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1966 Supreme(Ker) 72
Judges : T.S.KRISHRIAMOORTHY IYER
Matha - Appellant
Versus
Kanaran - Respondent
Case No : S. A. No. 803 of 1962
Decided On : 03/22/1966
Advocates Appeared :
M. C. Sreedharan; For Appellant T. P. Kelu Nambiar; A. Achuthan Nambiar; For Respondent
The main legal point established in the judgment is the interpretation of the residuary gift in a will and the determination of the intention of the testator in making the devise of the residuary estate.
Headnote:
Lapsed Legacy - Residuary Legatee - S.105, sub-section (1) of the Succession Act - Intention of the Testator - Construction of Residuary Gift
Fact of the Case:
The plaintiff claimed exclusive right to the plaint property on the ground that under Clause.6 of Ext. A-2 he was constituted as the residuary legatee and since the bequest in respect of the plaint property in favour of Kannan lapsed, he is entitled to claim the same. The contention of the second defendant was that the plaintiff was not constituted as residuary legatee but only a specific legatee and the plaint item should devolve on the heirs of Chirutha as on intestacy in which case the plaintiff and the second defendant should share the plaint property in equal halves. The plaintiff was granted a decree by the two courts below over-ruling the contentions of the second defendant.
Finding of the Court:
The court found that the residuary gift in Clause.6 of Ext. A-2 was wide enough to comprehend the entire residue including those assets comprised in any specific devise which failed on account of the death of the devisee in the lifetime of the testator. The intention evidenced by the said clause is that the testator intended to make a devise of her residuary estate in favour of the plaintiff. The decisions of the courts below do not therefore call for any interference.
Issues: The main issue was whether the lapsed legacy goes to the plaintiff in view of Clause.6 of Ext. A-2.
Ratio Decidendi: The court interpreted the intention of the testator as evidenced by the will and concluded that the residuary gift in Clause.6 was not reduced to the level of a specific gift by excluding any portion of the assets of the testator from its operation. In the absence of words sufficiently definite and distinct excluding any portion of the estate of the testator from the operation of Clause.6, it was not possible to construe the gift as a specific one.
Final Decision: The court dismissed the second appeal in confirmation of the decrees and judgments of the courts below.
1. The second defendant is the appellant. The plaint property belonged to Chirutha who died on 24-12-1954. Chirutha executed Ext. A-2 will on 13-7-1943 in favour of her three brothers, plaintiff, Bappu and Kannan and her sister the second defendant in respect of all her properties. The plaint property was given to Kannam under Ext. A-2. Kannan predeceased the testator. The first defendant is the son of Kannan. The plaintiff claimed exclusive right to the plaint property on the ground that under Clause.6 of Ext. A-2 he was constituted as the residuary legatee and since the bequest in respect of the plaint property in favour of Kannan lapsed, he is entitled to claim the same. The contention of the second defendant was that the plaintiff was not constituted as residuary legatee but only a specific legatee and the plaint item should devolve on the heirs of Chirutha as on intestacy in which case the plaintiff and the second defendant should share the plaint property in equal halves. The plaintiff was granted a decree by the two courts below over-ruling the contentions of the second defendant.
2. It was under Clause.2 of Ext. A-2 that the plaint property was bequeathed to Kannan to be enjoyed by him absolutely after the death of Chirutha. Clause.3 and 4 provided for bequests in favour of the second defendant and Bappu. Under Clause.5 of the will some properties were jointly devised to Kannan, Bappu, plaintiff and the second defendant. Clause.6
3. Now the legacy under Clause.2 of Ext. A-2 lapsed by reason of the fact that Kannan predeceased the testator. The point that is raised in the appeal is whether this legacy that has lapsed goes to the plaintiff in
view of Clause.6 of Ext. A-2.
4. S.105, sub-section (1) of the Succession Act is to the following effect:
"If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person."
And the learned advocate for the appellant did not demur to the general proposition that where a legacy lapses, it forms part of the residue of the testator's property but it was contended by him that the intention of the testator to be gathered from Clause.6 of Ext. A-2 is that the plaintiff was not constituted a general residuary legatee and that the lapsed legacy did not fall into the residue allotted to the plaintiff under Clause.6 of Ext. A-2. It is not possible to accept this contention of the appellant's advocate. S.102 of the Succession Act which provides for constituting a residuary legatee says that "a residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property". S.103 provides that "under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect." In Chhabi Bai v. Chunia Bai AIR. 1935 Nagpur 239 it was observed thus.
"The Indian Succession Act does not contain any formal definition of the expression residuary legatee", but its meaning is evident from S.102 and 103 of that Act. A residuary legatee is the person designated by the testator as one who will take the surplus or residue of his property; the residuary bequest implies that the legatee is entitled to all property belonging to the testator at the time of his death of which he has not made any other testamentary disposition which is capable of taking effect. So it means that whatever is not effectually disposed of goes to the residue. The rule is thus stated in Halsbury's Laws of England, Volume 39, page 949, para 1436:
"Where a will contains a residuary devise, then, unless a contrary intention appears, real estate, or an interest in real estate, comprised or intended to be comprised in any specific d
