Kotta Pullayya vs Grandhi Veeraraghavamma and Another

Umamaheswaran, J.—The first Defendant is the Appellant. The only question that arises for consideration is as to the true construction of the will executed by Manikyam on 3-1-1913 and marked as Exhibit A-3. There is no doubt that the properties devised under the will belonged to Manikyam absolutely as found by both the Courts below.

According to the case of the Plaintiff, the properties were bequeathed absolutely, in favour of Manikyam''s sister''s sons, i.e., the second Defendant and the Plaintiff''s deceased husband, and that as her husband died in 1914, she became entitled to his interest in the suit property.

The 1st Defendant (appellant) mainly contested the suit. The District Munsif of Rajamundry held that Sections 105 and 107, Succession Act, did not apply, as the will was executed by a Hindu and that the Plaintiff acquired an interest under the terms of the will, Exhibit A-3. On appeal, the learned Subordinate Judge of Rajamundry differed from the District Munsif and held that Sections 105 and 107, Succession Act, applied also to Hindu wills. But on a due and proper construction of the will he confirmed the judgment of the District Munsif and held that as the heir-at-law of Satyanarayana, the Plaintiff was entitled to a half share under the terms of Exhibit A-3. The second appeal is brought by the 1st Defendant as against the judgment and decree of the Subordinate Judge of Rajamundry.

As already stated, the sole question that arises for consideration is as to whether by the death of Satyanarayana in 1914, that is, during the lifetime of the testatrix, his interest lapsed and the Plaintiff acquired no interest whatsoever. I have carefully perused the terms of the will, and I agree with the Subordinate Judge that the testatrix clearly, intended that her nephews, Krishnamurthy and Satyanarayana, or their ''Santhathi'' should take the properties equally.

As regards moveable property, the testatrix stated in clear terms in paragraph 3, that after her lifetime, her sister''s sons, Krishnamurthy and Satyanarayana, and their descendants according to their father''s branch, should take the said properties equally.

In Clause (4) she directed that her nephews or their descendants should give a sum of Rs. 1000/- to the persons specified therein. In Clause (5) she provided that if the persons specified in Clause (4) did not survive her, the amount should be taken by her two nephews or their descendants according to their father''s branch equally. Clause (6) relating to Immovable property runs in the following terms:

It has been provided that the said Grandhi Krishnamurthy Garu and Satyanarayana Garu and their descendants shall after my lifetime, take even the entire Immovable property that I may purchase from my money or acquire in any other manner, subsequent to this will along with Immovable property mentioned in the will in the aforesaid manner, with all powers of disposition by way of gift, sale, etc., and they shall enjoy the same happily from their sons to grandsons and so on in succession.

The contention of the learned advocate for the appellant is that an absolute estate was given to the nephews Krishnamurthy and Satyanarayana, and that as Satyanarayana died during the lifetime of the testatrix, the bequest in his favour lapsed and that the first Defendant as the husband''s heir of Manikyam, was entitled to his share as on intestacy. It is well established that in construing a will, all the clauses have to be read together and the intention of the testator or testatrix should be ascertained. Clauses (3) to (5) make it abundantly clear that if any of the nephews should predecease, the testatrix, the descendants should take the place of the deceased. In each of the clauses, it is stated that the descendants according to their father''s branch should take the properties equally, or in other words, the testatrix was anxious that the nephews, or if they should die during her lifetime, their ''Santhathis'' should take the property.

Reference was made to the terms of Sections 97 and 105 which run in the following terms:

Section 97:-''Where property is bequeathed to a person and words are added which describe a class of persons, but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will;

Section 105:-(1) 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.

(2) In order to entitle the representatives of the legatee to receive the legacy; it must be proved that he survived the testator.

The argument of the learned Advocate for the appellant is that the use of the expression "their descendants" in Clause (6) merely defines the nature and character of the estate taken by Krishnamurthy and Satyanarayana and that applying the rule of construction laid down in Section 97 to the will, the ''Santhathi'' acquired no interest whatsoever as the ''Santhathi'' was not a direct object of a distinct and independent gift. So according to the learned Advocate, under the terms of Section 105 Satyanarayana having predeceased the testatrix, the Plaintiff, his widow, acquired no right whatsoever in the suit properties. But, if I am right, in my construction of the will, that the testatrix intended that the nephew of his ''Santhathi'' should take the property, there is no lapse whatsoever so as to attract the terms of Section 105(1), Succession Act.

The second part of Section 105(1), "unless it appears by the will that the testator intended that it should go. to some other person" directly applied to the facts of the case. The testatrix herself provided that in the event of the legatee Satyanarayana dying during her lifetime, his ''Santhathi'' should take it. It is, therefore, unnecessary for me to consider whether the rule of construction laid down in Section 97, Succession Act, applies to "Hindu wills" or not as held by Horwill J. in -- Damodara Moothan Vs. Ammu Amma and Others, . I, however, agree with the observations of the learned Judge:

This section does not apply directly to wills by Hindus, but it lays down a general principle of interpretation of wills, which could equally be applied to a will by a Hindu, though if the clear intentions of the testator appeared otherwise, the section could not be applied.

The decision of the Bombay High Court in - Krishnadas Tulsidas Vs. Dwarkadas Kaliandas, does not in any way affect this question. Wadia J. rightly held that it is always the intention of the testator as expressed or implied in the language of the will, which must be given effect to, and that intention must be collected with reasonable certainty from the whole will. He construed the will in question as conferring interest in the sons and daughter of Thulsidas along with him. Or in other words, he held that the sons and daughter of Thulsidas were direct objects of a distinct and independent gift as contemplated u/s 97. I do not, however, agree with the observations of the learned Judge that Section 91 embodies an artificial rule of construction of wills taken from English law and that rule of construction ought not to be applied to wills made by Hindus. In the view taken by me I do not agree with the observations of the learned Judge as to the scope and effect of illustration (ii) to Section 105.

The next argument of the learned Advocate for the appellant is that the expression "Santhathi" in Clauses (3) to (6) of the will, will not and cannot by any stretch of language take in the Plaintiff, the widow of Satyanarayana and that the suit is consequently not maintainable. I quite agree with the learned Advocate that the etynological meaning of "Santhathi" is "issue of the body". The expression "Santhathis Paranlparai" used as a word of limitation to define the estate taken by a person has, however, come to acquire the larger significance of "heirs". In - Rajarajeswara Dorai alias Muthuramalinga Dorai Avergal Rajah of Ramnad Vs. V. Sundarapandiaswami Thevar, at p. 674 (C), Seshagiri Iyer J. held that the words "Santhathi Paramparai" convey a heritable estate from generation to generation and that

no authority has been quoted for the proposition that the word ''Santhathi'' is to be restricted to the lineal descendants.

Ramesam J. in delivering judgment of the Bench decision in - ''Guruvajammah v. Ramaswamy Mudaliar AIR 1921 Mad 518 (D) observed as follows:

Even assuming that the ''Santhathi'' in the first instance was to be construed as limited to ''issue'', it is not clear that that sentence is intended to describe the devolution of the trusteeship. It merely lays down the manner in which the trust was to be conducted and reference is made to some of the persons who are likely to conduct it. But even if it were otherwise, I do. not think that ''Santhathi'' should be construed in its narrow sense. It is true that its etymological meaning is "issue of the body". But it is also true that when used as a word of limitation to define the estate taken by a person, it has come to acquire the larger significance of "heirs"....

Adopting those observations, I hold that the expression "Santhathis" in the present case should not be construed in its narrow or etymological sense, but should be construed as meaning "heirs". In this view, the second appeal fails and is consequently dismissed with costs. No leave.