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1990 Supreme(Ori) 50
High Court Of Orissa
G. B. Pattanaik , J. M. MAHAPATRA
CHETTI BALAKRISHNAMMA ALIAS BALAKRISHNA - Appellant
Versus
CHETTI CHANDRASEKHAR RAO - Respondent
FIRST APPEAL 158 Of 1976
Decided On : 04/13/1990
A.N.ROUTRAY, A.S.Naidu, B.B.RATHOD, I.C.DAS, K.M.Mishra, M.MOHANTY, N.S.SUBUDHI, P.K.BHUYAN, P.K.MISHRA, P.V.Ramdas, R.K.MOHAPATRA, R.N.ACHARYA, S.K.DAS GUPTA, S.K.DEY, S.S.BASU
A will in favor of an unborn child is valid if the child is born during the lifetime of a person who is alive at the time of the testator's death. A family arrangement cannot override a will executed by a testator.
Headnote:
WILL - VALIDITY - UNBORN CHILD - FAMILY ARRANGEMENT - BINDING NATURE - PARTITION - RELIEF.
Fact of the Case:
Plaintiff filed a suit for partition of the plaint schedule property claiming on the basis of a registered will executed by his grandfather Chetti Venkataswamy in 1953. The defendant contended that the will was invalid as it was in favor of an unborn child and that a family arrangement entered into in 1961 superseded the will.
Finding of the Court:
The court held that the will was valid as it was in favor of a person who was born during the lifetime of the testator's wife, as per the exception to Section 111 of the Succession Act. The court also held that the family arrangement was invalid and inoperative as it could not override the will.
Issues: 1. Whether the will was invalid as it was in favor of an unborn child? 2. Whether the family arrangement entered into in 1961 superseded the will?
Ratio Decidendi: 1. Under Section 111 of the Succession Act, a bequest made to a class of persons described becomes valid only if the persons in whose favor the property is bequeathed are alive at the time of death of the testator. However, there is an exception to this provision where a bequest is made to a person who is not in existence at the time of the testator's death, but is born during the lifetime of a person who is alive at the time of the testator's death. 2. The heirs of a testator cannot, by way of a family arrangement, change the devolution or mode of succession of the property as per the will executed by the testator.
Final Decision: The court dismissed the appeal filed by the defendant and allowed the cross-appeal filed by the plaintiff. The court held that the will was valid and binding to the extent of the entire property of Venkataswamy and not just one-third of his interest.
G. B. PATNAIK, J.
( 1 ) DEFENDANT No. 6 is the appellant. The plaintiff filed the suit for partition of the plaint schedule property claiming on the basis of a registered will executed by his grandfather Chetti Venkataswamy in 1953 (Ext. 43 ).
( 2 ) ONE Sarathi had two sons, Venkataswamy and Narasimhulu. Venkataswamy died on 5-5-1957 leaving his widow Ammayamma and two sons Krishnamurty and Balakrishna (defendants 4 and 6 respectively) and daugher Sundaramma (defendant No. 8 ). Krishnamurty' wife is Anusuya (defendant No. 5) and Balakrishna' son is Jagannadha (defendant No. 7 ). Krishnamurty' son Chandrasekhar is the plaintiff and the three daughters Suguna, Geeta and Vanaja are defendants 1, 2 and 3 respectively. Narasimhulu died on 24-4-1952 leaving three wives, Narasamma, Sundaramma and Manikyamma who were issueless. According to the plaintiff' case, Venkataswamy and Narasimhulu had a business of selling country cigar and out of the money thus earned lots of properties were acquired. After death of Narasimhulu in 1952, his three widows filed suits for partition which were ultimately disposed of on compromise and in the said compromise Venkataswamy got 10 annas share and the three widows got six annas share. Venkataswamy had executed a registered will on 20-4-1953 disposing of his properties in a particular manner. Venkataswamy died on 5-5-1957. The plaintiff was born on 3-10-1961. Under the will all lands in village Matiapalli would vest with Sundaramma after the death of Venkataswamy and the remaining properties would be enjoyed by Ammayamma but she had no power of alienation. After the death of Ammayamma half of the properties would go to Balakrishna and rest half would devolve upon the children of Krishnamurty and the sons of Krishnamurty would receive 10/16th share after the death of Ammayamma. Therefore, under the will, Krishnamurty was excluded from getting any interest in the property of Venkataswamy. Notwithstanding the aforesaid will, on 17-9-1961, a family arrangement was entered into which is Ext. A and under, the family arrangement, the members of Krishnamurty' family, namely defendant No. 4, Defendant No. 5 and defendants 1, 2 and 3, all got one share and both Krishnamurty and Anusuya, father and mother of the plaintiff, were parties to the said family arrangement. Plaintiff' case is that the property in question being the self-acquired property of Venkataswamy and he having executed a will indicating the manner in which the property will devolve, defendants 4 and 5 had no authority to enter into a family arrangement under Ext. A and, therefore, the so-called family arrangement under Ext. A is not binding on the parties and the will must be given effect to. Accordingly, he prayed for partition.
( 3 ) DEFENDANTS 6 and 7 are the contesting defendants and it is their case in the written statement that the suit is not maintainable and the family arrangement was entered into in order to keep peace and harmony in the family and the plaintiff' family namely his parents and others have been benefited by that family arrangement and the arrangement having been acted upon the same cannot be challenged now by the plaintiff. It is also their case that the will in favour of an unborn child is not valid and even if it is valid, the same is superseded by the family arrangement dated 17-9-1961 (Ext. A ).
( 4 ) THE other defendants who are mostly alienees from either of the parties also filed their written statements taking the stand that the family arrangement of 1961 had been fully acted upon and they were all bona fide purchasers from different members of the family who derived their interest from the family arrangement under Ext. A and, therefore, the will could not be said to be valid.
( 5 ) ON these pleadings, the trial Court framed six issues and on issue No. 1 which is on the question of validity of the will, found that the truth and genuineness of the will executed by Venkataswamy was admitted; Venkataswmay had the
