Kanakammal and Others vs C. Baktavatsulu Naidu and Another

Ramesam, J.—The only point arising for decision in this appeal is the construction of the will (dated 29th August 1905 of Chennakesavalu

Naidu, the last male owner who died on 4th September 1905 leaving a widow and a daughter. It provides for certain legacies in favour of his sister

and Ors. (Cl. )2, 5 and 13). It directs that, until the widow attains proper age, the executors should pay for the domestic expenses of the widow

the daughter, Rupees twenty per month from the interest and the rents of the houses (Cl. 7) that, if any special expenses require to be incurred for

the daughter or the wife, the executors should consider what is proper and what is improper and should pay only what is proper (Cl 11). Finally it

provides ""The executors should deliver over the aforesaid my properties and cash and all the other properties to my wife Kanchi Pushpamma after

she attains the age of twenty years"" this age being apparently what the testator meant by '' proper age'' in Clause 7. The executors took out

probate in 1906 and delivered the properties to the widow in June, 1909. The daughter died in 1906 and the widow died in 1918 leaving another

will. The defendant''s claim as legatees under the latter will. The plaintiff sues on the ground that the widow had, under her husband''s will, only the

estate of a Hindu widow taking as an heir, that she was incompetent to dispose of it by her own will and that he succeeds as reversioner. Seshagiri

Aiyar, J. who heard the case on the Original Side held (1) that the will of Chennakesavalu purported to dispose of all his interest in the property

and there was no intestacy and (2) that the widow took only a life estate. He decreed the plaintiff''s suit. The defendants appeal.

Before us, it was conceded by both sides that the learned Judge''s judgment cannot be supported as it stands. The real issue is ""Was there a

disposition of the residue of the property, after the payment of the legacies.

If Clause 14 is a clause disposing of the residue of the property to the widow, then, as there are in it no words cutting down her estate to a life

estate or a Hindu widow''s estate, she takes absolutely. A devise of an estate to A. is prima facie a devise of an absolute estate. And there is no

presumption that, where'' the devisee is a Hindu female, the estate is the limited estate of a Hindu widow, daughter or mother taking by inheritance.

This has been the rule now well established in this court-Vide Ramachandra Rao v. Ramachandra Rao ILR (1918) M 283 (following Surajmani v.

Rabi Nath Ojha I L R 30 A 84 (PC) to which Seshagiri Aiyar.J. was a party and in which all the cases were collected and my judgment in

Soundarajan v. Natarajan 40 MLJ. 354

Consequently, the vakil for the plaintiff-respondent while supporting the decree of the learned judge, was driven to contend before us that the

learned Judge erred in holding that there was no intestacy. He laid considerable stress on the word '' deliver '' in Clause 14 and contended that the

object of the will was to provide for the legacies only and that Clause 14 is not a dispositive clause. According to him, the residue after the

payment of the legacies was undisposed of the testator''s intention was that the widow should inherit the residue as heir and should take only the

widow''s estate, the direction in the clause being merely to hand over the property to her in recognition of her title as heir of her husband. It will be

at once noticed that this contention is inconsistent with the testator''s desire to postpone the estate to be taken by his widow (whatever its nature

may be) until she attained the age of 20 and with the provision in Clause 11. If the clause merely postponed her estate till she attained majority, it

would not be inconsistent with her title as heir, as such a clause may be regarded as a provision for management during her minority. But when it

postponed her estate till she attains the age of 20, it is inconsistent with her succession as heir on the death of the husband. On account of this

difficulty, the Vakil for the respondent was also driven to contend that the Clause (14) postponing the delivery of the residue to her until she

attained the age of 20 was void and that she might have insisted on the delivery of the property earlier if she so wished. He also relied on

Mahomed Shamsool Hooda v. Shewakram ILR 2 I A 7 for the proposition that a devise to a Hindu widow must be construed as a devise of a

widow''s estate only. As to this last case, it may at once be observed that the case is an authority only for the proposition that, where there is an

ambiguity in a will, it may be well to remember in construing it that a Hindu would desire to devise only the limited estate of a Hindu female taking

as a heir. Though that case was cited before their Lordships of the Judicial Committee, in Surajmani v. Rabi Nath Ojha ILR (1907)A 84 (PC)

(followed in Ramachandra Rao v. Ramachandra Rao (1918) ILR 42 M 283 1 it was held by their Lordships that the divisee in the latter case took

an absolute estate. If the effect of a deed of gift or of a will, in its natural and proper construction is prima facie, to give an absolute estate, I do not

think the case in mahomed Shamsool Hooda-v. Shewakram ILR 2 I A 7 ought to be used for cutting down to the limited estate of a Hindu female

taking as an heir.

The question is thus reduced to whether Clause 14 ot the will is a dispositive clause. It is at this stage that the principle that there is a

presumption against intestacy comes to our aid. In re Bright Smith: Bright Smith v. Bright Smith (1886) 31 CHD 314 In re Harrison: Turner v.

Hellard (1885) 30 CHD 390 Re satter: Farrant v. Carter (1881) 44 IT 603 In re Hentou: Henton v. Henton 30 WR 702. Courts are not to

presume that a testator who sat up to write a will, has not cared to say what is to become of the bulk of the property. In this case, it must be

remembered that he refers to the residue of his property, in directing its being handed over to the widow, and yet, it is contended for the

respondent, he does not dispose of it. I think this is not natural. If he was anxious that his wife should not be the absolute owner of the property,

there was nothing to prevent him from saying so, instead of leaving it to be inferred from a too strict reading of the word '' deliver, '' with the result

that his direction to postpone the estate till she attained the age of twenty becomes nugatory. A residuary clause ought to be easily inferred (vide

Section 89, Indian Succession Act, Act X of 1865) which is applicable to Hindus by reason of the Hindu Wills Act (Act XXI of 1870).

I have only to notice two cases relied on by the learned Judge Radha Prasad Mullick v. Ranee Mani Dossee ILR 35C 896 The terms of the will

in that case are so entirely different that it affords no guide in this. Caralapathi Chinna Cunniah v. Cota Nammalwariah ILR (1909)M 91 This case

was decided at a time, when the trend of the Madras decisions against limiting a female''s estate beginning with Sambasiva Aiyar v. Venkateswara

Aiyar ILR (1907) M 179 was not well established. The conclusion of the learned Judges in that case was that there was no intestacy but that the

widow did not take an absolute estate. I find it difficult to follow the learned Judge''s statement at page 92.

Having said ""We cannot now apply this rule to cases to which Section 82(of the succession Act) applies,"" they proceed to say, ""we can restrict

the widow''s interest, therefore, only if the other terms will justify such restriction."" There was no clause in that will, actually cutting down the estate

of the devisee to a limited estate. Yet no effect was given to Section 82, a process, I find it difficult to follow. In this case, the respondent''s

contention is rather that there was no disposition of the residue at. ail, and the decision in Sambasiva Aiyar v. Venkateswara Aiyar ILR (1907) M

179 cannot be invoked in favour of the respondent.

I would therefore hold that, on a proper construction of Chennakesavalu''s will, his widow got an absolute estate in the residue. The appeal will

be allowed and plaintiff''s suit dismissed with costs throughout.

Coutts Trotter, J.

I agree.