Velicheti Achutaramayya and Others vs Velicheti Satyanarayana and Others

Govinda Menon, J.—On 14th December 1907 one Atchayya executed a will, Ex. D-1, by which he bequeathed his properties to his third

wife Buchi Venkamma for her life and after her death to his three sons and the son of his predeceased eldest son in the following words:

That after her death, my sons (1) Narasayya (2) China Venkayya (3) Nagayya (4) my eldest son the late Bapanna''s son, Satyanarayana the male

heirs surviving in their families shall divide this property in equal shares with reference to good and bad qualities and enjoy the same as of right.....

On the date of the will Narasayya''s sons, the present defendants 1 and 2 were alive. Chinna Venkayya''s sons defendants 3, 4 and 5 were also

alive but none of them were mentioned in the will. On 29th December 1943 Buchi Venkamma died and thereafter the properties should have come

into the possession of the legatees under the will.

The suit out of which this second appeal arises was filed by Satyanarayana, the son of the eldest son of Atchayya for partition and recovery of

possession of his 1/4 share in the properties left by the grandfather under Ex. D-l. The only question that was seriously canvassed in the Courts

below was with regard to the share which the plaintiff is entitled to. The contesting defendants put forward the plea that on a true and proper

construction of Ex, D-l what was contemplated by the testator was that when his widow Buchi Venkamma died the property should be divided

per capita among such of his sons and grandsons as were alive on that date. In other words, the contention amounts to this that the will created an

interest in all the grandsons in equal shares and not on a stirpetal basis. Both the lower Courts have repelled this contention and held that the

plaintiff is entitled to 1/4 share and the present second appeal is by defendants 3 to 7, the children of Chinna Venkayya questioning the correctness

of this expression of opinion by the lower Courts.

It has to be remembered that the property which was the subject-matter of the bequest was not the self acquired property of the testator

Atchayya, but he came to have absolute rights of disposition over the same as a result of a partition between himself and his sons. It is nobody''s

case that after the partition, all the sons and their descendants or any two or more of them and their descendants constituted the member of a joint

family. In the absence of any such evidence and even contention put forward by the defendants we have to take it that the father on dividing the

properties between himself and his sons divided them in such a way that each of the sons was separate from the others. If we bear in mind this

aspect of the case, the solution to the problem that confronts the Court is made easier.

Mr. G. C. Venkatasubba Rao, for the appellants, in a learned argument invited my attention to very many decisions and contended that the

principle deducible from them ought to be applied in the construction of this will. One need hardly add that the will was not prepared or drafted by

anybody conversant with legal terms. It is a devise executed by an ordinary individual in a village and we have to ascertain his intentions by the

notions and customs prevalent in the part of the country he lived and the law by which he is governed.

The learned advocate for the appellants brought to my notice various English cases, namely, Blackler v. Webb, (1726) 24 E. R 777 : 2 P.

Wms. 383, Butler v. Stratton, (1791) 29 E. R. 687 : 3 Bro. C. C. 367, Dowding v. Smith, (1891) 49 E R 213 : 10 L. J. Ch 235, Williams v.

Yates, (1837) 47 E. R. 454, Kekewich v. Barker, (1903) 88 L. T. 130. The substance of these decisions is to the effect that if there is a bequest

in general terms like this, namely ""to A, B and the children of C equally"" then in such a case A and B together with the children of C take the

property per capita and that there can be no division between A, B and the children of C in three equal shares. The decision of the Court of appeal

in In re Stone; Baker v. Stone, (1895) 2 ch. D. 196 : 64 L.J.ch. 637 and of Swinfen Eady J. in Re ""Richards; Davies v. Edwards, (1910) 2 ch. 74:

79 L. J. ch. 600 are also relied upon to show that if the word ""equal"" has been used in the wills the division should be on a per capita basis. I do

not think that in construing a will of an ordinary agriculturist in a mofussil district in the Madras Province prepared without the aid of any persons

qualified to give legal assistance such as a solicitor or a lawyer, the principles which are so well known in the English Courts and which have been

laid down in the cases above mentioned should be strictly applied. In the well known case of Mahomed Shumsool Hooda v. Shewukram, 2 I. A.

7: 14 Beng. L. R. 226, their Lordships of the Judicial Committee observed as follows :

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with

respect to the devolution of property.

This principle has been very often reiterated by the Judicial Committee in subsequent decisions also. It is sufficient for our present purpose to refer

to Radha Prasad Mullick v. Ranee Mani Dasee, 35 cal. 896 : 35 I. A. 118. Very recently in AIR 1945 113 (Privy Council) the Judicial Committee

again re-affirmed the above proposition and observed at p. 397 refer-ring to the decisions in Venkata Narasimha Apparao v. Parthasarathi

Apparao, 37 Mad. 199: 23 I.C. 166, that the primary duty of a Court is to ascertain from the language of the testator what were his intentions,

when a will has to be construed. They further state that in doing so Courts are entitled and bound to bear in mind other matters than merely the

words used. Their Lordships referred to the surrounding circumstances also. The decision in Bhagabati Barmanaya v. Kalicharan Singh, 38 Cal.

468 : 38 I. A. 54 is also instructive in this sense that it is stated there :

The rules established in English Courts for construing English documents are not as such applicable to the transactions between natives of this

country. Rules of construction are rules designed to assist in ascertaining intention and the applicability of many such rules depends upon the habits

of thought and modes of expression prevalent amongst those to whose language they are applied.

Such being the case, I do not think that I shall be justified in importing the principles of law enunciated by eminent English Judges in the cases

referred to by Mr. C. G. Venkatasubba Rao in the opening of his argument in construing the will

It seems to me that the testator wanted that on the death of his third wife the property should be taken by each of the four groups consisting of

such of his sons as were alive and the respective descendants of each of them as well as the son of the predeceased son. This is the only intention

that can be ascribed or attributed to a testator like the executant of Ex. D-1. The fact that the children of Narasayya and Chinna Venkayya were

not mentioned in the deed by names and also that the son of Bapanna, the deceased son, was specifically mentioned is sufficient indication of the

testator''s intention that the property should be enjoyed by his descendants in four groups. If this is so, each of these groups which was capable of

holding property at the time of his death were devisees of the property under the will. That each of his sons and respective descendants could

constitute groups legally capable of holding, acquiring and inheriting property cannot be disputed and therefore it seems to me that each of these

groups got a right vested in it by the will, Ex. D-1, so that these separate families got a vested interest in these properties on the death of Atchayya

and they are entitled to get possession of them when Buchi Venkamma died. I do not find any difficulty in construing the will in this way. Section

119, Succession Act, if properly understood, is not against this method of construing the will.

In these circumstances, I am satisfied that both the lower Courts have arrived at a proper decision on the construction of this document. This

second appeal therefore fails and is dismissed with costs. No leave.