently found 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 canvassed, and our attention is not invited to any exceptional circumstances which may justify a departure from the rule.

4. 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 service 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 Mangamma to sell the immovable property mentioned in the C Schedule hereunder and utilise the amount for celebrating the marriage and other auspicious functions of Tholeti Narasimha Rao s daughter Seetharatnam mentioned in the B Schedule and for constructing a Ramamandiram in Rajavaram village in my name.

* * * *

"The immovable property mentioned in the E Schedule hereunder shall be enjoyed by any wife Mangamma with all powers of disposition by way of gift, sale, etc. Whatever remains out of the said E Schedule mentioned immovable property after her lifetime, (the said property) shall pass either to the said Venkataswamy and Seshagiri or their descendants. * * * In the event of my wife taking a boy in adoption the property mentioned in the E Schedule hereunder shall pass to the said adopted with all powers of disposition by way of gift sale etc., after her lifetime. * * *

If, for any reason, the properties and rights do not