BODDU VENKATAKRISHNA RAO Vs. BODDU SATYAVATHI

JUDGEMENT

(1.) This is an appeal by special leave from a judgment and decree of the High Court of Andhra Pradesh confirming the decree passed by the Subordinate Judge at Eluru in O. S. No. 112 of 1955. The only question involved in this appeal is, whether, under the terms of the will of one Boddu Adilakshmi, defendants 4 and 5 took her properties as joint tenants or tenants in common.

(2.) The facts leading to the litigation may be stated as follows. The testatrix, Adilakshmi, who was childless herself brought up defendants 4 and 5, Boddu Ramarao and Kosury Lakshmamma, from their infancy. At the date of the will executed on June 28, 1913 the girl (defendant 5) had been with her for 15 years and the boy (defendant 4) for 10 years and both were minors at the time. In order to provide for them after her death she executed a will covering all her properties, movable and immovable. The translation of the relevant portion of the will which was in vernacular is as follows:-

(3.) The testatrix died within a few days after the execution of the will. Defendants 4 and 5 divided the properties left by the testatrix by a registered partition deed dated December 27, 1929 by which those mentioned in Schedule A to the plaint fell to the share of the 4th defendant while the others mentioned in Schedule B fell to the share of the 5th defendant. The 4th defendant married the 1st defendant, Boddu Satyavathi who is the daughter of the 5th defendant. The 2nd defendant is the daughter born out of this wedlock. Some years thereafter, the 4th defendant married one Boddu Manikyam, the plaintiffs 1 to 4 being the issues of the marriage of the 4th defendant with her. The 5th defendant and the. 1st defendant mortgaged the B schedule properties with the 3rd defendant who brought a suit on the mortgage and obtained a decree. The plaintiffs filed the suit against ah the defendants, in 1955 praying for a declaration that after the death of defendants 4 and 5, the 1st defendant and the children of the 4th defendant or such of them as may be alive at the time would be entitled to share the properties in suit equally between them and that any alienation made by defendants 4 and 5 or their assignees or alienees would not bind the interests of the ultimate reversioners beyond their lifetime and further that the mortgage decree mentioned above was not binding on the plaintiffs or the ultimate reversioners. In the trial court a number of issues were framed but the only question canvassed before the High Court on appeal related to the effect of the will of Adilakshmi. The trial court came to the conclusion that defendants 4 and 5 were only the holders of life estate and that they had succeeded to the estate of Adilakshmi as tenants in common. The High Court held that: