KANNOTH KOTTARAN OMANA AMMA Vs. CHATHOTH BALACHANDRAN

JUDGEMENT

(1.) The 9th defendant who is the appellant herein is the foster daughter of one Narayanan Nambiar and his wife Sreedevi Amma. Narayan Nambiar during his life time had executed Ext.B1 registered Will, by which, the properties were bequeathed to his wife Sreedevi Amma with a further clause that in the event of any property found left out on her demise, the same would go to their foster daughter, the 9th defendant. After the death of Sreedevi Amma, her natural legal heirs came up with the suit claiming right over the property by devolution. It was contested by the 9th defendant, the foster daughter, claiming exclusive right over the property based on the clause in the Will directing ultimate disposition in her favour. Thus, the construction of Ext.B1 Will and the legal validity of ultimate disposition made therein were came up as substantial question of law.

(2.) This Court in Smitha K.S. and another v. Devaki and another ( 2020 (2) KHC 42) had the occasion to consider the impact of wording 'after the death of both of us, the property will go to' in a testamentary succession and held that the words indicate only a life interest. It is further held that when an apparently absolute bequest is followed by a gift of the same to another on the demise of the first, then the interest of the first bequest is considered as a life interest only and relied on the legal proposition laid down in Ramachandra Shenoy and another v. Mrs. Hilda Brite and Others ( AIR 1964 SC 1323=1964 KHC 561=1964 (2) SCR 722) without noticing the legal position settled by the Privy Council and a Constitution Bench of the Apex Court on the matter.

(3.) In the year 1935, the Privy Council had laid down the legal position in Rameshwar Bakhsh Singh and others v. Balraj Kaur and others ( AIR 1935 PC 187) that where an absolute estate is created by a Will in favour of devisee, the clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.