Property acquired without a joint family nucleus cannot be presumed ancestral. In testamentary interpretation, granting ownership of surviving property without limiting riders confers absolute ownership, notwithstanding clauses distributing the residual estate after the beneficiary's death.

JUDGMENT

A.P.MISRA, J.

(1) THE appellant filed a suit for declaration that she was the owner of the house in dispute on the strength of the Will dated 20/1/1975 executed by her husband Shri Mahadev Prasad making her the absolute owner and since the defendant nos. 1 to 4 were interfering with her possession, injunction was sought and in the alternative, for possession.

(2) THE trial court decreed the suit, holding the Will to be genuine and the appellant absolute owner of the disputed house and the property. It rejected the case of the defendant nos. 1 to 4 that Kedarnath was the owner of the house and they have perfected their title by adverse possession. An appeal was filed by the said defendants before the High Court which was allowed in part. The High Court, while construing the Will, held that Smt. Kamla Devi, the present appellant, has only life estate and was entitled only to the extent of 1/6th share in the house. Aggrieved by this, present appeal has been filed.

(3) THE submission on behalf of the appellant is, the house in question was purchased by the three brothers, namely, Mahadev Prasad, Bihari Lal and Sant Ram jointly out of their own income, thus question of this house being an ancestral property does not arise. It is not in dispute that there has been partition among the brothers subsequent to the purchase of this house in the year 1962. In the said partition, the disputed properties were allotted to Mahadev Prasad. The execution of the Will is not in dispute. Thus the main question which arises is the interpretation of the said Will. According to the appellant, the Will clearly indicates that after the death of Mahadev Prasad, the property in question would vest in the appellant, i.e., the wife of the testator absolutely and there is no rider or limitation under it for its enjoyment. However, submission for the respondents is that the intention of the testator becomes clear by reading the whole Will which indicates that he desired to distribute it equitably to his sons and grandsons also. If that be so, the testators intention could only be to give limited life interest to his wife (the appellant). It records that after her death it goes to the sons and grandsons with the shares mentioned therein. The High Court interpreted this Will and held the right of the appellant is limited and she has only life interest. Thus two questions arise. First, whether the house in question is ancestral or jointly held by three brothers as joint owners and the second, whether under the Will the appellant has only life interest.

(4) LEARNED Counsel for the appellant submits, with respect to the first point with vehemence that the house was purchased by three brothers as aforesaid jointly out of their own income. On the other hand, submission for respondents is, at the time of purchase of this house, the family was joint as no partition had taken place; hence presumption would be that this property would be ancestral in nature, hence even if it was purchased by three brothers, it would be construed to be purchased on behalf of joint family, hence, ancestral in nature.

(5) WE find in the present case, the High Court has clearly recorded the findings to the following effect:

"IN para 9 of the written statement it was pleaded for the appellants vaguely that the house is of the time of the ancestors of Mahadev Prasad. But there is no material before us to substantiate this nor is it alleged or shown that the family was possessed of any nucleus."

(6) FURTHER, submission on behalf of the respondents is as aforesaid even if it was purchased by the three brothers, it would be presumed to have been put in hotchpotch, hence it will take the character of ancestral property. Reliance is placed in ! Mallesappa Bandeppa Desai and Anr. v. Desai Mallappa alias Mallesappa and Anr. [AIR 1961 SC 1268], G. Narayana Raju (dead) by his Legal Representative v. G. Chamaraju and Ors. [AIR 1968 SC