N RAMADASA KAMATH Vs. M KALLIANI

JUDGEMENT

(1.) These six second appeals arise from six rent suits on the file of the District Munsiffs Court of Hosdrug and raise a common question of title depending upon the proper construction of a will. Following the procedure adopted by the courts below with regard to the suits and the first appeals, the appeals Herein were also heard together in this court. This single judgment is intended to dispose of them all.

(2.) The will in question is dated 17-12-1931) and was left by Vittappa the last of three Hindu brothers but who had been given away in adoption. He was about 75 at the date of the will. He had no male child but had six daughters, three by his caste wife and three by his concubine. His eldest brother Manjnnatha had a son Ganapathy, while his brother Upendra had died leaving a son Mukunda and three grand-sons by him, Ramadas, Narasimha and Achutha. By the will Vittappa divided his estate under three lists and bequeathed List I properties to Ganapathy, List 2 properties to Ramadas, Narasimha and Achutha alone with other sons to be born of Mukunda and finally List 3 properties to his three daughters by his concubine subject in respect of all to certain terms and conditions detailed. Ganapathy died on 3-8-1951 leaving no son or other issue but only his widow Sharada. The controversy arose soon after, between Sharada on the one side and Ramadas and his brothers on the other as to who should succeed to the List 1 properties. This took the form of the six rent suits herein concerning separate items covered by that list and instituted by Ramadas as common plaintiff against the respective tenants as 1st defendant and Sharada as the common 2nd defendant.

(3.) The will is in Canarese but we have the benefit of an agreed Malayalam translation. Dealing with the main provisions we notice that it first allots List 1 properties as well as properties either left out or to be acquired in future, to Ganapathy with right to take patta, pay Government tax and jenmi purappad and collect all rents and enjoy absolutely (Malayalam translation omitted --Ed). The provision is then made for payment by Ganapathy within three years of Rs. 100 each to the three daughters by the caste wife of the testator. Then comes the vital clause as follows. "Ganapathy has now no male children. IE no* male children are begotten by him until his death, List 1 properties will after his death devolve on List 2 legatees absolutely" (Malayalam translation omitted- Ed.), Ganapathy is lastly directed to look after the due conduct of Ulsavoms and Viniyogas for which the testator had already made special endowments and the condition is again added that in the absence of male children left by Ganapathy the ceremonies should be conducted by List 2 legatees and their santhanams. In regard to List 2 properties the provision is made that the legatees and their santhanams should in order of age get patta and enjoy (Malayalam translation omitted-Ed.) and similarly List 3 properties were to be enjoyed by the three daughters of tbe concubine. The will closes by enjoining on all three allottees not to alienate except to the certain small extent allowed and the provision is added that they personally shall answer for their debts.