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2011 (3) Supreme 1
SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
Siddamurthy Jayarami Reddy (D) by LRs. — Appellants
versus
Godi Jaya Rami Reddy & Anr. — Respondents
Civil Appeal No. 2916 of 2005
Decided on : 1-4-2011
(b) Indian Succession Act, 1925 – Section 141 – Named executor neither manifesting his intention to act as such, nor proving the Will – Section 141 not attracted. (Para 24)
(c) Interpretation of Will – Construction – The Will must be read and construed as a whole to gather the intention of the testator – The court must endeavour to give effect to each and every disposition – Ordinarily, words must bear their ordinary construction and every disposition of the testator contained in Will should be given effect to as far as possible consistent with the testator’s desire. (Para 26)
(d) Interpretation of Will – Repugnant provision and defeasance provision – Distinction – Where the intention of the donor is to maintain the absolute estate conferred 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 – On the other hand, 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. (Para 31)
AIR 1935 Patna 401 – Cited with approval
(e) Interpretation of Will – Testator bequeathing 1/3 rd share to the executor upon discharge of certain duties – Failure to discharge those duties disentitled the executor to any legacy in the property. (Para 37)
AIR 1926 Madras 434; AIR 1927 Allahabad 497; AIR 1928 Mad 1279; AIR 1936 Privy Council 60; AIR 1956 Tripura 18; (1957) SCR 195; (2002) 2 SCC 62; (2006) 11 SCC 600; AIR 1933 Madras 80 – Referred
(f) Delay and laches – Person not claiming legacy for 19 years after death of the testator – It is relevant and important ground for consideration. (Para 40)
Facts of the case:
This case concerns construction of a Will and controversy arose because the courts below have taken divergent views.
Finding of the Court:
1. Immediately after the death of testator in 1920, what became 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.
2. 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.
Result : Appeal dismissed
JUDGMENT
R.M. Lodha, J. —
The controversy in this appeal, by special leave, is concerned with will dated May 21, 1920 executed by Bijivemula Subba Reddy resident of Chennavaran, village Kattera Gandla, Badwel Taluq, Cuddapah District. The question is one of construction upon which the two courts - High Court and trial court - are not in accord and, have taken divergent view.
2. At the time of execution of the will, Bijivemula Subba Reddy - a Hindu - was aged about 75 years. He had his wife Subbamma, daughter Pitchamma, son-in-law Rami Reddy, widowed sister Chennamma, widowed daughter-in-law and granddaughter Lakshumamma living. His only son Sesa Reddy had died in 1917. The testator was man of sufficient wealth. He had landed property (wet and dry lands and wells) at various places, namely, in Katteragandla, Rampadu, Varikuntla and Thiruvengala Puram. He also owned few houses and plots of lands at different places. He had moveable properties as well in the form of bonds, securities and promissory notes. The will recites, as indeed is the undisputed fact, that the testator, except one house situate at Kotha Laxmipally village in which he had 1/3rd share, was the absolute owner of the properties specified therein.
3. Pitchamma had no child although she had married 20 years before the execution of the will. The testator desired that his daughter Pitchamma adopted a son with the consent of her husband and his granddaughter Lakshumamma got married to the adopted son of his daughter Pitchamma.
4. The will is written in vernacular (Telugu). The correctness of its English translation annexed with the appeal was disputed by the respondents. The parties were then directed to submit agreed translation of the will which they did and that reads as follows:
“I, Bijivemula Subba Reddy son of Balachennu, resident of Chennavaran village Kattera gandla, Badwel Taluq Cuddapah District, cultivation, this the 21st day of May, 1920, with sound mind, free will executing the will. Now I am aged about 75 years. My wife Subbamma is living. I had one son by name Sesa Reddy. He died at the age of 24 years, about three years back. He had one wife and one daughter aged about 6 years by name Lakshumma. I have one daughter by name Pitchamma. I have given in marriage to one Rami Reddy adopted son of Siddamurthi Duggi Reddy, Papireddypally village Rampadu Majira., though she married about 20 years back, but she has no issues.
She intended to take a boy in adoption with the consent of her husband.
As I am old I could not [sic] able to run my family. After the death of my son, since 15 years, the above persons are looking after my family and my welfare.
I have also one widow sister by name Chennamma. She is living with me since 30 years. She is also helping me in all aspects. I intend to give my grand daughter Lakshumamma to the proposed adopted son of my daughter Pitchamma.
In the said event, I intend to give all my belongings, moveable and immovable properties to the said Lachumma and the adopted son of my daughter Pitchamma. But my daughter and her husband so far did not take any steps for getting a boy in adoption. Now as I am sick and suffering from fever and other ailments, I am doubting whether I can perform the above said acts during my life time.
I own lands in Katteragandla Village, Rampadu village, Varikuntla village, and Thiruvengala puram village, both wet and dry lands and also wells. I also own a Midde in Majira. I have one Beeruva in Pancha of my house. I also have household articles, kallamettelu. I also have lands in Papireddypally village of Rampadu Majira, two plots and I have absolute rights in one of the same. I also have one house in Kotha Laxmipally village, of Kathera gandla majira and in that I have 1/3rd share. I also have bonds and securities and promissory notes transactions.
As I have the above said moveable and immoveable properties and as I am having absolute rights over the same, none others have any rights whatsoever in the above
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