Saraswathi R. Rai vs Korapalu

K.A. Swami, J.—This Appeal by the plaintiffs is preferred against the judgment and decree dated 11th December 1980, passed by the learned Civil Judge, Puttur in Original Suit 1 of 1979.

The trial-Court has dismissed the suit for partition and separate possession filed by the plaintiffs, holding that by the will dated 6th January, 1960 - Exhibit P1 executed by Thyampanna Santa he bequeathed the suit properties absolutely in favour of Korapalu and Subbakke (defendants-1 and 2 respectively) and the bequeath was in their individual names for their personal benefit and enjoyment and was not for the family of defendants 1 and 2. Therefore, the only point that arises for consideration is as to whether by the will dated 6th January, 1960 Exhibit P1 Thyampanna Banta bequeathed the properties in favour of Korapalu - defendant-1 and Subbakke defendant-2, individually in their names or as the Yajman of their family or Kavaru and for and on behalf of members of the family of Kavaru.

The facts necessary for the purpose of deciding the aforesaid point are not at all in dispute. There was one Thyampanna Banta, who had a wife by name Muthakke, he had five issues through Muthakke by name Korapalu, Jathappa Rai, Mithrappa Rai, Subbakke and Panduranga Rai. The three sons, are not parties to the suit. Subbakke has got four children - Saraswathi - plaintiff No. 1, Gulabi -defendant No. 3, Balakrishna - defendant No. 4 and Karunakara Rai -defendant No. 5. Saraswathi has got six children - Sathya prasad -plaintiff No. 2, Annapoorna - plaintiff No. 3, Sharath - plaintiff No. 4, Aravinda - plaintiff No. 5, Jyothsna - plaintiff No. 6 and Aparna - plaintiff No. 7. Gulabi also has got four children - Rajalakshmi - defendant No. 6, Shyamala defendant No. 7, Chandrasekhara - defendant No. 8 and Prabhakara - defendant No. 9. Saraswathi and her children are the plaintiffs. Gulabi and her children are defendants 3,6,7,8 and 9. Balakrishna and Karunakara Rai brothers of Gulabi are defendants of 4 and 5 respectively.

On 6th January 1960, when Thyampanna Banta executed the will, the following persons of the Kavaru family and also the family of Muthakke were alive. Korapalu, Jathappa Rai, Mithrappa Rain, Subbakke and Panduranga Rai are the members of Muthakke family and all of them were alive on the date of execution of the will as well as on the date of the death of Thyampanna Banta. Saraswathi, Gulabi, Balakrishna and Karunakara Rai - the children of Subbakke were also born before 6th January, 1960. Similarly, Sathya Prasad -the son of Saraswathi and also Annapoorna, daughter of Saraswathi were also born before 6th January, 1960 and 16th August, 1964 respectively. Rajalakshmi and Shyamala were also born before 16th August, 1964, but subsequent to 6th January, 1960. We have given these details because it would be relevant for the purpose of determining one of the contentions raised regarding the interpretation of the will in question.

The relevant portions of the will on the basis of which suit for partition is filed by the plaintiffs are reproduced below. In the first portion of the will, the testator mentions the names of Muthakke as his wife and Korapalu and Subbakke as his daughters. In the subsequent portion of the will, these three persons are referred to as No. 1, 2 and 3 respectively:

The contention of the plaintiffs is that under the will, properties have been bequeathed to Korapalu Hengsu and Subbakke Hengsu to be enjoyed by them and their heirs generation after generation. That this intention of the testator is made is clear by using the words

Therefore, it is contended that the testator intended to bequeath and bequeathed the properties mentioned in the will not individually to Korapalu and Subbakke but to the family of the kavaru of Korapalu and Subbakke. Therefore, all the members of the family of Korapalu and Subbakke are entitled to have a share in the properties, as such Korapalu and Subbakke are not entitled to enjoy them absolutely excluding the others and they are also not entitled to deny shares to the members of the family. Per contra, it is contended by defendants-1 and 2 that the will has been executed by a person belonging to the community of Bunts which is governed by Aliyasanthana law; that regarding the wilt executed by the person governed by Aliyasanthana law, it is a settled legal position that if in the will, the testator excludes the members of the family of kavaru who were alive, at the time of execution of the will or on the date of death of the testator, the testator cannot be presumed to have bequeathed the properties in favour of the persons who are named in the will. If in the will, testator describes the person in whose favour bequeath is made as "Yajaman" of the family and "Kavaru" and does not exclude any members of the family of kavaru, bequest must be presumed in favour of the family and not in favour of the individual who is named in the will. But, in the instant case, the testator has made his intention very clear by excluding his three sons who were the members of the family of Muthakke on the date of the execution of the will as well as on the date of death of the testator and has also further expressed his intention to bequeath absolutely in favour of Korapalu and Subbakke by giving life estate to Muthakke and also by further stating that Korapalu and Subbakke should enjoy the property freely with full rights as absolute owners, and further he has excluded others by stating that the other heirs have no right whatsoever in the properties.

Before embarking upon the construction of the Will, we consider it just and appropriate to refer to the cardinal maxim to be observed in construing the Will as laid down by the Privy Council and the Supreme Court of India. IN AIR 1935 187 (Privy Council) regarding construction of Will, it has been stated thus:

"These two documents constitute the testamentary instrument, and in interpreting them it is the duty of the Court to find out the intention of the testator. It is clear that intention is to be gathered from the language used by the testator, because it is the words used in the instrument by which he has conveyed the expression of his wishes. The meaning to be attached to the words may however be affected by surrounding circumstances; and, when this is the case, those circumstances should be taken into consideration. As laid down by Section 82, Succession Act, the meaning of any clause in a will is to be collected from the entire instrument, and all the parts of a will are to be construed with reference to each other and so as, if possible, to form one consistent whole. Where it is not possible to reconcile all the parts, the latter must prevail."

The Supreme Court in Gnanambal Ammal Vs. T. Raju Ayyar and Others, has stated thus the cardinal maxim to be observed by Courts in construing a will:

"The cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, 41 I.A. 51 at p.70: (21 I.C. 339 P.C.)

"the Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure''. The Court is entitled to put itself into the testator''s armchair''.......But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions.... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life."

A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian Court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Romer L.J., observed in Re Edwards; Jones v. Jones (1906) 1 Ch. 570 at p. 574; (75 LJ. Ch. 321)

"it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning.''''

Bearing these principles in view and also the Rules of Construction of Wills as incorporated in Chapter VI of the Indian Succession Act, 1925, we proceed to consider the will in question.

We have reproduced above several relevant portions of the will and underlined them only to indicate that how step by step the testator has indicated his intention to bequeath the properties in favour of Korapalu and Subbakke exclusively and absolutely as individuals, and not as heads of their families. In the first portion he has stated the members of his family and has further excluded his sons from inheritance by giving a reason that he had given them separate properties. In the next portion of the will he has stated that since for some time he was thinking to make a bequest in favour of his wife and two daughters Korapalu and Subbakke, but it had not become possible till that day. In the third portion he has stated that after his death the aforesaid three persons will have full right and freedom to enjoy the properties, in the very same paragraph, he has also further made it dear that his sons and other heirs will not have any right, title and interest whatsoever. Thus the testator has excluded all the members of the families of Korapalu and Subbakke. In the very next sentence, which we call it as fourth portion, he has further restricted the right of his wife to enjoy the properties during her life-time and not to alienate or create any encumbrance on them. In case Muthakke were to part with possession of the properties or create any encumbrance, it would be open to Korapalu and Subbakke to obtain possession of the same and to enjoy them either jointly or separately. In the last portion he has further made his intention clear by stating that after the death of Muthakke, wife of the testator, Korapalu and Subbakke shall have full right and are free to enjoy the properties according to their desire from generation to generation. Therefore, it is manifest that the testator in more than one place has made his intention clear that Korapalu and Subbakke should take the properties absolutely in their individual capacity and not either as heads of their respective families or along with other members of their family. In the earlier portion of this Judgment, we have also mentioned the other members of the family who were alive on the date of execution of the will and also on the date of the death of the testator. Out of those several persons, testator only mentioned the names of his three sons and excluded them from inheritance under the will, The other heirs have also been excluded by further stating as follows:

Therefore, there is no scope whatsoever to hold that the testator intended to bequeath the properties in favour of Korapalu and Subbakke as Kavarus to be taken as head of the family of the respective Kavarus along with the members of their family. In the light of the absolute bequest made in favour of Korapalu and Subbakke as individuals; and not as heads of their respective families, the words "Santati Paramparya" have no meaning and they are nothing but surplusage because these words are repugnant to the absolute bequest made in favour of Korapalu and Subbakke as individuals, Therefore, these words cannot take away the true effect of the will. The words "Santati Paramparya" are not words of limitation in the absolute interest created in the will in favour of Korapalu and Subbakke. Our view receives support from a Decision of the Privy Council in the aforesaid Rameshwar Bakhsh Singh''s case, in which it is observed thus:

"It is true that some of the later provisions of the will appear to be in conflict with the absolute estate given to her by C1.1. While Clause 2 is merely permissive, Clause 3 can have no operation, if she takes the estate as an absolute owner. In the event of her dying without disposing of the property or appointing a successor, the estate would descend to her heirs ab intestate, and not to the persons mentioned in Clause 3. Nor can Clause 4 take effect, as the power to transfer, or to appoint a successor, which it seeks to confer, has already been given to her by the wide language of Clause 1; and the provision in Clause 4 appears to be a surplusage.

There can, however, be no doubt that if these clauses are repugnant to the absolute estate created in favour of the lady, they cannot cut down that estate and must consequently be held to be invalid For the reasons stated above, their Lordships concur with Courts in India that Annapurana Kuar, took an absolute estate of inheritance under the testamentaryinstrument of her husband and that she was competent to make the devise invoked by the respondent. They will therefore humbly advise His Majesty that the appeal should be dismissed with costs."

The learned Single Judge of this Court in NEMIRAJA PERGADE v. KAMALU HENGSU AND Ors. 1963 Mys. L.J. 588 has interpreted the expression "Santhathi Paramparya" which also confirms to the view taken by us. In Nemiraja Pergade''s case the words:

contained in a gift deed are construed as follows:

"You, shall enjoy the properties gifted as you please, with happiness permanently from generation to generation" (you)". Is it addressed to the persons mentioned in the deed in their individual capacity or to them as representatives of their family. For answering this question, we have to examine the various clauses in the deed. The interpretation to be placed on the remaining portion of the clause quoted above depends on the import of the words . It is true that the clause in question evidence a gift of an absolute character. It is well settled that the expressions "generation to generation" are not words of limitation. They connote an absolute estate. But the question still remains, on whom that absolute estate was conferred on the individual donees mentioned in the deed or on their joint family. That is the crucial question for decision".

In PRASANNA KUMAR v. SUGUNA AND Ors. 1971 (2) Mys. L.J. 612, a Division Bench of this Court has also construed a Will executed by a person governed by Aliyasanthana and has held as follows:

"On a consideration of all the relevant Clauses in the will, we have come to the conclusion that the testator made a bequest of the properties in favour of his nine children by second wife, Kamala. We are also of the opinion that while making a bequest of the suit properties in favour of his children by the second wife, the testator excluded Kamala. The only limited right granted under the will in favour of Kamala is the one regarding maintenance.

It is now well settled by the decisions of this Court, that, if there is a gift or a bequest in favour of all the members of the kavaru of an Aliyasanthana family, a presumption arises that the gift or a bequest is in favour of the kavaru. If however the gift or a bequest is in favour of some members of the kavaru, no presumption can be raised that the gift or the bequest is in favour of the kavaru. But if the gift or bequest is made to persons named therein to the exclusion of other members of the kavaru, the persons named therein take the property as tenants-in-common.

In the case of Siddamma Shedthi v. Chandramathi [1967 (1) Mys.L.J.187], this Court enunciated the aforesaid principle following the decisions of the High Court of Madras in the cases reported in AIR 1947 Mad.137 Chalakaran Kuttayi Lakshmi and Another Vs. Chalakaran Puthia Purayil Mukundan Karnavan and Others, Bhaskaran Thirumulpad and Others Vs. Kavunni Thirumulpad and Others, and A.P.P. Amina Umma and Others Vs. A.P.P. Mammad and Others, . To the same effect is the view expressed by a Division Bench of this Court in Sriniwas Bhandary v. Hemavathi (RFA 46 of 1965), That was also a case of parties governed by Afiyasanthana Law. In that case, one Thimmappa Bhandary, governed by Aliyasanthana law, made a will bequeathing the properties under the will in favour of his wife Manjakke and her five children. The case proceeded on the basis that his wife and the five children were the only members of the kavaru. Under the will Manjakke was entitled to enjoy the properties during her life time. The children were entitled to the properties only after the death of their mother Manjakke. This Court held that there was no bequest in favour of all the members of the kavaru. It was held that there were separate bequests, one in favour of the wife and the other in favour of all the children. In view of the recitals in that will, this Court carne to the conclusion that, as the bequest was not in favour of all the six members of the kavaru, no presumption could be raised that the bequest was in favour of the kavaru. It was further held that the children took the properties as tenants-in-comrnon. The principle laid down in the aforesaid decision was reiterated in the subsequent judgment of a Division Bench of this Court in Nemiraja Banga v. Chandraja Banga (1987 (2) Mys.L.J.332)."

We are in full agreement with the views expressed in the aforesaid two Decisions.

Therefore, from what is stated above it becomes clear that Sri Holla, learned Counsel for defendants 1 and 2 is right in contending that the bequest made under the wilt in question was not either in favour of the family or in favour of the kavaru. It was in favour of individuals i.e., Korapalu and Subbakke, as mentioned in the will Therefore, the members of the family of Kavaru have had no right in the properties bequeathed in favour of Korapalu and Subbakke.

Sri Chouta, learned Counsel for the plaintiffs-appellants contends that in interpreting a will care should be taken that nothing is rendered otiose and redundant, that the interpretation placed by us on the will in question renders the words "Santhathi Paramparya" otiose, therefore such an interpretation should be avoided, it is not possible to accept this contention. We have already pointed out that in the tight of the absolute bequest made in favour of Korapalu and Subbakke as individuals the words "Santhathi Paramparya" are repugnant to the absolute bequest made in favour of Korapalu and Subbakke. Even otherwise, "Santhathi Paramparya" are not the words of limitation. As such they do not in any way abridge the absolute bequest made in favour of Korapalu and Subbakke. It is open to Korapalu and Subbakke to enjoy the bequest in any manner or leave it to their heirs, We have already pointed out that throughout the will the intention of the testator was to give absolute estate to Korapalu and Subbakke and he made it clear by excluding his sons and other heirs. Therefore, the testator left no room for doubt that he wanted to bequest absolute estate to Korapalu and Subbakke.

Before we answer the point raised for determination, we also refer to another contention of the plaintiffs. It is the case of the plaintiffs in the plaint as well as in the arguments advanced before us that Muthakke, Korapalu and Subbakke - understood the will Ex.P.1 as bequeathing the properties in favour of the members of the family and not as individuals. Sustenance for this contention is derived from the document Ex.P.5 dated 28th September, 1964, executed by Muthakke in favour of Subbakke. Prima facie the contents of Ex.P.5 do not support this contention. We have already held that under the will Muthakke has been given only a right to enjoy the properties during her life time without any power of alienation or otherwise encumbering the properties. Ex.P.5 makes it clear that what was given to Muthakke was life estate and it was this life estate which was permitted by Muthakke to be managed by Subbakke with a condition that she must maintain Muthakke and also spend the remaining for the maintenance of the other members of the family. Ex. P.5 also further states that Korapalu and Subbakke are given absolute estate and if Korapalu intended to have the estate partitioned during the life time of Muthakke, it would be open to her to do so. In fact, evidence on record established that there was equal division between Korapalu and Subbakke during the life time of Muthakke. This is evidenced by a decree passed by the Court below. That it is so is not disputed before us. Therefore, the contention of the plaintiffs based Ex.P.5 that what was bequeathed by the testator under Ex.P.1 was in favour of the members of the family of Korapalu and Subbakke cannot be accepted.

Accordingly, we answer the Point raised for determination as follows:

"Thampanna Banta bequeathed under his will dated 6th January, 1960, Ex.P.1 only the right to enjoy the properties mentioned in the will in favour of his wife Muthakke during her life time without any power to alienate or encumber and after her death absolute estate in favour of Korapalu and Subbakke as individuals with liberty to enjoy the properties either jointly or separately and not as the Yajaman of their family or Kavaru and not for and on behalf of members of the family or Kavaru."

For the reasons stated above, the Appeal fails and the same is dismissed. However, in the circumstances of the case, there would be no order as to costs in this Appeal.