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Judgment
N.D. Patnaik, J.—All the above second appeals are head together as they are connected. The property in dispute covered by these second appeals is mainly a house situated at Visakhapatnam. It belonged to Sri S Satyanarayana, an Advocate of Visakhapatnam and it was his self acquired property. Mr. Satyanarayana died on 12-11-1965 leaving behind him two sons and five daughters. His fourth daughter by name Smt. Kamalamma filed a suit O.S. No. 128 of 1973 in the Court of the II Additional Subordinate Judge, Visakhapatnam for partition of the suit property consisting of the house and also some other assets into seven equal shares contending that her father, Sri S. Satyanarayana died intestate and that she is entitled for 1/7th share therein.
Another suit O.S. No. 141 of 1979 was filed by Smt. Kamalamma for a declaration regarding a vacant site and for injunction on the same basis as stated above. It is stated that this suit was filed earlier as O.S. no. 617 of 1971 and renumbered as O.S. No. 141 of 1979 on account of its being transferred to the Sub-Court.
The sons of S. Satyanarayana filed a suit O.S. No 291 of 1977 against Smt. Kamalamma to evict her from the portion of the house occupied by her and for possession and damages for use and occupation.
Smt. Kamalamma filed two more suits O.S. No. 196 of 1978 and O.S. No. 198 of 1978 for a declaration that she is entitled for the electricity connection and the other regarding her right to use a part of the suit site and the well.
All the suits filed by Smt. Kamalamma were dismissed by the Trial Court and the suit filed by the sons of S. Satyanarayana was decreed. Aggrieved by that, Smt. Kamalamma filed appeal A.S. No. 36 of 1981 against O.S. No. 128 of 1973, A.S. No. 39 of 1981 against O.S. No 41 of 1979, A.S. No. 40 of 1981 against O.S. No. 291 of 1977 A.S. No. 87 of 1981 against O.S. No. 196 of 1978 and A.S. No. 51 of 1981 against O.S. No. 198 of 1978. The Appellate Court, i.e., the District Court, Visakhapatam allow ed all the above appeals and set aside the decrees passed by the Trial Court. Aggrieved by that, the above second appeals are preferred by the legal representatives of the sons of late Satyanarayana since the sons have died during the pendency of the litigation.
For the sake of convenience, the parties will be referred to as they are arrayed in the suit O.S. No. 128 of 1973 since that suit if a comprehensive suit. As stated above, that suit was filed by Smt. Kamalamma the fourth daughter of late Satyanarayana alleging that her father died intestate and so, she is entitled to l/7th share in all the properties left behind by her father. In the suit, the sons were impleaded as defendants 16 and 21. Defendants No 16, the elder son of Satyanarayana by name Rama Rao tiled his written statement in which he contended that his father executed a Will dated 20-7-1965 whereby he bequeathed the suit property to the sons apart from some other bequests in favour of the daughters and others. Thereafter, he remained ex pane but gave evidence in the suit as D.W. 3. The other son who was defendant No. 21, died and his legal representatives were added and they filed a written statement contending that late Satyanarayana had executed the Will dated 20-7-1965 and one of the legal representatives deposed as D.W. 4. The other daughters of late Satyanarayana or their heirs either remained ex-parte or did not support the case of the plaintiff Smt. Kamalamma.
The Trial Court as well as the Appellate Court held that the Will Ext, B. 21 dated 20-7-1965 executed by late Satyanarayana is true and valid. Both the Courts have disbelieved the contention of the plaintiff that late Satyanarayana had revoked the Will by his letter Ext. A. 1 dated 29-10-1965, addressed to his fifth daughter, by name Lalithamma. On those findings, the Trial Court dismissed the suits filed by the plaintiff (Smt. Kamalamma) and decreed the suit filed by the defendants (sons of late Satyanarayana). But the lower Appellate Court had held that since the sons of Satyanarayana who are named as the executors under the Will have failed to manifest their intention to act as executors, they are not entitled to take the bequest in view of Section 141 of the Indian Succession Act (for short "the Act"). In that view, the learned District Judge allowed the appeals decreeing the suits filed by the plaintiff and dismissing the suit filed by the defendants i.e., the sons.
Therefore, the only question that arises for consideration in the second appeal is :
"Whether the sons of late Satyanarayana, who were defendants 16 and 21 in the suit O.S. No. 128 of 1973, are disentitled from taking the legacy under the Will executed by their father in view of Section 141 of the Act?"
Section 141 of the Indian Succession Act reads as follows :
"If a legacy is bequeathed to a person who is named an executor of the Will, he shall not take the legacy, unless he proves the Will or otherwise manifests an intention to act as executor".
Sri. V. Parabrahma Sastry, the learned Counsel for the appellants contended that first of all, the sons must be shown as the executors of the Will and then the other question whether they are not entitled to take the legacy unless they prove the Will or otherwise manifest their intention to Act as executors arises. For this purpose and also for the other contentions raised in these second appeals, it is necessary to refer to the material portions of the Will executed by late Satyanarayana on 20-7-1965. The various bequests made under the will are as follows:
Late Satyanarayana had opened an account in the Andhra Bank, Kakinada in the name of his third son-in-law and credited some amount to the bank account in order to give an amount of Rs. 300/- to the second son of his third daughter. He says that if he is not able to make up Rs. 300/- during his life time, his sons should make up the amount.
The testator had deposited an amount of Rs. 800/- in his bank account in order to give to his third daughter and wanted that the said amount should be given to her three sons and her second daughter and he has to still credit Rs. 300/-. If he is not able to do so during his life time, the sons should make up that amount.
His fourth daughter i.e., Smt. Kamalamma who is the plaintiff, was given a portion of the house for her residence as she was looking after him. The testator desired that she should continue to live in that portion for a period of 2 years from the date of his death without paying property tax or any other tax.
As his fifth daughter or her husband do not have a house, they are allowed to occupy a portion of the house for a period of ten years from his death without paying any tax.
His sons should pay an amount of Rs. 2,000/- each after his death to his fourth daughter and fifth daughter from out of his property.
One silver tiffin box used by him should be given to his fifth daughter. Further, be says that as per the bequests made by him, they should be implemented in favour of the respective persons and subject to the bequests, his two sons should enjoy, his entire property in two equal halves.
No doubt, the testator, though a lawyer by profession, has not used the word "executor" specifically in the Will. But from the various recitals in the Will, it can be seen that he has entrusted the duty of giving to the various persons their respective items of his property as per the bequests made under the Will to his two sons. Therefore, they become the executors of the Will.
But, the further question to be considered is whether the sons who are the executors of the Will are disentitled from taking the legacy on the grounds mentioned in Section 141 of the Act. The lower Appellate Court has held that there is no evidence to show that the sons of Satyanarayana have paid Rs. 300/- in the back account of the third daughter''s son; that they have not paid Rs. 2,000/- each to the fourth and fifth daughters and that they did not carry out the intention of the testator that the fifth daughter should be permitted to stay in a portion of the house for a period of ten years and, therefore, the learned Judge came to the conclusion that they have not manifested their intention to act as executors of the Will. He has further pointed out that the period of ten years for which the fifth daughter has to stay in the portion of the house has expired and so, it is not possible for the executors to comply with such a direction and, therefore, they are disentitled to take the share in the property as per the bequest made in their favour as per Section 141 of the Act and the property should go by intestate succession.
Sri V. Parabrahma Sastry, the learned Counsel for the appellants, has pointed out that excepting the fourth daughter i.e. Smt. Kamalamma, who is the plaintiff in four suits, none of the other daughters of late Satyanarayana have contested the matter contending that they have not been paid their share as per the various bequests made under the Will and in fact, he has referred to the evidence of one Brahmaiah Sastry, the husband of the predeceased third daughter, who is examined as D.W.I in O.S. No. 617 of 1971 equivalent to O.S. No.141 of 1979 in which he stated that the sons have paid the amount in the bank account as per the directions under the Will of late Satyanarayana. He has also stated that his children cannot have a claim under the Will. It is also pointed out that though late Satyanarayana desired that the silver tiffin box should be given to his fifth daughter, it was sold even during the life time of Satyanarayana, according to the evidence of P.W. 1. Therefore, as regards the other bequests, there is no dispute because none of the other daughters of late Satyanarayana or their heirs are content ding that their bequests are not complied with. The only relevant bequests which have to be considered are :
(a) The fourth daughter i.e., Smt. Kamalamma should be allowed to stay in the portion of the house for two years after the death of Satyanarayana.
(b) She (the fourth daughter) should be given Rs. 2.000/- from out of the property of late Satyanarayana by his two sons.
(c) The fifth daughter, by name Lalithamma, should be allowed to stay in a portion of the house for a period to ten years, and
(d) An amount of Rs. 2,000/- should be paid to her (fifth daughter) from out of the property of late Satyanarayana by his sons.
As regards the residence of Smt. Kamalamma (fourth daughter) in a portion of the house, she has been staying in one portion of the house for more than two years and it is stated that even now she is staying in the house. Therefore, that part of the bequest is fulfilled.
As regards the fifth daughter, Smt. Lalithamma, it is stated that she was living with her husband who is working at Tata Nagar and never came to Visakhapatnam and wanted to stay in the house. She remained exparte and did not claim that she was not given the right of residence in a portion of the suit house. If Lalithamma (the fifth daughter wanted to come and reside in a portion of the suit house, certainly the sons were under an obligation to allow her to live in a portion of the house for a period of ten years. But when she did not choose to come and live in the house, the sons cannot compel her to come and live in the suit house. Therefore, the reasoning of the lower Appellate Court that Lalithamma was not given the right to reside in the suit house for a period of ten years and since that period is over, that part of the bequest has become impossible of performance is not at all correct. That leaves only with the other items i.e., payment of Rs. 2,000/- each to the plaintiff, Smt. Kamalamma and the fifth daughter, Smt, Lalithamma, who is also one of the defendants in the suit.
As stated above, when the plaintiff filed the suit alleging that her father died intestate, the sons of Satyanarayana i.e., defendant No. 16 and the legal representatives of defendant No. 21 filed written statements contending that late Satyanarayana executed a Will on 20.7.1965 in a sound and disposing state of mind. Sri. T. Veerabhadraiah, the learned Counsel for the respondents, contends that in those written statements they did not manifest their intention to act as executors by paying the amounts due to Smt. Kamalamma and Smt. Lalithamma. He has also contended that after the written statements were filed, the plaintiff has filed a rejoinder in which she had taken a plea that as the sons of Satyanarayana did not manifest their intention to act as executors of the Will, they are not entitled to take the bequest. Sri Veerabhadraiah further contends that in view of the said rejoinder, it was necessary for the contesting defendants or their legal representatives to file additional written statement denying the averments in the rejoinder and stating that they are prepared to pay the money to the plaintiff and to the fifth daughter as per the bequest made under the Will.
Sri V. Parabrahma Sastry, the learned Counsel for the appellants contended that there is no obligation on the part of the defendants to file another additional written statement to the rejoinder and merely because an additional written statement is not filed, no consequences will follow. A rejoinder is filed under Order 8, Rule 9 of the Code of Civil Procedure. It reads that no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. While Order 8, Rule 5, CPC says that every allegation of fact in the plaint, if not denied specifically or necessary implication or stated to be admitted in the pleading of the defendant, shall be taken as admitted except as against a person under disability, there is no provision which says that after the rejoinder is filed and if an additional written statement is not filed the allegations made in the rejoinder are deemed to be admitted. So, merely because the defendants did not file an additional written statement after the rejoinder is filed, no further consequences will follow. Thereafter, it is only a matter of adducing evidence during the trial of the suit. The 16th defendant, Mr. Rama Rao, who was examined as D.W. 3 had stated that he and his deceased brother, who are the sons of late Satyanarayana, were willing to pay the amounts payable to the plaintiff and Lalithamma. He further stated that they offered to pay the amount to their sisters Smt. Kamalamma and Lalithamma but they refused to receive the same.
It is also contended by Sri. V. Parabrahma Sastry learned Counsel for the appellants that the sons of late Satyanarayana have discharged the debt due to the fifth daughter Smt. Lalithamma for the amount borrowed from her to meet the funeral expenses of late Satyanarayana because that amount takes priority over the other debts and as and when they realised the money due to Satyanarayana, they are liable to pay the money due to the plaintiff and Lalithamma at Rs. 2,000/- each as per the bequest under the Will. The learned Counsel has referred to a notice Ext. X-l dated 4-3-1966 issued by an Advocate on the instructions of the plaintiff Smt. Kamalamma and Smt, Lalithamma to one Veerabhadra Rao, debtor of late Satyanarayana asking him not to pay the amount due by him to the sons of late Satyanarayana. He has, therefore, contended that when the plaintiff has prevented the sons of Satyanarayana from realising the amount due from the debtors, it is not possible for them to discharge their obligation under the Will by paying an amount of Rs. 2,000/- each to Smt. Kamalamma and Smt. Lalithamma, daughters of Satyanarayana. The bequest made under the Will is that the sons should pay the amounts from out of the property of Satyanarayana. Though the evidence shows that some suits were filed for realisation of debts, it is not clear whether all the amounts were realised or not. The evidence further shows that some of the debtors have renewed the promissory notes and some made part-payments of small amounts but they are not sufficient to pay the amounts due to Smt. Kamalamma and Smt. Lalithamma and still some assets have to be realised. Therefore, merely because the sons have not paid an amount of Rs. 2,000/- to each of the two sisters i.e., the plaintiff and Smt. Lalithamma, it does not mean that they have failed to manifest their intention to act as executors.
As contended by the learned Counsel for the appellants, when the plaintiff was denying the truth of the Will executed by late Satyanarayana and she had prevented the sons from collecting the debts due from others, she cannot contend that defendants 16 and 21 i.e., the sons, are disentitled to take their bequest on the ground that they have not compiled with the directions under the Will regarding payment of money to the plaintiff and the fifth daughter, Smt. Lalithamma. The learned Counsel pointed out that Section 141 of the Act reads that the executor shall not take the legacy unless he proves the Will or otherwise manifests an intention to act as an executor but it does not completely disentitle him from taking the legacy on the ground that he has not paid the amount of Rs. 2,000/- to each of the sisters. Section 337 of the Act says that the executor or administrator of the Will is not bound to pay or deliver any legacy until the expiration of one year from the testator''s death. But there is no provision in the Act which provides an outer limit during which time an executor is bound to pay any legacy. Therefore, during the course of administration of the estate of the deceased, the executor realises sufficient funds, he has to pay to the persons entitled to the amount as per the Will as and when he realises the amount. It may only postpone his taking the legacy unless he complies with the bequests. But it does not disentitle him from claiming his bequest.
The lower Appellate Court had relied upon the decision of the Supreme Court in Mst. Bhagwani Kuer (Dead) and Others Vs. Smt. Tapeswari Kuer (Dead) and Others, , in which it is stated that "to manifest an intention to act as executor, the executor must do things which he was directed to do in the Will by the testator". From the facts of that case, it can be seen that the testator therein had made certain bequests including a bequests in favour of one Shyam Narain Singh, who has to perform the cremation of the testator and also Sraddha ceremony as the sons of the testator had pre-deceased him. The relevant portion of the will Was extracted in the judgment which is as follows:--
"That on the death of me, the executant, the aforesaid executors, should perform the Sraddha ceremonies of me, the executant according to the means and custom in the family".
It was found that though the said Shyam Narain Singh attended the cremation ceremony, he did not perform the Sraddha ceremony. The Supreme Court has pointed out that :
"Thus, it is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies. The manner in which he refers to Shyam Narain Singh in his Will, almost as a substitute for a son, shows that he expected Shyam Narain Singh to perform his Sraddha ceremonies as his own sons had pre-deceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony. The conclusion reached by the High Court is, therefore, correct."
Therefore, it was held that Shyam Narain Singh is not entitled to succeed to the legacy.
But in the present case on hand, the plaintiff was disputing the Will and she was also not permitting the sons, who are the executors, from realising the amounts and paying the money to her and Smt. Lalithamma. Therefore, in these circumstances, it cannot be held that the sons should not get their bequest on the ground that they have not manifested their intention to act as executors. They have filed the Will in the suit O.S. No. 617 of 1971 which was re-numbered as O.S. No. 141 of 1979 contending that late Satyanarayana has bequeathed his property as per the various bequests made in the Will. They have proved the execution of the Will in a small cause suit S.C. No. 1 of 1967 on the file of the Sub-Court, Visakhapatnam and they have also proved the execution of the Will in these suits. They have also given a notice of the plaintiff Ext. B-30 dt. 20-3-1968, which was returned, in which they have stated that the plaintiff has no right to live in a portion of the house after the lapse of two years. This shows that they allowed her to live for two years in a portion of the house as per the bequest made in the Will and thereafter, asked her to vacate it because she had no right to reside in the portion of the house. These circumstances show that the sons have propounded the Will and they have been acting under the Will and manifested their intention to carry out all the bequests made under the Will.
An application C.M.P. No. 3980 of 1991 is filed by the legal representatives of the two sons stating that they are prepared to pay the amount due to the plaintiff, Smt. Kamalamma and also to Smt. Lalithamma together with interest at 6% per annum. They have also got two demand drafts dated 16-3-91 and gave the numbers of the demand drafts for a sum of Rs. 5,001/- each including interest. It is stated that demand drafts were kept with the learned Counsel for the appellants for safe custody and as and when the plaintiff and Smt. Lalithamma are willing to receive the same, they are prepared to renew the same and to give to same to them. The respondent (plaintiff) filed a counter contending that this petition is not maintainable and at this stage the legal representatives of the sons of Late Satyanarayana cannot be permitted to pay the amount.
But, in view of what was stated above, I am unable to agree with the finding of the lower Appellate Court (District Court, Visakhapatnam) that the sons of late Satyanarayana are not entitled to succeed to the property under the Will for their failure to comply with the provisions of Section 141 of the Act.
The plaintiff has filed cross-objections regarding the truth of the Will. But since both the Courts below have concurrently found that the Will is true and it is not revoked, I see no grounds to interfere with the finding of both the Courts below and the cross-objections are accordingly dismissed. No costs.
In the result, the above second appeals are allowed and the judgments and decrees of the lower Appellate Court in A.S. Nos. 36 , 39, 40, 87 and 58 of 1981 are set aside restoring the decrees passed by the Trial Court in O.S. No. 128 of 1973, O.S. No. 141 of 1979, O.S. No. 291 of 1977, O.S. No. 196 of 1978 and O.S. No. 198 of 1978. The appellants are directed to encash the demand drafts and deposit the amount to the credit of the plaintiff, Smt. Kamalamma and the fifth daughter, Smt. Lalithamma in the Trial Court within a period of one month from to-day. The plaintiff and Smt. Lalithamma, if they so choose, can withdraw their respective amounts without furnishing any security. There shall be no order as to costs in all the second appeals.